BIRU NANA KOLEKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HIS Lordship, after stating the facts of the case and dealing with points not relevant to this report, proceeded. In support of his defence that he had consumed medicinal preparation which resulted in high alcoholic level in the blood, the accused gave an explanation that he had consumed a medicine called 'Aminovin' which had been prescribed by his doctor for his stomach trouble. The doctor also was examined by the accused and he had deposed that he had in fact recommended this medicine for the accused on account of his stomach trouble. Mr. Rane suggested that the medicinal preparation consumed by the accused was covered by Section 24A of the Act and, therefore, he has discharged the burden which was placed upon him by Sub -section (2) of Section 66. With the end of showing this Mr. Rane referred to Section 6A of the Act. Sub -sections (1) to (6) of the said section provide for the manner in which the State Government may determine whether any medicinal or toilet preparation, amongst other, containing an article is fit for use as intoxicating liquor. Sub -section (7) of Section 6A says that until the State Government has determined as aforesaid any article mentioned in Sub -section (1) to be fit for use as intoxicating liquor, every such article shall be deemed to be unfit for such use. Section 24A provides that nothing in this Chapter, i.e. chapter III, of the Prohibition Act shall be deemed to apply to, among others, any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor.

(2.) MR . Rane's argument was that the prosecution has not shown whether under Section 6A Aminovin has been, declared as an article fit for use as intoxicating liquor. If this is so, says Mr. Rane, the presumption under Sub -section (7) shall apply and the Aminovin shall be regarded as deemed to be unfit as an intoxicant within the meaning of Clause (2) of Section 24A. According to Mr. Rane, since Aminovin has not been declared as fit for use as intoxicating liquor and it is shown to have been consumed by the accused in the instant case, Section 24A makes Section 13 of the Act inapplicable and. therefore, no offence is committed punishable under Section 66(1)(b) of the Act.

(3.) SECTION 59A prohibits a manufacturer of an article mentioned in Section 24A from using alcohol in the manufacture of that article in quantity greater than what is necessary for the extraction or solution of the elements contained therein and for the preservation of the articles. It further provides that the case of manufacture of an article mentioned in Section 24A in which the alcohol is generated by a process of fermentation the amount of such alcohol shall not exceed 12 per cent, by volume. Aminovin alleged to have been consumed by the accused contains 20 per cent, of alcohol. It has not been shown by the accused that the alcohol to the extent of 20 per cent, of volume contained in the medicine alleged to have been consumed by him was not generated by the process of fermentation of alcohol, nor has it been shown by him that this alcohol if it is added by manufacturer is necessary for the extraction or solution of the contents therein and for the preservation of the article. Though, therefore, it could be contended on behalf of the accused that he consumed medicinal preparation which was unfit for being used as an intoxicant, he cannot be allowed to contend that he consumed something which was permitted by the Act. The burden of proving that he consumed an article permitted by the Act or he consumed an article, consumption of which was not prohibited by the Act has not been discharged by him.