# used in preparing M, ,"'4daaav, accordin& to the standard Ayurvedic formulal96J St.tJVari Satryasi Apparao v. Boddepalli LukJhminaroy3na

- **Citation:** [1962] Supp. 1 S.C.R. 15
- **Court:** Supreme Court of India
- **Decided:** 1959-01-09
- **Bench:** K. N. W Anchoo, K. C. Das Gupta, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/used-in-preparing-m-4daaav-accordin-to-the-standard-ayurvedic-formulal96j-st-2413
- **Pages:** 17

## Headnote

Prohibition-Medicinal preparation with exce.s of alcoholIntoxicating e!fect-OA•nce under the Prohibition Act-- Burden
of proof-Board of Experts under tht Act-Consultation with,
if and when obligatory-Payment of excise i.uty to and licence to
export granted by Bhopal State-Validity nf conviction under
Bombay prohibition laws-Bombay
Prohibition Act, 1949
(Bom. 25 of 1949), as amended by Bombay Act 26 of 1!;52,
ss. 6A, 11, 12, 13, and UA.
The respondents were charged with offences punishable
under ss. 65(a) and 66(l)(b) of the Bombay Prohibition
Act, 1949, for violating the provisions of ss. 12 and 13 of the
Act. The prosecution case was that the respondents brought
in their motor truck into the State of Bombay from the
adjoining State of Bhopal, bottles labelled Afrugmadasav,
and that the bottles did not contain genuine Mntgmadasav, an
Ayurvcdic preparation, but only intoxicating liquor, import
transportation and possession whereof without permit or
licence under the Act were prohibited. The Magistrate found
that the bottles contained 75.50% alcohol-much in excess of
the
normal
percentage
of alcohol
used
in
preparing
M,...,"'4daaav, accordin& to the standard Ayurvedic formulal96J
St.tJVari Satryasi
Apparao
v.
Boddepalli
LukJhminaroy3na
H:dn;·atu/lll/. J.
JP61
O:tober 6.
1961
The State of Bombay
(.litow Gujarat}
v.
J(arQ!ldas Mangi/al
Agarwal
..
16 SUPREME COURT REPORTS [1962] SUPP.
that it did not contain any appreciable quantity of musk
essential in such a preparation, and that having' regard to the
large percentage of alcohol it was capable of boing used for
purposes of intoxication. Accordingly he held that the preparation was not saved by s. 24A from the prohibitions contained
in ss. 12 and 13 of the Act, and convicted the respondents.
The High Court, however, acquitted the respondents on the
grounds (a) that the State had failed to prove that the contents
of the bottle;; were liquor meant for consumption as intoxicant,
and Cb) that the State could not validly cGme to the conclusion
that
the bottles contained
intoxicating
liquor \vithout
obtaining the opinion of the Board of Experts constituted under
s. 6A of the Act. In the appeal filed by the State of Bombay
with special leave, the respondents pleaded that, in any case,
a5 the Government of Bhopal had levied a duty on the
preparation and had granted a permit, no offence was committed by importing and possessing the preparations in the State
of Bombay.
Held: (!).that it was for the State to prove that the
substance, if a
m~dicinal preparation, was not unfit for use
as intoxicating liquor and to establish
that the prohibitiom contained in ss. 12 and 13 of the Bombay Prohibitions
Act, 1949, had be!n infringed, and that the burden of proof
that infringcment was not in respect of a preparation which
was covered bys. 24A was not shifted on the shoulders of the
accused;
(?) that if alcohol in excess of the quantity prescribed
by s. 59A was found in the article, the provisions of s. 24A
would not apply irre>pective of the question whether it was
fit or unfit to be used as intoxicating liquor;
(3) that 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 within the
meaning of s. 2f.A, but such a preparation containing a small
percenta.ge of alcohol even thoul(h it might be capable of
intoxicating if taken in large quantities, could not be regarded
as fit to be U3erl a:s intoxicating liquor within the ·meaning of
that section.
(4) thc_t a State may in a prosecution for infringement
of the prohibitions contained in"· 12 and 13 of the Act rely
upon the presumption after resorting to the machinery under
s. 6A(6), but there was no obligation upon the State in any
given case to consult the Board of Experts under s. 6A nor
was consultation with the Board a c0ndition precedent to the
institution of proceedings for breach of the pr

## Text

......
(I) S.CR.
SUPREME OOURT REPORTS
15
to
transfer the Press in 1955 to Boddepaili
Lakshminaraya.na, and further that . the defence
that the appellants took poBsession of the Press
under a bona. fide claim of right was a good defence
entitling them to an acquittal.
In the result, this appeal must mrceed. The
convictions of the appellants and the sentence's
passed on them are set aside, th('y are a.cquitted
and their bail bonds shall stand discharged.
The
fines, if realised, are ordered to be remitted.
Appeal alkiwed.
THE STATE OF BOMBAY (NOW GUJARAT)
v.
NARANDAS MANGIT-AL AGARWAL AND
ANOTHER
(K. N. W ANCHOO, K. C. DAS GUPTA and
J. c. SHAH, JJ.)
Prohibition-Medicinal preparation with exce.s of alcoholIntoxicating e!fect-OA•nce under the Prohibition Act-- Burden
of proof-Board of Experts under tht Act-Consultation with,
if and when obligatory-Payment of excise i.uty to and licence to
export granted by Bhopal State-Validity nf conviction under
Bombay prohibition laws-Bombay
Prohibition Act, 1949
(Bom. 25 of 1949), as amended by Bombay Act 26 of 1!;52,
ss. 6A, 11, 12, 13, and UA.
The respondents were charged with offences punishable
under ss. 65(a) and 66(l)(b) of the Bombay Prohibition
Act, 1949, for violating the provisions of ss. 12 and 13 of the
Act. The prosecution case was that the respondents brought
in their motor truck into the State of Bombay from the
adjoining State of Bhopal, bottles labelled Afrugmadasav,
and that the bottles did not contain genuine Mntgmadasav, an
Ayurvcdic preparation, but only intoxicating liquor, import
transportation and possession whereof without permit or
licence under the Act were prohibited. The Magistrate found
that the bottles contained 75.50% alcohol-much in excess of
the
normal
percentage
of alcohol
used
in
preparing
M,...,"'4daaav, accordin& to the standard Ayurvedic formulal96J
St.tJVari Satryasi
Apparao
v.
Boddepalli
LukJhminaroy3na
H:dn;·atu/lll/. J.
JP61
O:tober 6.
1961
The State of Bombay
(.litow Gujarat}
v.
J(arQ!ldas Mangi/al
Agarwal
..
16 SUPREME COURT REPORTS [1962] SUPP.
that it did not contain any appreciable quantity of musk
essential in such a preparation, and that having' regard to the
large percentage of alcohol it was capable of boing used for
purposes of intoxication. Accordingly he held that the preparation was not saved by s. 24A from the prohibitions contained
in ss. 12 and 13 of the Act, and convicted the respondents.
The High Court, however, acquitted the respondents on the
grounds (a) that the State had failed to prove that the contents
of the bottle;; were liquor meant for consumption as intoxicant,
and Cb) that the State could not validly cGme to the conclusion
that
the bottles contained
intoxicating
liquor \vithout
obtaining the opinion of the Board of Experts constituted under
s. 6A of the Act. In the appeal filed by the State of Bombay
with special leave, the respondents pleaded that, in any case,
a5 the Government of Bhopal had levied a duty on the
preparation and had granted a permit, no offence was committed by importing and possessing the preparations in the State
of Bombay.
Held: (!).that it was for the State to prove that the
substance, if a
m~dicinal preparation, was not unfit for use
as intoxicating liquor and to establish
that the prohibitiom contained in ss. 12 and 13 of the Bombay Prohibitions
Act, 1949, had be!n infringed, and that the burden of proof
that infringcment was not in respect of a preparation which
was covered bys. 24A was not shifted on the shoulders of the
accused;
(?) that if alcohol in excess of the quantity prescribed
by s. 59A was found in the article, the provisions of s. 24A
would not apply irre>pective of the question whether it was
fit or unfit to be used as intoxicating liquor;
(3) that 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 within the
meaning of s. 2f.A, but such a preparation containing a small
percenta.ge of alcohol even thoul(h it might be capable of
intoxicating if taken in large quantities, could not be regarded
as fit to be U3erl a:s intoxicating liquor within the ·meaning of
that section.
(4) thc_t a State may in a prosecution for infringement
of the prohibitions contained in"· 12 and 13 of the Act rely
upon the presumption after resorting to the machinery under
s. 6A(6), but there was no obligation upon the State in any
given case to consult the Board of Experts under s. 6A nor
was consultation with the Board a c0ndition precedent to the
institution of proceedings for breach of the provisions of
the Act;
'
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SUPREME OOURT REPORTS
17
• •
D. K. Merchant v. The State of Bombay, (1958) Born.
L R. 1183, disapproved.
(5) that the payment of excise duty to the Bhopal State
under the law in force in the State for exporting the preparation from the Sta'.e did not protect tho respondents from
liability to prosecution for the infringement of the prohibition
laws in force in the State of Bombay ; and
(6) that in the instant case die preparation though
styled Mrttgmadasav was not a genuine medicinal preparation
and having regard to the large percentage of alcohol contained
therein, it was capable of intoxicating taken even in a normal
dose, and was not saved by s. 24A from the prohibitions
contained in ss. 12 and 13 of the Act.
CRIMINAL.APPELLATE .JURISDICTION: Criminal
Appeal No. 65 of 1959 .
Appeal by special leave from the judgment
and order dated January 9, 1959, of the Bombay
High Court in Criminal Revision Application
No. 1485 of 1958.
0. K. Daphtary,
Solicit&-General uf IrulifJ,
B. R. L. Iyengar and T. M. Sen, for the appellant.
Nur-ud-din
Ah.med and Naunit Lal, for
respondent No. 1.
1961. October 6. The Judgment of the Court
was delivered by
SH.lH, J.-This is an appeal by the State of
Bombay against the order passed by the High Court
of Judicature, Bombay, acquitting the respondents of offences punishable under ss. 65(a)(l) and
66(b)(l) of the Bombay Prohib'ition Act XXV of
1949-hereinafter referred to as the Act.
The respondents are residents of Sehore a
town in what was at the material time the territory
of the State of Bhopal. Respondent 1 is the brother
of the owner of a concern which carries on business
of manufacturing drugs, in the name and style of
Rajkumar Laboratories, Sehore. Prabhat Trading
Company-a firm carrying on business at Ahmadabad in the State of Bombay-placed an order on
January 26, 1955, with the Rajkumar Laboratories
for 4800 bottles of 'Mrugmadaaav'-an Ayurvedic
1961
The State vf Bcmh9
(Now Gigarat)
v.
Narandds
Mangilal AgorW.Z
Shah ].
19Cl
Tht Stat1 o.f Bombay
(N(Jw Guja,af}
••
Narantf(l.j Mangilal
Agaru:al
Shah J.
18
SUPREME OOURT REPORTS [1962) SUPP .
preparation. The Rajkumar Laboratories preparPd
the drug an<l as it contained rectified spirit. pR id
Ra. 3600 as excise duty to tho Bhopal State. A pn·
mit authorising export of the preparation out of the
limits of Bhopal State was also obtained on ,July
28, l!l55. A motor truck belonging to the second
re~pondent was engaged for transporting the preparation from Sehore to Ahmedahad. On July 29,
1955, Sub-Inspector Shintre stopped the motor
truck at Dohad-a town in the State of Bombay.
The motor truck on examination was found carrying 70n bottle~ of various size.s labelled "1t! rugma.-
dasav, Rajkumar Laboratories, Sehore." On the
label was also printecl the legend that the preparation contained 85.5% alc0hol.
R~spondcnts l and
2 who were accompanying the motor truck in a jeep
in which also bottles of Mrugmadasav were found,
were arrested. Samples of the contents of the
bottles were drawn and collected in the presence of
Panchaa and were ient to the Assistant Chemist,
Drugs and Excise Laboratory, Baroda, for analysis
and report. Samples were also srnt to the Principal
of R. A. Poddar Ayurvedic College at Bombay.
The respondents and eight others were then
prosecuted in the Court of the Judicial Magistrate,
lst Class, Dohad, State of Bombay for offences
punishable under
BS. 65(a) and 66(1)(b) of the
Bombay Prohibition Act XXV of 1949. The Ma!,!istrate convicted the first respondent of offences under
BB. 65(a) and 66( l)(b), the second re~pondent of
offences under s. 65(a) read
with s. 81 of the
Bombay Prohibition Act, and four other. accused
with whom we a.re not concerned in this appeal,
of certain offences. The Court of SeBSion at Panch
Maha.ls at Godhra, in appeal, confirmed the order
and sentence, but in exercise of its revision al Jurisdiction, the High Court of Bombay set aside the
conviction and sentence passed l•pon the respondents and acquitted them. The High Court held
(a) that the State failed to prove that the contents
of the bottles were liquor meant for consumption
. ...
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(I) S.C.R.
SUPREME COURT REPORTS
19
as intoxicant and (b) that the State Government
"could not validly come to the conclusion that the
bottles contained° intoxicating liquor without obtaining the opinion of the Board of Experts constituted
nnder s. 6A of the Bombay Prohibition Act. Against
the order of acquittal the State of Bombay has
preferred this appeal with specfal leave.
It was the case for the State that the bottles
seized by the police, though labelled "Mrugmadasav", which is an Ayurvedic preparation indicated
for use in delirious fever and cholera, did not
cont<iin genuine Mrugmarlasav but contained intoxic<tting liqnor, import, transportation and possession
whereof without a permit or licence under the
Bombay Prohibition Act were prohibited. H. P.
Parikh, Assistant Chemist, Drugs & Excise Laboratory. Baroda, stated that on analysis, the samples
were found to contain 75.55% to 79.97% V/V ethyl
alcohol and that in his opinion contents of t.he
bottles were not an "Aaav" preparation. In· his
opinion the liquid analysed was fit for use as intoxicating liquor and that it was not a standard preparation, though he could not say whether it was a
medicinal preparation, he having no means of
examining tho other active ingredients. M. Y. Lele,
Principal of R. A. Podar Ayurvedic College, stated
that the principal constituent of llfrugmadasav is
musk (Mrugmad), which has a characteristic and
penetrating odour, and that he could not get any
odour of musk out of the sample sent to him and
that, in his opinion, the contents of the bottles
were not Mrugmadasav at all. He also stated that
in about 6l seers of Mrugmadasav
prepared
according to the Ayurvedic formula there would be
20 tolas of musk and that the current market rate
of musk was Rs. 60 to Rs. 80 per tola. One Ansare,
Excise Inspector of Sehore, was also examined on
behalf of the prosecution.
He stated that the
alcoholic proof strength of the liquid in the bottles
was 150 and the percentage of alcohol therein was
.855% V/V and that the rest was water.
The
1901
The Stat1 of Bomb~
(Now c.;a,.1)
v,
Narandas Mangila
A,arwal
Shah].
1961
77w Stak of B~mb•y
(NOUJ Gttj.,al)
v.
Narandas AfantilaJ
Atmwai
Sluih J,
20 SUPREME COURT REPORTS
[1962] SUPP.
•
witness deposed that the ilfmgmadasnv which was
meant for export to Ahmedabad w:1s manufactured
under his supervision and that it was a "proprietary
ayurvedic preparation of added alcohol", and that
it was "not a genuine preparation of self gencratcrl
alcohol''. To a question asked in cross-examination,
the witness stated that in bis presoncc W tolas of
rectified spirit W!'fe added to 4 tolas of musk and
2 tolas each of black pepper, jl1ifa.Z, 7iipal, and
cinnamon. This part of the statement of the witness
was disbelieved by the trial Magistrate a.ml by the
Sessions Judge.
The Magistrate held on roview of the evidenc~
that the respondents had imported into tho State
of Bombay a preparation which contained a largo
percentage of alcohol which wa8 not self-generated
that. the preparation did not contain musk and that
it did not conform to the standard formula. of !rfrugmadasav and that the preparation seized by the
police was meant for internal consumption and as
consumption thereof was likely to cause intoxication
it was not exempt from the operation of ss. 12 and
13 of the Act. The Sessions Judge agreed with the
Magistrate. But the High Court disagreed with
that view on the ground that the testimony of Lele,
who relied solely upon his "sense of smell" could
not justify the conclusion that the liquid seized was
alcohol meant for consu~ption as intoxicating liquor
and that Parikh, who found on examination that
the preparation seized contained 75% alcohol was
unable to state what the other ingredientJ! were.
Section 2(24) of the Bombay Prohibition Act
dcfinc8 "liquor" as including (a) spirit of wine,
denatured spirit, beer, toddy and all liquids C(>nsisting of or containing alcohol ; and ( b) any other
intoxicating substance which tho State Government
may, by notification in the Offici11 I Gazette, declare
to be liquor for the purpose of the Bombay Prohibition Act. Section 2( 22) defines "intoxicant" as
meaning any liquor, intoxicating drug, opium or
any other substance, which the St.ate Government
may, by notification in the Official Gazette declares
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(I) S.C.R.
SUPREME COURT REPORTS
21
to be an intoxicant. Sections 12 to 24, in Chapter
III of the Act, contain diverse prohibitions. By
s. 12 it is provided that "No person shall-( a)
manufacture liquor; ( b) construct or work any
distillery or brewery; ( c} import, export, transport
or possess liquor; or sell or buy liquor. Sectiop 13
provides that no person shall--( a} bottle any liquor
for sale; ( b} consume or use liquor; or ( c) use, keep
or have in his possession any materials, still utensils,
implements or
apparatus
whatsoever for the
manufacture of any liquor. These prohibitions
have to be read subject to s. 11 which, in so far as
it is material, provides that notwithstanding the
prohibitions contained in the Chapter it shall be,
lawful to import, export, transport, manufacture,
soil, buy, possess, use or consume any intoxicant
in the manner and to the extent provided by the
provisions of the Act or any rules, regulations or
orders made in accordance with the terms and
conditions of a licence, permit pass or authorization
granted thereunder. The prohibitions contained
in ss. 12 and 13 are also subject to restrictions
contained in s. 24A which was added by Bombay
Act 26 of 1952. In the Act, as originally enacted,
the prohibitions contained in the various sections
were, subject to s. II absolute. The validity of
the Bombay Prohibition Act was c!;tallenged in the
Bombay High Court, and that High Court declared
certain provisions of the Act ultra vires (Fram
Nusservanji Balsam v. Swte of Bombay(•). Against
the decision of the High Court an appeal was preferred to t.his Court(').
Fazal Ali, J., who delivered
the judgment of the Court summarised his conclusions, in so far as they are material to this
appeal, as follows:-
"ln the result I declare the following
provisions of the Act only to be invalid:-
(IJ I. L. R. (1951] Dom. 2j0.
12)
Tli1 Stau of Bomb•.1 •· F. N. Balsua [1951] S. C.R. 682.
1961
The State ofBomlay
(Now Gujarat}
v:
Narandas Mantiial
Agarwal
Shah J,
1961
1u Slate o.f Bornhoy
(Now G11jarflt)
v.
'i11ri11tt/as JI cmgi/al
At:arioo/
Shah].
22
SUPREME COURT REPORTS (1962] SUPP.
" ·
(l) Clause (c), of section 12, so far as it
affec:ts possession of liquicl medicinal and
toilet preparations containing alcohol.
(2)
Clause (cl) of section 12, so far as it
affects the selling or buying or such medicinal
:m<l toilet preparations containing alcohol.
(3)
Clause (b) of section rn, so far as it
affer:tti
the consumption or use
of such
mcclicinal and toilet preparations containing
alcohol."
The Bombay Legislature t.Jwreafter enacted Act :!6
of 1952 which by s. i added s. 24A, which as subsequently amended reads as follows: -
•
•
'
"Nothing in thi~ Chapter shall be dceme<l
1
to apply to-
( l) any toilet preparation tontaining
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 prepa.ration or solution containing alcohol which is unfit for ise
as intoxicating liquor;
(4) any flavouring extract, essence or
syrup containing alcohol which is unfit for use
as intoxicating liquor:
Provided that 1111ch article correaponds with
the deB1.Jription and limitations mentioned in section
.,.
59A:
Provided further that the purchase, p011Bession
or use of any liquor or alcohol for the manufacture
of any such article shall not be made or had except
under a licence granted under section 31A."
By this addition, the prohibitions imposed by 88. 12
and 13 were not to apply to toilet, medicinal,
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(I) S.C.R.
SUPREME COURT REPORTS
23
antiseptic and flavouring extral·t, "ssence or syrup
preparations containing alcohol specified therein.
The respondents contend that Mrugrnadusav
imported by them and found in their possession by
the Sub-Inspector of Police was a genuine-Ayurvedic medicint\l preparation ; that, in any event,
the State must prove that it was not a medicinal
preparation; and that the burden lies on the State
to prove their case that the importation and
possession by the respondents of the contents of
the bottles was in violation of the prohibitions
imposed by ss. 12 and 13 of the Act inviting as a
consequence the penal provisions of ss. 65 and 66
of the Act. In a criminal prosecution, normally
the burden lies upon the prosecution to prove all
the ingredients which constitute the offence charged
against. the accused, and we are unable to agree
with the submission of the Solicitor-General that
a different rule is indicated in the trial of offences
under the Act. It was for the State to prove that
the substance seized, if a medicinal preparation,
was not unfit for nse as intoxicating liquor. The
State has even under the Prohibition Act to
establish that the respondents had infringed the
prohibitions contained in ss. 12· and 13. Undoubtedly, by virtue of s. 24A the prohibitions do
not apply to certain categorie~ of toilet, medicinal,
antiseptic and flavouring preparations, even if
they contain alcohol; but on that account the
burden lying upon the State to establish in any
given case in which it is alleged that the accused
has infringed the prohibitions contained is ss. 12
and 13 that the infringement was not in respect
of an article or preparation which was covered by
s. 24A is not shifted on to the shoulders of the
accused. Section 24A is in substance, not an
exception; it takes out certain preparations from
the prohibitions contained in ss.
l~ and 13. But
the operation of s. 24A does not extend to all .,
medicinal, toilet, antiseptic or flavouring preparations oontaining alcohol : even if the preparation
1901
The State of Bomba11
(Now Gujarat)
v.
N arandas M angilal
Agarwal
Shah J.
J961
TM Stal< of Bom0a7
(Now OujaraJ)
..
Jl•1111das Man.tilal
.Agaruial
Shah J.
24 SUPREME COURT REPORTS (1962] SUPP.
is a toilet, medicin9-I, antiseptic or flavouring
preparation, if it is fit for use as intoxicating liquor
the prohibitions contained in ss. 12 and 13 will
apply. In order that the provision contained in
s. 24A is attracted, tho contents of the article,
even as a medicinal preparation has by tho first
proviso to correspond with "the description and
limitations" contained in s. 59A, i. e.
no more
alcohol shall be used' in tho 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
mll.Ilufacture of an article in which tho 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 s.59A
is found in the article, the provisions of s. 24A
will not apply irrespective of the question whether
it is fit or unfit to be used as intoxicating liquor.
Again, the preparation, oven if it is medicinal,
toilet, antiseptic or flavouring, must be unfit for
use as intoxicating liquor, i. e. it must be such that
it must not be capable of being used for intoxica·
tion without danger to health. If the preparation
may be consumed for intoxication it would still
not attract the application of s. 24A, provided the
intoxication would . not be accompanied by other
harmful eft'ect.s. A ·medicinal preparation which
may, because of the high percentage of alcohol
contained therein, even if ta.ken 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 consnmption of the prepa.·
ration in large quantities is likely to involve
danger to the health of the consumer, it cannot
be regarded 1111 fit to be used as intoxicating liquor.
In tlae case before us, the preparation which
is styled Mrugmadasav was sought to be passed off
as a medicinal preparation. H gpnuine, it could have
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(I) s.c.R.
SUPREME COURT REPORTS
25
been used in the treatment of certain fevers and
cholera. The preparation, however,
contained
75.5% alcohol which is much in excess of the
normal percentage of alcohol found in that preparation according to the standard Ayurvcdic
formula. The other constituents of Mrugmadasav
as given in Bharat-Bhishag Ratnakar Part IV are
honey, water and comparatively small quantities
of muRk, black pepper, cloves, nut-meg and cinnamon, and these are not such as to create any
harmful effocts or danger to health.
From the
evidence of Lele, it is clear, not withstanding the
assertion to the contrary of Ansare (which is
disbelieved by the Trial Magistrate and the Sessions
Court) that the preparation seized could not contain
any substantial quantity of musk.
Having regard
to the market price of musk, which ranged between
Rs. 60 to Rs. 80 per tola at the m11terial time, it
would be impossible for any manufacturer intending to do
busint>ss as
11
seller of drugs to
price a
bottle of Jllrug11wdu811V at Rs. 1-1 :! 0
per lb. when 11ccording to the standard
fonnuli~
it would contain about 4% of mu8k and accordiug
to Ans11re the preparation contained 8%
of musk by
weight.
Even according to the
standard formula, the value of musk alone in one
lb. of Jlfrugmadasav would be from Rs. 100 to
Rs. 140. The preparation seized by the police, therefore, could not contain gPnuiue musk in any substantial or even appreciable qmintity.
The High Court did not rely upon the bare
<tssertion of Lele because it was founded only upon
the "sense of smell" ; but the evidence of Lele is
corroborated by the circumstance that musk could
not be a constituent of the preparation, which was
seized, in the large quantity wl1ich it was claimed
it contained. 'fhe other ccnstituents of the preparation, according to Ansare, are comparatively
speaking harmless drugs and having regard to th'ii
large percentage of alcohol, even if it be regarded
as a medicinal preparation, though not a standard
1961
The S iatt o,f Bomb a y
(Now Gr1;,iarat)
v.
Narandas A.fttngila I
Agarwal
Shah J.
1961
T h1 Stale Qf Bombay
(Now Gujarat)
v.
Naran.Jas Mangilat
Agarwal
Shah J.
26
SUPREME COURT REPORTS [1962] SUPP.
.
preparation, which was medicinal, prima facie, it
was capable of intoxicating taken in a normal dose
in which any "Atav" may be consumed. In any
event, it was capable of being used in abnormal
<loses for purposes of intoxieation without any
Herious danger to health or concomitant deleterious
effect. l'n that view of the cAse it must be ht> Id
that the preparation seized by the police was not
saved ·by virtue of·s. 24A from ·the prohibit.ions
contained in ss. 12 and 13 Of the Act.
_,,
It is not· the case of the accused and the
burden Q~ proving that case would lie upon thot•CctJSed, that the importation o.r possession of the
ar·ticlc seized was permitted )lnder s. 11 of the Act.
The.High Court, following an earlier judgment
111' the Bomba.y High Court in D. K. 1lferchant v.
'1.'he 8tate of Bombay (1), decided against' the State
also on the gr1Jund that th'e prosecution for the
offeμccs under ss. 65 and 66 could :r;iot be main·
tained unless the ·state Government was satisfied
after eonsulting the Board of Experts under s. 6A
that the article was' intoxicating liquor. In our
view s. 6A is not stisceptible of the interpretation
placed· upon it by the 1Iigh Court. 8ection 6A
provides as follows:-
"6A. ( 1) For the purpoko of determining
whether
·--~
(a) any medicinal {)r toilet preparation containing, alcohol, or
(b) any antiseptic preparation or
solution containing alcohol,
or ,
( c) any flavouring extra.ct, ·essence or
syrup containing alcohol, is or.is not an article
unfit for use as intoxicatining liquor, the State
Government shall- constitute a Board of
Experts .•
\ll '11958) 60 llum. t.. R. 1183.
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(I) S.C.R. SUPREME COURT REPORTS
27
(2) The Board of Experts constituted
under sub-section (I) shall consist of such
members, not less than three in number, with
such qualifications as may be prescribed. The
members no appointed shall hold office during
the pleasure of the State Government.
.
(3) Two members shall form a quorum
for the dieposal of the business of the Board.
( 4) Any vacancy of the member of the
Board shall be filled in as early as practicable:
Provided that during any mch vacancy
the continuing members may act, as if 110
vacancy had occurred.
(5) The procedure reg&rding the work of
the Board shall be such as may be prescribed.
(6) It shall be the duty of the Board to
advise the State Gov!'rnment on the question
whether any article mentioned in sub-srction
( 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 11dvice the State Govcrmr cnt
shall determine whether any such artiule is
fit or unfit for use as intoxicating liquor or
not and sueh article ehall be presumed accordingly to be fit or unfit for use as intoxicating
liquor, until the contrary is proved."
, .,
Dy the first sub-section a duty is cast upon the
State Government to constitute a Board of Experts
for the purpose of determining whether the medicinal, toilet or antiseptic preparations or flavouring
materials containing alcohol are unfit for uee as
intoxicating liquors.
Sub-sections (2) to (5) deal
with matters purely procedur&l. By sub-s. (6) duty
is imposed upon the Board to advise the State
,Government on the question whether any substance
mentioned in sub-s. (I\ containing .e.lcohol is unfit
for use as intoxicating liquor and on such other
1961
Tiu State of Bombay
(i.Vow G~,iflrat)
v.
Narandas ll.f angilal
Agarwal
Shah J.
- 1961
Tli~ Stal~ of Bombay
· ( .. l\"ow :Jlf,jarat)
v •
.JVurandas i\latigilal
A;a1wal
Shafi J.
28
SUPREME COURT REPORTS (1962) SUPP.
rnai.tl'fS incidental to the said question as may he
refon-ed to it by the State Government. If the
opinion of the B011r<l is obtained, duty is imposed
Oil the Government to detcrmimi "·hether the
artiele is fit or unfit
to be used as intoxicating
liqu.Jr and on the determination ~o made by the
G"vernment a rebuttablo presumption arises that
the article iH fit or unfit for use as intoxicating
liquor.
Substantially, the section crPa:tes three
clistinot obligations: (1) upqp the State to constitute
a ~oard for the purpose,; specified in sub-s. (l); (:!)
upon the Boa.rt!, when consulted,
~o advise the
State Government whether a substance mentioned
in sub-section (I) is unfit, for use as intoxicating
Jiq11or; anc.I (3) an obligation on the State, whcm
the advice of the Bo,ircl is received, to determine
whether the artide is fit or unfit to be used 1'8
intoxicating.liq1101·. There is, however, no obligation
expressly imposed upon the .State in any given caso
to. consult the Bmi:r<l of EJ>perts, uor can sm·h "
provision-be implied, and there is nothin# in ss. 65
and 66 which make the consultation with the Board
a conclitiqn precedent to the institution of proceedings for breach of the provisions of the Act. Section
6A was incorporated in' the Bombay Prohibition
Act by Act 26 of 1952 which
also in.corporati>d
s. !l!A. In view of the judgment of this Court in
BaJ,sara's case(') it was fouhd that the Bombay
Prphibitioil Act, in so far as it sought to impose
restrictions and to provide penalties for infringe·
ment of those restrictions in respect of genuine
medicinal,
toilet, antiseptic
preparations and
flavouring .extracts, was ultra vires. The Legislature
enacted s. ·24A and restricted the prohibitions con -
·tained in.ss. 12 and 13 qua these preparations. It
'also provided for settingtip machinery for determining whether the preparations specified· were unfit
for use· as intoxicating liquor: but the Legislature
dig·not impose any obligation upon the State to
resort to the machinery provided by a. 6A.
B:i.:
declining t'o avail itself of the machinery provided
(I) The Stale of Bombay v. F. N. Balsara, [1951] S. C.R. 6&2.
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(I) S.C.R.
SUPREME COURT REPORTS
29
by sub-s. (6) of s. fiA, in c&ses which are not sent
to the Board, the State may undertake an onerous
burden, i.e. it will not be entinled to rely on the
presumption arising under the last sentence of that
sub-section and will have affirmatively to establish
the ingredients of the offence.
Consultation with
the Board and the determination contemplated by
s. 6A would make the task of the State in a prosecu~ion in respect of infringement of prohibitions
rega.fding the liquor contained in ss. 12 and 13
somewhat less onerous. The State may in a prosecution for
infringement of
th~ prohibitions
contained in ss. 12 and 13 rely upon the persumption, after-resorting to the macl1ineryunder s. 6A(6),
but is not obliged to rely upon the presumption.
Imposition of a duty to constitute a Board for the
purposes specified in sub-s. (I), does not involve a
duty to consult the Board and imposition of a duty
upon the Board to advise the State Government
does not involve a duty to consult the Board in
every case where a prosecution is sought to be
launched in .respect of any medicinal, toilet, antiseptic or flavouring preparation containing alcohol.
The plea tha.t because the Government of
Bhopal had levied a duty on the preparation and
had granted a permit, no offence was committed
by importing and possessing the offending preparations in the State of Bombay has, in our judgm,.nt,
no substanoe. Ext. C which is a permit issued by
tho Government of Bhopal to export spirit,
medicinal, toilet preparations and perfumes containing Bhopal made spirit on payment. of duty in
Bhopal State does not protect the importer of tho
preparation in another State against prosecution
for an offence according to the law of that other
State committed by the importation of such articles.
The export permit has not and cannot ha\·e extraterritori&l effect; it merely enables a person seeking
to export "' preparation to do so. The statement
in Ext. L, a letter by the Prn bhat Trading Co. to
1961
The Slate of Bombay
(Jlow Gujarat}
v.
f\'arando5 ,lffln,gi.'nl
Aga1<t.'al
-;.Z---'?'
i.,~hah .T.
"'
1961
Tlie S!ale of Bomhoy
(;Yow '.Jujarat)
Y.
."t'ar•nd.u Mantilul
Atarwal
30 SUPREME OOURT REPORTS
[1962) SUPP.
.. •
Rajkumar Ll\boratories,
Rchorc-tha.t t.he former "hold a licence for possraaion and sa.le"--
without production of surh licence,
cannot he
set up in dcfrncc.
If it was the case of the
respondents (and the burden of proving lay upon
the rt•spondents) that the importation and poBSession of the article was lawful in view of a licence
i88ued under s. 11, it was for them to produce the
licence grunted under that section.
None such having been produced, the defence is not avilable to
the respondents.
Nor does th11 order of the Commissioner of
Exds" D<'partml'nt, Bhopal elated October 14, l 9!i!i
(Ext. M) advising against the exportation to the
State of Born hay h.v the manufacturers in the St11tt>
of Bhopal of proprietar.v spiritnouq prepara1inn.q
inclnrling '}fn1gm(ll/asav' or other Ayurvcdie pr•'·
parnt.ions which conta.iu a
large percentage of
alcohol without getting the preparations classifi<,d
for <luty purposes MSiRt their case.
It apix·r.rA
that iu ,July.
19;").l the
Excise and
prul1ibitirm Director of Bombay had addressed a letter to
the ChiP-f Commissioner of Bhopal informing that
Officer that "28 restrict.cd A.w1m.• and
Arisht1•~ ·•
nwntioned in tfoi list appenrled thereto were linhln
in the State of Bomhny tn rluty at the rate of Rs. ~
per Imperial Gallon of six reputed quart bottles and
further requesting that Officl'r to issue instrnctions to manufacturers in the State of Bhnpal
t.hat these preparationR should not he exported
to
the State of
Hom bay
except
on pa.v.
ment of the rluty at the above prescribed raw
to the credit of the State of Bombay and 1mdc1·
cover of an export. pass granted h.v the competent
Excise authority of the District of export. The list
of restricted Asm-a• and Arishtas docs not include
"Mru(Jmad.a.sav" and it exprcs~l.v refers to "Ayurvedie preparations prepared acc:ording to Ayurvedic
process containing self.generated nlcohol." TI1l'rc
is nothing in the lctwr dated July 23. 1954, which
may lend support to the contention of the respon-
.1
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(I) 8.C.R.
SUPREME COURT REPORTS
31
dents that they had on payment of excise duty
been authorised to import "1frugmadr1sav" and the
prohibitions contained in ss. 12 and 13 in respect
of preparations containing alcohol were suspended,
for the preparation is not one listed in the Schedule
,. nor does it contain self-generated alcohol.
We are of the view, therefore, that the prohibitions contained in ss. 12 and 13 operated in respect
_ of the preparation seized by the police and that the
payment of excise duty to the Bhopal State under
the law in force in that State, for exporting the
preparation from that State did not protect the res-
..
pondents from liability to prosecution for infringe-
• ment of provisions of the Bombay Prohibition Act
XXVofl949 within the State of Bombay. We further
hold that the High Court was in error in holding
that the consultation with the Board under s. 6A(6)
of the Act was condition precedent to the launching
of prosecution against the respondents.
We set aside the order passed by the High
~ Court and restore the order passed by the Judicial
Magistrate, lst Class, Dohad, and confirmed by the
Court of Session at Panch Mahala sentencing the
respondent No. I to rigorous imprisonment for six
months, and to pay a fine of Rs. 500 and in default
of payment of fine to suffer rigorous imp·isonment
for three months, and . respondent 2 to rigorous
imprisonment for one month and to pay a fine of
Rs. 300 and in default of payment of fine to undergo rigorous imprisonment of one month and fifteen
- ._
days in addition. The order of confiscation of the
property is also restored.
AppCi!l allowed.
1961
The Stnfe of B11mhay
(Now G1y"ar111)
v.
Narandas ,\fangilat
Agarwal
Shah J.