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TMI Blog1972 (11) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... eath smelt of alcohol and he was unable to take care of himself. His companion too was in a similar condition. Police Inspector More thereupon sent the appellant to the J. J. Hospital where the appellant was examined by Dr. Kandurkar. The medical certificate issued by the doctor showed that the appellant was still under the influence of alcohol, that his pupils were dilated and though his speech was coherent, he was still under the effects of alcohol. The chemical analyser's report of his blood, taken as a sample, showed that it contained alcohol to the extent of 0.230 m.g. On these facts, the appellant was put up for trial before the Presidency Magistrate, 4th Court under Sections 68(1)(b) and 85 of the Bombay Prohibition Act, 25 of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no doubt that the evidence of the taxi driver, wit Tiwari was the most material piece of evidence. In his examination-in-chief he stated that the appellant and one other person with him engaged his taxi at about 6 p.m. and directed him to drive them to Kandewadi On the way both of them got down from the taxi and went in a shop. They returned from the shop to the taxi and directed him to drive them to the Central Cinema. As both of them became unconscious in the taxi he drove the taxi to the V. P. Police Station and handed them over to the police there. The appellant at that time, according to him, was not in a position to take care of himself. In his cross-examination, however, the witness added that while the appellant was in the taxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onscious he could not have kept the bottle with him so as to enable him to produce it in the Trial Court as he in fact did. This shows that the taxi driver's statement that he saw him take that mixture in the taxi and the appellant's production of the bottle were obviously afterthoughts to bolster up a defence. Besides, the appellant's own case was that he drank the mixture not in the taxi but in a shop at Kandewadi. The second difficulty is that whether he took the mixture in Kandewadi or in the taxi, that assertion could not explain how the appellant's companion also had become unconscious in the taxi and remained so till Tiwari drove his taxi to the police station and surrendered them to the police. It is impossible to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an intoxicant, it is alleged that the accused person consumed liquor, and it is proved that concentration of alcohol in the blood of that person is not less than 0.05 per cent weight in volume, then the burden of proving that the liquor consumed was either a medicine or a toilet preparation etc. containing liquor, the consumption of which is not in contravention of the Act or the rules or regulations made there under shall be upon such accused person. Sub-section (2) is subject to the provisions of Sub-section (3) but we are in this case not concerned with those provisions, and therefore, they need not be set out. A similar presumption is also provided in Sub-section (2) of Section 85 in a prosecution of an offence under Its Sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 114 of the evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, when he brought the appellant and his companion to the police station, would have pointed out to the police officer that the two passengers had taken something in the taxi and that the bottle containing it was either in the taxi or in possession of the appellant. Nothing of that kind was done. It is clear that the production of a bottle of that mixture during the trial was an afterthought spun out with a view to bolster up a defence. 10. In our view the appellant failed to rebut the presumption which the Court is obliged to draw under the Act The High Court, therefore, was justified in reversing the Magistrate's order of acquittal and convicting the appellant. 11. The appeal fails and is dismissed. - - TaxTMI - TMITax - I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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