State of Madhya Pradesh vs V.L. Jethani and Others

Surajbhan, J.—The respondents, V. L. Jethani and Mat. Puribai, husband and wife, were challaned u/s 6 (1-A) of the Madhya Pradesh Prohibition Act, but were acquitted by the learned Additional District Magistrate, Durg. The State Government has come up in appeal against the order of acquittal dated 18th March 1963 in Criminal Case No. 2568 of 1962.

The case of the prosecution was that 31 boxes containing bottles of Cimicifuga Aroma and Tincture calendulae were seized from the house of both the respondents, who are husband and wife, and live jointly in the same house. Their samples were sent to the Chemical Examiner, Agra, for analysis and it was found that no medicinal ingredients could be detected in them, but alcoholic strength was found to be 165.6 per cent proof and 151.3 per cent proof, respectively, vide Ex. P-16, and these could be used as ordinary liquor on dilution. The respondents were thus prosecuted for the offence u/s 6 (1-a) of the prohibition Act.

Both the accused admitted that they are husband and wife and are living jointly, and that 31 bottles were seized from their possession from their house. Jethani, respodent No. 1, said that he is a Medical Practitioner and holds a Drug Licence, vide Ex. P-13, for selling medicines and also has authorisation vide Ex P-12, for dealing in spiritous medicinal and toilet preparations, and he purchased these from Aroma Pharmaceutical Company of Hyderabad, and after the receipt of the parcels, he had informed about it to the Excise Department. He also contended that the medicinal preparations do not come under the purview of section 6 (1-a) of the Prohibition Act.

We have heard Shri H.L. Khaskalam, the learned Government Advocate on behalf of the State and Shri Rajendra Singh the learned counsel for the respondents, and in our opinion, there is no merit in this appeal.

u/s 6 of the Act, possession, manufacture or sale of liquor has been made an offence. ''Liquor'' has been defined in section 3 (b) of the Act to mean ''intoxicating liquor'' and to include ''spirits, or wine spirit, wine, toddy, beer, all liquid consisting of or containing alcohol, and any substance which the State Government may, by notification, declare to be liquor for the purpose of this Act''. u/s 28-A of the Act, ''nothing contained in section 6 shall apply to any medicinal or toilet preparation not containing more alcohol than is reasonably necessary for the extraction, solution and dilution of the elements contained therein and for the preservation thereof. Section 28-B then says that if the prohibition Commissioner has reason to believe that any medicinal or toilet preparation contains more alcohol than the quantity permitted u/s 28-A, he shall refer the matter for opinion to the Medicinal and Toilet Preparations Board constituted in accordance with the provisions of section 28-E; and if the Board certifies that the preparation referred to it for opinion contains more alcohol than the quantity permitted u/s 28-A, he shall, by an order published in the Gazette, declare that such medicinal or toilet preparation shall be deemed to be liquor, and upon such publication, the provisions of section 6 of the Act shall apply to such medicinal or toilet preparation.

The expression ''medicinal or toilet preparation'' has not been defined in the Act; but it is not disputed in this case that the articles seized from the possession of the accused were prima Jade medicinal preparation. It is nit the case of the prosecution that there were no medicinal preparations, called, ''Cimicifuga Aroma'' and ''Tincture Calendulae'', nor that the bottles alleged to contain these medicinal preparations were spuriously labelled. On the other hand, the evidence shows that the accused V.L. Jethani is a Medical Practitioner and holds a drug licence for selling medicines. He also has in this possession an authorization to deal in medicinal and toilet preparations containing alcohol. The two preparations with respect to which he is being prosecuted were purchased by him from ''Aroma Pharmaceutical Company'', Hyderabad, a registered firm dealing in these articles. After receipt of the two parcels containing the medicines in question, he had informed the Excise Department of the district to examine and certify them so that he could start selling them on the authorisation already given to him by them. Khan, the D.E.O., who has been examined in defence as D.W. 1 has stated that he had received an intimation on 24-7-1962 from the accused regarding the receipt by him of the aforesaid medicines containing alcohol and intimating him to inspect them. In his opinion, these medicines were regulated ''tincture'', i. e. tincture could be sold only on prescriptions of a registered medical practitioner and in regard to which the medical practitioner had also to maintain an account. The learned Additional District Magistrate had also found that the manufacturers at Hyderabad, viz. the Aroma Pharmaceutical Company were a registered company, dealing in these medicinal preparations. The articles were never, at the instance of the Prohibition Commissioner or otherwise, sent to the Board constituted under the Act for its opinion that the said medicinal preparations contained more alcohol than the quantity permitted u/s 28-A of the Act, nor were they declared and published to be liquor u/s 28-B of the Act.

No doubt, they were sent for analysis to the Chemical Examiner, who, vide his report, Ex. P-16, says that the bottle alleged to contain ''Cimicifuga Aroma'' contained ''patent still spirit'' and that no active medicinal ingredient could be detected in it, and the bottle alleged to contain ''Tincture Calendulae'' contained a spirituous preparation in which the nature of the medicinal ingredient could not be definitely established. He does not say that they were not medicinal preparations at all under any of the systems of medicine in vogue in this country, i. e. Allopathy, Ayurvedic, Unani and Homeopathy nor that they did not contain any medicines of any of those systems aforesaid. It may even well be that the Chemical Examiner, Agra, was not qualified to chemically analyse medicines of all the four systems of medicine aforesaid. But whatever that may be, under the circumstances established in this case, it cannot definitely be said, especially in view of the fact that the articles came from a registered manufacturer, and were being sold by a registered medical practitioner after due inspection by the Excise Department in whose opinion they were ''regulated tinctures'', that the articles in question were not medicinal preparations under any of the systems of medicine ordinarily in vogue in this country, but were ''liquor'' within the meaning of section 6 of the Act read with section 28 thereof.

We are thus left with the position that a registered medical practitioner is selling two articles, which, on their face, are named as medicinal preparations and which the medical practitioner had obtained from a registered firm manufacturing them as medicines, and that these articles had not so far been declared as ''liquor'' in the manner provided by section 28-B (2) of the Act. Their possession or sale cannot, therefore, be said to be in contravention of the provisions of section 6 of the Act.

The appeal, therefore, fails and it is dismissed, and the order of the learned Magistrate acquitting both the respondents, V.L. Jethani and Mst. Puribai, is hereby affirmed.