Case Note & Summary
The petitioner faced four separate criminal prosecutions under Section 66(1)(b) of the Bombay Prohibition Act, 1949, for possessing pouches containing Bhang tablets. The cases arose from multiple police raids on his bicycle shop in Dhule between September 1997 and October 1998, resulting in the seizure of 57, 70, 50, and 69 pouches containing five tablets each. The pouches bore names like Madhur Munakka, Minar, Sannan, and Minar Jati-Fala Churn. The petitioner contended that he had purchased the tablets for medicinal use from a licensed manufacturer, M/s. Mehta Ayurvedic Sansthan, Indore, which held a licence from the Food and Drug Administration of Madhya Pradesh and produced tablets with 15% Bhang content. The chemical analysis reports were awaited when the charge sheets were filed. The petitioner sought quashing of the proceedings through a writ petition under Article 227 of the Constitution and applications under Section 482 of the Code of Criminal Procedure, 1973, arguing that his possession fell within the proviso to Section 31 of the Bombay Prohibition Act, which exempts possession of intoxicants obtained for a bona fide medicinal purpose from a licensed person. The State opposed the quashing, asserting that the petitioner possessed the tablets for sale, not personal medicinal use, and that the defence required evidence. The High Court examined the statutory framework, noting that under Sections 2(22) and 2(23) Bhang is an intoxicant, and its possession without a licence is prohibited by Section 66(1)(b). The proviso to Section 31 places the burden on the accused to prove both that the intoxicant was obtained from a person licensed under that section and that it was for a bona fide medicinal purpose. The court observed that the State Government had not exempted Bhang under Section 139. The court held that the petitioner's defence was a matter of evidence, not a ground for quashing at the pre-trial stage. Consequently, the writ petition and applications were dismissed, and the rule was discharged.
Headnote
A) Criminal Law - Quashing of FIR/Proceedings - Inherent Power under Section 482 CrPC - Code of Criminal Procedure, 1973, Section 482; Constitution of India, Article 227 - The Court refused to quash criminal proceedings under Section 66(1)(b) of the Bombay Prohibition Act, 1949 for possession of Bhang tablets where the accused claimed a defence of bona fide medicinal use under the proviso to Section 31. Held that the defence requires evidence and cannot be determined at the pre-trial stage; thus, the petition was dismissed. (Paras 5-8) B) Excise Law/Prohibition - Intoxicant Drugs - Definition of Intoxicant and Bhang - Bombay Prohibition Act, 1949, Sections 2(22), 2(23) - The court noted that if material contains Bhang, it qualifies as an intoxicant under the definitions in the Act, making possession an offence under Section 66(1)(b). (Para 6) C) Excise Law/Prohibition - Defences - Bona Fide Medicinal Purpose - Bombay Prohibition Act, 1949, Section 31 proviso, Section 66(1)(b) - The proviso to Section 31 exempts from licensing requirement possession of intoxicant or hemp if obtained for a bona fide medicinal purpose from a licensed person. The burden is on the accused to prove both conditions. (Paras 5-6) D) Excise Law/Prohibition - Licensing and Exemptions - State Government Power to Exempt - Bombay Prohibition Act, 1949, Section 139 - The court observed that the State Government has power under Section 139 to regulate or exempt intoxicants from provisions of the Act, but no such exemption was claimed in the case. (Para 7)
Issue of Consideration
Whether the criminal proceedings for offence under Section 66(1)(b) of the Bombay Prohibition Act, 1949 for possession of Bhang tablets can be quashed in exercise of writ jurisdiction under Article 227 of the Constitution or inherent power under Section 482 CrPC when the accused claims defence of bona fide medicinal purpose under proviso to Section 31 of the Act.
Final Decision
The High Court dismissed the writ petition and applications, holding that the defence under Section 31 proviso is a matter of evidence and the burden lies on the accused; it cannot be a ground for quashing criminal proceedings at the pre-trial stage. The rule was discharged.
Law Points
- Possession of Bhang is an offence under Section 66(1)(b) of Bombay Prohibition Act
- 1949
- Bhang is an intoxicant under Sections 2(22) and 2(23) of the Act
- Proviso to Section 31 provides defence if obtained for bona fide medicinal purpose from licensed seller
- burden on accused to prove defence
- inherent power under Section 482 CrPC not to be used to quash proceedings when defence is a matter of evidence
