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TMI Blog1955 (12) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... t amendments in the law designed to give effects to the decisions of the Courts and the Rules made and the Resolutions passed in pursuance of the law. Now, the Bombay Prohibition Act is a pre-Constitution Act and was passed on 16-6-1949. Total prohibition was introduced in the State of Bombay on 6-4-1950. The Prohibition Act was challenged before a Pull Bench of this Court in the case of 'Fram Nusservanji Balsara v. Slate of Bombay' AIR 1951 Bom 210. Now, shortly stated, the relevant provisions of the Act for the purposes of the prevent petition which were considered by the Full Bench were the definition of liquor and the prohibitions contained in Chapt. III, Prohibition Act. Section 2, Sub-section (24) of the Act defines 'liquor' as 'inter alia' including "all liquids consisting of or containing alcohol" and Sections 12 to 17 of the Act enact certain prohibitions regarding the manufacture, import, export, transport, sale, purchase, consumption, use, etc., of any liquor. Section II of the Act, however, enacts that notwithstanding these provisions it shall be lawful to do the acts prohibited "in the manner and to the extent provided by the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in 'State of Bombay v. P.N. Balsara', AIR 1951 SC 318(B). Their Lordships of the Supreme Court took the view that the Pall Bench had erred in holding that the definition of "liquor" was 'ultra vires' the local legislature: hut their Lordships of the Supreme Court were in substantial agreement with the view of the Full Bench that the restrictions Imposed by the Act and the notifications on the sale, possession, use end consumption of medicinal and toilet preparations containing alcohol were unreasonable and therefore declared that Section 12, Clauses (c) and (d) which prevent the import, export, transport and possession of liquor and the selling or buying of liquor and Section 13(b) which prohibits consumption or use of liquor were void in so far as they related to medicinal and toilet preparations containing alcohol. The Supreme Court also upheld the view of the Pull Bench that it was competent to the local Legislature to prevent the use for noxious purposes of such preparations. Thereafter the Bombay Prohibition Act was amended by Act 23 of 1952, and the scheme of the amendments may shortly be considered. Section 6A provides for the appointment of a Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r use as intoxicating liquor" within the meaning of Section 6A, the Bombay Spirituous Medicinal Preparations (Sale) Rules 1954, were made in exercise of the powers conferred by Section 143, Prohibition Act. Rule 3(7) defines "spirituous medicinal preparation" as meaning "any medicinal preparation in liquid form containing alcohol which is fit for use as intoxicating liquor." Rules 4 to 6 provide for licences for sale of such spirituous medicinal preparations. Rule 7 provides that the licensees shall not sell any such preparation except upon production of a medical prescription, so that the combined effect of these Rules read with Section 6A is that in respect of preparations "fit for use as intoxicating liquor," they cannot be sold without a licence and the licensee cannot sell them to any person who does not produce a medical prescription. Simultaneously with the publication of these Rules, the State of Bombay in exercise of the powers conferred by Section 139(d), Prohibition Act 'inter alia' exempted duty-paid medicinal preparations containing alcohol which ore fit for use as intoxicating liquor from the provisions of Section 12(c) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed if it is established that a person had consumed liquor which is prohibited and also that for determining the rights and obligations of citizens, Sections 12(c) and (d) and 13(b) which had been declared to be void must be taken to have been obliterated from the statute. Mahajan C.J. 'at page 144' observes: The part of the section which has been declared void has no legal force so far as citizens are concerned and it cannot be recognized as valid law for determining the rights of citizens. In other words, the ambit of the section stands narrowed down so far as its enforceability against citizens is concerned and no notice can be taken of the part of the section struck down in a prosecution for contravention of the provisions of that section, with the consequence that in prosecutions against citizens of India under Section 13(b) the offence of contravention of the section can only be proved if it is established that they have used or consumed liquor or an intoxicant which is prohibited by that part of the section which has been declared valid and enforceable and without reference to its unenforceable part. No notice at all should be taken of that other part as it has no r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hakrishnarao, a world authority in the sphere of nutrition and therefore on the use of vitamins. All these are professional men who have come to Court to express their views on questions which are within the sphere of scientific knowledge and therefore if there is a difference of opinion amongst them, it does not necessarily follow therefrom that they have come to depose to what they do not consider to be the true scientific position or necessarily to depose for the party by whom they have been called. As regards their relative standing, Prof. Yudkin, whose qualifications cover a whole page, is the Professor of Nutrition in the University of London and that by itself is a high enough qualification; but whilst he may in that capacitive be qualified to express opinions on matters which have been finally scientifically determined, in respect of matters which are the subject of experiments and in respect of which no final conclusions been arrived at, his opinions can only be taken as the opinions of an individual whose experience in the field of either clinical work or actual experiments is very limited. Dr. Hakim stands very much in the same position as Mr. Patel, because both of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating the use of medicinal Preparations containing alcohol, such an authority is to be bound in -- 'Nageswara Rao v state of Madras' AIR 1954 Mad 643, where a Bench of the Madras High Court held that there was legislative competence in the Madras Legislature to enact similar laws. Venkatarama Aiyar J. at page 646, after considering certain cases decided in America, observes: On the principles laid down in the above decisions, the conclusion follows that a statute relating to prohibition of intoxicating liquors can validly regulate the manufacture, sale and consumption of allied products like medicinal Preparations, not for the purpose of interfering with the rights of citizens to acquire, hold or dispose of them, but for preventing them from being diverted from their true purpose and utilised for defeating the provisions of the law relating to prohibition. 9. As a second branch of this argument, it is urged that in so far as the provisions of the law constitute an abridgment of the fundamental rights, the law is in excess of legislative authority. Reliance is placed on the observations of Mahajan J. in Pesikaka's case (C), where the learned Chief Justice observes at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to it by the State Government." It was contended in the affidavit of the Director of Prohibition and Excise put in on behalf of the State of Bombay that the quantity required to produce intoxication was incidental to the determination of the question whether the preparation was or was not unfit for use as Intoxicating liquor. That contention could only lead to the result that the determination as to whether a preparation is or is not unfit for use as intoxicating liquor would involve the determination of the quantity which would be required to produce intoxication a proposition which the petitioners are interested in canvassing and have indeed canvassed before me. If, therefore, the State of Bombay persisted in this attitude, they would have had to concede that the test of whether a preparation is fit or unfit for use as an intoxicating liquor would in some manner depend upon whether it can intoxicate a person in fact. When this was realised, Mr. Seervai, with the express authority, as he told me, of the State of Bombay, gave up the argument that the determination of the quantity required to produce intoxication was incidental to the determination of the question as to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he resolution the passage objected to. Government has also forwarded a copy of this resolution to the appropriate authorities and directed them that if any correspondence has been made with the medical practitioners in pursuance of the resolution as it originally stood, then letters should be addressed to them drawing their attention to the deletion of the relevant clause from that paragraph. The position, therefore, is that that portion of the resolution which might have been objected to has already been deleted and there tore the mere fact that the reference to the Board of Experts was in excess of their statutory authority does not lead to the conclusion that the extermination made by Government after obtaining such advice as to Hall's Wine being fit for use as intoxicating liquor is thereby rendered invalid. 11. I next come to the plea raised on behalf of the petitioners that there is no power under the Act to prohibit the sale, consumption or use of preparations fit for use as intoxicating liquor and therefore the Bombay Spirituous, Medicinal Preparations (Sales) Rules are 'ultra vires'. The argument is that as a result of the Supreme Court's decision in. &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns (Sales) Rules does not contravene any fundamental rights and only imposes reasonable restrictions on the rights guaranteed under Article 19(1)(f) and (g), then Sections 12(c) and (d) and 13(b) would, in my opinion, be not void qua such preparations, But would be perfectly valid. This aspect of the matter, however, will depend upon my determination of the question as to whether the restrictions imposed are or are not reasonable -- a matter with which I will have to deal later in my judgment. 12. The second answer made by Mr. Seervai is that assuming that Sections 12(c) and (d) and 13(b) are obliterated from the statute, there is sufficient prohibition in Sections 11 and 31 of the Act with regard to the sale, possession, consumption and -use of medicinal and toilet preparations containing alcohol. Now, taking first Section 31, that section deals with licences for 'bona-fide' medicinal or other purposes and empowers the Government by rules or an order in writing to make provision for the grant of such licences. As I read the section, it is procedural only find in my opinion it cannot be read as embodying any prohibition against the manufacture, export, import, transport, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvassed by Mr. Seervai is that the words 'it shall be lawful' earned with it the negative import that it shall not be lawful to do the acts therein mentioned except in the manner mentioned in the section. But Mr. Seervai has relied on certain observations in (1880) 5 AC 214 (E), to which I will presently refer. In that case the head-note states: -- The words in a statute 'it shall be lawful' of themselves merely make that legal and possible which there would, otherwise, be no right or authority to do. Their natural meaning is permissive and enabling only." Lord Cairns, the Lord Chancellor, in relation to the 3rd section of the Church Discipline Act, Which enacted that it shall be lawful for a bishop of the diocese to issue a commission for the purpose of making an inquiry into any charge made against a clerk, observes at page 222: -- The words 'it shall be lawful' are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. Mr. Seervai emphasized these words as laying down the proposition that where the words "it shall be lawful" are to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsolute, explicit, and peremptory. In Viner's Abr. the following rule is laid down 'Every statute limiting anything to be in one form, although it be spoke in the affirmative yet Includes in itself a negative'; and in Bacon's Abr., the rule given is, that 'if an affirmative statute which is introductive of a new law directs a thing to be done in a certain way, that thing shall not, even if there be no negative words, be done in any other way.' And then follow cases which the author says bear out these propositions. Now, at best, what Craies lays down is that the words which are affirmative in terms may sometimes be treated as having a negative import and it must, in any given case, be considered whether in the context, they were intended to be and are capable of having such an import. In the context of the Prohibition Act, in my opinion, the words "it shall be lawful" in Section 11 are not capable of having a negative import and they could not possibly have been intended by the Legislature to have any such import, for, the Legislature had in terms enacted negative provisions in Sections 12 to 17 which it would have been quite unnecessary to do i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of determining whether certain preparations containing alcohol are or are not unfit for use as intoxicating liquor. It may be noted that the classification is "is or is not unfit" and not "is unfit or is fit"; but When one proceeds to Sub-section (6), the determination by Government on the advice of the Board of Experts is whether any preparation "is fit or unfit". It appears to me therefore that the word "fit" used in relation to the determination has been used in the same sense as and equivalent to "not unfit.". It is suggested for the petitioners that the true meaning to be attached to the words "fit" for use as intoxicating liquor" is that the preparation is designed for such a use; or in the alternative that it is fit for use so as to cause intoxication or drunkenness. Now, I may at once say that the first of these submissions cannot at all be entertained. The question of what the preparation was designed for does not enter into a consideration of the use to which the preparation is put, and the section in terms deals with its use and not the use for which it was designed. Equally, I find it Impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was recommended "in terms which gives a definite indication that it is intended to be used as a drink." Lord Atkinson in considering what the words meant at page 22 observed: The words point to the method of user, and not the object. The definition given in Webster's Dictionary of the word 'as' is 'in the same manner in which,' and, in ray view, this pharse in Section 17, Sub-section (1), means as if 'it were a drink and not as if it were a medicine,' that is, in the way in which drink is normally used and for the same purposes. It is obvious that the mere presence of alcohol in a preparation does not render it fit for use as intoxicating liquor, e.g. Eau de Cologne. Therefore, in my opinion, it is not correct to interpret the section as meaning anything more or less than that a preparation is "fit for use as intoxicating liquor" if it is capable of being used, to use the words of Atkinson J., "in the way in which drink is normally used and for the same purposes," 15. Mr. Jhavery has drawn my attention to certain observations of my learned brother Desai J. as regards the interpretation of this section which he says are i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as intoxicating liquors. And then again later in the judgment, It will in each case be a question of fact. I should, however, like to make it clear that this section, in my opinion, can only apply if the articles in question be regarded as intoxicating beverages and not to any preparations the use of which may be perverted by some addict bent upon consuming anything containing alcohol. The observations taken by themselves may lead one to the conclusion -- and this is the conclusion that Mr. Jhavery has pressed upon me -- that the learned Judge held that Section 6A related only to such articles as were medicinal and toilet preparations in name only, but were in reality liquor; but I do not think that the learned Judge could have intended to lay down any such proposition and this becomes plain if one looks at the portion of the judgment which follows the first quotation that I have given above. It is in these terms; Now it does follow from the decision of the Full Bench Of this High Court and the decision of the Supreme Court in 'Bulsara's Case (B)' that noxious use as a beverage of articles, the primary use of which is innocent and legitimate may be forbidden. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but if he did so, I must express my respectful dissent from any such view. 16. Now, although I have already held that I would adopt the words of Atkinson J. as the equivalent of the words "fit for use as intoxicating liquor", viz., "capable of being used in the way in which drink is normally used and for the same purposes", this carries with it a further connotation to which I must refer, and that arises out of the evidence given by Mr. Patel who is the Secretary and Member of the Board of Experts. He deposed to what the Board actually did in determining or rather in tendering advice as to whether the preparations were lit or unfit for use as intoxicating liquor. He stated that the Board considered that the symptoms of intoxication, would arise at a blood alcohol concentration of 0.05 to 0.1 per cent, and the Board applied its mind to determine the quantity of alcohol that would be required to produce these symptoms. Having determined such quantity, the Board proceeded to find out whether there were any deleterious or poisonous substances in such quantity, and if there were any, the preparation was considered as fit for use as intoxicating liquor. In other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cohol or wine. Now, both these rival contentions have an element of truth in them; but unfortunately they do not help to determine the real nature of Hall's Wine which is what is relevant for the purpose of determining whether the restrictions imposed on its sale, possession, consumption or use are or are not reasonable. At the outset, I would like to dispose of a claim made by the petitioner^ that Hall's Wine is classified as food in England. Apparently, the suggestion is that it is food and not merely that it is classified as food. Now, Mr. Patel in his evidence admitted that Hall's Wine was classified as food in England, but he narrated the circumstances in which and the purpose for which it was so classified. Under the National Health Service regulations, Medical Practitioners had been prescribing proprietary preparations and as the prescription were paid for at a very small rate by the patients, the bill that the National Health Service had to bear was large. A Committee was therefore appointed known as the Cohen Committee to classify preparations for the purposes of medical benefit into drugs and foods and this Committee included tonic wines under the category ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement "full daily requirement" is not correct and it should be changed to "minimum requirements". However, the deletion was effected by the Manufacturers after protest. (His Lordship then considered the evidence given by Dr. Yudkin, Dr. Hakim and Dr. Radhakrishnarao and consulted the various books produced on the subject and reached the conclusion:) The result of this whole discussion is that Hall's Wine is not calculated to cure any disease. It is a fortified wine plus a certain quantity of vitamins B1, B2 and niacin. It has, when taken In moderation, the beneficial effects of wine together with the additional value that it supplements the vitamins that may be taken in in a balanced diet. This is the preparation in respect of which I have to consider whether the restrictions imposed are or are not reasonable. 19. Now, it is well established that in determining the reasonableness of restrictions, one has to look not only at the substantive previsions, but also to the procedural ones. But before I proceed to do so, it is useful to recall to mind the weighty observations of Patanjali Sastri C.J. in State at Madras v. V.G. Row' 1952 CriLJ 966. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s intoxicating liquor; but whether the fact that there is no right of hearing renders this part of the procedure unreasonable must depend upon other circumstances which, are relevant in this regard. Firstly, the determination is by a Board of Experts, and the qualifications of that Board have been prescribed by the Bombay Prohibition (Board of Experts) Rules, 1954. Every member must have one of the following degrees. M. B. B. S; M. D; Ph. D. (Pharm.); B. Sc. D. Sc.; B. Pharm; or an Ayurvedic degree or diploma entitling him to practise as a medical practitioner or must have five years' experience as a teacher in any medical institution or a chemist or a pharmaceutical or drugs. So the decision of the question is left to people who would be in a position to investigate the intrinsic character of a preparation without external aid. Moreover, the Board's function is merely to advise and the determination is by Government. It is urged by Mr. Jhavery that Government is not bound to accept the recommendation of the Board. That is perfectly true; but if Government did not choose to do so, the value of its determination would of necessity be affected because after all, the resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licence; but when I am called upon to consider the reasonableness or otherwise of the restrictions Imposed on medical, medicinal or toilet preparations containing alcohol in relation to their sale, possession, consumption and use, it seems to me that I cannot but consider the procedural part of the law as much as the substantive. Rule 4 provides for an application for licence to sell spirituous medicinal preparations and Rule 5 provides that the Collector, if he is satisfied that there is no objection to grant the licence applied for may grant a licence. Now, as the words stand, they are capable of being interpreted as conferring an arbitrary and uncontrolled power on the Collector. In this regard Mr. Jhavery relies on a decision, of the Supreme Court in -- Messrs. Dwarka Prasad Laxmi Narayan v. State of Uttar Pradesh' [1954] 1 SCR 803. That case related to the power to issue a licence under the Uttar Pradesh Coal Control Order, 1953, & Section 4, Sub-section (3) of that Order provided that the licensing authority may grant, refuse etc. any licence for reasons to be recorded. In connection with this power, Mukherjea J., delivering the judgment of their Lordships, observed: T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar words of the statute had held that they meant no more than that the Secretary of State, who was the party concerned in that case, had honestly to suppose that he had reasonable cause to believe the required thing, that decision was under special circumstances brought about by conditions at war and Lord Radcliffe proceeded to observe at page 76: Their Lordships do not adopt a similar construction of the words in Reg. 62 which are now before them. Indeed, it would be a very unfortunate thing if the decision of 'Liversidge's Case (M)' came to be regarded as laying down any general rule as to the construction of such phrases when they appear in statutory enactments. It is an authority for the proposition that the words 'if A.B. has reasonable cause to believe' are capable of meaning 'if A.B. honestly thinks that he has reasonable cause to believe' and that in, the context and attendant circumstances of Defence Regulation 183 they did in fact mean just that. But the elaborate consideration which the majority of the House gives to the context and circumstances before adopting that construction itself shows that there is no general principle that such wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal is provided against the decision of such authority, although on the face of the statute the power conferred on the authority may appear to suggest that the authority had uncontrolled and arbitrary power the authority is bound to act on reasonable grounds and to give its reasons for coming to such a decision. So interpreted, the power to grant a licence does not confer on the Collector an arbitrary and uncontrolled power. The control ultimately is by the appellate authority who can correct any error . committed by the Collector. 22. It is next urged that there has been discrimination between Hall's Wine and other Wines. It was stated in the petition that Port Wine and Champagne could be had in quantities of 'four bottles at a time, whilst Hall's Wine could only be had in quantities of 9.2/3rd fluid ounces. That particular discrimination -- assuming it was discrimination -- has now ceased because there is now no restriction on the quantity of Hall's Wine that may be prescribed by a medical practitioner and this particular alleged discrimination need not therefore be further considered. Then it is said that there is discrimination between Hall's Wine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir advice, and as the list of preparations that has been referred to it is a very large one, it has so far not been possible for the Board to make its report, and quite obviously, therefore, it has not been possible for Government to determine whether they are or are not fit for use as intoxicating liquor. Now, it appears to me that no plea on the ground of discrimination between one medicated wine and another can be sustained, unless it is established that there is discrimination in fact. If action has been finally taken against one wine as a result of following the procedure laid down under Section 6A, and action in respect of other wines is under investigation, a case for discrimination is not, in my opinion, made out. It is not necessary that the law should be simultaneously made applicable to all conceivable medicated wines because in respect of each medicated wine there has to be a separate inquiry as to whether or not it is fit or unfit for use as intoxicating liquor, and it is not essential that until the result of the investigation in respect of ell wines is known, action should not be taken in respect of such wines as have been determined to be fit for use as intoxicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndividual over a period of days. Thus, for example, if a prescription prescribed, let us say, a bottle of Hall's Wine per week for a period of three months, it is said that under the rules, only the first bottle would be sold to the individual concerned, and when he wished to purchase a second bottle for the second week, he would have to go and obtain a fresh prescription. Now, in the first Instance, Mr. Seervai after full consultation with the appropriate Departments of Government concerned, made a statement that such was not the intention of the Rules nor were there any administrative directions to that effect, and that it was competent to a licence-holder to sell to the same individual a quantity of spirituous medicinal preparation from time to time as may be prescribed by a doctor in one prescription. In other words, in the instance of the prescription that I have taken, a bottle of Hall's Wine could be bought on the same certificate every week for the period for which Hall's Wine had been prescribed. This appears to me also to be the true and correct interpretation of the Rules although in its working, the requirements of Rule 9 that the prescription or a true c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prohibition' page 405) provides for prescriptions by Physicians for liquor and also imposes a limit as to the quantities which such prescriptions may prescribe. Section 4 of the Act, as I have pointed out earlier, deals with preparations containing alcohol which are unfit for use for beverage purpose & they are not included within the scope of the Act; but the definition of "liquor" which is given in Section 1 (Blackmore "On Prohibition", page 140) includes 'inter alia' medicated wines which are fit for use for beverage purposes and therefore requirement, in America when prohibition had been introduced in that country, was that nobody could acquire medicated wine without a medical prescription and the limit placed on the quantity by Section 7 was a pint of spirituous liquor within a period of 10 days. Now it appears that this provision was challenged in -- 'Lambert v. Yellowley' (1926) 71 Law Ed. 422 (O). This was a suit by a doctor to restrain interference with the quantity of liquor that he may prescribe, and naturally the question as to whether the requirement of a prescription was or was not reasonable could not arise for determination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne used, in fact, to be purchased by people on the recommendation of their friends and not on the prescriptions of their doctors. Jolliffe in his paper Ex. 23 mentions that it was a common practice for people to obtain their vitamin requirements without reference to a doctor, and it may be that any person who was conscious of the vitamin content of Hall's Wine may go and purchase it without the intervention of a doctor. But really and truly the question that I must ask myself is: Is it unreasonable to suppose that a person who is deprived of his drink by reason of the introduction of the policy of prohibition will, if he can do so, resort to a medicated wine and particularly to a wine like Hall's Wine in which it has been proved that the flavour has not been affected by the addition of vitamins, which remains palatable in form and In which the added vitamins cannot be detected even by a Connoisseur and which is a wine which is not only full strength wine, but fortified wine? It appears to me that there can be only but one answer to this question and that is that it was likely to be so used, which leads inevitably to the conclusion that a sale across the counter of Hall&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preparations which are fit for the use as intoxicating liquor is reasonable and my learned brother Desai J. has held in Misc. Appln. No. 35 of 1953 (Bom) (I) that the scheme is reasonable in regard, to preparations which are unfit for such use, with the result that the whole of that scheme is reasonable; and since it is reasonable, it leads to the further consequence that Sections 12(c) and (d) and 13(b) which were declared to be void in the un-amended Act by the Supreme Court are valid qua such preparations in the amended Act. The challenge therefore to the legislative competence on the ground that it contravenes fundamental rights must also, in my opinion, fail. 26. Lastly, it is urged that the determination that Hall's Wine is fit for use as intoxicating liquor is not correct and ought to be set aside. I have considered at some length what the true meaning to be attached to the words "fit for use as intoxicating liquor" in Section 6A is and in the view that I have taken of that section, there cannot be the least doubt that Hall's Wine is not for use as intoxicating liquor. Prof. Yudkin himself in his evidence admitted that -- if the test was whether it could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to intoxicate", then the word "intoxicate" in that connection, having regard to the fact that Section 6A is designed to prevent the abuse of articles innocent in themselves so as to defeat the provisions of the Prohibition Act, would only relate to a state in which a person may be described to be neither sober like a bishop nor drunk like a lord; in other words, when he shows some obvious signs of having had a drink, although such signs may not lead to any objectionable behaviour on his part. Therefore, the question that I have to determine is at what concentration of alcohol in the blood does a man show such signs. There has been produced in this case a scale of toxic symptoms prepared by Walter R. Miles which is Ex. P. It is headed "Subjective States and Observable Changes in Behaviour under Conditions of Heavy Social Drinking". Under a concentration of alcohol in the blood of 10 mgs. per c. c. (.01 per cent) as well as against blood concentration of .20,030 & .40, corresponding to .02,03, and .04 per cent, are given descriptions of states with which really we are not concerned in this case, because the blood concentration that the Board of Experts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trol evident in every stage of drunkenness; most prominent feature of initial stage. The learned author states. And the weakening of his critical self awareness is especially revealed by the fact that such Jovial remarks as he now utters seem to him to shine with a lustre hardly perceptible to the normal mind; hence the tendency, perhaps the most characteristic and constant feature of the first stage of drunkenness, to flippant whimsical utterances, which, like the rest of the subjects behaviour, betray the blunting of his critical self-consciousness and of his sense of personal responsibility. 27. The book proceeds to point out that the successive stages or phases of intoxication cannot be sharply distinguished, and every case presents its peculiar combination and succession of features. These three stages really do not concern us except the initial stage and obviously the initial stage is reached as appears from Mile's tables, which Greenberg in effect adopts, even at as low a concentration as .05 per cent. Mr. Jhavery for the petitioners has relied on Ex. Z, which gives in cartoon form the effects of alcohol in the urine and for a concentration of less than 1 mlg. in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iluted. "If such man had in his body and thoroughly distributed, 2 ounces of alcohol, the concentration of alcohol in the body water would be 0.115 per cent (2 ounces is 0.115 per cent of 109 pounds). It would not follow, however, that this would be the concentration in his blood or in any particular tissue or organ. These concentrations would depend upon how much water containing the alcohol was in the blood or tissues. And since about 85.0 per cent of the volume o£ blood is water, the concentration in the blood would, for the amounts given, be nearly 0.1 per cent. The learned authors then proceed to point out that the simple relations shown here are subject to Qualifications, because the concentration of alcohol that is found in the blood depends on many factors which cannot be accurately assessed. The first factor is that if alcohol is taken in a diluted form, the concentration in the blood is smaller and takes place after a longer time. The second factor is that if there is food in the stomach, the absorption of alcohol in the blood is delayed and as the process of oxidation of alcohol begins the moment alcohol is taken in, the ultimate content of alcohol in the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time to study what he described as the complicated tables in Ex. 14. In the book. "A review of the Effects of Alcohol on Man" at page 199 the approximate amounts of alcohol in the blood stream after certain doses of liquors have been set out and amongst them are 7 ounces of Marsala Wine, and the amount of alcohol in the blood is stated to be 0.058. In the same book at page 285 the alcoholic content of Marsala Wine is stated to be between 17 and 19 per cent, with the result that the alcohol content found in this case corresponds approximately with the alcohol content found in the experiments Ex. 14; and were it necessary for any purpose to ascertain what quantity of Hall's Wine would be required for the purpose of bringing about a blood concentration of .05 per cent, I would consider the evidence of the experiments in Ex. 14 and the statements in "The Review of the Effects of Alcohol on Man" as a guide for calculating the requisite quantity. It appears to me to be quite unnecessary to pursue the arithmetical part of this inquiry and to make the actual calculations because the only suggestion made by the petitioners is that if the quantity arrived at is so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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