Kapur, J. - (1.) This appeal by Special Leave against the decision of the High Court of Bombay dismissing the State's appeal against the acquittal of the respondent arises out of proceedings under S. 66 (1) (b) of the Bombay Prohibition Act (Act 25 of 1949 as amended), hereinafter called the 'Act'.
(2.) The respondent was arrested by Police Constable Laxman Sabaji on August 8,1959, at 8-15 p. m. on the ground that he was smelling of liquor and had therefore contravened the provisions of the Act. The respondent was taken to the hospital where he was examined by Dr. Dadlani Prabhu Rochiram P. W., who has deposed that the respondent was smelling of liquor but his speech, behaviour, gait, co-ordination and memory were normal. From this he concluded that the respondent had consumed some alcoholic substance but was not under the influence of liquor, in cross-examination he stated that Tincture Neem would produce blood concentration of 0-148% W/V of ethyl alcohol. The respondent in his examination under S. 342 stated: Question:"What do you wish to say with reference to the evidence given and recorded against you Answer:I have not consumed prohibited alcohol. I had taken 6 ounces of Neem as I am used to it". On this evidence the Presidency Magistrate Mr. Lokur acquitted the respondent. He observed. "Neem is a medicinal preparation containing about 40% of alcohol and is readily available in the market, I do not see why I should not accept the explanation given by the accused that he had men Neem in order to satiate his craving for alcohol. It has been held by Bavdekar and Chainani JJ.) in State vs. Estari Joseph Saldanha Criminal Appeal No.1611 of 1951 dated 15-2-1954 (Bom) that taking an excess dose of madicinal preparation does not amount to consumption of prohibited liquor. In Criminal Appeal No. 1562 of 1950 (Bom) State vs. Domnic Robert D'Silva where a similar defence was taken up it was held that consumption of 6 ounces of essence of Neem did not constitute an offence. Following these judgments I hold that the accused has not committed any offence. I therefore acquit the accused." Against this order an appeal was taken to the High Court and one of the grounds taken in the Memorundum of Appeal was that the mere statement of the respondent that he had consumed 6 ounces of Tincture of Neem was not sufficient to rebut the presumption arising out of sub-s. (2) of S. 66 of the Act. But the High Court dismissed the appeal in limine. It is against that order that the State has come by Special Leave to this Court.
(3.) The main question raised on behalf of the State is that by the introduction of S. 66 (2) in the Act as a result of the Bombay Prohibition (Extension and Amendment) Act, 1959 (Act 12 of 1959) the onus is on the accused person and that that onus had not been discharged in the present case. Section 66 (2) is as follows:- Section 66 (2) "Subject to the provisions of sub-s. (3) where in any trial of an offence under cl. (b) of sub-s. (1) for the consumption of an intoxicant, it is alleged that the accused person consumed liquor, and it is proved that the concentration of alcohol in the blood of the accused person is not less than 0.05 per cent., then the burden of proving that the liquor consumed was a medicinal or toilet preparation or an antiseptic preparation or solution, or a flavouring extract, essence or syrup, containing alcohol, the consumption of which is not in contravention of the Act or any rules, regulations or orders made thereunder, shall be upon the accused person, and the Court shall in the absence of such proof presume the contrary". The argument was put in this way, that if the prosecution proves that the concentration of alcohol in the blood of an accused person is more than 0.05% then under S. 66 (2) of the Act the burden was on him to show that the liquor which he had consumed was a medicinal or toilet preparation the consumption of which is not in contravention of the Act or any, Rules made thereunder. It was further submitted that in order to discharge the onus mere statement of the accused is not sufficient. Our attention was drawn to the scheme and some of the provisions of the Act.;