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of <h1>Prosecution bears burden to prove alcohol consumption under Bombay Prohibition Act</h1> <h3>Behram Khurshed Pesikaka Versus The State of Bombay</h3> Behram Khurshed Pesikaka Versus The State of Bombay - AIR 1955 SC 123, (1955) 1 SCR 613 Issues Involved:1. Validity and interpretation of section 66(b) of the Bombay Prohibition Act, 1949.2. Burden of proof regarding the consumption of prohibited liquor versus medicinal preparations containing alcohol.3. Effect of the Supreme Court's declaration in The State of Bombay and Anr. v. F.N. Balsara on section 13(b) of the Bombay Prohibition Act.Issue-Wise Detailed Analysis:1. Validity and Interpretation of Section 66(b) of the Bombay Prohibition Act, 1949:The appellant was convicted under section 66(b) of the Bombay Prohibition Act, which penalizes the consumption of intoxicants without a permit. The appellant argued that he had consumed a medicinal preparation containing alcohol, which is not prohibited under section 13(b) of the Act as per the Supreme Court's earlier decision in The State of Bombay and Anr. v. F.N. Balsara.The High Court had reversed the acquittal by the Presidency Magistrate, holding that once the prosecution proves the consumption of liquor, the burden shifts to the accused to show that it was a permissible medicinal preparation.2. Burden of Proof:The Supreme Court examined whether the burden of proof lay on the prosecution to prove that the consumed liquor was prohibited or on the accused to prove that it was a medicinal preparation. The Court referred to the Evidence Act, particularly sections 105 and 106, which deal with the burden of proof and facts within the special knowledge of the accused.The majority opinion held that the prosecution must prove that the accused consumed prohibited liquor. The mere smell of alcohol was not sufficient to establish guilt, as it could result from consuming permissible medicinal preparations. The Court emphasized that penal statutes should be strictly construed, and the burden of proving all elements of the offense lies on the prosecution.3. Effect of the Supreme Court's Declaration in The State of Bombay and Anr. v. F.N. Balsara:The Supreme Court's earlier decision in The State of Bombay and Anr. v. F.N. Balsara declared section 13(b) of the Bombay Prohibition Act void to the extent it prohibited the consumption of medicinal and toilet preparations containing alcohol. The question was whether this declaration effectively amended the statute or merely provided a defense to the accused.The majority held that the declaration rendered the relevant part of section 13(b) inoperative and unenforceable against citizens. It did not amend the statute but required the prosecution to prove that the consumed liquor was prohibited under the enforceable part of section 13(b). The Court rejected the idea of treating the declaration as an implicit amendment or exception to the statute.Conclusion:The Supreme Court concluded that the prosecution failed to prove that the appellant consumed prohibited liquor. The conviction was quashed, and the fine was ordered to be refunded. The Court clarified that the burden of proof in such cases lies with the prosecution, and the declaration in The State of Bombay and Anr. v. F.N. Balsara did not amend the statute but rendered the prohibition on medicinal preparations containing alcohol unenforceable against citizens.
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