# RATAN LAL v. TIIE STATE OF MAHARASIITRA

- **Citation:** [1966] 2 S.C.R. 142
- **Court:** Supreme Court of India
- **Decided:** 1963-08-09
- **Case number:** Criminal Appeal No. 53 of 1964
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, J. C. Shah, S. M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ratan-lal-v-tiie-state-of-maharasiitra-3685
- **Pages:** 9

## Headnote

Bombay Prohibition Act, 1949, ss. 66(1)(b), 6A(7), 24A and 59APossession of medicinal preparations containing liquor in excess of 12%-
Deemed unfit for use as intaxz'cating liquor on date of attac/1ment-Suhsequently declared fit for use as intoxicating liquor-Whether offence committed.
The appellant was con\icted of the offence under s. 66(1)(b) of the
Bombay Prohibition Act, 1949, for being in possession on September 21,
t960 of bottles of two different Ayurvedic medicinal preparations containing 52.3% and 54.5% alcohol respectively. The appellant's case that
possession of the preparations by him was not in contravention of the Act,
because the preparations were medicinal preparatinns containing alcohol
which were unfit for use as intoxicating liquor within the meaning of
·s. 24A of the Act, was rejected. The trial court held that the offending
article• were Ayurvedic preparations in which alcohol was generated by a
process of fermentation and a9 alcohol exceeded 12 per cent by volume,
the preparations did not correspond with !he limitations prescribed by the
prO\iso to s. 59A, and therefore the exemption prescribed by s. 24A
was inoperative. The Court of Sessions and the High Court agreed with
that view.
It was also contended on behalf of the respondents that even if the
two medicinal preparations corresponded with the description and limitations under s. 59A, they were still preparations fit for use as intoxicating
liquor and therefore outside the exemption in s. 24A.
HELD : The appellant was wrongly convicted and his conviction must
be set aside.
A
B
c
D
E
(i) There was clear evidence on the record that the offending preparations were not preparations in which alcohol was generated by fermenF
talion. The proviso to s. 59A would therefore have no application.
[146 E-F]
(ii) On the date on which the two medicinal preparations were attached
in September 1960, by vitrue of sub-section (7) of s. 6A they were
deemed for the purpose of the Act to be unfit for use as intoxicating liquor
and their possession was not an offence.
A subsequent declaration by
the State under s. 6A( 6) in October, 1960, that they were fit for use
G
as intoxicating liquor, could not have relfrospective operation, and pos-
. session which was innocent could not, by subsequent act of the Stale,
be
·declared as offending the statute. [150 Al
•
The State of Bombay v. F;. N. Balsara, [1951] S.C.R. 682, referred
10.
The State of Bombay v. Narandas Mangilal Agarwal & A nr. [l 9621
Supp. 1 S.C.R. 15, distinguished.
H

## Text

142
RATAN LAL
v.
TIIE STATE OF MAHARASIITRA
October, 8, 1965
{P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH AND S. M. SIKRI, JJ.]
Bombay Prohibition Act, 1949, ss. 66(1)(b), 6A(7), 24A and 59APossession of medicinal preparations containing liquor in excess of 12%-
Deemed unfit for use as intaxz'cating liquor on date of attac/1ment-Suhsequently declared fit for use as intoxicating liquor-Whether offence committed.
The appellant was con\icted of the offence under s. 66(1)(b) of the
Bombay Prohibition Act, 1949, for being in possession on September 21,
t960 of bottles of two different Ayurvedic medicinal preparations containing 52.3% and 54.5% alcohol respectively. The appellant's case that
possession of the preparations by him was not in contravention of the Act,
because the preparations were medicinal preparatinns containing alcohol
which were unfit for use as intoxicating liquor within the meaning of
·s. 24A of the Act, was rejected. The trial court held that the offending
article• were Ayurvedic preparations in which alcohol was generated by a
process of fermentation and a9 alcohol exceeded 12 per cent by volume,
the preparations did not correspond with !he limitations prescribed by the
prO\iso to s. 59A, and therefore the exemption prescribed by s. 24A
was inoperative. The Court of Sessions and the High Court agreed with
that view.
It was also contended on behalf of the respondents that even if the
two medicinal preparations corresponded with the description and limitations under s. 59A, they were still preparations fit for use as intoxicating
liquor and therefore outside the exemption in s. 24A.
HELD : The appellant was wrongly convicted and his conviction must
be set aside.
A
B
c
D
E
(i) There was clear evidence on the record that the offending preparations were not preparations in which alcohol was generated by fermenF
talion. The proviso to s. 59A would therefore have no application.
[146 E-F]
(ii) On the date on which the two medicinal preparations were attached
in September 1960, by vitrue of sub-section (7) of s. 6A they were
deemed for the purpose of the Act to be unfit for use as intoxicating liquor
and their possession was not an offence.
A subsequent declaration by
the State under s. 6A( 6) in October, 1960, that they were fit for use
G
as intoxicating liquor, could not have relfrospective operation, and pos-
. session which was innocent could not, by subsequent act of the Stale,
be
·declared as offending the statute. [150 Al
•
The State of Bombay v. F;. N. Balsara, [1951] S.C.R. 682, referred
10.
The State of Bombay v. Narandas Mangilal Agarwal & A nr. [l 9621
Supp. 1 S.C.R. 15, distinguished.
H
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
53 of 1964.
RATAN LAL v. STATE (Shah, J.)
143
.A.
Appeal by special leave from the judgment and order dated
August 9, 1963 of the Bombay High Court (Nagpur Bench) in
Criminal Revision Application No. 107 of 1963.
B. Sen, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain,
for the appellant.
B
P. K. Chatterjee and B. R. G. K. Achar, for the respondent.
The Judgment of the Court was delivered by
·-'~
Shah, .J.
Ratan Lal-appellant in this appeal-is the proprietor of a business in drugs styled "Anil Medical Stores" at
Wani, District Yeotmal in the State of Maharashtra.
On Sepe tember 14 1960 the Station House Officer, Wani, raided the shop
,
.
of the appellant and seized 12 bottles of an Ayurvedic preparat10n
called Mahadrakshasva manufactured by the Brahma Aushadhalaya, Nagpur and 88 bottles of Dashmoolarishta manufactured
by the Vedic Pharmaceutical Works, Nagpur.
At a trial held
D before the Magistrate, -First Class, Kalapur, the appellant was
convicted of the offence punishable under s. 66 (1 )(b) of the
Bombay Prohibition Act 25 of 1949, and was sentenced to suffer
rigorous imprisonment for three months
and to pay a fine of
Rs. 500/-. The orderwas confirmed in appeal by the Court of
Session, Y eotmal.
The High Court of Bombay confirmed the
E conviction, but modified the sentence. The appellant appeals to
this Court, with special leave.
The following are the material facts found by the trial Court
and confirmed by the Court of Appeal and the High Court.
Mahadrakshasava and Dashmoo/arishta are Ayurvedic medicinal
preparations containing alcohol, manufactured under licences
11
granted under the Medicinal and Toilet Preparations
(Excise
Duties) Act 16 of 1955. Mahadrakshasava attached from the
shop of the appellant contained 52.3 % alcohol v /v and Dashmoolarishta contained 54.5% alcohol v/v. These preparations .
are manufactured by a process of distillation. The appellant had
G purchased these preparations from a drug store in Nagpur called
the Sharda Medical Stores who in their tum were supplied by the
manufactur~rs the Brahma Aushadhalaya, Nagpur and the Vedic
Pharmaceutical Works, Nagpur.
~
T!ie Bombay Prohibition Act 25 of 1949 by s. 66 (I )(b)
pena11s~ contravention of the provisions of the Act, or of any rule,
H
r~8U!at10~, or order made, or of any licence, permit, pass or autho.
nzation issued thereunder by any person who consumes, uses,
possesses or transports any intoxicant other than opium or hemp.
·144
SUPREME COURT REPORTS
[1966] 2 S.C.R.
"Intoxicant" is clefined bys. 2(22) as meaning "any liquor, intoxicating drug, opium or any other substance, which the State
Government may, by notification in the Official Gazette declare to
be an intoxicant.
"Liquor" is defined in s. 2(24) as including
(a) spirits, denatured spirits, wine, beer, toddy and all liquids
consisting of or containing alcohol; (b) any other intoxicating
substance which the State Government may, by notification in the
Official Gazette, declare to be liquor for the purposes of the Act.
Section 12 of the Act, insofar as it is mate.rial, provides that no
person shall import, export, transport or possess liquor. ~ut these
prohibitions are subject to certain exceptions. By s. 11 notwith1'tanding anything contained in the provisions contained in Ch. III
(which includes ss. 11 to 24-A) it is lawful to import, export,
transport, manufacture, sell, buy, possess, use or consume any
intoxicant to the extent provided by the provisions of the Act or
any rules, regulations or orders made or in accordance with the
terms and conditions of a licence, permit, pass or authorization
granted thereunder. The prohibitions are also inapplicable in
respect of certain preparations under s. 24A which provides insofar as it is material :
"Nothing in this Chapter shall be deemed to apply
to-
( 1) Any toilet preparation containing alcohol which
is unfit for use as intoxicating liquor;
"(2) any medicinal preparation containing alcohol
which is unfit for use as intoxicating liquor;
(3) any antiseptic preparation or solution contain- .
uig alcohol which is unfit for use as intoxicating liquor;
( 4) any flavouring extract, essence or syrup containing alcohol which is unfit for use as intoxicating
liquor;
·
Provided that such article corresponds with the
description and limitations mentioned in section 59A :"
Possession of a toilet, medicinal or antiseptic preparation, of
flavouring article containing alcohol is therefore i:ot an offence
if it is unfit for use as an intoxicating liquor, and tt corresponds
with the description and limitations mentioned in s. 59A.
. .
The appellant did at the material time possess pr:paratmns
which contained a large percentage of alcohol, an? 1t is not ~e
.case of the appellant that he was protected by a hcence, permit,
A
B
c
D
E
F
G
H
-
RATAN LAL V. STATE (Shah, J.)
145
A pass or authorization.
His case was that possession of the preparations by him was not in contravention of the Act, because the
preparations were medicinal preparations containing alcohol which
were unfit for use as intoxicating liquor within the meaning of
s. 24A of the Act.
This contention of the appellant has been
uniformly rejected by all the Courts below. The question which
B
falls to be determined in this appeal is whether the preparatio~
containing alcohol in respect of which the appellant is convicted
were medicinal preparations which were unfit for use as intoxi-
,cating liquor.
That the preparations were medicinal according
to the Ayurvedic system is not denied, and it is common ground
that they contained alcohol.
Attention must therefore be directed
C to ascertain whether the preparations did correspond with the
description and limitations mentioned in s. 59A. If they did not,
exemption under s. 24-A will be inoperative, even if they are medicinal preparations. In so far as it is material, s. 59A which was
added by Act 26 of 1952 at the relevant time provided :
D
E
F
"(I) No manufacturer of any of the articles mentioned in section 24A shall sell, use or dispose of any
liquor purchased or possessed for the purposes of such
manufacture under the provisions of this Act otherwise
than as an ingredient of the aritcles authorised to be
manufactured therefrom. No more alcohol shall be
used in the manufacture of any of the articles mentioned
in section 24A than the quantity necessary for extraction or solution of the elements contained therein and
for the preservation of the articles :
Provided that in the case of manufacture of any of
the articles 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.
(2)
..
'Sub-section ( 1) directs the manufacturer not to use in the manuG facture of any article mentioned in s. 24A alcohol in excess of
the quantity necessary for extraction or solution of the elements
and for preservation of the article, and the proviso states that in
the manufacture of articles in which alcohol is generated by a
process of fermentat~on it shall not exceed 12 per cent by volume.
H !herefore the quantity of alcohol in an article in which alcohol
is added or produced by distillation is ·determined by what is
~ecessary for ~xtraction, .or solution of the elements, and preservation of the artJcle : but m an article containing alcohol generated .
146
SUPREME COURT REPORTS
[1966] 2 s.c.R.
by a process of fermentation the percentage of alcohol, it is directA.
ed, shall not exceed 12 per cent by volume.
The trial Court held that the offending articles were Ayurvedic
preparations in which alcohol was generated by a process of
fermentation and as alcohol exceeded 12 per cent by volume, the
preparations did not correspond with the limitations prescribed by s:
s. 59A, and therefore the exemption prescribed by s. 24A was
inoperative. _ The Court of Session and the High Court agreed
with that view.
But it appears that in so holding, the Courts
misconceived the evidence. Articles containing alcohol may be
prepared by a process of fermentation which generates alcohol or
by a process of distillation or by addition of free alcohol.
The
C
manufacturing processes which result in distillation of alcohol
and generation of alcohol by fermentation are distinct, and there
was on the record clear evidence that the offending preparations
were manufactured by a process of distillation and were not preparations in which alcohol was generated by fermentation.
Palnitkar, Sub-Inspector of Prohibition & Excise, said that
D
Mahadrakshasava and Dashmoolarishta are distilled Ayurvedic
products. Apparently it was conceded on behalf of the State
before the Court of Session that the two preparations were Ayurvedic medicinal preparations which "contained alcohol produced
by distillation'', and before the High Court also the case was
argued on that footing. If the bottles of Mahadrakshasava and
Dashmoolarishta attached from the shop of the appellant contained alcohol produced by distillation, the proviso to s. 59A will
have no application.
There is no evidence on the record to prove
that the two preparations contained alcohol in excess of the quanE
tity permissible under the first paragraph of s. 59A. It must be
remembered that these preparation were manufactured within·
17
the State of Maharashtra by manufacturers licensed under the
Medicinal and Toilet Preparations (Excise Duties) Act 16 of
1955 and were issued from a bonded warehouse.
This would
justify the inference that they did correspond with the description
and limitatfons mentioned in s. 59A.
But it was urged for the State that a medicinal preparation
which corresponds with the description and limitations under
s. 59A may still be a preparation which is fit to be used as intoxi·
cating liquor.
A medicinal preparation which because of the high
percentage of alcohol therein, even if taken in an ordinary or
normal dose, may intoxicate a normal person would be a preparation fit to be used as an intoxicating liquor. Where the preparation contains a small percentage of alcohol, but consumption of
H
-
RATAN LAL V. STATE (Shah, J.)
147
A large quantities may intoxicate, it would also be regarded as a·
preparation fit for use as intoxicating liquor, if such consumption·
is not likely to involve any deleterious effect or serious danger
to health of the consumer.
Whether a preparation is fit to .be used as intoxicating liquor
B would ordinarily depend upon evidence. But the Legislature has
by s. 6A prescribed special rules of evidence in adjudging whetheran article is unfit for use as intoxicating liquor. Section 6A was
added by Bombay Act 26 of 1952 after this Court declared in·
The State of Bombay v. F. N. Balsara(') amongst others, that
cl. ( c) of s. 12, insofar as it affected possession 1of medicinal and·
C
toilet preparations containing alcohol, as invalid.
As originally
enacted s. 6A, insofar as it is material, was in the following.
form:
D
E
F
G"
H
" ( 1) For the purpose of determining whether
(a) any medicinal or toilet preparation
containing alcohol, or
(b) any antiseptic preparation or solution
containing alcohol, or
( c) any flavouring extract, essence or syrup
containing alcohol,
is or is not an article unfit for use as intoxicating liquor,
the State Government shall constitute a Board of Experts.
(2)
(3)
(4)
(5)
( 6) It shall be the duty of the Board to advise the
State. Gove;nment on. the question whether any article
men!loned m sub-secl!on ( 1) containing alcohol is unfit
for use as intoxicating liquor and on such other matters
incidental to the said question as may be referred to it
by the State Government.
On obtaining such advice
the, Stat~ Government shall determine whether any such
arl!cle 1s fit or ~nfit for use as intoxicating liquor or
not and such ar!lcle shall be presumed accordingly to.
---
(I} (1951] S.C.R. 682,
•
148
SUPREME COURT REPORTS
[1966] 2 S.C.R,
be fit or unfit for use as intoxicating liquor, until the
A
contrary is proved."
This Court held in The State of Bombay (now Gujarat) v. Naran-
.das Mangilal Agarwal & Another(1) that it was not obligatory
upon the State to consult the Board of Experts constituted under
s. 6A before the State could establish in a prosecution for an
B
·Offence under s. 66(1)(b) that a medicinal preparation was unfit
· for use as intoxicating liquor.
Evidence that the preparation
was unfit for use as intoxicating liquor can be adduced before the
Court, and the prosecution need not rely upon s. 6A(6) of the
Act : in a prosecution for infringement of the prohibition contained in ss. 12 and 13, the State could rely upon the presumption
C
after resorting to the macliinery under s. 6A(6), but there was no
obligation to consult the Board under s. 6A, nor was the consulta-
-tion a condition precedent to the institution of proceeding for
breach of the provisions of the Act. In so holding, this Court
disagreed with the view expressed by the Bombay High Court in
0
D. K. Merchant v. The State of Bombay(2 ) wherein the High
·Court had held that the prosecution for offence under ss. 65 and
66 could not be maintained unless the State Government was
satisfied after consulting the Board of Experts under s. 6A that
the article was fit to be used as intoxicating liquor. The offence
in Narandas Mangilal's case(1) was committed in July 1955 and
E
·on the terms of sub-s. ( 6) as it then stood it was open to the State
in a prosecution for infringement of a prohibition contained in
ss. 12 and 13 to rely upon the presumption under s. 6A or to
establish that the medicinal preparation was fit for use as intoxicating .liquor aliunde.
By Act 22 of 1960, which was brought
into force on April 20, 1960, the Bombay Legislature amended,
F
inter alia, sub-s. (6) of s. 6A, and incorporated sub-s. (7) therein.
Sub-sections (6) & (7) as amended and incorporated read as
follows:
"(6) It shall be the duty of the Board to advise
the State Government on the question whether any
article mentioned in sub-section ( 1) is fit for use as
intoxicating liquor and also on any matters incidental to
tbe 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 fr is so fit, such article shall, until the
(I} [1962] Supp. 1S.C.R.15.
(2) [1958] 60 B.L.R. 1183.
G
H
,
RATAN LAL V. STATE (Shah, J.)
.A
contrary is proved, be presumed to be fit for use as intoxicating liquor.
(7) 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
B
shall be deemed to be unfit for such use."
149
The scheme of s. 6A has by the amending Act been completely
altered.
The Legislature has preScribed by sub-s. (7) that until
the State Government has determined any article mentioned in
sub-s. (1) to be fit for use as intoxicating liquor, every such
article shall be deemed to be unfit for such use. The Legislature
C has therefore prescribed a fiction which continues to function till
the State Government has determined, on the report of the Board
' of Experts, that any article mentioned in sub-s. ( 1) is fit for use ·
as intoxicating liquor. By sub-s. (6) as amended it is provided
that after the State Government has obtained the advice of the
Board of Experts, the State Government shall determine whether
D
such article is fit for use as intoxicating liquor and upon such
determination of the State Government that it is so fit, such article
shall, until the contrary is proved, be presumed to be unfit for
use as intoxicating liquor. Under the amended s. 6A there is
only one mode of proof by the State that an article is fit for use
E
as intoxicating liquor, and that is by obtaining the advice of the
Board of Experts and recording its determination, that the article
is fit for use as intoxicating liquor. Until it is.otherwise determined
by the State, after obtaining the report of the Board of Experts, .
every article mentioned in sub-s. (I) is to be deemed unfit for
use as intoxicating liquor. After it is determined as fit for use
F
As intoxicating liquor, in a proceeding relating to the article it
would under sub-s. (6) be presumed, that it is fit for use as intoxicating liquor. But the presumption is rebuttable.
In the present case the offence is alleged to have been committed in September 1960.
After consulting the Board of Experts the Government of Maharashtra issued a declaration on
·G
October 4, 1960, declaring that both the preparations Mahadrakshasava and Dashmoolarishta were medicines fit for use as intoxicating liquor.
Thereafter a police report was flied in the Court
of the Magistrate, First Class, on June 2, 1962 charging the
appe~l~n.t with the offence under s. 66 ( 1 )(b) of the Bombay
Pr~h1b1tion Act. But on the date on which the medicinal preparatmns were attached, the statute ha:d provided that they shall be
deemed for the purpose of the Act as articles unfit for use as
intoxicating liquor.
Possession of the medicinal
preparations
150
·SUPREME COURT REPORTS
(1966] 2 S.C.R
which were unfit for use as intoxicating liquor was, at the date A
when they were attached, not an offence.
A subsequent declaration by the State that they were fit for use as intoxicating liquor,
could not have any retrospective operation, and possession which .
was inrrocent could not, by subsequent act of the State, be declared as offending the statute.
B
It is unfortunate that the High Court lost sight of the change
in the scheme of s. 6A and followed the judgment of this Court.
in Narandas Mangilal's case(1 ). In Narandas Mangilal's case at
all material tinies when the question fell to be considered, the
Court had to decide whether sub-s. ( 6) of s. 6A, as it then stood.
prescribed the only method of proof whether an offending mediC
cinal preparation was unfit for use as intoxicating liquor, and this
Court on the phraseology used by the Legislature came to the con- '
clusion that it was not the only method of proof.
But the incorporation of sub-s. (7) by the Legislature has altered the scheme
of the Act. Sub-section ( 6) incorporated in its second part both
before and after the amendment, a rule of evidence : but the
D
rule in sub-s. (7), that until a declaration is made to the contrary
by the State Government under sub-s. ( 6), every article· mentioned
in sub-s. (1) shall be deemed unfit for use as intoxicating liquor,
is not a rule of evidence. It defines for the purpose of s. 24A
and related sections what an article unfit for use as intoxicating
liquor is.
It is plain that in Narandas Mangilal's case(') the
E
effect of sub-s. (7) of s. 6A did not fall to be considered.
The appellant was therefore wrongly convicted.
The appeal
is allowed and the order of conviction and sentence are set aside.
The fine if paid will be refunded.
•
Appeal allowed.
(!) [1962] Supp. I S.C.R. 15.
'