Order This is a Criminal Revision Case filed against the judgment of the learned Joint Magistrate of Pudukottai confirming the conviction and sentence of rigorous imprisonment for two months, under section 4(1)(j) of the Madras Prohibition Act, by the Town Sub-Magistrate, Pudukottai. The facts are, the accused Angamuthu, a resident of Sathanathapuram, Pudukottai, was found at 6-30 p.m. on 13th May, 1954, at Pudukottai South Fourth Street, to have consumed arrack. Therefore he was sent before the Civil Assistant Surgeon, Pudukottai General Hospital, and was examined at 7-15 p.m. The doctor found that the accused had consumed alcohol but he was carrying on liquor like a gentleman and was not exhibiting any symptom of drunkenness like unsteady gait or incoherent speech or dilated pupils and reddened eyes. Therefore he gave the certificate that the accused had consumed alcohol but was not under its influence. It is significant that this accused has not told the doctor that he had taken any medicinal preparation containing alcohol. On being put up for an offence under section 4(1)(j) of the Madras Prohibition Act before the Town Sub-Magistrate, the accused pleaded at the outset that he was not guilty and stated that he did not consume liquor. Then after the prosecution case was over and apparently bearing in mind the various rulings of the High Court and the Supreme Court, the following defence was evolved by him. This accused examined a lorry driver of Pudukottai who testified that two months prior to 15th July 1954 at Chitra Lorry Office he saw the accused at about 4 p.m. and that the accused then complained to him of stomach-ache and witness purchased a medicine ‘Vimco’ from the medical shop and that the accused drank it and was lying in the office and that about 6 p.m. a Police Constable took the accused to the Police Station. The learned Sub-Magistrate holding that the prosecution had established its case beyond reasonable doubt and that the version put forward by the accused was false convicted the accused and sentenced him as stated above. On appeal the conviction and sentence were confirmed. Hence this Revision Case. The learned Sub-Magistrate holding that the prosecution had established its case beyond reasonable doubt and that the version put forward by the accused was false convicted the accused and sentenced him as stated above. On appeal the conviction and sentence were confirmed. Hence this Revision Case. The short point for determination in this Revision Case is whether the prosecution has affirmatively and satisfactorily proved their case because it is a fundamental principle of our criminal jurisprudence that it is for the prosecution to establish the guilt of the accused and not for the accused to establish his innocence. The law on this point is clearly stated by Dunkley, J., in Emperor v. Damapala1 “The burden of establishing a case remains throughout the trial where it was originally placed, it never shifts. The burden of evidence may shift constantly as evidence is introduced by one side or the other.....It is a fundamental principle that in a criminal trial the burden of proof lies upon the prosecution to establish the charge against the accused beyond all reasonable doubt. But it would clearly be an impossible task on the prosecution if the prosecution were required to anticipate every possible defence of the accused and to establish that each such defence could not be made out and of this task the prosecution is relieved by the provisions of section 105 and its closely allied section 106. Section 105 enacts that the burden of proving the existence of circumstances bringing the case within any general or special exception in the Inidan Penal Code shall lie upon the accused, and the Court shall presume the absence of such circumstances. In this case the phrase ‘burden of proof is clearly used in its second sense, namely, the duty of introducing evidence. The major burden, that of establishing on the whole case, the guile of the accused beyond reasonable doubt never shifts from the prosecution. The duty of the accused under section 105 is to introduce such evidence as will displace the presumption of the absence of circumstances bringing the case within an exception and will suffice to satisfy the Court that such circumstances may have existed. The duty of the accused under section 105 is to introduce such evidence as will displace the presumption of the absence of circumstances bringing the case within an exception and will suffice to satisfy the Court that such circumstances may have existed. The burden of the issue as to the non-existence of such circumstances is then shifted to the prosecution which has still to discharge the major burden of proving on the whole case the guilt of the accused beyond reasonable doubt.....Where it appears from the evidence for the prosecution that there are reasonable grounds for holding that the case fell within an exception, the presumption enacted in the last line of section 105, does not arise at all.” That the law in England is not different is clear from the judgment of Sankey, L.C., in Woolmington v. Director of Public Prosecutions2, considered and explained in Mangeni v. Director of Public Prosecutions3. The learned Lord Chancellor said: “Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid down on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence.......... Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the decased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the decased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common Law of England and no attempt to whittle it down can be entertained.” These principles were recently considered with reference to the Bombay Pro-hibition Act by the Supreme Court in Behram Khurshed Pesikaka v. The State of Bombay1. The facts of this case were: B.K. Pesikaka who was at the time of his arrest on 29th May, 1951, the Officiating Regional Transport Officer, Bombay, was charged with the offence of rash and negligent driving while in a state of intoxication and tried under section 338, Indian Penal Code and section 66(b) of the Bombay Prohibition Act. The Presidency Magistrate who tried him acquitted him. With regard to the offence under section 66(b) of the Bombay Prohibition Act it was observed that there were certain medical preparations which were allowed to be used by law and there was no satisfactory evidence showing that the accused had not consumed those tonics but only liquor for which he ought to have a permit. On the appeal preferred by the State of Bombay, the High Court confirmed the acquittal in regard to the charge under section 338, Indian Penal Code, but reversed the order acquitting the accused under section 66(b) of the Bombay Prohibition Act. On the appeal preferred by the State of Bombay, the High Court confirmed the acquittal in regard to the charge under section 338, Indian Penal Code, but reversed the order acquitting the accused under section 66(b) of the Bombay Prohibition Act. In this the Bombay High Court followed their earlier Bench decision in Rangrao Bala Mane v. State2that once it is proved by the prosecution that a person has drunk or consumed without a permit, it is for that person to show that the liquor drunk by him was not prohibited liquor but was alcohol or liquor which he is permitted by law to take, namely, medicated alcohol and that the prosecution is not to discharge the burden of the accused and if in answer to a charge of drinking liquor without a permit the accused suggests that the liquor which was drunk by him was not liquor in a prohibited form or was alcohol in a medicated form he must show it. Thereafter B.K. Pesikaka came in appeal to the Supreme Court by way of special leave granted under Article 136 of the Constitution. The Division Bench of the Supreme Court consisting of three Judges, Bhagwati, Jagannath a Das and Venkatarama Ayyar, JJ., delivered separate judgments, Bhagwati, J., holding that the appeal should be allowed and the conviction and sentence passed upon the appellant by the High Court should be quashed and Jagannatha Das and Venkatarama Ayyar, JJ., holding that the conviction of the appellant under section 66(b) of the Bombay Prohibition Act was correct and that the sentence of imprisonment awarded be reduced to the period already undergone. The Division Bench of the Supreme Court accepted a review application made by B. K. Pesikaka and referred the matter to the Constitution Bench and the majority judgment was delivered by the learned Chief Justice with whom B. K. Mukherjea, Vivian Bose and Gulam Hassan, JJ., concurred and S.R. Das, J., dissented. The Division Bench of the Supreme Court accepted a review application made by B. K. Pesikaka and referred the matter to the Constitution Bench and the majority judgment was delivered by the learned Chief Justice with whom B. K. Mukherjea, Vivian Bose and Gulam Hassan, JJ., concurred and S.R. Das, J., dissented. The learned Chief Justice who delivered the majority judgment on the reference held that the effect of the Court’s decision in the Bombay Prohibition case declaring section 13(b) of the Act partially void, in the case of a citizen prosecuted under section 66(b) for committing a breach of the provisions of the section after the coming into force of the Constitution, was to render a part of section 13(b) of the Bombay Prohibition Act inoperative, ineffectual and thus unenforceable. His Lordship observed that the part of the section which had been declared void had no legal force so far as the citizens were concerned, as it could not be recognised as valid law for determining the right of the citizens and that as a consequence in a prosecution against a citizen of India under section 13(b), the offence of contravention of the section would only be proved if it was established that he had used or consumed liquor or an intoxicant, which was prohibited by that part of the section which had been declared valid and enforceable and without reference to its unenforceable part. The learned Chief Justice remarked that in a Criminal Case unless the prosecution proved a contravention of a provision that was legally enforceable and valid, it could not succeed and that no onus was cast on the accused to prove that this case fell under that part of the section which had been held unenforceable. “The High Court was in error” the learned Chief Justice observed “in placing the onus on the accused to prove that he had consumed alcohol that could be consumed without a permit merely on proof that he was smelling of alcohol. “The High Court was in error” the learned Chief Justice observed “in placing the onus on the accused to prove that he had consumed alcohol that could be consumed without a permit merely on proof that he was smelling of alcohol. In our judgment that was not the correct approach to the question.” The learned Chief Justice further observed that the bare circumstance that a citizen accused of an offence under section 66(b) was smelling of alcohol was compatible both with his innocence as well as his guilt, that it was a neutral circumstance and that that being so, it was the duty of the prosecution to prove that the alcohol of which he was smelling was such that it came within the category of prohibited alcohol. After examining in detail the decision of the Supreme Court in the Bombay Prohibition Case and the interpretation placed on Article 13(1) of the Constitution, the learned Chief Justice observed that it was difficult to treat what had been declared void in that case as an exception to section 13(b) of the Act and apply the rule enunciated in section 105 of the Evidence Act and that the only correct approach to the subject was to ignore the part of the section declared void by the Court and see if the prosecution had succeeded in bringing the offence home to the accused on that part of the section which remained good law. Coupled with these principles we must bear in mind the tests employed by the investigating agencies to detect (a) consuming of liquor; (b) intoxication; in order to find out whether on the facts of the instant case the prosecution has affirmatively and satisfactorily brought home the offence to the accused. The Madras Prohibition Act under section 4(j) makes the consumption of liquor a violation of the liquor laws and criminal offence under this section and makes persons found in a state of intoxication in. any public place and persons other than those permitted to consume any liquor who are found in a state of intoxication in any private place punishable under section 4-A of the Act. When a person consumes alcohol, part of it is burned by the body and supplies heat and energy just as does any other food. any public place and persons other than those permitted to consume any liquor who are found in a state of intoxication in any private place punishable under section 4-A of the Act. When a person consumes alcohol, part of it is burned by the body and supplies heat and energy just as does any other food. The rest is carried by the blood stream to the brain and nervous system where its effect is similar in many ways to the hypnotics. The most rapid absorption is from the stomach and the small intestines. In fasting subjects it has been estimated that about 60 per cent. of the alcohol ingested is absorbed in one hour, over 90 per cent. in 1½ hours and 95 per cent. in two hours, complete absorption taking place within 2 ½ hours. This rate of absorption is modified by many factors including the presence of food in the stomach, the condition of the stomach wall and the exhibition of certain drugs. In an individual habituated to alcohol, absorption may be more rapid than in a normal person. The drug is rapidly diffused after the absorption and passes to all the organs and tissues except the bone and fatty tissue. As the concentration in the blood increases, the concentration in the tissue rises proportionately. In the brain and the spinal cord and cerebrospinal fluid the rise in concentration is slower and more persistent than in the blood. It is the effect of alcohol on the brain and the spinal cord when it is absorbed from the stomach and the intestinal tract into the blood stream from where it is carried to the brain that causes drunkenness. The degree of intoxication is in direct proportion to the concentration of alcohol in the brain. The absorbed alcohol then gets oxidised to carbon-di-oxide and water slowly within the body. It has been estimated that the maximum amount, which can be metabolised in one hour is about 12 grams equivalent to half a glass of whisky. The ability to deal with alcohol depends upon the power of oxidisation of the alcohol by the tissues. It would seem that the average rate of metabolism is probably 6 to 10 millilitres of alcohol per hour. Renal and hepatic insufficiency may influence adversely the metabolism of the drug. The ability to deal with alcohol depends upon the power of oxidisation of the alcohol by the tissues. It would seem that the average rate of metabolism is probably 6 to 10 millilitres of alcohol per hour. Renal and hepatic insufficiency may influence adversely the metabolism of the drug. The rate of destruction of the alcohol is constant and is independent of the concentration in the blood and tissues. Alcohol is excreted in the urine, sweat, milk, saliva and expired air. The ordinary person eliminates alcohol quite rapidly and regardless of the amount consumed none remains in the living body after 24 hours. Following death concentration of alcohol in the body does not change appreciably for 24 to 48 hours. But after decay and putrefaction set on tests become inaccurate due to substances produced by tissue decay. From the medico-legal point of view the concentration in the blood and urine is of special importance as giving information from which the minimum amount of alcohol consumption can He estimated. The amount excreted in the urine and expired air is not more than ten per cent. of the total ingested. The symptomatology of the consumption of alcohol and alcoholic intoxication is set out in Snyder’s Homicide Investigation, (an American publication), Revised and Enlarged Sixth Printing, at pages 271-272, as follows: “Inasmuch as we are particularly interested in the effect of alcohol upon human behaviour, it is impossible to appreciate this action without a basic knowledge of the two important factors governing behaviour. It might be said that normal behaviour consists of a balance between two opposing forces: one, the mental impulses which are a part of a person’s basic personality; the other, the opposing force known as the inhibitions which regulate, direct and keep the impulses in check. The impulses are a part of a person’s inherited characteristics. He is born with them and cannot be detached from them. Pre-historic man lived almost entirely by his impulses. He ate when he was hungry, he slept when he was tired and was subject to no outside control whatever. As man developed, expediency forced him to associate with others and live in communities for the purpose of protection, ease in collecting food, his education and his general social welfare. Obviously if the impulses of every person remaind unchecked, there would be continuous conflict. As man developed, expediency forced him to associate with others and live in communities for the purpose of protection, ease in collecting food, his education and his general social welfare. Obviously if the impulses of every person remaind unchecked, there would be continuous conflict. Consequently, rules and regulations have had to be imposed for the common good of all persons. However, while one is born with no inhibitions, they are gradually developed by family discipline, rules of etiquette, appreciation of the rights of others, and a submission to the dictates of law and order. These being entirely the product of one’s training from the time of his birth, consequently they are not nearly so firmly attached to him as are the basic impulses with which he is born. Keeping in mind that the chief effect of alcohol is to slow down and depress the nervous system what happens when a person takes a few drinks? The alcohol is absorbed from the stomach and intestine into the blood stream where it is carried to all parts of the body, including the brain and nervous system. Here the alcohol exerts its depressing influence. The first part of behaviour mechanism to be affected is that which is least firmly attached, namely, the inhibitions. As these are slowed down and eventually almost disappear the impulses are left without restraint. Consequently the first signs of alcoholic intoxication may be undue familiarity, the telling of a story which is out of place, or some other action which indicates that the sense of good manners and the observances of proper behaviour is gone. In this condition the person affected feels the freedom from restraint. He forgets his worries and cares, and interprets this reaction as stimulation, whereas in fact it is the manifestation of depression. His muscular reactions are definetly slowed and while he feels in tip-top condition to drive an automobile or to do anything else requiring co-ordination of muscular movements, he is actually not nearly as accurate as he was before he took the drinks. After taking a little more alcohol, his inhibtions will be Wiped out completely and he is well on the way to being intoxicated in the ordinary sense of the word. Some people in this condition are joyful and friendly, others are surly and belligerent, while others may be deeply depressed and indulge in a ‘crying jag’. After taking a little more alcohol, his inhibtions will be Wiped out completely and he is well on the way to being intoxicated in the ordinary sense of the word. Some people in this condition are joyful and friendly, others are surly and belligerent, while others may be deeply depressed and indulge in a ‘crying jag’. It is true that when a person is in the stage of intoxication his fundamental personality is unmasked. The old Roman saying in vino Veritas, which means” in wine there is truth“has a high degree of accuracy. In other words, the real personality of an individual will often be revealed when he is intoxicated. After a person has taken more alcohol, his impulses likewise become seriously affected muscular co-ordination is decreased, he is unsteady on his feet. He drops articles, and his speech is indistinct. When more alcohol is consumed, he finally becomes drowsy to the point where he finally falls asleep. This fact fortunately saves many lives, because if he consumed more alcohol the concentration would finally get up to the point, as it sometimes does where the respiratory centre in the brain is affected and death results.” The diagnosis of consumption of liquor and alcoholic intoxication can be made either (a) on clinical grounds and or (b) chemical analysis. In the case of consumption of liquor unaccompanied by symptoms of intoxication owing to the subject consuming moderate quantity of liquor which he can bear without developing toxic effects from the clinical point of view the outstanding sympton is the odour of the breath. The alcoholic breath is peculiar, distinctive and cannot be disguised completely even if a deodorant is sometimes used as for example peppermint. To quote from Taylor’s “Principles and Practice of Medical Jurisprudence,” Tenth Edition, Volume II, page 541: “For determining whether or not a person has consumed alcoholic liquor there is no test of such ready application and practical value as smell. The smell of alcoholic liquor in the breath or vomit-ted matter if any is a sign of the consumption of alcohol”. The chemical examination of the blood and the urine of the subject and the methods of such chemical examination are described in the following standard textbooks (Indian) Lyon’s “Medical Jurisprudence for India” Tenth Edition (1953) Thacker Spink and Co., Calcutta by Lt. Col. The chemical examination of the blood and the urine of the subject and the methods of such chemical examination are described in the following standard textbooks (Indian) Lyon’s “Medical Jurisprudence for India” Tenth Edition (1953) Thacker Spink and Co., Calcutta by Lt. Col. Greval page 714-715, Mody’s “Medical Jurisprudence and Toxicology” Tenth Edition (1952) (N.M. Tripathe &38; Co.) page 608; Glaister “Medical Jurisprudence and Toxicology” Ninth Edition (1953) page 632 and following; Ralph F. Turnel “Forensic Science and Laboratory Technics” (Charles C. Thomas, Publisher, Springfield Illinois, U.S.A.). It can be shown by such examination that the individual has consumed alcohol very recently and that a certain minimum amount of alcohol has been consumed. But the limitations of both should be borne in mind. In the case of clinical symptom viz., smell of alcohol unaccompanied by any other confirmatory symbol, owing to the absence of intoxication, the following remarks of the standard writers on medical jurisprudence may be borne in mind. The standard Indian text-books are (1) Lyon’s “Medical Jurisprudence for India”, 10th Edition (1953) by Lt. Col. Greval, I.M.S.; (2) Mody’s “Medical Jurisprudence and Toxicology”, 10th Edition (1952) published by Tripathe &38; Co.; (3) Kamath’s “Medical Jurisprudence”, 5th Edition (1948), M.L.J. publication and (4) Taylor, “Principles and Practice of Medical Jurisprudence” 10th Edition (1948) (J.A. Chirchill, Ltd., 104 Gloucester Place W. 1) Volume II with a chapter on medical jurisprudence in India. Lyon’s “Medical Jurisprudence” does not deal with this aspect because it proceeds on the assumption that indulgence in alcohol is not forbidden by law and that it only requires that a person shall not indulge to such an extent as to render himself a source of danger or of annoyance to others and that in the privacy in his own home he may drink himself to comatose without infringing the law. Mody considers an aggressive odour of alcohol in the breath as one of the characteristic and unmistakeable symptons of ingestion of alcohol. Kamath does not deal with this aspect of the case. Mody considers an aggressive odour of alcohol in the breath as one of the characteristic and unmistakeable symptons of ingestion of alcohol. Kamath does not deal with this aspect of the case. Taylor has already been cited and the following cautions mentioned in this connection in this classic may be borne in mind: “A factor which must be borne in mind in regard to the smell of alcoholic liquor in the breath is that the intensity of the smell varies according to the nature of the liquor that has been consumed and to the time that has elapsed since its consumption. If there is no smell of alcoholic liquor in the breath of a person within a reasonable time after his arrest, it is improbable that he has recently consumed alcohol and search would be made for some other cause of condition concerning which an accusation has been made against him. Keenness of the smell varies in different persons who may be applying this test”. In Glaister’s “Medical Jurisprudence and Toxicology” 9th Edition at page 626 we find the following: “The breath in most cases will smell of alcohol and it should be noted whether the odour is that of fresh or stale alcohol. Generally speaking it is not possible to state with certainty the nature of the alcohol taken as judged by the odour of the breath. The deodorant is sometimes used, e.g., peppermint but is not usually completely effective.” Snyder in his “Homicide Investigation” at page 272, states: “Reliance on the smell of liquor on the breath is full of pitfalls, due to The fact that cheap wine and beer generally produce a much more offensive breath than liquor of much higher alcoholic content.” There is no denying, however, that the unmistakable alcoholic breath is an indubitable symptom that alcohol has been consumed. This can also be effectively established as already mentioned by the examination of the blood and the urine and the breath. In the case of urine it has been ascertained that alcohol appears in the urine within half an hour of ingestion. But in the case of more consumption of liquor, analysis is only of significance when alcohol is present in high concentration and at this stage the diagnosis is obvious without the aid of chemistry (Kamath ibid p. 313). In the case of urine it has been ascertained that alcohol appears in the urine within half an hour of ingestion. But in the case of more consumption of liquor, analysis is only of significance when alcohol is present in high concentration and at this stage the diagnosis is obvious without the aid of chemistry (Kamath ibid p. 313). It is also difficult to undertake this chemical test because to be a legitimate and conclusive test the urine of the subject must without any delay be drawn and bottled up and sent to the laboratory without any delay and tested there promptly. Otherwise there might be either no reaction in the case of stale urine or owing to fermentation we may get a wrong reaction unfair to the subject. I need not point out also that in our country such qualitative and quantitative analysis can be made only in Headquarter hospitals and not in the dispensaries which are poorly equipped and presided over by men not trained in such chemical analysis. The blood test presents greater difficulties because it is not possible in this; country to get a specimen of a person’s blood without great difficulty for 4 to 5 cubic centimetres of blood will have to be removed from the veins in the arm. This can only be done by a qualified doctor under careful conditions to prevent sepsis, and after satisfying himself that such drawal of blood would not in any way be detrimental to the pathological symptoms present in the subject. This blood so carefully drawn will have to be carefully bottled up and sent to the laboratory either at district headquarters or to the Chemical Examiner’s Office without any delay. Other- wise disintegrations or fermentations which might result would completely nullify any chemical analysis. In this connection it has also to be borne in mind that in. as much as the Constitution of India has provided by an article that no person shall be compelled to incriminate himself, a person may, until the point is decided by the Supreme Court, legitimately refuse to part with his urine or blood. Therefore in America the tests are now being carried by measuring alcohol of the subject in his expired breath. This test consists of having the suspected to blow into a small rubber balloon. Therefore in America the tests are now being carried by measuring alcohol of the subject in his expired breath. This test consists of having the suspected to blow into a small rubber balloon. This air is then passed through a mixture of potassium permanganate and sulphuric acid which oxidizes any alcohol which may be present. The amount of carbon-di-oxide evolved is determined quantitatively and calculations made in terms of blood alcohol concentration. It is thus possible to. make an accurate measurement of the percentage of alcohol in the expired air and from that figure to easily determine the concentration of alcohol in the blood. This test has the advantage of avoiding the necessity of taking the suspect to a hospital or doctor’s office and also the advantage of knowing the result of the test at once. This apparatus perfected in the United States of America is popularly known as the Drunkometer or Alcoholometer. It is stated to be well adapted for testing persons at the roadside or public places then and there or where the use of the other methods is impracticable. If the Harger Drunkometer, Greenbord and Keater Alcoholometer, or Jetter and Forester perchlorate method apparatus is available the test has to be performed as outlined in the directions accompanying the instrument. The test of alcohol in the saliva has a high degree of accuracy but at present it is not widely used as tests on the blood and the breath. These Drunkometers appear to be m use in the U.S.A. and also in Canada. Recently the New York police opened up a campaign against drunken-driving by setting up three breath-testing Drunkometers at mid-town stations. The drivers who refused to blow into the Drunkometer balloons had their licenses taken away. But the U.S.A. Appeal Court held that this was ultra vires. The further development of the use of Drunkometer in the U.S.A. has to be awaited with interest. In a recent case in Canada in R v Donald1evidence of the result of a test made with a Drunkometer was admitted apparently as corroborative of the other evidence as to the accused’s condition at the time of the offence. The further development of the use of Drunkometer in the U.S.A. has to be awaited with interest. In a recent case in Canada in R v Donald1evidence of the result of a test made with a Drunkometer was admitted apparently as corroborative of the other evidence as to the accused’s condition at the time of the offence. The British Medical Association does not advocate the use of the Drunkometers because they hold that the method of fixing arbitrary minimum levels of blood alcohol on the foot of which alone Drunkometers can be used has few advantages and many disadvantages and that expired air is not a good medium for an estimation (See page 20: "The Recognition of toxication). The net result of this analysis is that in regard to the consumption of liquor the only practicable method in this country now open to the prosecuting agency is to find out whether a subject’s breath smells of alcohol and taking into consideration that the smell of alcohol might be simulated by consumption of other articles like old sugar, the doctor should not only be content with noting that the accused smells of liquor but also note whether unmistakable characteristic odour is that of arrack or toddy or other distinctive grain alcohol. It will only be fair to the accused if the doctor considers that his breath is smelling of alcohol, to give him an opportunity to explain whether it was due to his having taken any medicated permissible preparation containing alcohol like arishta or asava. The information given by the accused must be considered with an open mind by the doctor and he should make a note of the fact in the certificate whether he considers that explanation plausible or not. It seems to be high time that detailed instructions should be issued by the authorities to doctors and the police for the compilation of a really useful medical certificate after giving an opportunity to the accused to explain the circumstances appearing against him and exonerate himself then and there so that innocent men may not be put to the trouble and expense of vindicating themselves after a trial and appeal. This is the British practice as set out in British Medical Association pamphlet, "The Recognition of Intoxication". This is the British practice as set out in British Medical Association pamphlet, "The Recognition of Intoxication". At page 11 it is mentioned: “If the medical examination has been made by a doctor called by the police the opinion formed should be communicated to the detained person whose reply if any should be noted. He should also be given another opportunity to request an examination by a doctor of his own choice. The usual effects of alcohol in their grosser form viz., intoxication or drunkenness can, as pointed out by Glaister (ibid) page 627 commonly be dignosed even by the ordinary individual and naturally with precision and certainty by the trained doctor. The intoxication is the poisoning whether by drugs or liquor or other toxic substances and hence the condition of the nervous system produced by excessive drinking of alcohol: see the Encyclopaedia Brittanica” under title “intoxication”. Unless otherwise satisfied by the statute in which the term is used the word ‘intoxication applies only to the excessive use of intoxicating liquors or drugs. Courts have frequently assayed to define the term ‘intoxication’ or ‘drunkenness’ and a variety of language has been employed in the different cases and the net result is the terms are scarcely susceptible of accurate definition though for all practicable purposes the conditions being so familiar they define themselves without any trouble. Likewise there appears to be no fixed rule for determining whether one is drunk. As a rule intoxication and drunkenness are regarded as synonymous terms; but it is said that to be under the influence of liquor is not necessarily to be drunk or intoxicated since one may be under the influence of liquor without having his mental or physical powers in the least impaired which is after all the real test: see Ramanatha Iyer’s “Law Lexicon of British India” M.L.J. Office, under the title “drunkenness”. For the determination as to whether an individual is drunk or intoxicated the report of the special committee of the British Medical Association published in pamphlet form “The Recognition of Intoxication” (1954, London) British Medical Association, Tavistock Square, WC., 1 shilling, contains important and practical information. For the determination as to whether an individual is drunk or intoxicated the report of the special committee of the British Medical Association published in pamphlet form “The Recognition of Intoxication” (1954, London) British Medical Association, Tavistock Square, WC., 1 shilling, contains important and practical information. Among the many recommendations are:- “That the word ‘drunk’ should always be taken to mean that the person concerned was so much under the influence of alcohol as to have lost control of his faculties to such an extent as to render him unable to execute safely the occupation in which he was engaged at the material time. That it is desirable that a medical practitioner should base his opinion on the following considerations: Whether the person concerned has recently consumed alcohol. Whether the person concerned is so much under the influence of alcohol as to have lost control of his faculties to such an extent as to render him unable to execute safely the occupation on which he was engaged at the material tune. (Under the Road Traffic Act, 1930, the term used is ‘under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle”.) Whether his state is due, wholly or partially, to a pathological condition, which causes symptoms similar to those of alcoholic intoxication, irrespective of the amount of alcohol consumed. That in the absence of any pathological conditions a person is definitely under the influence of alcohol if there is a smell of alcoholic liquor in the breath, and or in the vomitted matter (if any) provided there is a combination of all or most of the following groups of signs or symptoms. A dry furred tongue, or, conversely, excessive salivation. Irregularities in behaviour, such as insolence, abusive language, loquacity, excitement or sullenness, and disorder of dress. Suffusion of the conjunctiva and reaction of the pupils. The pupils may vary from a state of extreme dilation to extreme contraction, and may be equal or unequal. (In the opinion of many police surgeons, when alcohol in toxic quantity has been consumed the pupil reflex to ordinary light is absent, whereas the pupil will contract in a bright light and remain contracted for an abnormally long time, indicating delayed action of the pupil.) Loss or confusion of memory, particularly as regards recent events, and appreciation of time. (In the opinion of many police surgeons, when alcohol in toxic quantity has been consumed the pupil reflex to ordinary light is absent, whereas the pupil will contract in a bright light and remain contracted for an abnormally long time, indicating delayed action of the pupil.) Loss or confusion of memory, particularly as regards recent events, and appreciation of time. Hesitancy and thickness in speech, and impaired articulation. Tremors and errors of co-ordination and orientation. That there is no single test by itself which would justify a medical practitioner in deciding that the amount of alcohol consumed has caused a person to lose control of his faculties to such an extent as to render him unable to execute safely the occupation on which he was engaged at the material time. A correct conclusion can only be arrived at by the results of the consideration of a combination of several tests or observations, such as: General demeanour. State of clothing. Appearance of conjunctive. State of the tongue. Smell of the breath. Character of speech. Manner of walking, turning sharply, sitting down and rising. Picking up a pencil or coin from the floor. Memory of incidents within the previous few hours, and estimation of their time intervals. Reaction of pupils. Character of breathing, especially in regard to hiccough. That the following are tests upon which, taken by themselves, little stress should be laid in deciding whether or not a person is under the influence of alcohol: Presence of tachycardia. Repetition of set words and phrases. Character of handwriting. Walking along a straight line. Failure of convergence of the eyes. That in ordinary circumstances any person accused of ‘drunkenness’ should be able to rely upon being seen by a doctor, if he so desires, within half an hour of the time at which he is charged. The tests usually employed may be divided into two main groups: Data tending to establish the fact that alcohol has been taken. Smell of alcohol in breath. Suffusion of conjunctive. Flushed face. Tachycardia. Admission of having taken alcohol. Certain abnormal conditions of tongue and lips. Certain abnormal conditions of pupils. Presence of tremors. Tests designed to determine whether or not the amount taken has distrubed the normal behaviour of accused. Memory tests. Smell of alcohol in breath. Suffusion of conjunctive. Flushed face. Tachycardia. Admission of having taken alcohol. Certain abnormal conditions of tongue and lips. Certain abnormal conditions of pupils. Presence of tremors. Tests designed to determine whether or not the amount taken has distrubed the normal behaviour of accused. Memory tests. Accused is asked simple questions, such as date and time of day; where he lives, what he was doing prior to arrest and where he now is. Visual tests. Speech test. Accused is induced to talk and his manner of talking is noted. Co-ordination tests. These include approaching and picking up a small object from the floor or table; selecting a chair and sitting upon it, and getting up again; ability to stand steady with heels together and eyes shut; walking away and returning; walking along a chalk line. Writing tests." Besides these clinical symptoms, the examination of the blood and the urinary alcohol can establish that the individual has consumed alcohol very recently; that there is present in the blood or urine a concentration of alcohol which is or is not consistent with a state of insobriety; and that a certain minimum amount of alcohol has been consumed. It may be generally assumed that persons with 0.1 per cent. alcohol in the blood appear to be gay and vivacious, those with 0.2 per cent. alcohol in the blood show symptoms of moderate intoxication, those with from 0.2 to 0.4 percentage are probably drunk and those with more than 0.5 per cent. are dead drunk or deeply comatose. When the man of alcohol produces 0.6 to 0.7 per cent or more in the blood, death usually ensues from asphyxia. The urinary alcohol concentration is higher than blood alcohol concentration in the proportion of 1:3:1. The figures vary widely ranging from 50 mg. per 100 ml. blood (equivalent to 66 mg. per 100 ml. for urine) in Norway to 150 mg. for blood (equivalent to 200 mg. for urine) in some States of the U.S.A. are fixed by law as making it an offence for a person to drive a motor vehicle. Smith (Taylor Volume II, page 536) discussing alcoholic concentration in blood states that the critical concentration seems to lie at about the 0.15 % level and any one with this amount in his blood can be considered to have imbibed a dangerous amount of alcohol. Smith (Taylor Volume II, page 536) discussing alcoholic concentration in blood states that the critical concentration seems to lie at about the 0.15 % level and any one with this amount in his blood can be considered to have imbibed a dangerous amount of alcohol. Goldberg cited in "The Recognition of Intoxication" p. 21-reports the figures showing that the blood alcohol level at which 50% of the subjects were judged by clinical examination to be intoxicated varied from 80 mg. per 100 ml. (equivalent to no mg. for urine) in Scandinavian countries to 120 mg. per 100 ml. (equivalent to 160 mg. for urine) for the U.S.A. The figures also show that the level at which 95 % of the subjects were diagnosed as intoxicated on clinical examination was about 240 mg. for blood (equivalent to 310 mg. for urine.) All individuals with blood alcohol level above .300 mg. (equivalent to 400 mg. for urine were diagnosed as intoxicated. Therefore the report of the special committee of the British Medical Association states: "As has already been stated the responses of different individuals to the same concentration of the alcohol in the tissues vary widely. General statements cannot be safely applied to individual cases, neither should a diagnosis rely solely on the results of laboratory tests. An examining practitioner should have his opinion in the first instance solely on his clinical findings modified subsequently if necessary in the light of the results of any laboratory tests (page 22)." Therefore the British Medical Association Committee, in their recent report referred to above, in the present state of knowledge recommend that no alteration in the law should be made and that no steps should be taken to adopt the Scandinavian method of fixing arbitrary minimum levels of blood alcohol which they say has few advantages and many disadvantages. In fact their final recommendation is that the doctor must not rely on any one test and that only complete physical examination will suffice which incidentally will also exclude the possibility of some other clinical condition being the sole or partial cause of the symptoms noted. The clinical tests are attacked in our Courts in two ways. First of all, these symptoms are sought to be explained away and there are four decisions of this Court dealing with this matter. The clinical tests are attacked in our Courts in two ways. First of all, these symptoms are sought to be explained away and there are four decisions of this Court dealing with this matter. In Criminal Appeal No. 754 of 1950 The Public Prosecutor v. Chaniappa Pujary1the facts were: The accused in that case was found smelling of liquor, his talk was incoherent and his eyes were red. The trial Magistrate acquitted him on the ground that the smell of alcohol is possible for reasons other than drinking liquor such as taking medicine like asava or arishta and the evidence of consuming liquor being based mainly on the smell it is not conclusive and the symptom of incoherent talk was likely to be due to the perturbation and fear of accused by the arrest and search by the Police and that the redness of the eyes was also explainable as being due to weeping when arrested by the Police. The State preferred an appeal against the acquittal and the reasons given by the lower Court found acceptance at the hands of my learned brother Somasundaram J., who dismissed the appeal. In Crl. R.C. No. 909 of 1951 Shanmugarn In re2 the accused was convicted on the ground that he was smelling liquor, had red eyes, was talking incoherently. In revision the conviction and sentence were set aside by Somasundaram, J., holding that even if old sugar juice was taken it may smell like I.D. arrack and the other symptoms noted, viz., red eyes and talking at random were consistent with the conduct of a person who is rudely awakened from his sleep and questioned in the manner he had been done. In Crl. R.C. No. in of 1954 Mahamad Sultan v. State3Balakrishna Ayyar, J., came to an entirely different conclusion. In this case the convicted person was found to exhibit the following symptoms (1) smell of liquor in the mouth; (2) pupils dilated; (3) eyes red and (4) pulse excited. In Crl. R.C. No. in of 1954 Mahamad Sultan v. State3Balakrishna Ayyar, J., came to an entirely different conclusion. In this case the convicted person was found to exhibit the following symptoms (1) smell of liquor in the mouth; (2) pupils dilated; (3) eyes red and (4) pulse excited. It was argued before Balakrishna Ayyar, J., that these symptoms singly or cumulatively would not make out the consumption of alcohol and this argument was repelled by Balakrishna Ayyar, J., in the following terms: "It is now argued for the petitioner that on the first occasion when the petitioner was sent to the doctor for examination, he applied some tincture iodine to some abrasions on his person and also to some light injury upon his tongue and that the smell of liquor which the doctor noticed on second examination might be due to that reason. This argument overlooks the fact that nearly an hour had elapsed between the two visits and it is very unlikely that the smell of alcohol in which the iodine was dissolved would have persisted in the mouth for about an hour. The explanation was offered that the fast pulse of the accused must have been due to his excitement and that the redness of his eyes also might be explained on the same hypothesis. It was suggested that the pupils might have become dilated owing to the emotion of anger. No doubt, each individual symptom might be ascribed to a separate cause. But the significant fact is that all the symptoms co-existed at the same time and their cumulative significance is extremely important. One particular symptom may be evidence of one disease. A second symptom may be evidence of another disease. But the co-existence, of a number of symptoms are sufficient to identify the particular disease. In the present case the doctorw as clearly of opinion that taking all the symptoms into account it was clear that the accused had consumed liquor. That also was the conclusion of the learned Magistrate and it seems to me that it was right. In Crl. R.C. No. 1290 of 1950 V. Venkata Ramanna v. State the same arguments were advanced before me and I held: “In advancing this argument, the learned advocate for the petitioner, overlooks that consumption of liquor is a physical condition which can be detected in a variety of ways. In Crl. R.C. No. 1290 of 1950 V. Venkata Ramanna v. State the same arguments were advanced before me and I held: “In advancing this argument, the learned advocate for the petitioner, overlooks that consumption of liquor is a physical condition which can be detected in a variety of ways. There are no fixed rules for determining this physical condition. It depends upon the circumstances of each case, and the standard of proof required is clearly laid down under section 3 of the Indian Evidence Act, and does not require the embellishments of case-law, because every case as has been laid down by the House of Lords in the well-known case of Queen v. Leatham1is an authority only for the facts it actually decides. Section 3 states that a fact is stated to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does exist. The normal accompaniments of consumption of arrack are, arrack-breath, incoherent speech, unsteady gait, inexplicable behaviour like the tendency to laugh without cause or crying without reason or be abusive and vociferous, reddened eyes and excitable movement; in other words, all conditions which show that the mental and physical powers have-been affected by the toxic effects of the alcohol.” The second line of defence advanced is that these symptoms of taking liquor are also to be found in certain peculiar and rare cases like epilepsy, fractured skull, intracranial haemorrhage, toxaemic coma of diabetic uraemia. But in advancing this argument it is overlooked that these are conditions which are always within the special knowledge of the offenders and it is for them to show that far from being drunk they were only sick of these diseases. Therefore to state that on account of these rare conditions we must completely brush aside these common symptoms associated with the consumption of liquor, appears; to be thoroughly fantastic. In none of the cases wherein this argument was advanced has it ever been the case for the accused that he had not taken liquor but that he was sick of this or other rare form of disease. In none of the cases wherein this argument was advanced has it ever been the case for the accused that he had not taken liquor but that he was sick of this or other rare form of disease. It is quite true that accused may raise this defence at any stage of the proceedings and as the Court is concerned with what happened, the accused must not be prejudiced by his failure to put forward at an earlier stage his true and best defence and secondly, when an ignorant or ill-defended person is being tried it is open to the Court and indeed it is proper to examine witnesses in order to see whether it discloses facts which would take the accused’s acts outside the culpability created by statute or whether such facts can be reasonably inferred from the evidence; and thirdly, even though the evidence which may be let in by the accused may not be sufficient to prove the plea put forward by him, if the evidence adduced taken along with the consideration of the other evidence creates a reasonable doubt in the mind of the Court as to whether the accused person is or is not likely to have committed the offence, the benefit of that doubt must be given to the accused. But the Court cannot speculate on possibilities. There must be some basis found for the plea in the evidence. That is why the standard of proof required under the Indian Evidence Act as not, be it noted, of every doubt, for everything relating to human affairs and dependent on human evidence is open to some possible or imaginary doubt. This has been well pointed out by Darling, J., in “The Trial of Herbert Rowse Armstrong” (Notable Trial Series). A reasonable doubt means this, it does not mean that you do not like to do it, it does not mean that it is disagreeable to you, it does not mean that by some possible hypothesis you can arrive at that conclusion; there is hardly anything of which a really subtle and ingenious mind cannot convince itself; there is hardly any truth which a subtle and ingenious person cannot honestly bring himself to doubt. But it means that you say you are convinced unless when you consider the facts you have a reasonable doubt as to whether the matter is proved or whether it is not a reasonable doubt in this sense. It is the kind of doubt not such as you would conjure up in the middle of the night but such a reasonable doubt as in the day time when you are about your business would lead you to say “I cannot make up my mind about it.” Therefore the final endeavour made in our Courts is to suggest that though some symptoms might mislead, chemical analysis would not and in every case urinary analysis and/or blood test or scientific instrument like the Drunkometer should be used. But unfortunately for those who advance this line of argument it is found that either in the circumstances of our country such analysis is impossible except at headquarter places like the city of Madras or possibly at a few stations where large General Hospitals are situated or these tests themselves offer difficulties of their own and are not superior to the clinical examination (Lyon’s ibid, p. 714.) Bearing these principles in mind, viz., that it is for the prosecution to affirmatively and satisfactorily establish the charge, and secondly, the test to be employed for detection of consumption of liquor, if we examine the evidence in this case we find that the conviction cannot be assailed. This is not a case of intoxication and. the charge against the accused was that he had consumed liquor. This consumption of liquor has been established by the smell of alcohol testified to by the doctor. The defence of the accused at a late stage and for the first time apparently inspired by the rulings of superior Courts, was that he had stomach-ache at about 4, p.m. on the material date and that the friendly lorry-driver D.W. 1 to whom he had complained purchased Vimco for him, that he drank it and was lying in the office and that the police arrested him. The prosecution has shown that the accused could not have been smelling of the smell of alcohol from the consumption of the alleged Vimco. in two ways, viz., that the evidence of this belated lorry driver D.W. 1 is interested and secondly, that in material particulars it is false. The prosecution has shown that the accused could not have been smelling of the smell of alcohol from the consumption of the alleged Vimco. in two ways, viz., that the evidence of this belated lorry driver D.W. 1 is interested and secondly, that in material particulars it is false. D.W. 1 speaks of purchasing Vimco which is sold like soda-water and the consumption of which would by no. stretch of imagination give a person the alcoholic smell referred to by the doctor. Therefore, realizing this what was produced as the substance taken by this accused was a bottle of Vimtox Forte which is sold only by chemists and that too under prescriptions and concerning which neither the prescription nor the one who prescribed it nor the chemist nor druggist who supplied it has been examined. The doctor has also stated that if medicinal preparations had been taken and which must have been only in medicinal doses the accused would not have smelt the smell of alcohol as he did. It was not the case of D.W. 1 that the accused took a large dose of Vimtox Forte, even assuming that he meant Vimtox Forte for Vimco. Therefore, the prosecution has affirmatively and satisfactorily established that the accused, had consumed liquor and thereby committed the offence for which he had been convicted and sentenced by both the Courts below. The conviction is unassailable and cannot be interfered with in revision and having regard to the circumstances of the case and the trouble, expense and imprisonment already undergone, the sentence of imprisonment is reduced to the period undergone already and this Revision Case is disposed of accordingly. R.M. ----- Sentence reduced.