Supreme Court Upholds Conviction of Accused in Bombay Prohibition Act Case for Intoxicated Driving. Consumption of Tincture Zingeberis Mitis, a Medicinal Preparation Fit for Use as Intoxicating Liquor, Attracts Offence Under Sections 66(1)(b) and 85(1)(1) of Bombay Prohibition Act, 1949, as Accused Failed to Discharge Statutory Burden Under Section 66(2).

Criminal appeal against conviction under Bombay Prohibition Act, 1949 for consuming intoxicant and drunken driving.

Appellant sought acquittal under Section 66(1)(b) and setting aside of conviction under Section 85(1)(1); State sought restoration of conviction under Section 66(1)(b).

Accused drove jeep at excessive speed, dashed against wall of District Superintendent of Police office, Akola; appeared intoxicated; bottle labelled 'Tincture Zingeberis' found in jeep; blood alcohol concentration 0.207%.

Judicial Magistrate First Class Akola convicted accused under Sections 66(1)(b) and 85(1)(1),(2),(3) but sentenced only under Sections 66(1)(b) and 85(1)(1); Sessions Judge Akola acquitted under Section 66(1)(b), confirmed conviction under Section 85(1)(1); Bombay High Court allowed State's appeal, dismissed accused's revision, convicted under Section 66(1)(b) with 3 months RI and fine Rs.500, confirmed Section 85(1)(1).

Whether consumption of Tincture Zingeberis, a medicinal preparation containing alcohol, constituted an offence under Section 66(1) read with Section 24A of the Bombay Prohibition Act, 1949. Whether the burden of proof under Section 66(2) shifted to the accused and whether the accused discharged that burden. Whether the prosecution was required to prove that the medicinal preparation was fit for use as intoxicating liquor. Whether the decision in State of Bombay (now Gujarat) v. Naraindas Mangilal Agarwal applied after the insertion of Section 66(2) by Bombay Act XII of 1959. Whether the deeming provision under Section 6A could be raised for the first time before the Supreme Court.

Appellant contended that under Section 66(2), the accused need only prove consumption of a medicinal preparation; then the burden shifted to prosecution to prove fitness for intoxication, and prosecution failed. Appellant argued that since the State Government had not determined under Section 6A that Tincture Zingeberis Mitis was fit for use as intoxicating liquor, the article must be deemed unfit, discharging the statutory burden. Respondent contended that blood alcohol concentration of 0.207% exceeded the statutory threshold of 0.05%, so burden shifted to accused under Section 66(2), and accused failed to prove that the medicinal preparation was unfit for use as intoxicating liquor. Respondent relied on prosecution evidence, including chemical analyser's report and expert testimony, showing that Tincture Zingeberis Mitis had 90% ethyl alcohol and was fit for use as intoxicating liquor.

Under the Bombay Prohibition Act, 1949, consumption of any liquor containing alcohol is an offence under Section 66(1) unless it falls within the exclusion of Section 24A for medicinal preparations unfit for use as intoxicating liquor. Section 66(2), inserted in 1959, creates a statutory presumption: when consumption of liquor and blood alcohol concentration of not less than 0.05% weight in volume are proved, the burden shifts to the accused to prove that the liquor consumed was a medicinal preparation containing alcohol whose consumption was not in contravention of the Act or rules. To discharge this burden, the accused must prove that the medicinal preparation was unfit for use as intoxicating liquor. In this case, the accused failed to do so, and prosecution evidence established fitness for intoxication. The earlier decision in Naraindas, based on pre-amendment law, was no longer applicable.

If a person consumes liquor, i.e. any liquid consisting of or containing alcohol, he commits an offence under s. 66(1) of the Act and, therefore, is liable to be convicted thereunder. But by reason of s., 24A(2) of the Act, if it is established that the liquor consumed is contained in any medicinal preparation which is unfit for use as intoxicating liquor, the consumption of such liquor is not an offence under the Act, for the Act itself does not apply to such medicinal preparation. In terms of s. 66(2) of the Act, the burden of proving that the liquor consumed was a medicinal preparation containing alcohol, the consumption of which was not in contravention of the Act etc., or the rules made thereunder, shifted to the accused. In this case not only the accused failed to discharge the burden so shifted to him by the statute; but the prosecution had also established that the said medicinal preparation was fit for use as an intoxicating liquor.

On 12 June 1961, the incident occurred. The accused was prosecuted before the Judicial Magistrate, First Class, Akola, under Sections 66(1)(b) and 85(1)(1),(2),(3) of the Bombay Prohibition Act, 1949. The Magistrate convicted him under both sections but sentenced him only under Sections 66(1)(b) and 85(1)(1). On appeal, the Sessions Judge, Akola, acquitted the accused under Section 66(1)(b) but confirmed the conviction and sentence under Section 85(1)(1). The State of Maharashtra appealed against the acquittal, and the accused filed a revision against the conviction. The Bombay High Court (Nagpur Bench) heard both matters together, allowed the State's appeal, dismissed the revision, set aside the acquittal, convicted the accused under Section 66(1)(b) with rigorous imprisonment for 3 months and fine of Rs.500, and confirmed the conviction under Section 85(1)(1). The accused then appealed to the Supreme Court by certificate, and the Supreme Court dismissed the appeal.

• Bombay Prohibition Act, 1949: Sections 13(b), 24A, 66(1), 66(1)(b), 66(2), 85(1)(1), 85(1)(2), 85(1)(3), 6A