- (1.)IN a raid effected on the 24th of July 1959, two barrels containing wash of "angurasava and three boxes containing 109 bottles labelled as "angurasava" were found in the house of the respondent. Samples taken from the barrels and the boxes were sent for analysis to the Chemical Analyser and to the Principal, Podar Medical College, Bombay. As the report of the Chemical Analyser showed that three out of four samples contained alcohol in varying degrees, the respondent and two others were charged of offences under S. 65 (f), 66 (b), 83 (1) of the Bombay Prohibition Act. The defence of the respondent was that he owns a manufactory which produces "augurasava" - a medicinal preparation containing Ayurvedic ingredients which general alcohol. In substance, the contention of the respondent was that "angurasave" being a medicinal preparation is outside the ambit of the Prohibition Act. Partly relying upon the certificate issued by the Principal, Podar Medical College, Bombay, the learned Magistrate has acquitted the respondent, holding that the prosecution has failed to discharge the onus of proving that "angurasava" is "prohibited liquor". Accused Nos. 2 and 3 who are respectively the brother and father of the respondent have also been acquitted on the ground, mainly, that the evidence did not indicate that they had any connection with the pharmacy of the respondent. By this appeal, the State of Maharashtra challenged the order of acquittal in so far as it concerns the respondent.
(2.)IN support of the allegation that the respondent was in possession of the wash and the bottles labelled as "angurasava", the prosecution examined four Police Officers and a punch. The evidence of these witnesses has no relevance on the question which now arises before us, for, it is not disputed that the barrels and the bottles were found in the house of the respondent. The sole question which arises for our determination is whether it is established that the liquid described as "angurasava" is "intoxicant", the possession of which is prohibited under the Bombay Prohibition Act. To substantiate the allegation that Angurasava is such an intoxicant, reliance is placed on the contents of the certificates issued by the Chemical Analyser and the Principal of the Podar College, Bombay. The certificate of the Chemical Analyser which is at Exhibit 9 says that three our of four samples contained
"22 and 6 per cent V/v of ethyl alcohol respectively and they contain yeast. No alkaloidal ingredient or metallic poison was detected in them. " the certificate of the Principal of the Podar Medical College which is at Exhibit 10 reads as follows: "formula supplied is found to be similar to that given in the Ayurvedic Books. There are no easy methods to find out the herbal drugs dissolved in a liquid. It is not possible for us, to find out the herbal drugs used in the above liquids. The colour and smell of the samples supplied is not identical with the colour and small of fermented Ayurvedic preparation like, assay and Arishta. Hence it is very difficult to give any definite opinion in the matter. "

(3.)MR. Rane, who appears on behalf of the State, contends that the certificate of the Chemical Analyser establishes that the bottles which were seized from the respondent contained alcohol in different measures and that, therefore, the respondent must be held to have committed an offence under S. 66 (b) of the Bombay Prohibition Act. On the same reasoning, says Mr. Rane, the respondent must also be held guilty under S. 65 (f) of the Prohibition Act, because the sample of the wash also contained alcohol. The question which we have to determine is whether on a mere finding that the wish and the liquid which was found in possession of the accused contained alcohol, he can be held guilty for being in possession either of material to manufacture prohibited liquor or for being in possession of prohibited liquor. Section 12 of the Bombay Prohibition Act, in so far as is material, provides that no person shall manufacture liquor or possess liquor. Section 13, in so far as is material provides that no person shall have in his possession, any materials for the manufacture of liquor. Consequent upon the decision of the Supreme Court in State of Bombay v. F. N. Balsara, (1951) SCR 682: (AIR 1951 SC 318) declaring that provisions of Ss. 12 (c), 12 (d) and 13 (d) are invalid to the extent to which they affect the possession, use, sale and purchase of medical and toilet preparations, the Bombay Legislature enacted Act No. XXVI of 1952 by which S. 24-A was added to the Bombay Prohibition Act. Section 24-A provides that nothing in the chapter in which sections 12 and 13 amongst other sections appear shall be deemed to apply to. (1) Any toilet preparation containing alcohol which is unfit for use as intoxicating liquor; (2) any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor; (3) any antiseptic preparation or solution containing alcohol which is unfit for use as intoxicating liquor;