LAWS(BOM)-1963-12-6

BHAUSA HANMANTSA PAWAR Vs. STATE OF MAHARASHTRA

Decided On December 18, 1963
Bhausa Hanmantsa Pawar Appellant
V/S
STATE OF MAHARASHTRA Respondents

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution of India praying for appropriate writs, directions and orders for quashing the 12 prosecutions, which have been launched by the respondent, the State of Maharashtra, against the petitioner. The charge -sheets in respect of these cases have been submitted in the months of August and October 1962 and the offences to which the cases relate, are offences under the Prohibition Act alleged to have been committed by the petitioner in ten cases between the dates October 23, 1960 and July 20, 1961 and in the remaining two eases on April 4, 1957, and November 9, 1958, respectively. The petitioner is a manufacturer of a preparation known as 'Angurasav'. The petitioner claims that this is an Ayurvedic medicinal preparation prepared according to the formula given in the 3rd edition of the 'Asavrishta Sangrah' by one Badriprasad Garg. No alcohol is used in the preparation but it is generated by a process of fermentation to the extent of 2 to 6 per cent. There were earlier prosecutions launched against the petitioner in respect of the said preparation but all those prosecutions had failed. Thereafter on February 6, 1962, after obtaining the advice of the Advisory Board set up under Section 6A of the Prohibition Act, the State Government passed a resolution determining that the preparation 'Angurasav' was fit for use as an intoxicating liquor. The said resolution was published in the Government Gazette on March 8, 1962. It is thereafter that the 12 prosecutions have been launched against the petitioner charging him with several offences under the Prohibition Act in relation to the manufacture, possession and sale of 'Angurasav'.

(2.) THE main contentions urged by the petitioner in the present petition are that in view of the decision of this Court relating to the preparation 'Angurasav', which is reported in State v. Bhausa (1961) 64 Bom. L.R. 303 the present prosecutions are all futile and will only result in unnecessary harassment of the petitioner and waste of public time. Secondly, the Resolution, which has been passed by the State Government under Section 6A will not avail the Government for the purpose of establishing that the preparation 'Angurasav' is fit for use as an intoxicating liquor in view of the aforesaid decision of this Court. Thirdly, it is contended that the said Resolution is also of no legal effect because the provisions of Section 6A, in pursuance of which the said Resolution is purported to be passed, are illegal and ultra vires inasmuch as no opportunity has been given to the person, whose preparation is determined under the said provisions as fit for use as an intoxicating liquor, either of appearing before the Board on whose advice the said determination is arrived at, or before the Government before it passed the Resolution. It is further contended that at any rate this Resolution can only have a prospective effect and not a retrospective effect and consequently it cannot be availed of by the State in the present prosecutions, which have been launched in respect of the offences alleged to have been committed before the said Resolution was passed. It is also argued that the present prosecutions are hit by the provisions of Articles 20(7) and 20(2) of the Constitution of India.

(3.) NOW , in the said case before the Supreme Court, the actual decision arrived at by the Court was that the preparation in respect of which the prosecution was launched in that case was a substance, which came within the 'mischief of the Prohibition Act. In coming to that conclusion the Court pointed out that on the evidence which was led in the case by the prosecution, the preparation was not in the first place a genuine or standard medicinal preparation and, secondly, the preparation even though it was held as prima facie medicinal was such as was fit for being used as an intoxicating liquor and, therefore, not saved by Section 24A of the Prohibition Act. In considering the scope of the provisions of Section 24A of the Bombay Prohibition Act, the Supreme Court observed (p. 263):.In order that the provision contained in Section 24A of the Bombay Prohibition Act, 1949, is attracted, the contents of the article, even as a medicinal preparation has by the first proviso to correspond with 'the description and limitations' contained in Section 59A, i.e. no more alcohol shall be used in the manufacture of such article than the quantity necessary for extraction or solution of the elements contained therein and for the preservation of the article, and in case of manufacture of an article in which the alcohol is generated by a process of fermentation the amount of such alcohol does not exceed 12 per cent. If alcohol in excess of the quantity prescribed by Section 59A is found in the article, the provisions of Section 24A will not apply irrespective of the question; whether it is fit or unfit to be used as intoxicating liquor. Again, the preparation, even if it is medicinal, toilet, antiseptic or flavoring, must be unfit for use as intoxicating liquor, i.e., it must be such that it must not be capable of being used for intoxication without danger to health. If the preparation may be consumed for intoxication it would still not attract the application of Section 24A, provided the intoxication would not be accompanied by other harmful effects. A medicinal preparation which may, because of the high percentage of alcohol contained therein, even if taken in its ordinary or normal dose intoxicate a normal person, would be regarded as intoxicating liquor. A medicinal preparation containing a small percentage of alcohol may still be capable of intoxicating if taken in large quantities, but if consumption of the preparation in large quantities is likely to involve danger to the health of the consumer, it cannot be regarded as fit to be used as intoxicating liquor. In the preparation before the Court, the percentage of alcohol was about 75.5. Although the preparation was claimed to be 'Mrugmadasav' it was 'found on the evidence led before the Court that it could not have contained any substantial quantity of musk, which was a principal ingredient of the preparation and the other constituents of the said preparation were comparatively speaking harmless drugs. Having regard to the circumstance that the preparation was hardly a genuine medicinal preparation, which it claimed to be, and having regard to the large percentage of alcohol, which it contained, without any other harmful drugs, which made it capable of being used as a drink, the Supreme Court came to the conclusion that it was a preparation, which was not saved by Section 24A of the Prohibition Act.