the State of Bombay (Now Gujarat) v. Narandas Mangilal Agarwal and Another

Judgment

(I) S.CR. SUPREME OOURT REPORTS 15 to transfer the Press in 1955 to Boddepaili Lakshminaraya.na, and further that . the defence that the appellants took poBsession of the Press under a bona. fide claim of right was a good defence entitling them to an acquittal. In the result, this appeal must mrceed. The convictions of the appellants and the sentence's passed on them are set aside, th('y are a.cquitted and their bail bonds shall stand discharged. The fines, if realised, are ordered to be remitted. Appeal alkiwed. THE STATE OF BOMBAY (NOW GUJARAT) NARANDAS MANGIT-AL AGARWAL AND ANOTHER (K. N. W ANCHOO, K. C. DAS GUPTA and J. c. SHAH, JJ.)

Prohibition-Medicinal preparation with exce.s of alcohol- Intoxicating e!fect-OA•nce under the Prohibition Act-- Burden of proof-Board of Experts under tht Act-Consultation with, if and when obligatory-Payment of excise i.uty to and licence to export granted by Bhopal State-Validity nf conviction under Bombay prohibition laws-Bombay Prohibition Act, 1949 (Bom. 25 of 1949), as amended by Bombay Act 26 of 1!;52, ss. 6A, 11, 12, 13, and UA. The respondents were charged with offences punishable under ss. 65(a) and 66(l)(b) of the Bombay Prohibition Act, 1949, for violating the provisions of ss. 12 and 13 of the Act.

The prosecution case was that the respondents brought in their motor truck into the State of Bombay from the adjoining State of Bhopal, bottles labelled Afrugmadasav, and that the bottles did not contain genuine Mntgmadasav, an Ayurvcdic preparation, but only intoxicating liquor, import transportation and possession whereof without permit or licence under the Act were prohibited. The Magistrate found that the bottles contained 75.50% alcohol-much in excess of the normal percentage of alcohol used in preparing M,...,"'4daaav, accordin& to the standard Ayurvedic formulal96J St.tJVari Satryasi Apparao Boddepalli LukJhminaroy3na H:dn;·atu/lll/. J. JP61 O:tober 6. The State of Bombay (.litow Gujarat} J(arQ!ldas Mangi/al Agarwal that it did not contain any appreciable quantity of musk essential in such a preparation, and that having' regard to the large percentage of alcohol it was capable of boing used for purposes of intoxication.

Accordingly he held that the preparation was not saved by s. 24A from the prohibitions contained in ss. 12 and 13 of the Act, and convicted the respondents. The High Court, however, acquitted the respondents on the grounds (a) that the State had failed to prove that the contents of the bottle;; were liquor meant for consumption as intoxicant, and Cb) that the State could not validly cGme to the conclusion that the bottles contained intoxicating liquor \vithout obtaining the opinion of the Board of Experts constituted under s. 6A of the Act. In the appeal filed by the State of Bombay with special leave, the respondents pleaded that, in any case, a5 the Government of Bhopal had levied a duty on the preparation and had granted a permit, no offence was committed by importing and possessing the preparations in the State of Bombay. Held:

(!).that it was for the State to prove that the substance, if a m~dicinal preparation, was not unfit for use as intoxicating liquor and to establish that the prohibitiom contained in ss. 12 and 13 of the Bombay Prohibitions Act, 1949, had be!n infringed, and that the burden of proof that infringcment was not in respect of a preparation which was covered bys. 24A was not shifted on the shoulders of the accused; (?) that if alcohol in excess of the quantity prescribed by s. 59A was found in the article, the provisions of s. 24A would not apply irre>pective of the question whether it was fit or unfit to be used as intoxicating liquor; (3) that a medicinal preparation which may, because of the. high percentage of alcohol , contained therein, even if taken in its ordinary or normal dose intoxicate a normal person, would be .regarded as intoxicating liquor within the meaning of s.

2f.A, but such a preparation containing a small percenta.ge of alcohol even thoul(h it might be capable of intoxicating if taken in large quantities, could not be regarded as fit to be U3erl a:s intoxicating liquor within the ·meaning of that section. (4) thc_t a State may in a prosecution for infringement of the prohibitions contained in"· 12 and 13 of the Act rely upon the presumption after resorting to the machinery under s. 6A(6), but there was no obligation upon the State in any given case to consult the Board of Experts under s. 6A nor was consultation with the Board a c0ndition precedent to the institution of proceedings for breach of the provisions of the Act; r • (I) S.C.R. SUPREME OOURT REPORTS 17 D. K. Merchant v. The State of Bombay, (1958) Born. L R. 1183, disapproved.

(5) that the payment of excise duty to the Bhopal State under the law in force in the State for exporting the preparation from the Sta'.e did not protect tho respondents from liability to prosecution for the infringement of the prohibition laws in force in the State of Bombay ; and (6) that in the instant case die preparation though styled Mrttgmadasav was not a genuine medicinal preparation and having regard to the large percentage of alcohol contained therein, it was capable of intoxicating taken even in a normal dose, and was not saved by s. 24A from the prohibitions contained in ss. 12 and 13 of the Act. CRIMINAL.APPELLATE .JURISDICTION: Criminal Appeal No. 65 of 1959 . Appeal by special leave from the judgment and order dated January 9, 1959, of the Bombay High Court in Criminal Revision Application No. 1485 of 1958. 0. K. Daphtary, Solicit&-General uf IrulifJ, B. R. L. Iyengar and T. M. Sen, for the appellant. Nur-ud-din Ah.med and Naunit Lal, for respondent No. 1. 1961.

October 6. The Judgment of the Court was delivered by SH.lH, J.-This is an appeal by the State of Bombay against the order passed by the High Court of Judicature, Bombay, acquitting the respondents of offences punishable under ss. 65(a)(l) and 66(b)(l) of the Bombay Prohib'ition Act XXV of 1949-hereinafter referred to as the Act. The respondents are residents of Sehore a town in what was at the material time the territory of the State of Bhopal. Respondent 1 is the brother of the owner of a concern which carries on business of manufacturing drugs, in the name and style of Rajkumar Laboratories, Sehore. Prabhat Trading Company-a firm carrying on business at Ahmadabad in the State of Bombay-placed an order on January 26, 1955, with the Rajkumar Laboratories for 4800 bottles of 'Mrugmadaaav'-an Ayurvedic The State vf Bcmh9 (Now Gigarat) Narandds Mangilal AgorW.Z Shah ]. 19Cl Tht Stat1 o.f Bombay (N(Jw Guja,af} Narantf(l.j Mangilal Agaru:al Shah J. 18 SUPREME OOURT REPORTS [1962)

SUPP . preparation. The Rajkumar Laboratories preparPd the drug an<l as it contained rectified spirit. pR id Ra. 3600 as excise duty to tho Bhopal State. A pn· mit authorising export of the preparation out of the limits of Bhopal State was also obtained on ,July 28, l!l55. A motor truck belonging to the second re~pondent was engaged for transporting the preparation from Sehore to Ahmedahad. On July 29, 1955, Sub-Inspector Shintre stopped the motor truck at Dohad-a town in the State of Bombay. The motor truck on examination was found carrying 70n bottle~ of various size.s labelled "1t! rugma.- dasav, Rajkumar Laboratories, Sehore." On the label was also printecl the legend that the preparation contained 85.5% alc0hol. R~spondcnts l and 2 who were accompanying the motor truck in a jeep in which also bottles of Mrugmadasav were found, were arrested.

Samples of the contents of the bottles were drawn and collected in the presence of Panchaa and were ient to the Assistant Chemist, Drugs and Excise Laboratory, Baroda, for analysis and report. Samples were also srnt to the Principal of R. A. Poddar Ayurvedic College at Bombay. The respondents and eight others were then prosecuted in the Court of the Judicial Magistrate, lst Class, Dohad, State of Bombay for offences punishable under BS. 65(a) and 66(1)(b) of the Bombay Prohibition Act XXV of 1949. The Ma!,!istrate convicted the first respondent of offences under BB. 65(a) and 66( l)(b), the second re~pondent of offences under s. 65(a) read with s. 81 of the Bombay Prohibition Act, and four other. accused with whom we a.re not concerned in this appeal, of certain offences.

The Court of SeBSion at Panch Maha.ls at Godhra, in appeal, confirmed the order and sentence, but in exercise of its revision al Jurisdiction, the High Court of Bombay set aside the conviction and sentence passed l•pon the respondents and acquitted them. The High Court held (a) that the State failed to prove that the contents of the bottles were liquor meant for consumption J I 19 as intoxicant and (b) that the State Government "could not validly come to the conclusion that the bottles contained° intoxicating liquor without obtaining the opinion of the Board of Experts constituted nnder s. 6A of the Bombay Prohibition Act. Against the order of acquittal the State of Bombay has preferred this appeal with specfal leave.

It was the case for the State that the bottles seized by the police, though labelled "Mrugmadasav", which is an Ayurvedic preparation indicated for use in delirious fever and cholera, did not cont<iin genuine Mrugmarlasav but contained intoxic<tting liqnor, import, transportation and possession whereof without a permit or licence under the Bombay Prohibition Act were prohibited. H. P. Parikh, Assistant Chemist, Drugs & Excise Laboratory. Baroda, stated that on analysis, the samples were found to contain 75.55% to 79.97% V/V ethyl alcohol and that in his opinion contents of t.he bottles were not an "Aaav" preparation. In· his opinion the liquid analysed was fit for use as intoxicating liquor and that it was not a standard preparation, though he could not say whether it was a medicinal preparation, he having no means of examining tho other active ingredients. M. Y. Lele, Principal of R. A. Podar Ayurvedic College, stated that the principal constituent of llfrugmadasav is musk (Mrugmad), which has a characteristic and penetrating odour, and that he could not get any odour of musk out of the sample sent to him and that, in his opinion, the contents of the bottles were not Mrugmadasav at all.

He also stated that in about 6l seers of Mrugmadasav prepared according to the Ayurvedic formula there would be 20 tolas of musk and that the current market rate of musk was Rs. 60 to Rs. 80 per tola. One Ansare, Excise Inspector of Sehore, was also examined on behalf of the prosecution. He stated that the alcoholic proof strength of the liquid in the bottles was 150 and the percentage of alcohol therein was .855% V/V and that the rest was water. The The Stat1 of Bomb~ (Now c.;a,.1) Narandas Mangila A,arwal Shah]. 77w Stak of B~mb•y (NOUJ Gttj.,al) Narandas AfantilaJ Atmwai Sluih J, [1962] SUPP. witness deposed that the ilfmgmadasnv which was meant for export to Ahmedabad w:1s manufactured under his supervision and that it was a "proprietary ayurvedic preparation of added alcohol", and that it was "not a genuine preparation of self gencratcrl alcohol''.

To a question asked in cross-examination, the witness stated that in bis presoncc W tolas of rectified spirit W!'fe added to 4 tolas of musk and 2 tolas each of black pepper, jl1ifa.Z, 7iipal, and cinnamon. This part of the statement of the witness was disbelieved by the trial Magistrate a.ml by the Sessions Judge. The Magistrate held on roview of the evidenc~ that the respondents had imported into tho State of Bombay a preparation which contained a largo percentage of alcohol which wa8 not self-generated that. the preparation did not contain musk and that it did not conform to the standard formula. of !rfrugmadasav and that the preparation seized by the police was meant for internal consumption and as consumption thereof was likely to cause intoxication it was not exempt from the operation of ss. 12 and 13 of the Act. The Sessions Judge agreed with the Magistrate.

But the High Court disagreed with that view on the ground that the testimony of Lele, who relied solely upon his "sense of smell" could not justify the conclusion that the liquid seized was alcohol meant for consu~ption as intoxicating liquor and that Parikh, who found on examination that the preparation seized contained 75% alcohol was unable to state what the other ingredientJ! were. Section 2(24) of the Bombay Prohibition Act dcfinc8 "liquor" as including (a) spirit of wine, denatured spirit, beer, toddy and all liquids C(>nsisting of or containing alcohol ; and ( b) any other intoxicating substance which tho State Government may, by notification in the Offici11 I Gazette, declare to be liquor for the purpose of the Bombay Prohibition Act. Section 2( 22) defines "intoxicant" as meaning any liquor, intoxicating drug, opium or any other substance, which the St.ate Government may, by notification in the Official Gazette declares 21 to be an intoxicant.

Sections 12 to 24, in Chapter III of the Act, contain diverse prohibitions. By s. 12 it is provided that "No person shall-( a) manufacture liquor; ( b) construct or work any distillery or brewery; ( c} import, export, transport or possess liquor; or sell or buy liquor. Sectiop 13 provides that no person shall--( a} bottle any liquor for sale; ( b} consume or use liquor; or ( c) use, keep or have in his possession any materials, still utensils, implements or apparatus whatsoever for the manufacture of any liquor. These prohibitions have to be read subject to s.

11 which, in so far as it is material, provides that notwithstanding the prohibitions contained in the Chapter it shall be, lawful to import, export, transport, manufacture, soil, buy, possess, use or consume any intoxicant in the manner and to the extent provided by the provisions of the Act or any rules, regulations or orders made in accordance with the terms and conditions of a licence, permit pass or authorization granted thereunder. The prohibitions contained in ss. 12 and 13 are also subject to restrictions contained in s. 24A which was added by Bombay Act 26 of 1952. In the Act, as originally enacted, the prohibitions contained in the various sections were, subject to s. II absolute. The validity of the Bombay Prohibition Act was c!;tallenged in the Bombay High Court, and that High Court declared certain provisions of the Act ultra vires (Fram Nusservanji Balsam v. Swte of Bombay(•). Against the decision of the High Court an appeal was preferred to t.his Court(').

Fazal Ali, J., who delivered the judgment of the Court summarised his conclusions, in so far as they are material to this appeal, as follows:- "ln the result I declare the following provisions of the Act only to be invalid:- (IJ I. L. R. (1951] Dom. 2j0. 12) Tli1 Stau of Bomb•.1 •· F. N. Balsua [1951] S. C.R. 682. The State ofBomlay (Now Gujarat} Narandas Mantiial Agarwal Shah J, 1u Slate o.f Bornhoy (Now G11jarflt) 'i11ri11tt/as JI cmgi/al At:arioo/ Shah]. 22 (l) Clause (c), of section 12, so far as it affec:ts possession of liquicl medicinal and toilet preparations containing alcohol. (2) Clause (cl) of section 12, so far as it affects the selling or buying or such medicinal :m<l toilet preparations containing alcohol. (3) Clause (b) of section rn, so far as it affer:tti the consumption or use of such mcclicinal and toilet preparations containing alcohol." The Bombay Legislature t.Jwreafter enacted Act :!6 of 1952 which by s. i added s.

24A, which as subsequently amended reads as follows: - "Nothing in thi~ Chapter shall be dceme<l 1 to apply to- ( l) any toilet preparation tontaining 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 prepa.ration or solution containing alcohol which is unfit for ise as intoxicating liquor; (4) any flavouring extract, essence or syrup containing alcohol which is unfit for use as intoxicating liquor: Provided that 1111ch article correaponds with the deB1.Jription and limitations mentioned in section 59A: Provided further that the purchase, p011Bession or use of any liquor or alcohol for the manufacture of any such article shall not be made or had except under a licence granted under section 31A." By this addition, the prohibitions imposed by 88. 12 and 13 were not to apply to toilet, medicinal, .. <ii I r -;

I 23 antiseptic and flavouring extral·t, "ssence or syrup preparations containing alcohol specified therein. The respondents contend that Mrugrnadusav imported by them and found in their possession by the Sub-Inspector of Police was a genuine-Ayurvedic medicint\l preparation ; that, in any event, the State must prove that it was not a medicinal preparation; and that the burden lies on the State to prove their case that the importation and possession by the respondents of the contents of the bottles was in violation of the prohibitions imposed by ss. 12 and 13 of the Act inviting as a consequence the penal provisions of ss. 65 and 66 of the Act. In a criminal prosecution, normally the burden lies upon the prosecution to prove all the ingredients which constitute the offence charged against. the accused, and we are unable to agree with the submission of the Solicitor-General that a different rule is indicated in the trial of offences under the Act.

It was for the State to prove that the substance seized, if a medicinal preparation, was not unfit for nse as intoxicating liquor. The State has even under the Prohibition Act to establish that the respondents had infringed the prohibitions contained in ss. 12· and 13. Undoubtedly, by virtue of s. 24A the prohibitions do not apply to certain categorie~ of toilet, medicinal, antiseptic and flavouring preparations, even if they contain alcohol; but on that account the burden lying upon the State to establish in any given case in which it is alleged that the accused has infringed the prohibitions contained is ss. 12 and 13 that the infringement was not in respect of an article or preparation which was covered by s. 24A is not shifted on to the shoulders of the accused. Section 24A is in substance, not an exception; it takes out certain preparations from the prohibitions contained in ss. l~ and 13. But the operation of s.

24A does not extend to all ., medicinal, toilet, antiseptic or flavouring preparations oontaining alcohol : even if the preparation The State of Bomba11 (Now Gujarat) N arandas M angilal Agarwal Shah J. J961 TM Stal< of Bom0a7 (Now OujaraJ) Jl•1111das Man.tilal .Agaruial Shah J. is a toilet, medicin9-I, antiseptic or flavouring preparation, if it is fit for use as intoxicating liquor the prohibitions contained in ss. 12 and 13 will apply. In order that the provision contained in s. 24A is attracted, tho contents of the article, even as a medicinal preparation has by tho first proviso to correspond with "the description and limitations" contained in s.

59A, i. e. no more alcohol shall be used' in tho manufacture of such article than the quantity necessary for extraction or solution of the elements contained therein and for. the preservation of the article, and in case of mll.Ilufacture of an article in which tho alcohol is generated by a process of fermentation the amount of such alcohol does not exceed 12 per cent. If alcohol in excess of the quantity prescribed by s.59A is found in the article, the provisions of s. 24A will not apply irrespective of the question whether it is fit or unfit to be used as intoxicating liquor. Again, the preparation, oven if it is medicinal, toilet, antiseptic or flavouring, must be unfit for use as intoxicating liquor, i. e. it must be such that it must not be capable of being used for intoxica· tion without danger to health. If the preparation may be consumed for intoxication it would still not attract the application of s.

24A, provided the intoxication would . not be accompanied by other harmful eft'ect.s. A ·medicinal preparation which may, because of the high percentage of alcohol contained therein, even if ta.ken in its ordinary or normal dose intoxicate a normal person, would be regarded as intoxicating liquor. A medicinal preparation containing a small percentage of alcohol may still be capable of intoxicating if taken in large quantities, but if consnmption of the prepa.· ration in large quantities is likely to involve danger to the health of the consumer, it cannot be regarded 1111 fit to be used as intoxicating liquor. In tlae case before us, the preparation which is styled Mrugmadasav was sought to be passed off as a medicinal preparation. H gpnuine, it could have (I) s.c.R. 25 been used in the treatment of certain fevers and cholera.

The preparation, however, contained 75.5% alcohol which is much in excess of the normal percentage of alcohol found in that preparation according to the standard Ayurvcdic formula. The other constituents of Mrugmadasav as given in Bharat-Bhishag Ratnakar Part IV are honey, water and comparatively small quantities of muRk, black pepper, cloves, nut-meg and cinnamon, and these are not such as to create any harmful effocts or danger to health. From the evidence of Lele, it is clear, not withstanding the assertion to the contrary of Ansare (which is disbelieved by the Trial Magistrate and the Sessions Court) that the preparation seized could not contain any substantial quantity of musk. Having regard to the market price of musk, which ranged between Rs. 60 to Rs. 80 per tola at the m11terial time, it would be impossible for any manufacturer intending to do busint>ss as 11 seller of drugs to price a bottle of Jllrug11wdu811V at Rs. 1-1 :!

0 per lb. when 11ccording to the standard fonnuli~ it would contain about 4% of mu8k and accordiug to Ans11re the preparation contained 8% of musk by weight. Even according to the standard formula, the value of musk alone in one lb. of Jlfrugmadasav would be from Rs. 100 to Rs. 140. The preparation seized by the police, therefore, could not contain gPnuiue musk in any substantial or even appreciable qmintity. The High Court did not rely upon the bare <tssertion of Lele because it was founded only upon the "sense of smell" ; but the evidence of Lele is corroborated by the circumstance that musk could not be a constituent of the preparation, which was seized, in the large quantity wl1ich it was claimed it contained. 'fhe other ccnstituents of the preparation, according to Ansare, are comparatively speaking harmless drugs and having regard to th'ii large percentage of alcohol, even if it be regarded as a medicinal preparation, though not a standard The S iatt o,f Bomb a y (Now Gr1;,iarat)

Narandas A.fttngila I Agarwal Shah J. T h1 Stale Qf Bombay (Now Gujarat) Naran.Jas Mangilat Agarwal Shah J. 26 preparation, which was medicinal, prima facie, it was capable of intoxicating taken in a normal dose in which any "Atav" may be consumed. In any event, it was capable of being used in abnormal <loses for purposes of intoxieation without any Herious danger to health or concomitant deleterious effect. l'n that view of the cAse it must be ht> Id that the preparation seized by the police was not saved ·by virtue of·s. 24A from ·the prohibit.ions contained in ss. 12 and 13 Of the Act. It is not· the case of the accused and the burden Q~ proving that case would lie upon thot•CctJSed, that the importation o.r possession of the ar·ticlc seized was permitted )lnder s. 11 of the Act. The.High Court, following an earlier judgment 111' the Bomba.y High Court in D. K. 1lferchant v. '1.'he 8tate of Bombay (1), decided against' the State also on the gr1Jund that th'e prosecution for the offeµccs under ss.

65 and 66 could :r;iot be main· tained unless the ·state Government was satisfied after eonsulting the Board of Experts under s. 6A that the article was' intoxicating liquor. In our view s. 6A is not stisceptible of the interpretation placed· upon it by the 1Iigh Court. 8ection 6A provides as follows:- "6A. ( 1) For the purpoko of determining whether (a) any medicinal {)r toilet preparation containing, alcohol, or (b) any antiseptic preparation or solution containing alcohol, or , ( c) any flavouring extra.ct, ·essence or syrup containing alcohol, is or.is not an article unfit for use as intoxicatining liquor, the State Government shallconstitute a Board of Experts .• \ll '11958) 60 llum. t.. R. 1183. J I I 27 (2) The Board of Experts constituted under sub-section (I) shall consist of such members, not less than three in number, with such qualifications as may be prescribed. The members no appointed shall hold office during the pleasure of the State Government. (3)

Two members shall form a quorum for the dieposal of the business of the Board. ( 4) Any vacancy of the member of the Board shall be filled in as early as practicable: Provided that during any mch vacancy the continuing members may act, as if 110 vacancy had occurred. (5) The procedure reg&rding the work of the Board shall be such as may be prescribed. (6) It shall be the duty of the Board to advise the State Gov!'rnment on the question whether any article mentioned in sub-srction ( 1) containing alcohol is unfit for use as intoxicating liquor and on such other matters incidental to the said question as may be referred to it by the State Government. On obtaining such 11dvice the State Govcrmr cnt shall determine whether any such artiule is fit or unfit for use as intoxicating liquor or not and sueh article ehall be presumed accordingly to be fit or unfit for use as intoxicating liquor, until the contrary is proved."

Dy the first sub-section a duty is cast upon the State Government to constitute a Board of Experts for the purpose of determining whether the medicinal, toilet or antiseptic preparations or flavouring materials containing alcohol are unfit for uee as intoxicating liquors. Sub-sections (2) to (5) deal with matters purely procedur&l. By sub-s. (6) duty is imposed upon the Board to advise the State ,Government on the question whether any substance mentioned in sub-s. (I\ containing .e.lcohol is unfit for use as intoxicating liquor and on such other Tiu State of Bombay (i.Vow G~,iflrat) Narandas ll.f angilal Agarwal Shah J. - 1961 Tli~ Stal~ of Bombay · ( .. l\"ow :Jlf,jarat) .JVurandas i\latigilal A;a1wal Shafi J. 28 rnai.tl'fS incidental to the said question as may he refon-ed to it by the State Government.

If the opinion of the B011r<l is obtained, duty is imposed Oil the Government to detcrmimi "·hether the artiele is fit or unfit to be used as intoxicating liqu.Jr and on the determination ~o made by the G"vernment a rebuttablo presumption arises that the article iH fit or unfit for use as intoxicating liquor. Substantially, the section crPa:tes three clistinot obligations: (1) upqp the State to constitute a ~oard for the purpose,; specified in sub-s. (l); (:!) upon the Boa.rt!, when consulted, ~o advise the State Government whether a substance mentioned in sub-section (I) is unfit, for use as intoxicating Jiq11or; anc.I (3) an obligation on the State, whcm the advice of the Bo,ircl is received, to determine whether the artide is fit or unfit to be used 1'8 intoxicating.liq1101·. There is, however, no obligation expressly imposed upon the .State in any given caso to. consult the Bmi:r<l of EJ>perts, uor can sm·h " provision-be implied, and there is nothin# in ss.

65 and 66 which make the consultation with the Board a conclitiqn precedent to the institution of proceedings for breach of the provisions of the Act. Section 6A was incorporated in' the Bombay Prohibition Act by Act 26 of 1952 which also in.corporati>d s. !l!A. In view of the judgment of this Court in BaJ,sara's case(') it was fouhd that the Bombay Prphibitioil Act, in so far as it sought to impose restrictions and to provide penalties for infringe· ment of those restrictions in respect of genuine medicinal, toilet, antiseptic preparations and flavouring .extracts, was ultra vires. The Legislature enacted s. ·24A and restricted the prohibitions con - ·tained in.ss. 12 and 13 qua these preparations. It 'also provided for settingtip machinery for determining whether the preparations specified· were unfit for use· as intoxicating liquor: but the Legislature dig·not impose any obligation upon the State to resort to the machinery provided by a. 6A.

B:i.: declining t'o avail itself of the machinery provided (I) The Stale of Bombay v. F. N. Balsara, [1951] S. C.R. 6&2. i I 1 .2 i I 29 by sub-s. (6) of s. fiA, in c&ses which are not sent to the Board, the State may undertake an onerous burden, i.e. it will not be entinled to rely on the presumption arising under the last sentence of that sub-section and will have affirmatively to establish the ingredients of the offence. Consultation with the Board and the determination contemplated by s. 6A would make the task of the State in a prosecu~ion in respect of infringement of prohibitions rega.fding the liquor contained in ss. 12 and 13 somewhat less onerous. The State may in a prosecution for infringement of th~ prohibitions contained in ss. 12 and 13 rely upon the persumption, after-resorting to the macl1ineryunder s. 6A(6), but is not obliged to rely upon the presumption. Imposition of a duty to constitute a Board for the purposes specified in sub-s.

(I), does not involve a duty to consult the Board and imposition of a duty upon the Board to advise the State Government does not involve a duty to consult the Board in every case where a prosecution is sought to be launched in .respect of any medicinal, toilet, antiseptic or flavouring preparation containing alcohol. The plea tha.t because the Government of Bhopal had levied a duty on the preparation and had granted a permit, no offence was committed by importing and possessing the offending preparations in the State of Bombay has, in our judgm,.nt, no substanoe. Ext. C which is a permit issued by tho Government of Bhopal to export spirit, medicinal, toilet preparations and perfumes containing Bhopal made spirit on payment. of duty in Bhopal State does not protect the importer of tho preparation in another State against prosecution for an offence according to the law of that other State committed by the importation of such articles.

The export permit has not and cannot ha\·e extraterritori&l effect; it merely enables a person seeking to export "' preparation to do so. The statement in Ext. L, a letter by the Prn bhat Trading Co. to The Slate of Bombay (Jlow Gujarat} f\'arando5 ,lffln,gi.'nl Aga1<t.'al -;.Z---'?' i.,~hah .T. Tlie S!ale of Bomhoy (;Yow '.Jujarat) ."t'ar•nd.u Mantilul Atarwal 30 SUPREME OOURT REPORTS [1962) SUPP. Rajkumar Ll\boratories, Rchorc-tha.t t.he former "hold a licence for possraaion and sa.le"-- without production of surh licence, cannot he set up in dcfrncc. If it was the case of the respondents (and the burden of proving lay upon the rt•spondents) that the importation and poBSession of the article was lawful in view of a licence i88ued under s. 11, it was for them to produce the licence grunted under that section. None such having been produced, the defence is not avilable to the respondents. Nor does th11 order of the Commissioner of Exds"

D<'partml'nt, Bhopal elated October 14, l 9!i!i (Ext. M) advising against the exportation to the State of Born hay h.v the manufacturers in the St11tt> of Bhopal of proprietar.v spiritnouq prepara1inn.q inclnrling '}fn1gm(ll/asav' or other Ayurvcdie pr•'· parnt.ions which conta.iu a large percentage of alcohol without getting the preparations classifi<,d for <luty purposes MSiRt their case. It apix·r.rA that iu ,July.

19;").l the Excise and prul1ibitirm Director of Bombay had addressed a letter to the ChiP-f Commissioner of Bhopal informing that Officer that "28 restrict.cd A.w1m.• and Arisht1•~ ·• nwntioned in tfoi list appenrled thereto were linhln in the State of Bomhny tn rluty at the rate of Rs. ~ per Imperial Gallon of six reputed quart bottles and further requesting that Officl'r to issue instrnctions to manufacturers in the State of Bhnpal t.hat these preparationR should not he exported to the State of Hom bay except on pa.v. ment of the rluty at the above prescribed raw to the credit of the State of Bombay and 1mdc1· cover of an export. pass granted h.v the competent Excise authority of the District of export. The list of restricted Asm-a• and Arishtas docs not include "Mru(Jmad.a.sav" and it exprcs~l.v refers to "Ayurvedie preparations prepared acc:ording to Ayurvedic process containing self.generated nlcohol." TI1l'rc is nothing in the lctwr dated July 23.

1954, which may lend support to the contention of the respon- (I) 8.C.R. 31 dents that they had on payment of excise duty been authorised to import "1frugmadr1sav" and the prohibitions contained in ss. 12 and 13 in respect of preparations containing alcohol were suspended, for the preparation is not one listed in the Schedule ,. nor does it contain self-generated alcohol. We are of the view, therefore, that the prohibitions contained in ss. 12 and 13 operated in respect _ of the preparation seized by the police and that the payment of excise duty to the Bhopal State under the law in force in that State, for exporting the preparation from that State did not protect the respondents from liability to prosecution for infringe- • ment of provisions of the Bombay Prohibition Act XXVofl949 within the State of Bombay. We further hold that the High Court was in error in holding that the consultation with the Board under s.

6A(6) of the Act was condition precedent to the launching of prosecution against the respondents. We set aside the order passed by the High ~ Court and restore the order passed by the Judicial Magistrate, lst Class, Dohad, and confirmed by the Court of Session at Panch Mahala sentencing the respondent No. I to rigorous imprisonment for six months, and to pay a fine of Rs. 500 and in default of payment of fine to suffer rigorous imp·isonment for three months, and . respondent 2 to rigorous imprisonment for one month and to pay a fine of Rs. 300 and in default of payment of fine to undergo rigorous imprisonment of one month and fifteen days in addition. The order of confiscation of the property is also restored. AppCi!l allowed. The Stnfe of B11mhay (Now G1y"ar111) Narandas ,\fangilat Agarwal Shah J.