STATE Vs. TALSHI SADUL

JUDGEMENT

(1.) THE Government have preferred this appeal against the order of the First Class Magistrate, Surendranagar, acquitting the respondent of the offence of consuming an intoxicant (spirit) tinder Section 66(b) of the Prohibition Act. The facts of the case are very simple. Raghuvirsinh, the Homeguard Officer, received1 information on 5.10.50 that one Bai Takhu kept and sold liquor in her house. Thereupon Raghuvirsinh took with him other members of the Home -guard and the Sub -Inspector in order to raid the house. The house was closed but four or five persons came out of an adjoining house in a. drunken condition. One Ramji also passed by with a bottle of spirit in his hand and he and all these persons were arrested by the raiding party. The party then proceeded to the respondent's house where he was found in a drunken condition. A bottle of spirit was found from his house and he was also arrested. All the arrested persons were taken in the chowk where a panchnama of their condition was made. The respondent and others were then sent to the dispensary where Dr. Chamanlal Manila!, the Medical Officer, examined them. The mouths of the respondent and others were smelling of spirit though they were all completely conscious. The learned Magistrate tried the respondent on these facts under Section 66(b) of the Prohibition Act. He held that it was proved that the respondent had consumed spirit but as the prosecution had not shown that the spirit which the respondent had consumed was not exempted spirit, he acquitted the respondent. This means that, according to him, it was for the prosecution to prove that the respondent not only consumed spirit but that the spirit contained more than 2 per cent, alcohol or was not medicated spirit. The Government has preferred this appeal against the learned Magistrate's order.

(2.) THERE is no doubt that the respondent had consumed spirit. Dr. Chamanlal, Ex. 5, states that the mouths of the respondent and all others whom he had examined the same day were smelling oil spirit. The learned Advocate for the respondent referred us to the deposition of the Panch Hargovind Sukhlal who states that they had not smelt the respondent's mouth. This does not affect the learned Magistrate's finding because the respondent was examined shortly thereafter by the Doctor who proves that he (respondent) had consumed spirit. It is not disputed that he had thereby consumed an intoxicant.

(3.) WE , therefore, cannot agree with the learned Magistrate that the prosecution should prove that the spirit consumed by the respondent was not exempted spirit. That duty is cast on the respondent which he has made no attempts to discharge. The learned Magistrate's order must therefore be set aside and the respondent convicted of the offence under Section 66(b) of the Prohibition Act.