Consultation with the Board of Experts under S. 6A(6) of the Bombay Prohibition Act is not a condition precedent to the launching of prosecution against the respondents.

Headnote:
BOMBAY PROHIBITION ACT - LIQUOR - MEDICINAL PREPARATION - BURDEN OF PROOF - BOARD OF EXPERTS - CONSULTATION NOT MANDATORY - IMPORT PERMIT - NO EXTRATERRITORIAL EFFECT - EXCISE DUTY PAYMENT - NO PROTECTION FROM PROSECUTION.
Fact of the Case:

The respondents were transporting bottles of Mrugmadasav, an Ayurvedic preparation containing 75.5% alcohol, from Bhopal to Ahmedabad without a permit or license under the Bombay Prohibition Act. The State of Bombay prosecuted the respondents for offenses under the Act, but the High Court acquitted them, holding that the State failed to prove that the contents of the bottles were liquor meant for consumption as intoxicant and that the State Government could not validly conclude that the bottles contained intoxicating liquor without obtaining the opinion of the Board of Experts constituted under S. 6A of the Act.
Finding of the Court:

The Supreme Court held that the State had established that the respondents had infringed the prohibitions contained in Ss. 12 and 13 of the Act. The Court found that the preparation seized by the police was not a genuine medicinal preparation and was capable of being used for intoxication without any serious danger to health or concomitant deleterious effect. The Court also held that consultation with the Board of Experts under S. 6A(6) of the Act was not a condition precedent to the launching of prosecution against the respondents.
Issues: 1. Whether the State had established that the respondents had infringed the prohibitions contained in Ss. 12 and 13 of the Bombay Prohibition Act? 2. Whether consultation with the Board of Experts under S. 6A(6) of the Act was a condition precedent to the launching of prosecution against the respondents?
Ratio Decidendi: 1. The burden of proving that the substance seized was not a medicinal preparation lay on the State. The State had to establish that the respondents had infringed the prohibitions contained in Ss. 12 and 13 of the Act. 2. Section 6A of the Act does not impose any obligation upon the State in any given case to consult the Board of Experts. There is nothing in Ss. 65 and 66 which make the consultation with the Board a condition precedent to the institution of proceedings for breach of the provisions of the Act.
Final Decision: The Supreme Court set aside the order passed by the High Court and restored the order passed by the Judicial Magistrate, 1st Class, Dohad and confirmed by the Court of Session at Panch Mahals sentencing the respondent No. 1 to rigorous imprisonment for six months, and to pay a fine of Rs. 500 and in default of payment of fine to suffer rigorous imprisonment 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 was also restored.

Judgment

SHAH, 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)(1) and 66 (b)(1) of the Bombay Prohibition Act XXV of 1949-hereinafter referred to as the Act.

2. 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 Ahmedabad in the State of Bombay -placed an order on January 26, 1955 with the Rajkumar Laboratories for 4800 bottles of Mrugmadasav -an Ayrvedic preparation. The Rajkumar Laboratories prepared the drug and as it contained rectified spirit, paid Rs. 3600 as excise duty to the Bhopal State. A permit authorising export of the preparation out of the limits of Bhopal State was also obtained on July 28, 1955. A motor truck belonging to the second respondent was engaged or transporting the preparation from Sehore to Abmedabad. 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 7073 bottles of various sizes labelled "Mrugmadasav, Rajkumar Laboratories, Sehore." On the label was also printed the legend that the preparation contained 85.5% alcohol. Respondents 1 & 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 Panchas and were sent to the Assistant Chemist, Drugs and Excise Laboratory, Baroda for analysis and report. Samples were also sent to the Principal of R. A. Poddar Ayurvedic College at Bombay.

3. The respondents and eight others were then prosecuted in the Court of the Judicial Magistrate, 1st Class, Dohad, State of Bombay for offences punishable under Ss. 65 (a) and 66 (1)(b) of the Bombay Prohibition Act XXV of 1949. The Magistrate convicted the first respondent of offences under Ss. 65(a) and 66(1)(b), the second respondent of offences under S. 65(a) read with S. 81 of the Bombay Prohibition Act, and four other accused with whom we are not concerned in this appeal, of certain offences. The Court of Session at Panch Mahals at Godhra, in appeal, confirmed the order and sentence, but in exercise of its revisional jurisdiction, the High Court of Bombay set aside the conviction and sentence passed upon 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 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 under S. 6A of the Bombay Prohibition Act Against the order of acquittal the State of Bombay has preferred this appeal with special leave.

4. 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 contain genuine Mrugmadasav but contained intoxicating liquor, import, transportation and possession whereof without a permit or licence under the Bombay Prohibition Act were prohibited. H. P. Parikh, Assistant Chemist, Drugs and 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 the bottles were not an "Asav" 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 the other active ingredients. M. Y. Lele, Principal of R. A.

Click Here to Read the rest of this document