THE STATE OF BOMBAY (NOW GUJARAT) versus NARANDAS MANGILAL AGARWAL AND ANOTHER

Citation: [1962] SUPP. 1 S.C.R. 15 · Decided: 06-10-1961 · Supreme Court of India · Bench: K.N. WANCHOO, K.C. DAS GUPTA, J.C. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

...... 
(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 alcohol-
Intoxicating 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 formula-
l96J 
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 prepara-
tion 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 commit-
ted 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 prohibi-
tiom 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 pres

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