Burden of proof in prohibition cases turns on the enforceable statute: prosecution must prove prohibited liquor consumption.

Where part of a penal prohibition has been declared void as against citizens, conviction can rest only on proof of contravention of the surviving enforceable portion of the provision. The declaration of invalidity does not read an exception or proviso into the statute, and the prosecution must prove that the liquor consumed fell within the category of prohibited liquor under the operative part of the law. Mere proof that the accused smelled of alcohol or had consumed alcohol in some form was insufficient. The burden was on the prosecution, not the accused, to establish consumption of prohibited liquor, and the conviction failed because that burden was not met.

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Issues: Whether, after the declaration that the prohibition on medicinal and toilet preparations containing alcohol was void, the prosecution under section 66(b) of the Bombay Prohibition Act had to prove that the liquor consumed was within the enforceable prohibition, and whether the burden lay on the accused to show that the liquor was a medicinal preparation.

Analysis: The declaration of invalidity under Article 13(1) was held not to amend the statute by inserting an exception or proviso. The unenforceable part of section 13(b) had to be ignored in prosecutions against citizens, and the offence could be established only by proving contravention of the valid and enforceable part of the prohibition. Mere proof that the accused was smelling of alcohol or had consumed alcohol in some form was not enough. The prosecution was therefore required to prove that the liquor consumed was prohibited liquor within the operative part of section 13(b).

Conclusion: The burden lay on the prosecution, not on the accused, to establish that the alcohol consumed fell within the category of prohibited liquor.

Final Conclusion: The conviction could not stand because the prosecution failed to prove consumption of prohibited liquor within the enforceable portion of the Act, and the appellant was entitled to acquittal.

Ratio Decidendi: Where part of a penal prohibition has been declared void as against citizens, a conviction can rest only on proof of contravention of the surviving enforceable portion of the provision, and the accused is not required to prove that his case falls within the void portion.

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