A.A. Dave, J.
1. This appeal arises out of the judgment of the learned Judicial Magistrate, First Class, Padra acquitting the accused of offences Under Sections 66(1)(b) and 85(1)(2)(3) of the Bombay Prohibition Act hereafter referred to as the Act.
2. The facts giving rise to this appeal as narrated by the learned Magistrate in brief are as under:-
The Mukhi of Sangma village of Padra taluka informed the P. S. I. Padra On 27-9-1967 that there was a fight between some persons at the village and that they were under the influence of alcohol. The P. S. I. went there with the police party and found the present accused along with others on the public road of village Sangma. He was arrested and a panchnama of his physical condition was prepared. Thereafter, he was sent to the medical officer, Padra for medical examination. The medical officer, Padra examined him and issued a certificate. His blood was taken which was sent to the chemical analyser for analysis. On receipt of the report of the chemical analyser, a charge-sheet was submitted against the accused for offences Under Sections 66(1)(b) and 85(1)(2)(3) of the Act. At the time of the trial, both the panchas did not support the prosecution case about the accused being found drunk on the public place. The accused in his statement before the learned Magistrate, Under Section 342 of the Code of Criminal Procedure stated that he had consumed medicine. Accepting the bare statement of the accused, the learned Magistrate came to the conclusion that he had discharged the burden which was laid down in Section 66(2) of the Act when 0,1081 % of alcohol w/v was found concentrated in his blood, as reported by the chemical analyser. The learned Magistrate thereupon acquitted the accused. Against the said order of the learned Magistrate, this acquittal appeal has been preferred to this Court by the State.
3. Mr. Chhaya, learned Assistant Government Pleader, who appeared on behalf of the State, submitted that when a statutory presumption was laid by Section 66(2) of the Act which categorically stated that if it was proved that concentration of alcohol in the blood of the accused person is not less than 0.05 per cent, weight in volume, then the burden of proving that the liquor consumed was a medicinal or toilet preparation or an antiseptic preparation or solution, or a flavouring extract essence or syrup, containing alcohol, consumption of which is not in contravention of the Act or any rules, regulations or orders made thereunder, shall be upon the accused person and the court shall in the absence of such proof presume the contrary. He urged that in the instant case, report of the chemical analyser disclosed that there was 01081 % of alcohol w/v found in the blood of the accused. He, therefore, urged that once this quantity of alcohol was found in the blood of the accused, there was statutory presumption that he had consumed prohibited, liquor and it was for the accused to establish that he had not consumed liquor and that he had taken some medicine or toilet preparation, etc., Mr. Chhaya urged that in the instant case, barring the bare word of the accused in his statement recorded Under Section 342 of the Code of Criminal Procedure that he had consumed some medicine, there was nothing on record to show that he had not consumed prohibited alcohol. According to Mr. Chhaya, the bare word of the accused in his statement recorded Under Section 342 of the Code of Criminal Procedure would not be sufficient to discharge the burden laid on him Under Section 66(2) of the Act.
4. Mr. J. G. Shah, learned Advocate for the respondent (appointed) submitted that in the instant case, it was not established that the very bottle which was sent to the chemical analyser by the medical officer, Padra was utilized for test. He urged that there was no evidence to show that the bottle sent by the medical officer, Padra was received in the office of the chemical analyser which was ulti- mately analysed by him. He submitted that some person from the office of the chemical analyser should have been examined to prove the identity of the bottle which was received by him by post. In the absence of this proof, he urged that the report of the chemical analyser is illegal and no presumption could be raised about the accused having consumed alcohol. He relied on a decision of this Court reported in 4 Guj. L. Rule 1031. Mr. Shah also urged that burden of proof required for the accused to discharge the onus laid on him Under Section 66(2) of the Act was not the same kind of burden of proof which is required for the prosecution to prove its case. He urged that this burden could be rebutted by the accused either by giving proper explanation in his statement recorded Under Section 342 of the Code of Criminal Procedure or it could even be discharged from certain admissions of the prosecution witnesses taken in their cross-examination. He urged that under the law, it was not necessary for the accused to examine some witnesses in order to rebut the presumption laid down in Section 66(2) of the Act. He submitted that when the accused stated that he had consumed medicine and when the medical officer, Padra in his cross-examination had admitted that nine Oz. of Winopal would create effect of drunkenness it was not necessary for the accused to lead further evidence in order to discharge the burden. He, therefore, urged that the order passed by the learned Magistrate acquitting the accused was just and proper.
5. In the instant case, according to the prosecution, the accused was found in a drunken condition in village Sangma. A charge-sheet was, therefore, submitted against him for offences Under Sections 66(1)(b) and 85(1)(2)(3) of the Act. At the time of the trial both the panch witnesses did not support the prosecution case about the accused actually being found on the road in a drunken condition. Panch witness Ranchhodbhai Lallubhai stated that on 27-9-1967, he was called as a panch at Kuwawala falia where some people were making Dhamal under the influence of alcohol drink and they were arrested by the police. He however did not see Chandrasingh there, that is, the present accused. According to him, he saw him when he was brought by a police man in a police van. He admitted his signature on the panchnama, Ex. 22. He was declared hostile by the prosecution and in his cross-examination, he denied that the accused was drunk. The prosecution thereupon examined another panch witness Vithalbhai Moti-bhai Patel, who also did not state that the accused was found at the public place. According to him, the accused was brought afterwards from the side of his house and thereafter, the panchnama, Ex. 22 was prepared which he signed. According to him, the panchnama was not read over to him. He was also declared hostile by the prosecution and questions in the nature of cross-examination were put to him. He, however, denied that the accused was drunk and that his eyes were red. According to him, the accused did not seem to have taken any drink. The police had shouted his name and thereupon, he had come from his house. Thus, both the panch witnesses did not support the prosecution case about the accused actually being found on the road at the time the police went thereon Retting information that there was a quarrel between parties under the influence of drink at village Sangma. No doubt, the P. S. I. and head constable Sheikh have stated that the accused was one of the persons who were arrested by them on the spot and that the accused was under the influence of drink at the time of his arrest. According to them, the accused had consumed alcohol and was not able to take care of himself. According to them, after the panchnama of the physical condition of the accused was prepared on the spot, he was sent for medical examination. Both these police witnesses are supported by Ambalal Kalidas who resided in the same falia. According to Ambalal, the accused and six others had gone to Kuwawala falia and were abusing them they appeared to be drunk. Thus, Ambalal, no doubt, supported the prosecution about the accused being found on the spot in a drunken state. However, it would not be proper and prudent to place any reliance on the testimony of this witness because he was also involved in attacking the accused's party and a separate case was made out against him. As there was enmity between himself and the accused his evidence about the presence of the accused in that falia at that particular hour should not be accepted without further scrutiny. Another witness Chhota Karsan did not identify the accused in court. Thus, barring the P. S. I. and the head constable Sheikh, no other independent witnesses have stated about the presence of the accused on a public road in a drunken condition, except Ambalal Kalidas whose testimony cannot be accepted at its face value for the reasons given earlier. Under the circumstances, it would not be proper to convict the accused for offence Under Section 85(1)(2)(3) of the Act for having been found in a drunken condition on the pub- lic road and for behaving in a disorderly manner. It is not established beyond reasonable doubt that the accused was found on the road in a drunken state and that he was behaving in a disorderly manner or that he was not able to take care of himself. Under the circumstances I do not think it necessary to interfere with the order of acquittal passed by the learned Magistrate so far as charge Under Section 85(1)(2)(3) of the Act is concerned.
6. However, the case of the accused stands on a different footing so far as charge Under Section 66(1)(b) of the Act for having consumed liquor is concerned. The prosecution relies on the testimony of the P. S. I., head constable Sheikh, medical officer, Padra and Chemical analyser in support of its case. According to the P. S. I., the accused had consumed alcohol. He was drunk and was not able to take care of himself. He thereupon called panchas and prepared a panchnama of his condition and sent him to the medical officer with a yadi, Ex. 30 for examination, Jamadar Sheikh, who had accompanied the P. S. I., also deposed to that effect. Dr. Ramanlal D. Patel who was working as medical officer at Padra at the relevant time was examined by the prosecution. According to him, the accused Chandra-singh was sent to him by police for examination, with a police yadi on 27-9-1967 at 9-40.p. m. He examined him and found the following symptoms:-
His breath was smelling of alcohol. His speech was incoherent. His gait was unsteady. His pupils were dilated.
In his opinion, the accused had consumed alcohol and he was under the influence of drink. He produced a certificate, Ex. 14. Thereafter, he collected 5 c. c. venus blood in a sterilised phial. He added sodium citrate as anti coagulent and mercury per chloride as preservative. The phial was vigorously shaken and sealed. It was sent by registered post to the chemical analyser at Junagadh with a forwarding letter, Ex. 15, bearing facsimile of his seal. He produced the report of the chemical analyser at Ex. 16. In his cross-examination, it was suggested to him that bottle of winopal shown to him in the court could produce concentration of alcohol in the blood containing 0.1081 % of alcohol. He stated that if 5-6 Oz, were taken, this much percentage of alcohol would not be found in the blood. But if 8 9Oz. were taken, the present percentage may appear. Nothing has been brought out in his cross-examination to show that the medical officer had not adhered to blood test rules for collecting blood.
Thus, if 0.1081 % of alcohol w/v is found concentrated in the blood of the accused, prima facie, the presumption could arise against him as laid down in Section 66(2) of the Act that he had consumed liquor. The learned Advocate for the respondent, however, urged that no reliance could be placed on the report of the chemical analyser about this much percentage of alcohol being found in the blood of the accused as it was not satisfactorily established by the prosecution that the very phial which was sent by the medical officer, Padra was received by the Chemical analyser and that the same bottle was analysed. He urged that the parcel containing this phial was sent by registered post. It was received by some person in the office of the chemical analyser. The person who received the parcel was not examined by the prosecution and hence the link was not completed by the prosecution. Under the circumstances, he submitted that there was no guarantee that the very bottle which was sent by the medical officer, Padra was received by the chemical analyser or that, that very bottle was put for analysis before the chemical analyser. In support of his say, he referred to the case of Hanumantta Ramchandra v. The State of Gujarat, reported in (1963) 4 Guj LR 1031. In my opinion, this case has absolutely no bearing on the facts of the present case. In that case, out of eight bottles seized from the possession of the accused one bottle was sent to the chemical analyser for test and the report of the chemical analyser disclosed that the bottle contained liquor. On the strength of this report, the accused was convicted. In an appeal filed to this Court my learned brother Mr. Justice Raju, who then was, observed that-
The report of the chemical analyser that one bottle sent to him out of eight bottles found from the accused contains liquor is not a reliable evidence on which a prosecution can succeed Under Section 66(b) of the Bombay Prohibition Act, 1949. There must be proof that, that bottle which contains liquor is the same bottle found from the accused and sent to the chemical analyser. A letter must be attested with the bottle sent to the chemical-analyser by the person who sends it and he must be examined at the prosecution.
In my opinion, this case stands quite apart from the case in apneal. In the present case, the medical officer, Padra who had collected blood of the accused in a phial, had sent the same by registered post parcel with a forwarding letter containing facsimile of his seal. The parcel which was sealed in the presence of the medical officer, was received in the chemical analyser's office with seals intact. The report of the chemical analyser, Ex. 16 clearly shows that seals were intact and it mentions serial number of the letter under which the said bottle was received. The chemical analyser's report was sent under his letter, dated 22-8-1968, addressed to the medical officer, Padra mentioning that letter No. 742, dated 30-9-1967 forwarding therewith a phial containing blood of Chandrasing Prabhatsing bearing serial number 238 received there on 3-10-1967 by R. P. P. sealed and that seals were perfect as per copy', sent. The result of the test of blood showed that it contained 0.1081 % w/v of ethyl alcohol. He had also annexed on extract of the technique upon which he had performed the test. Thus, when the phial containing blood of the accused was sent by registered post parcel, completely sealed by the medical officer, Padra and the said parcel with seals intact was received by the office of the chemical analyser, it was not necessary for the prosecution to examine some person from the chemical analyser's office to show that the very bottle which was sent by the medical officer, Padra was received at his end. It is nobody's case that seals on that bottle were removed by some person from the chemical analyser's office before the same was given to him for analysis. On the contrary, the letter-Ex. 16 referred to above clearly shows that seals on the bottle with label were intact and that seals were as per the copy of the forwarding letter, Ex. 15. Under the circumstances, I do not agree with the learned Advocate for the respondent that the prosecution should have examined the person who had received the bottle and that merely because the person who received the bottle was not examined, the report of the chemical analyser was bad in law. In my opinion, there is no lacuna in the prosecution case and the prosecution had clearly satisfactorily established that the 5 c. c. blood of the accused which was taken by the medical officer, Padra was analysed by the chemical analyser and that on analysis, it was found to contain 0.1081 % w/v alcohol. This would clearly show that the accused had consumed liquor. Even the medical examination of the accused by the medical officer disclosed symptoms indicating that he had consumed alcohol. He was smelling of alcohol, his speech was incoherent and his pupils were dilated. Reading the evidence of the medical officer together with the evidence of Gunvantray Tribhovandas-Dhabalia, Assistant Chemical Analyser.
I have no hesitation in. holding that the very phial containing blood of the accused sent by the medical officer, Padra was received by the chemical analyser and that the same was analysed by him. In fact, the Assistant Chemical Analyser who was examined by the prosecution was not cross-examined by the prosecution was not cross-examined by the accused at all. His evidence has remained unchallenged.
7. Thus, if the report of the chemical analyser disclosed that the blood of the accused contained 0,1081 % of ethyl alcohol, a presumption could be raised that the accused had consumed liquor. It was for the accused then to discharge the ' burden by showing that he had consumed medicine or toilet preparation.
8. The learned Advocate for the defence submitted that the accused had given proper explanation, in his statement recorded Under Section 342 of the Code of Criminal Procedure. He urged that the accused had stated that he had taken medicine and there was no reason, why his bare statement should not be accepted. He submitted that the medical officer, Padra in his cross-examination had admitted that if 8 or 9 Oz. of bottle of Winopal were taken, the 0.1081 % of alcohol would appear in blood. Relying on this part of the evidence of the medical officer, the learned defence advocate forcefully urged that when from the prosecution witness, it was established that Winopal would create the effect of drunkenness in the accused, the accused clearly could be said to have discharged burden when he stated that he had consumed medicine. I am unable to accept the submissions made by the learned defence advocate. It is true that the degree of proof which the accused would require to rebut the presumption would not be the same which the prosecution would require to prove its case. All the same, when the legal presumption has been laid down by a statute, in my opinion, it would not always be enough to rebut that presumption by a bare statement of the accused. There may be certain circumstances under which the explanation given by the accused in his statement recorded Under Section 342 of the Code of Criminal Procedure may appear to be very plausible and reasonable and it would be open to the Court to rely on the same. All the same, merely because the accused comes out with a bare statement that he had consumed medicine, that itself cannot be said to discharge the burden laid down under law. In the instant case, a question was put to the accused by the learned Magistrate about the evidence of Dr. Patel that he was smelling of alcohol and was under the influence of alcohol and that his blood was collected and sent to the chemical analyser for test. In reply to that question, the accused admitted that he was examined. He, however stated that he had not consumed alcohol and was not drunk. According to him, he had consumed medicine and produced a bottle. It was not the say of the accused that he had consumed particular quantity from that bottle. He merely vaguely stated that he had consumed medicine. He did not name the medicine. He did not produce any bill showing that he had purchased that medicine from a dealer. He has not produced any prescription of a doctor showing that this medicine was prescribed to him. This bottle was produced in cross-examination of the medical officer by his advocate. In the absence of specific statement of the accused that he had consumed this medicine or that he had consumed particular quantity of this medicine, it would not be proper to hold that he had discharged the burden laid down in Section 66(2) of the Act by a mere statement that he had consumed medicine and not alcohol. The learned defence advocate referred to the case of State of Maharashtra v. Laxman Jairam, reported in : AIR1962SC1204 in support of his say that bare statement of the accused would be sufficient to discharge the burden. In that case, the breath of the accused was smelling of liquor at the time of his arrest and on examination of his blood, it was found to contain 0.148 % w/v of ethyl alcohol. The accused in his statement recorded Under Section 342 of the Code of Criminal Procedure gave an explanation that he had not consumed prohibited alcohol but had taken 6 ounces of Tincture of Neem as he was used to take it. The doctor who examined the accused also deposed that consumption of 6 ounces of that substance would produce that amount of concentration in his blood. The courts below accepted the explanation of the accused and acquitted him holding that no offence was committed by him. In an appeal, it was held by the Supreme Court that-
the explanation given by the accused in his statement Under Section 342, Criminal Procedure Code, of the cause of his smelling of liquor and of the blood concentration was sufficient to discharge onus placed on him Under Section 66(2) of the Act.
The object of examination Under Section 342, Criminal P.C. is to give the accused an opportunity to explain the case made against him and that statement can be taken into consideration in judging the innocence or guilt of the person so accused.
Relying on the ratio of this ruling, the learned defence Advocate urged that a mere statement of the accused recorded Under Section 342 of the Code of Criminal Procedure offering explanation for the find of alcohol in his blood would be sufficient to discharge the onus placed on him Under Section 66(2) of the Act. He urged that no further evidence was necessary and therefore, the accused was rightly acquitted by the learned Magistrate below. Mr. Chhaya, learned Assistant Government Pleader, however, urged that if alcohol -exceeding 0.05 % was found concentrated in his blood, in order to discharge this burden the accused has to show that he had not consumed liquor and that he had consumed some medicinal or toilet preparation. He urged that bare word of the accused would not be enough to discharge the said burden. In support of his say, he referred to the case of C. S. D. Swami v. The State, reported in : 1960CriLJ131 , it was observed by the Supreme Court that;
In this case, no acceptable evidence, beyond the bare statements of the accused, has been adduced to show that the contrary of what has been proved by the prosecution, has been established because the requirement of the section is that the accused person shall be presumed to be guilty of criminal misconduct in the discharge of his official duties, 'unless the contrary is proved'. The words of the statute are peremptory, and the burden must lie all the time on the accused to prove the contrary.
This ruling was distinguished by the Supreme Court in the later decision : AIR1962SC1204 referred to above, by observing that -
All that the learned Judge there meant to say was that the evidence of the statement of the accused in the circumstances of that case was not sufficient to discharge the onus but that does not mean that in no case can the statement of an accused person be taken to be sufficient for the purpose of discharging the onus if a statute places the onus on him. Under Section 342 of the Criminal Procedure Code the court has the power to examine the accused so as to enable him to explain any circumstance appearing in evidence against him. Under Sub-section (3) of that section the answers given by an accused person may be taken into consideration in such inquiry or trial. The object of examination Under Section 342, therefore, is to give the accused an opportunity to explain the case made against him and that statement can be taken into consideration in judging the innocence or guilt of the person so accused. Therefore, if the courts below have accepted this explanation it must be held that the respondent has discharged the onus which was placed on him by Section 66(2) of the Act.
In my opinion, this case does not lay down a proposition that a bare statement of the accused would be sufficient to discharge onus placed on him Under Section 66(2) of the Act in all cases. It is true that the statement of the accused person has got to be taken into consideration in order to decide the guilt or innocence of the accused. If the explanation offered by him is plausible then it is open to the court to accept the same and it is not necessary for him to lead any other evidence to show that he is innocent. But that would not mean that in every case, a bare statement of the accused that he had not consumed liquor and that he had consumed some medicine would be enough to discharge the burden laid on him Under Section 66(2) of the Act. This decision of the Supreme Court cannot be taken as authority to hold that a mere statement of the accused Under Section 342 of the Code of Criminal Procedure that he had taken a particular medicine and not liquor would be sufficient to discharge the burden laid on him Under Section 66(2) of the Act. It is merely an authority on the point that a statement of the accused person recorded Under Section 342 of the Code of Criminal Procedure has got to be taken into consideration. This point was considered by the Bombay High Court in the case of State of Maharashtra v. Viiaysingh Dinkarrao Raiurkar, reported in (1964) 66 Bom LR 42, Mr. Justice Abhyankar has considered all other relevant rulings and in his lucid judgment, has observed that-
The presumption that Section 66(2) of the Bombay Prohibition Act, 1949 draws from the presence of a certain percentage of alcohol concentration in the blood of the accused charged with having consumed prohibited liquor is a compelling presumption. This presumption is liable to be rebutted by showing that what was consumed was not only a medicine but a medicinal preparation permitted under the Act or its rules and regulations. Therefore, it cannot be accepted as a valid defence to a prosecution for being intoxicated Under Section 66(1)(b) of the Act that the moment the accused person shows that he has taken a medicinal preparation containing high percentage of alcohol he has discharged the burden Under Section 66(2) of the Act.
In appeal, before the Supreme Court, reported in case of Vijay Singh v. The State of Maharashtra : 1966CriLJ168 , the decision of the Bombay High Court was confirmed. It was observed:
In a trial for an offence Under Section 66(1)(b), when the prosecution proved that the accused person consumed liquor and that the concentration of alcohol in his blood was more than 0.05 per cent weight in volume the onus of proving that the liquor consumed was a medicinal preparation containing alcohol, the consumption of which did not contravene the Act, or the rules made thereunder, shifts to the accused Under Section 66(2). He can discharge this onus by proving, inter alia, that the medicinal preparation containing alcohol which he had taken was unfit for use as an intoxicating liquor; if so much is established, the accused would not be committing any offence under the Act, since Under Section 24A, the Act itself does not apply to such medicinal preparations.
In the instant case, the accused had not shown by leading any other evidence that the medicinal preparation containing alcohol which he is alleged to have taken was unfit for use as an intoxicating liquor. On the contrary, in cross-examination by the accused, the medical officer, Padra stated that 8 or 9 ounces of the contents of winopar would show concentration of alcohol containing 0.1081 % w/v of ethyl alcohol. The testimony of the medical officer, Padra shows that when he examined the accused, he was under the influence of drink. It cannot, therefore, be said that the alleged drink was unfit for use as intoxicating liquor. In this case, the case reported in : AIR1962SC1204 was referred to and distinguished by the Supreme Court. Evidently, the Supreme Court did not go to the extent of holding that a bare statement of the accused would be sufficient to discharge the presumption that he had consumed liquor. In my opinion therefore the learned Magistrate was clearly in error in holding that the accused had discharged the burden merely because in his statement recorded Under Section 342 of the Code of Criminal Procedure he came out with the story that he had consumed medicinal preparation viz., Vinhepar B 12. In my opinion, the decision of the SC reported in : AIR1962SC1204 referred to above did not warrant this conclusion. As observed earn Her, that decision is merely an authority on the point that a statement of the accused recorded Under Section 342 of the Code of Criminal Procedure can 'be taken into consideration and if the explanation given by the accused is plausible it may be considered sufficient to rebut the presumption raised Under Section 66(2) of the Act. But it does not lay down in particular that in every case, bare statement of the accused would be sufficient to rebut the presumption which has been placed on him Under Section 66(2) of the Act. In my opinion, the accused has failed to rebut the presumption that he had consumed liquor in view of the fact that concentration of alcohol in his blood was found to be 0.1081 % w/v as stated in the report Ex. 16 of the chemical analyser. It is presumed that the accused had consumed liquor in the absence of any evidence showing that the accused had consumed medicinal preparation. Therefore, the order for acquittal passed by the learned Magistrate could not be sustained.