The duty to prove exemption under a license for possession of restricted substances lies with the accused, and mere production of the license is not sufficient to discharge this duty.

1. This is am appeal against acquittal. The accused who is the proprietor of the S. N. V. Vaidyasala at Mannampoor was prosecuted by the Preventive Officer, Varkala range under S.8 (1) of the Prohibition Act (Act XIII of 1950) for having been found in possession of illicit arrack. About one para of illicit arrack was found in an earthen pot in the hall room of the vaidyasala which is located within the prohibition area. His defence was that he is a Vaidyan licensed to prepare and sell 'Asavams' and 'Arishtams'. The article recovered from the Vaidyasala, according to the prosecution was illicit wash used for manufacturing illicit arrack. But according to the accused it was Usirasavam Dincmkhw which under the licence held by him, he is authorised to manufacture. The licence held by him was produced and marked in the case as Ex. P-4. Authority is conferred on him under Ex. P-4, to prepare only five categories of ayurvedic medicines and they are:-

(i) Dasamoolarishtam

(ii) Asokarishtam

(iii) Abhayarishtam

(iv) Kudajarishtam, and

(v) Usirasavam.

2. According to the accused, as already stated, the liquid recovered from the vaidyasala was the last mentioned drug, viz., Usirasavam. But apart from his bald statement, there is nothing in evidence to show that the liquid recovered was Usirasavam which is one of the five drugs covered by his licence. The liquid in question was neither bottled nor labelled. The accused was found pouring it from one bottle to another and he was caught in that state. There were no other arishtams or asavams available or exposed for sale in the vaidyasala. On the table, by the side of the impugned liquid some pickle was also found on a plate with a spoon placed on it. That apart, the liquid on chemical analysis was found to contain 12% ethyl alcohol. The stand taken by the accused was that the mere fact that he is a licensee is a sufficient exoneration for him from the penal consequences of the Act and it is for the prosecution to show that the article recovered was not any of the categories of medicines that he is licensed to manufacture. This plea was accepted by the court below and he has accordingly been acquitted.

3. I am sorry that the scope of the exemption, envisaged by the licence held by the accused has been misunderstood. The authority conferred upon him by the licence is to manufacture the five classes of medicinal preparations described in the schedule and Usirasavam is one of the five. The burden is on the accused who pleads the exemption to satisfy the court that be is within the scope of the exemption and is protected. In other words, it is his duty to show that the thing recovered is 'Usirasavam' which is one of the items covered by the licence. By the production of the licence alone, his duty is not discharged, since the licence does not confer on him the authority to prepare any ayurvedic drug which might contain alcohol; the licence on the other hand would give him immunity only if the drug is found to be 'Usirasavam'. Any liquid containing alcohol is 'liquor' and under S.8 (1) (a), being in possession of liquor is actionable. The accused can escape liability only on proof of the exemption and to get full benefit of the exemption he should prove that the 'liquor' in question is 'Usirasavam' and nothing else. Mere production of the licence will not save him; he should further show that the 'liquor' is the one covered by the licence and such proof was not attempted in the case. The acquittal in the circumstances is improper. The acquittal was entered without a full and complete thrashing of the question in all relevant aspects. I would, therefore, set aside the order of acquittal and remand the case to the court below for a re-consideration after taking evidence as to the nature and contents of the liquid seized in the case. Both the parties will be at liberty to adduce evidence; the accused in support of his contention that the article in question is Usirasavam and the prosecution that