LexSTATE OF MAHARASHTRA versus LAXMAN JAIRAM
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Ftbrua1y JG. 230 SUPREME COURT REPORTS [1962] SUPP. STATE OF MAHARASHTRA v. LAXMAN JAIRAM J. L. KAPUR, K. C. DAs GUPTA and RAGHUBAR DAYAL, JJ.) Pro/iibition-Consumption of liquor-Prosewtion for- Acr.used'« statement-Consumption of medicinal preparatfrms with high alro/wlic r.ontent-Burdm of proof-Discharge of- Rambay Pro/iibition Aet,1049-( Rom. 25 of 1949), as amended b.~ Bomba!/ Act 12 of 19.;9, .<s. 66 (1) (b), 66 (2) Code of Criminal Procedure, 1898 (Act 5 of 1898), s. 342. Respondent was arrested by a police constable on the ground that he was smelling of liquor, The doctor who examined him !<'ave evidence at the trial that though the respondent had consumed alcoholic substanr.e he was not under the influence of liquor. In cross-examination the doctor stated that consumption of Necm wpuld produce a blood concentra- tion of 0. 146~~- The respondent in examination under s. 342 of the Code of Criminal Procedure stated that he had not consumed prohibited alcohol but that he had consumed six ounces of Neem. He was acquitted by the Magistrate. The appellant appealed to the High Court. The main ground of appeal was that the mere statement of the respondent that he had consumed 6 ozs. of Neem was not sufficient to rebut the presumption under sub->. (2) of s. 66 of the Bombay prohibition Act. 1949, as amended by the Bombay Prohibition (Extension and amendment) Act, 19.59. The High Court dismissed the appeal in /imine. Thereupon the appellant appealed to the Supreme Court by way of Special Leave on the same ground as was raised before the High Court. Held, that the st•tement of the accused recorded under s. 342 of the C>dc of Criminal Procedure can be taken into consideration in _juclging the innocence or guilt of a person. If the explanation given by the accused in. his statement is acccptahle to the court it must be held that the accused has discharged the burden under s. 66 (2) of the Rombay Prohibi- tion Act. 1949. O. S. D. S1r,r11ny v. Stla'e, distinguished. CRDfi:\AL APPl'Jf,LATE f\ppeal No. 58 of 1961, (1950) S. C.R. 461, 3 S.C.R. SUPREME COURT REPORTS 231 Appeal by special leave from the judgment and order dated October 17, 1960, of the Bombay High Court in Criminal Appeal No. 1235 of 1960. R. H. Dhebar, for the appellant. The respondent did not appear. 1962. February 16. The Judgment of the Court was delivered by. KAPUR, J.-This appeal by Special Leave against the decision of the High Court of Bombay dismissing the State's appeal against the acquittal of the res,Pondent arises out of proceedings under s. 66(l)(b) of the Bombay Prohibition Act, 1949 (Act 25 of 1949), as amended.. hereinafter called the •Act'. The respondent was arrested by Police Cons- table Laxman Sabaji on August 8, 1959, at 8-15 p.m. on the ground that he was smelling of liquor and had therefore contravened the provisions of the Act. The respondent was taken to the hospital where he was examined by Dr. Dadlani Prabhu Rochiram P. W., who has deposed th11t the respon· dent was smelling of liquor but his speech, beha· viour, gait, coordination and memory were normal. From this he concluded that the respondent had consumed some alcoholic substance but was not under the influence of liquor. In cross-examination he stated that Tincture Neem would produce blood concentration of 0.146% M/V of ethyl alcohol. The respondent in his examination under s. 342 stated: Question: "What do you wish to say with reference to the evidence given and recorded against you? Answer : I have not consumed prohibited alcohol. I had taken· 6 ounces of ~eem as I am IJSed to W'1 196! Stat, of Maharashlr• •• /Axman J air am Kapur J. 232 SUPREME OOURT REPORTS (1962] SUPP. 1961 On this evidence the Presidency Magistrate Mr. Stat, of Mahorosht,. Lokur acquitted the respondent. Ho observed:- •· Laxman Jci111m Kapur J, "Neem is a medicinal preparation con· taining about 40% of alcohol and is readily available in the market. I do not see why I should not accept the explanation given by the accused that he hail taken Necm in order to satiate his craving for alcohol. It has £cen held by Bavdekar and Chainani, JJ., in Criminal Appeal No. 1611 of 1954 dated 25-2-1954 that taking an excess dose of medicinal preparation docs not amount to consumption of 'prohibited liquor. In Criminal Appeal No. 1562 of 195!) State v. Domnic Robert D'Sliva where a similar defence was taken up i
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