AYODHYAPRASAD NATHULAL JAISWAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE original accused has come in revision being aggrieved by the order passed by the learned Sessions Judge, Yeotmal, dismissing his appeal against his conviction by the Judicial Magistrate, First Class, Kelapur. He is convicted of an offence punishable under Section 66(1)(b) of the Bombay Prohibition Act for being found on April 26, 1968 with 14 four -ounce bottles of liquor. The case of the prosecution was that P. S. I. Patil of Ghatanji Police Station in district Yeotmal, was waiting on information at the motor -stand for the arrival of the applicant. He was expected to bring liquor and therefore they were waiting for him. He arrived at the bus -stand at about 4.80 A.M. carrying a bag in his hand. He was, therefore, accosted and his bag searched. It was found to contain 14, four -ounce bottles, bearing the label 'Lavender 999'. The bottles had common seals. These bottles were seized from the possession of the applicant. The matter was investigated and the sample from these bottles was sent to the Chemical Analyser for report. The Chemical Analyser's report showed that it contained 15% v/v of ethyl alcohol in water. A charge -sheet was thereafter filed against the applicant.

(2.) THE applicant's plea was that the contraband articles were foisted upon him. The learned Magistrate after hearing the evidence came to the conclusion that the prosecution have established the guilt against the applicant and accordingly convicted him and sentenced him to rigorous imprisonment for four months and also to pay a fine of Rs. 500.

(3.) IT is true that the applicant had not taken up a defence in the trial Court that the contraband articles found with him were medicinal preparations or that they were toilet preparations. It is also true that the circumstance of the finding of the medicinal preparation with the applicant was only argued at the stage of the first appeal. But since this is a point of law, I think, that point could have been raised even at the stage of the first appeal and that could also be raised in this revision application. Now, so far as the facts of this case are concerned, admittedly, 14 four -ounce bottles were found and it is established by the evidence that these bottles were found in the possession of the applicant. Each of these bottles, however, bore the seal of the manufacturing company. The manufacturing company's name is 'COSMO PHARMA MFG. CO. HYDERABAD A.P.'. All these bottles also bore a label '115 ML Lavendar 999, Superior, for external use only, ALC 185 to 143 PS, COSMO PHARMA MFG. CO. HYDERABAD A. P. LA 88 B. No. '. It is, therefore, now argued that this is prima facie a toilet preparation containing alcohol and therefore Section 6 -A as well as Section 24A of the Bombay Prohibition Act will be attracted. Section 6 -A deals with the Board of Experts who have to determine whether any medicinal or toilet preparation containing alcohol, or any antiseptic preparation or solution containing alcohol or any flavouring extract, essence or syrup containing alcohol, is an article fit for use as intoxicating liquor. Under Section 6 -A(b) it shall be the duty of the Board to advise the State Government on the question whether any medicinal or toilet preparation etc. is fit for use as intoxicating liquor and also on any matters incidental to the question referred to it by the State Government. On obtaining such advice, the State Government shall determine whether any such article is fit for use as intoxicating liquor, and upon determination of the State Government that it is so fit, such article shall, until the contrary is proved, be presumed to be fit for use as intoxicating liquor. Under Clause (1) of Section 6 -A, until the State Government has determined as aforesaid any article mentioned as medicinal or toilet preparation to be fit for use as intoxicating liquor, every such article shall be deemed to be unfit for such use.