JUDGMENT - VYAS J. :

This revisional application which is filed by D. K. Merchant, the accused in Criminal Case No. 101 of 1956 which was heard and decided by the learned Judicial Magistrate, First Class, (Railways), Poona, raises an interesting point of law under the Bombay Prohibition Act, 1949.

(2) The accused was convicted by the learned Magistrate of an offence under S. 65(a) of the Bombay Prohibition Act, 1949, and he was sentenced to suffer six months rigorous imprisonment and to pay a fine of Rs. 1000/- or in default to suffer three months further rigorous imprisonment. On an appeal by the accused to the Court of Session at Poona, the learned 2nd Additional Sessions Judge, Poona, confirmed the order of conviction and sentence passed upon the accused and he dismissed the appeal of the accused. It is from this order of dismissal of his appeal by the learned 2nd Additional Sessions Judge, Poona, that the accused has come in revision to this Court.

(3) Now, the facts which gave rise to the prosecution of the accused may be briefly stated. The prosecution story is that the accused imported from Hyderabad-Wadi to Dehu Road on or about 19-9-1955 a spirituous drug labelled as "Cina 4-X". 13,568 bottles of this substance, contained in 140 wooden cases, were imported by the accused. No excise duty was paid in connection with this import. Upon these facts, the prosecution contended that the accused had contravened the provisions of S. 108 and S. 65, cl. (a) of the Bombay Prohibition Act.

(4) According to the prosecution, the consignment containing 13,568 bottles of Cina 4-X was booked at Sehore (Bhopal) to Wadi (Hyderabad) on 12-9-1955. The consignment was booked by the Central India Chemicals Ltd. and the consignee was N. Vazir and Company, Wadi (Hyderabad). The consignment reached Wadi on 19-9-1955. Upon that date the consignee N. Vazir and Co. took delivery of the consignment and immediately thereafter N. Vazir and Co. re-booked the consignment to the accused D. K. Merchant at Dehu Road. The consignment arrived at Dehu-Road Station on 21st of September, 1955. Upon that day the accused met the Head Coaching Clerk at the Dehu Road Station and he asked for delivery of the consignment. On that occasion the accused handed over the original railway receipt to the Head Coaching Clerk and it was a receipt Regarding the abovementioned consignment. The Coaching Clerk said that the accused would have to be taken to the station master. Thereupon, the accused said that he would return to take the delivery of the consignment. So saying, the accused left the Dehu Road railway station. The original railway receipt pertaining to the consignment remained with the station authorities at Dehu Road. The accused did not turn up to take the delivery, with the result that the Station Master later informed the Police authorities that the consignment in question was smelling of alcohol. Thereupon, the Police attached the consignment on 24-9-1955. Upon these facts the Police charge-sheeted the accused for offences punishable under S. 65(a) and S. 108 of the Bombay Prohibition Act.

(5) The defence of the accused was one of denial of guilt. He contended that he was not the consignee of the 13,568 bottles of Cina 4-X. He also contended that Cina 4-X was a medicinal preparation and further that it was unfit for use as an intoxicating liquor. The Courts below held, upon the evidence before them, that the accused had imported the consignment containing 13,568 bottles of Cina 4-X. They also held that the substance in question viz. Cina 4-X was a medicinal preparation and they further came to the conclusion that this medicinal preparation was not unfit for consumption as an intoxicating liquor. Upon this view of the matter which was taken by the Courts below, the trial Court convicted the accused under S. 65(a) of the Bombay Prohibition Act and the lower Appellate Court confirmed the said conviction.

(6) Now, the learned Advocate Mr. DSouza appearing for the applica

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