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Criminal Appeal No. 761 of 1966, decided on 14th October 1968.

S. 61‑Drinking without licence‑Accused taking medicine containing high percentage of alcohol and exhibiting symptoms of a person under influence of liquor‑Held, accused did not commit any offence punishable under S. 61.

Wasim Sajjad for A.‑G. for the State.

Ch. Sadiq Hussain for Respondent.

Jalal‑ud‑Din (45), a Police Constable employed as an Instructor for Qaumi Razakars, was tried under section 61 of the Punjab Excise Act, 1914, for having been found drunk on 18‑12‑65 (without licence) by Syed Fazal Hussain Shah Magistrate 1st Class, Gujrat, who by judgment dated 31‑5‑66 acquitted him. The State preferred an appeal from the said acquittal.

2. The prosecution case, briefly stated is as follows: About the time of occurrence the respondent was employed under Mr. Muhammad Amin Bajwa, D. S. P., Gujrat. On 18‑12‑65, the respondent was sent for by Mr. Bajwa. When the respondent appearad before him. Mr. Bajwa noticed that the respondent was faltering in his talk and smelt of liquor. Mr. Bajwa sent him to the Hospital for medical examination. Dr. Asghar Hussain Shah examined him, and was of the opinion that the respondent had taken liquor within four hours. He took samples of his urine and stomach wash. The samples were duly sent to the Chemical Examiner for examination.

4. On the above facts a case under section 61 of the Punjab Excise Act, 1914, was registered against the respondent on 18‑12‑1965, at Police Station, Sadar, Gujrat.

5. At the trial Mr. Muhammad Amin Bajwa, D. S. P., deposed that on 18‑12‑1965 when the respondent came to him, he smelt of liquor and talked falteringly. Therefore, by docket Exh. P. B., he referred him to the Medical Officer for medical examination. Dr. Syed Asghar Hussain Shah P. W. 1 examined the respondent and found the following symptoms:

(1) Alcoholic smell was coming out of his mouth.

(2) He was talking meaninglessly. His gait was that of a drunkard. His eyes were reddish like blood.

He obtained samples of stomach wash and uric for examination by the Chemical Examiner. The Chemical Examiner opined that alcohol was detected in the contents of stomach wash, and that no alcohol was detected in the urine.

6. The respondent denied the charge and pleaded that the case bad been made against him due to enmity with Mr. Muhammad Amin Bajwa.

7. He examined Muhammad Sadiq dispenser in defence. Muhammad Sadiq stated that he had been practising as a doctor for the last 20 years. He also stated that on 18‑12‑1965, the respondent came to him, complaining of cough and indigestion. The witness added: "I gave him the mixture corbonate. It contains 102 to 150 per cent. alcohol . . . . I had not given a written prescription to the accused.

8. The learned Magistrate accepted the statement of D. W. 1 and of the respondent and held that respondent might have taken an overdose of medicine which contained higher percentage of alcohol. He, therefore, acquitted the respondent.

9. The symptoms noticed by Dr. Asghar Hussain Shah and the analysis made by the Chemical Examiner indicated the presence of alcohol. The respondent's plea was that he had taken medicine (mixture corbonate) which produced symptoms precisely similar to those produced when liquor is taken. D. W. 2 stated on oath that he administered mixture corbonate to the res pondent. He explained that the mixture contained 102 to 150 percentage of alcohol. Assuming that the respondent did take such a mixture, the symptoms would be precisely as if he had taken liquor.

10. The short question is whether the defence version is acceptable. Mr. Muhammad Sadiq was cross‑examined but the cross‑examination did not elicit anything which could show that he was untrustworthy. He claimed to be a Medical Practitioner for the last 20 years; even this claim was not questioned. His assertion that mixture corbonate contained 102 to 150 per cent alcohol was not shown to be invalid. Under the circumstances, the learned Magistrate was justified in accepting the statement of P. W. 1 and acting upon it.

11. If the respondent took a medicine containing a high percentage of alcohol and exhibited the symptoms which a person under influence of liquor would do, be did not commit A any offence punishable under section 61 of the Excise Act.

12. There is no force in the appeal. It is dismissed.

Appeal dismissed.

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