The State Of Bombay (Now Gujarat) vs Naraindas Mangilal Agarwal Andanother

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 65 of 1959

Decision Date: 6 October 1961

Coram: J.C. Shah, K.N. Wanchoo, K.C. Das Gupta

The case was titled The State of Bombay (Now Gujarat) versus Naraindas Mangilal Agarwal and another, and the judgment was delivered on 6 October 1961 by the Supreme Court of India. The bench consisted of Judges J. C. Shah, K. N. Wanchoo and K. C. Das Gupta. The petitioner was the State of Bombay, presently Gujarat, and the respondents were Naraindas Mangilal Agarwal and another individual. The judgment was recorded on 06/10/1961 and is cited as 1962 AIR 579 and 1962 SCR Supl. (1) 15, with further citator references including F 1963 SC1531, D 1966 SC 145 and D 1966 SC 722. The matters concerned the Bombay Prohibition Act, 1949 (as amended by the Bombay Act 26 of 1952) and specifically sections 6A, 11, 12, 13 and 24A, dealing with medicinal preparations containing excess alcohol, intoxicating effect, the burden of proof, the role of a Board of Experts, and the validity of convictions under the prohibition provisions.

The respondents were charged with offences punishable under sections 65(a) and 66(1)(b) of the Bombay Prohibition Act, 1949, for alleged violations of sections 12 and 13 of the same Act. According to the prosecution, the respondents had brought a motor truck into the State of Bombay from the adjoining State of Bhopal carrying bottles labelled “Mrugmadasav”. The prosecution asserted that the bottles did not contain the genuine Ayurvedic preparation Mrugmasadav but instead contained only intoxicating liquor, and that the import, transportation and possession of such liquor without a permit or licence under the Act were prohibited. The magistrate examined the bottles and found that they contained 75.50 percent alcohol, a level far exceeding the normal percentage of alcohol used in preparing Mrugmadasav under the standard Ayurvedic formula. The magistrate also observed that the bottles did not contain any appreciable quantity of musk essential to the preparation and, given the large percentage of alcohol, they could be used for intoxication. Consequently, the magistrate held that the preparation was not protected by section 24A from the prohibitions in sections 12 and 13, and convicted the respondents.

The High Court, however, acquitted the respondents on two grounds. First, it held that the State had failed to prove that the contents of the bottles were liquor intended for consumption as an intoxicant. Second, it found that the State could not lawfully conclude that the bottles contained intoxicating liquor without obtaining the opinion of the Board of Experts constituted under section 6A of the Act. When the State of Bombay filed an appeal with special leave, the respondents contended that, irrespective of the High Court’s findings, the Government of Bhopal had levied a duty on the preparation and had granted a permit, so that no offence was committed by importing and possessing the preparations in the State of Bombay.

The Court held that (1) the burden of proving that the substance, even if a medicinal preparation, was not unfit for use as intoxicating liquor rested on the State, and the State had to establish that the prohibitions in sections 12 and 13 of the Act had been infringed; (2) if alcohol in excess of the quantity prescribed by section 59A was found in the article, the provisions of section 24A would not apply regardless of whether the substance was fit or unfit to be used as intoxicating liquor; (3) a medicinal preparation that, because of a high percentage of alcohol, could intoxicate a normal person even in the ordinary dose would be regarded as intoxicating liquor within the meaning of section 24A, whereas a preparation containing only a small percentage of alcohol, even if capable of intoxication when taken in large quantities, could not be regarded as fit to be used as intoxicating liquor within that section; and (4) a State may, in a prosecution for infringement of the prohibitions contained in sections 12 and 13, rely on the statutory framework to determine liability.

The Court explained that the State of Bombay bore the responsibility to establish that the Bombay Prohibitions Act of 1949 had been violated, and that the obligation to prove that any exemption under section 24A did not apply could not be placed on the accused. It further held that where the quantity of alcohol present in a substance exceeded the limit prescribed by section 59A, the provisions of section 24A became inapplicable regardless of whether the substance was deemed fit or unfit for use as intoxicating liquor. The Court also clarified that a medicinal preparation containing a high percentage of alcohol, which could intoxicate a normal person even when taken in the ordinary dose, would be treated as intoxicating liquor within the meaning of section 24A. By contrast, a preparation that contained only a small percentage of alcohol, although capable of causing intoxication if consumed in large amounts, could not be regarded as fit for use as intoxicating liquor under that section. Regarding procedural requirements, the Court observed that the State could invoke the presumption created by the mechanism provided in section 6A(6) after resorting to the appropriate machinery, but there was no duty imposed on the State to consult the Board of Experts established under section 6A, nor was such consultation a prerequisite for initiating prosecution for breach of the Act’s provisions. The Court further ruled that the payment of excise duty to the Bhopal State, which had been made in accordance with the law governing export of the preparation from that State, did not shield the respondents from liability under the prohibition laws applicable in the State of Bombay. Finally, the Court concluded that the product identified as “Mrugmadasav” was not a genuine medicinal preparation; because of its substantial alcohol content, it was capable of intoxicating a person even when taken in a normal dose and therefore was not protected by section 24A from the prohibitions contained in sections 12 and 13 of the Act. The judgment was rendered in Criminal Appeal No. 65 of 1959, a special leave appeal from the order dated 9 January 1959 of the Bombay High Court in Criminal Revision Application No. 1485 of 1958. Counsel for the appellant included representatives of the State, while counsel for the respondent was appointed for the first respondent. The appeal was decided on 6 October 1961, with the judgment delivered by Justice Shah. This appeal concerned the State of Bombay’s challenge to the High Court’s decision that had acquitted the respondents, residents of Sehore in the former State of Bhopal, of offences alleged under sections 65(a)(1) and 66(b)(1) of the Bombay Prohibition Act of 1949.

In this case the Court recorded that Respondent 1 was the brother of the owner of a drug‑manufacturing concern known as Rajkumar Laboratories, situated at Sehore. On 26 January 1955 Prabhat Trading Company, a firm carrying on business at Ahmedabad in the State of Bombay, placed an order with Rajkumar Laboratories for 4 800 bottles of “Mrugmadasav”, an Ayurvedic preparation. Rajkumar Laboratories prepared the drug; because it contained rectified spirit the laboratory paid Rs 3 600 as excise duty to the Bhopal State. A permit authorising the export of the preparation out of the limits of Bhopal State was obtained on 28 July 1955. For the purpose of transporting the preparation from Sehore to Ahmedabad a motor truck belonging to Respondent 2 was engaged. On 29 July 1955 Sub‑Inspector Shintre stopped the motor truck at Dohad‑a, a town in the State of Bombay. Examination of the truck disclosed that it was carrying 7 073 bottles of various sizes, each labelled “Mrugmadasav, Rajkumar Laboratories, Sehore” and bearing a legend stating that the preparation contained 85.5 % alcohol. Respondents 1 and 2, who were accompanying the motor truck in a jeep in which additional bottles of Mrugmadasav were found, were arrested. Samples of the bottle contents were drawn and collected in the presence of Panchas and were sent to the Assistant Chemist, Drugs and Excise Laboratory, Baroda, for analysis and report; additional samples were also forwarded to the Principal of R. A. Poddar Ayurvedic College at Bombay. The respondents together with eight other persons were subsequently prosecuted before the Court of the Judicial Magistrate, First Class, Dohad, State of Bombay for offences punishable under sections 65(a) and 66(1)(b) of the Bombay Prohibition Act XXV of 1949. The Magistrate convicted Respondent 1 of offences under sections 65(a) and 66(1)(b), convicted Respondent 2 of an offence under section 65(a) read with section 81 of the same Act, and convicted four other accused (who are not before this appeal) of certain offences. The Court of Session at Panch Mahals, Godhra, on appeal affirmed the order and sentence, but in exercise of its revisional jurisdiction the High Court of Bombay set aside the convictions and acquitted the respondents. The High Court held, first, that the State had failed to prove that the contents of the bottles were liquor intended for consumption as an intoxicant, and second, that the State Government could not validly conclude that the bottles contained intoxicating liquor without obtaining the opinion of the Board of Experts constituted under section 6A of the Bombay Prohibition Act. Against that order of acquittal the State of Bombay has preferred the present appeal with special leave. The State’s case was that the bottles seized by the police, although labelled “Mrugmadasav”, an Ayurvedic preparation indicated for use in delirious fever and cholera, did not contain genuine Mrugmadasav but instead contained intoxicating liquor, and that the import, transportation and possession of such liquor without a permit or licence under the Bombay Prohibition Act were prohibited.

Parikh, who was the Assistant Chemist in the Drugs & Excise Laboratory at Baroda, testified that laboratory analysis showed the seized samples contained between 75.55 percent and 79.97 percent volume‑by‑volume ethyl alcohol. He expressed the opinion that the material inside the bottles could not be described as an “Asav” preparation. According to Parikh, the liquid was suitable for use as intoxicating liquor and did not correspond to any recognized standard preparation. He added that, because he did not have the facilities to examine other active ingredients, he could not determine whether the liquid might be a medicinal preparation. M. Y. Lele, the Principal of R. A. Podar Ayurvedic College, further testified that the chief ingredient of genuine Mrugmadasav is musk (Mrugmad), which is known for its distinctive and penetrating odor. Lele reported that when he examined the sample sent to him he could detect no musk odor and therefore concluded that the bottles did not contain Mrugmadasav. He also explained that a traditional preparation of approximately six and a half seers of Mrugmadasav would contain about twenty tolas of musk and that, at the time, the market price of musk ranged from Rs. 60 to Rs. 80 per tola. The prosecution also called One Ansare, an Excise Inspector from Sehore. Ansare stated that the alcoholic proof of the liquid in the bottles was 150, which corresponded to an alcohol content of 0.855 percent by volume, the remainder being water. He affirmed that the Mrugmadasav intended for export to Ahmedabad had been manufactured under his supervision and described it as a “proprietary ayurvedic preparation of added alcohol,” emphasizing that it was not a genuine preparation derived from self‑generated alcohol. When cross‑examined, Ansare claimed that, in his presence, fifty tolas of rectified spirit had been mixed with four tolas of musk and two tolas each of black pepper, jaifal, pipal and cinnamon. Both the trial Magistrate and the Sessions Judge found this portion of the witness’s statement to be unreliable.

The Magistrate, after reviewing all the evidence, held that the respondents had imported into the State of Bombay a preparation containing a large proportion of alcohol that was not produced internally, that the preparation lacked musk, and that it did not adhere to the standard formula of Mrugmadasav. The Magistrate further concluded that the seized material was intended for internal consumption and, because its consumption was likely to cause intoxication, it could not be exempt from the provisions of sections 12 and 13 of the Bombay Prohibition Act. The Sessions Judge concurred with the Magistrate’s findings. However, the High Court disagreed with this view, observing that Lele’s testimony was based solely on his sense of smell and therefore could not substantiate the conclusion that the seized liquor was intended for consumption as intoxicating liquor. The High Court also noted that while Parikh had identified a high alcohol content of about 75 percent, he could not specify the nature of the remaining ingredients. The judgment then referred to section 2(24) of the Bombay Prohibition Act, which defines “liquor” to include spirit of wine, denatured spirit, beer, toddy, all liquids consisting of or containing alcohol, and any other intoxicating substance that the State Government may declare to be liquor.

Section 2(24) of the Bombay Prohibition Act defines “liquor” to include two categories. The first category, set out in clause (a), covers any spirit of wine, denatured spirit, beer, toddy and any other liquid that is of or contains alcohol. The second category, set out in clause (b), embraces any other intoxicating substance that the State Government may, by a notification published in the Official Gazette, declare to be liquor for the purposes of the Act. Section 2(22) defines “intoxicant” as meaning any liquor, intoxicating drug, opium or any other substance which the State Government may, by a notification in the Official Gazette, declare to be an intoxicant. Chapters III of the Act contain sections 12 through 24, which enumerate a variety of prohibitions. Under section 12 the law provides that no person shall (a) manufacture liquor; (b) construct or work any distillery or brewery; (c) import, export, transport or possess liquor; or (d) sell or buy liquor. Section 13 adds further prohibitions, stating 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 must be read subject to section 11, which, to the extent that it is material, stipulates that notwithstanding the prohibitions contained in Chapter III it shall be lawful to import, export, transport, manufacture, sell, 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 sections 12 and 13 are also subject to the restrictions set out in section 24A, which was inserted by the Bombay Act 26 of 1952. When the Act was originally enacted, the prohibitions contained in the various sections were, subject to section 11, absolute. The validity of the Bombay Prohibition Act was challenged before the Bombay High Court, and that Court declared certain provisions of the Act to be ultra vires, as reported in Fram Nusservanji Balsara v. State of Bombay (1). Against the High Court’s decision an appeal was preferred to this Court (2). Justice Fazal Ali, delivering the judgment of the Supreme Court, summarised his material conclusions for this appeal as follows: “In the result I declare the following provisions of the Act only to be invalid: (1) Clause (c) of section 12, so far as it affects possession of liquid medicinal and toilet preparations containing alcohol; (2) Clause (d) of section 12, so far as it affects the selling or buying of such medicinal and toilet preparations containing alcohol; (3) Clause (b) of section 13, so far as it affects the consumption or use of such medicinal and toilet preparations containing alcohol.” The citation for the first High Court case is L.R. [1951] Bom. 210, and the citation for the Supreme Court appeal is State of Bombay v. F.N. Balsara [1951] S.C.R. 682.

The Bombay Legislature subsequently enacted Act 26 of 1952, which by means of section 7 added section 24A. The amended provision now reads: “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 containing 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. Provided further that the purchase, possession 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 sections 12 and 13 were no longer to apply to toilet, medicinal, antiseptic and flavouring‑extract, essence or syrup preparations containing alcohol that are specified in the amendment.

In the judgment, the Court set out the operative language of the amendment introduced by section 24A, which stipulated that the prohibitions contained in sections 12 and 13 would not apply to (i) any toilet preparation containing alcohol that was unfit for use as intoxicating liquor; (ii) any medicinal preparation containing alcohol that was unfit for use as intoxicating liquor; (iii) any antiseptic preparation or solution containing alcohol that was unfit for use as intoxicating liquor; and (iv) any flavouring extract, essence or syrup containing alcohol that was unfit for use as intoxicating liquor, provided that such article corresponded with the description and limitations mentioned in section 59A. The provision further required that the purchase, possession or use of any liquor or alcohol for the manufacture of any such article could be undertaken only under a licence granted pursuant to section 31A. By inserting these provisions, the Legislature intended that the offences created by sections 12 and 13 would not extend to the categories of toilet, medicinal, antiseptic and flavouring preparations specified in section 24A. The respondents asserted that the substance imported by them, identified by the Sub‑Inspector of Police as “Mrugmadasau,” was a genuine Ayurvedic medicinal preparation. They argued that, if the State wished to rely on sections 12 and 13, it bore the burden of proving that the material was not a medicinal preparation and that its importation and possession violated the prohibitions, thereby attracting the penal provisions of sections 65 and 66. The Court observed that, in a criminal prosecution, the prosecution ordinarily bears the burden of proving every element of the offence charged against the accused, and it could not accept the Solicitor‑General’s suggestion that a different rule applied to offences under the Act. Accordingly, the State had to demonstrate that the seized substance, even if classified as a medicinal preparation, was not unfit for use as intoxicating liquor. Moreover, the State was required to establish that the respondents had contravened the prohibitions contained in sections 12 and 13. While section 24A expressly excluded certain categories of toilet, medicinal, antiseptic and flavouring preparations from the operation of those prohibitions, the Court held that this exclusion did not shift the evidential burden to the accused. The Court explained that section 24A was not a blanket exception; it merely removed from the ambit of sections 12 and 13 those preparations that satisfied the conditions of being unfit for use as intoxicating liquor and fell within the description of section 59A. However, the Court clarified that the protection afforded by section 24A did not extend to preparations that, although falling within the named categories, were fit for use as intoxicating liquor. In such cases, the prohibitions of sections 12 and 13 remained applicable, and the State retained the onus of proving that the preparation did not qualify for the exemption provided by section 24A.

In order for the provisions of section 24A to apply, the contents of the article, even when it is presented as a medicinal preparation, must first satisfy the description and limitations set out in the first proviso of section 59A. Section 59A stipulates that no more alcohol may be used in manufacturing such an article than the quantity necessary for extracting or dissolving the ingredients contained therein, or for preserving the article. Moreover, where the alcohol is produced by fermentation, the alcohol content must not exceed twelve per cent. If an analysis shows that the article contains alcohol in excess of the amount prescribed by section 59A, then the provisions of section 24A cease to apply, regardless of whether the article is fit or unfit for use as intoxicating liquor. The Court further explained that a preparation, even if it is classified as medicinal, toilet, antiseptic or flavouring, must be unfit for use as intoxicating liquor; that is, it must not be capable of being used for intoxication without posing a danger to health. If a preparation can be consumed for intoxication, it will still not bring section 24A into play provided that such intoxication is not accompanied by any other harmful effect. A medicinal preparation that contains a high percentage of alcohol may, even when taken in the ordinary dose, act as intoxicating liquor. Conversely, a medicinal preparation containing only a small percentage of alcohol may still become intoxicating if taken in large quantities, but if consumption in such large quantities is likely to threaten the consumer’s health, the preparation cannot be regarded as fit for use as intoxicating liquor. In the present case, the preparation that was called “Mrugmadasav” was presented as a medicinal preparation. If it were genuine, it could have been employed in treating certain fevers and cholera. However, the seized preparation contained 75.5 per cent alcohol, which is far above the normal percentage of alcohol prescribed by the standard Ayurvedic formula for that preparation. The other ingredients listed for Mrugmadasav in the text “Bharat‑Bhishag Ratnakar” Part IV are honey, water and comparatively small amounts of musk, black pepper, cloves, nutmeg and cinnamon, none of which are likely to cause harmful effects or danger to health. Evidence supplied by Lele demonstrates, despite the contrary assertion of Ansare, which was not believed by the trial magistrate or the Sessions Court, that the seized preparation could not have contained any substantial quantity of musk. Considering that the market price of musk at the relevant time ranged from Rs 60 to Rs 80 per tola, it would have been impossible for any drug‑selling manufacturer to price a bottle of Mrugmadasav at Rs 1‑12 per pound. According to the standard formula, the preparation should contain about four per cent musk, whereas Ansare claimed that the preparation contained eight per cent musk by weight.

In this case, the Court observed that according to the standard formula, the monetary value of musk alone in one pound of Mrugmadasav would range between Rs.100 and Rs.140. Consequently, the sample seized by the police could not have contained genuine musk in any substantial or even appreciable amount. The High Court had declined to rely on Lele’s bare assertion, which was based solely on a “sense of smell”. However, Lele’s testimony was supported by the circumstance that musk could not be a component of the large quantity of preparation that was claimed to be present. According to Ansare, the remaining ingredients of the preparation were, in comparison, harmless drugs. Considering the high proportion of alcohol, even if the preparation were treated as a medicinal product—though not a standard medicinal preparation—it would, on its face, be capable of producing intoxication. Such intoxication could occur when the preparation is consumed in the usual dose of any “Asav”. The Court noted that such a preparation did not pose a serious danger to health or cause a concomitant deleterious effect. On this basis, the Court held that the seized preparation was not exempt from the prohibitions in sections 12 and 13 of the Act by virtue of section 24 A. The burden of proving that the importation or possession of the seized article was permitted under section 11 rested on the accused, and the Court found that the accused had not met that burden. The High Court, following an earlier decision of the Bombay High Court in D. k. Merchant v. The State of Bombay, had decided against the State on the ground that prosecutions under sections 65 and 66 could not proceed. The State Government, after consulting a Board of Experts under section 6A, had to be satisfied that the article was intoxicating liquor. The Court disagreed with that interpretation of section 6A. Section 6A states: “6A. (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. (1) (1958) 60 Bom. L. R. 1183. (2) The Board of Experts constituted under sub‑section (1) shall consist of such members, not less than three in number, with such qualifications as may be prescribed. The members so appointed shall hold office during the pleasure of the State Government. (3) To members shall form a quorum for the disposal of the business of the Board. (4) Any vacancy of the number of the Board shall be filled in as early as practicable: Provided that during any vacancy the continuing members may act, as if no vacancy had occurred. (5) The procedure regarding the work of the Board shall be such as may be prescribed.”

Section 6A, sub‑section (6) provides that the Board of Experts must give advice to the State Government on whether any article described in sub‑section (1) and containing alcohol is unfit for use as intoxicating liquor, and also on any other matters that the State Government may refer to it in relation to that question. Once the State Government receives such advice, it is required to decide whether the article in question is fit or unfit for use as intoxicating liquor. The decision of the State Government is then taken to create a presumption that the article is either fit or unfit for that purpose, and that presumption remains in force until evidence is produced to the contrary. The first sub‑section imposes on the State Government a duty to constitute a Board of Experts for the purpose of determining, in the cases of medicinal, toilet, antiseptic preparations or flavouring extracts containing alcohol, whether those articles are unfit for use as intoxicating liquor. Sub‑sections (2) through (5) deal only with procedural matters concerning the composition, tenure, quorum and vacancy‑filling of the Board. Sub‑section (6) therefore places a specific duty on the Board to advise the State Government on the fitness of the substances listed in sub‑section (1) and on any incidental questions that the State may refer. When the Board’s opinion is obtained, the State Government must then make a determination of fitness or unfitness, and that determination gives rise to a rebuttable presumption that the article is either fit or unfit for use as intoxicating liquor. In essence, the provision creates three separate obligations: first, the State must form the Board for the purposes enumerated in sub‑section (1); second, the Board, upon being consulted, must advise the State on whether a specified substance is unfit for use as intoxicating liquor; and third, the State, after receiving the Board’s advice, must decide on the fitness of the article, thereby triggering the statutory presumption.

However, the statute does not expressly require the State Government, in any particular case, to seek the Board’s advice, nor can such a requirement be read into the provision. Moreover, sections 65 and 66 of the Act contain no condition that makes consultation of the Board a prerequisite for initiating proceedings for an alleged breach of the Act. Section 6A was added to the Bombay Prohibition Act by Act 26 of 1952, which also introduced section 24A. In the decision of this Court in the Balsara case, it was held that the Bombay Prohibition Act, to the extent that it attempted to impose restrictions and penalties for violations concerning genuine medicinal, toilet, antiseptic preparations and flavouring extracts, exceeded the legislature’s authority and was therefore ultra vires. Consequently, the legislature enacted section 24A to limit the prohibitions contained in sections 12 and 13 as they applied to those particular preparations. At the same time, the legislature provided a mechanism, through section 6A, for determining whether the specified preparations were unfit for use as intoxicating liquor, although it did not impose any duty on the State to make use of that mechanism.

The Court observed that although the statute created a mechanism under section 6A for determining whether a preparation was unfit for use as intoxicating liquor, the legislature did not impose any duty on the State to make use of that mechanism. By choosing not to resort to the procedure provided in sub‑section (6) of section 6A in cases that were not referred to the Board, the State assumed a heavy burden: it could no longer rely on the presumption contained in the last sentence of that sub‑section and was required to prove all elements of the offence affirmatively. The Court noted that consulting the Board and obtaining the determination contemplated by section 6A would lessen the difficulty for the State when prosecuting violations of the prohibitions in sections 12 and 13 concerning liquor. While the State may rely on the presumption after using the machinery of section 6A(6), it is not compelled to do so. The Court further clarified that imposing a duty to constitute a Board for the purposes mentioned in sub‑section (1) does not create an obligation to consult the Board in every prosecution involving medicinal, toilet, antiseptic or flavouring preparations that contain alcohol, nor does the duty imposed on the Board to advise the State Government create a corresponding duty to be consulted in each such case. The Court rejected the argument that because the Government of Bhopal had levied duty on a preparation and granted a permit, no offence was committed by importing and possessing the said preparations in the State of Bombay. The permit, identified as Exhibit C, was issued by the Government of Bhopal to allow the export of spirit, medicinal, toilet preparations and perfume containing Bhopal‑produced spirit upon payment of duty in Bhopal; however, it did not shield the importer in another State from prosecution under that other State’s law. The Court emphasized that the export permit possessed no extra‑territorial effect; it merely authorized the exporter to ship the preparation. Similarly, the statement in Exhibit L, a letter from Prabhat Trading Co. to Rajkumar Laboratories, Sehore, claiming that the former “holds a licence for possession and sale,” could not be used as a defence without producing the licence. The burden of proving that the importation and possession were lawful under a licence issued pursuant to section 11 rested on the respondents, and no such licence was produced. Consequently, that defence was unavailable. The Court also noted that the order of the Commissioner of Excise Department, Bhopal, dated 14 October 1955 (Exhibit M), which advised against exportation, did not alter the legal position.

The manufacturers attempted to ship proprietary spirituous preparations, including Mrugmadasav and other Ayurvedic preparations that contain a large percentage of alcohol, from the State of Bhopal to the State of Bombay without obtaining a duty classification for those preparations. In July 1954, the Excise and Prohibition Director of Bombay wrote to the Chief Commissioner of Bhopal. In the letter the Director informed that twenty‑eight restricted Asavas and Arishtas listed in the accompanying schedule were liable to duty in Bombay at the rate of Rs 3 per imperial gallon of six‑reputed‑quart bottles. The Director also requested that the Chief Commissioner instruct manufacturers in Bhopal not to export those preparations to Bombay except after payment of the specified duty to Bombay’s credit and under an export pass issued by the competent excise authority of the exporting district. The list of restricted Asavas and Arishtas does not contain “Mrugmadasav” and expressly refers only to Ayurvedic preparations prepared according to Ayurvedic process containing self‑generated alcohol. Consequently, the July 23 1954 letter provides no support for the respondents’ claim that, upon payment of excise duty, they had been authorized to import Mrugmadasav, nor does it show that the prohibitions in sections 12 and 13 of the Bombay Prohibition Act, which relate to preparations containing alcohol, were suspended. The preparation in question is not listed in the schedule and does not contain self‑generated alcohol. The Court therefore held that the prohibitions in sections 12 and 13 applied to the preparation seized by the police, and that payment of excise duty to Bhopal State under its law for exporting the preparation did not shield the respondents from liability for violating the Bombay Prohibition Act of 1949 within Bombay. The Court further found that the High Court was mistaken in holding that consultation with the Board under section 6A(G) of the Act was a condition precedent to commencing prosecution against the respondents. Accordingly, the Court set aside the High Court’s order and restored the order of the Judicial Magistrate, First Class, Dohad, which had been confirmed by the Court of Session at Panch Mahals. That order sentenced respondent 1 to six months’ rigorous imprisonment, a fine of Rs 500, and, if the fine remained unpaid, an additional three months’ rigorous imprisonment. Respondent 2 was sentenced to one month’s rigorous imprisonment, a fine of Rs 300, and, in default of payment, an additional one month and fifteen days’ rigorous imprisonment. The order of confiscation of property was also restored, and the appeal was allowed.