A. A. DAVE, J. ( 1 ) * * * * ( 2 ) THUS if the report of the chemical analyser disclosed that the blood of the accused contained o. 1081% of ethyl alcohol a presumption could be raised that the accused had consumed liquor. It was for the accused then to discharge the burden by showing that he had consumed medicine or toilet preparation. ( 3 ) THE learned advocate for the defence submitted that the accused had given proper explanation in his statement recorded under sec. 342 of the Code of Criminal Procedure. He urged that the accused had stated that he had taken medicine and there was no reason why his bare statement should not be accepted. He submitted that the medical officer Padra in his cross-examination had admitted that if 8 or 9 Oz. of Winopal were taken the blood may contain 0. 1081% of alcohol. Relying on this part of the evidence of the medical officer the learned defence advocate forcefully urged that when from the prosecution witness it was established that Winopal would create the effect of drunkenness in the accused the accused clearly could be said to have discharged the burden when be stated that he had consumed medicine. I am unable to accept the submissions made by the learned defence advocate. It is true that the degree of proof which the accused would require to rebut the presumption would not be the same which the prosecution would require to prove its case. All the same when the legal presumption has been laid down by a statute in my opinion it would not always be enough to rebut that presumption by a bare statement of the accused. There may be certain circumstances under which the explanation given by the accused in his statement recorded under sec. 342 of the Code of Criminal Procedure may appear to very plausible and reasonable and it would be open to the Court to rely on the same. All the same merely because the accused comes out with a bare statement that he had consumed medicine that itself cannot be said to discharge the burden laid down under law. In the instant case a question was put to the accused by the learned Magistrate about the evidence of Dr. All the same merely because the accused comes out with a bare statement that he had consumed medicine that itself cannot be said to discharge the burden laid down under law. In the instant case a question was put to the accused by the learned Magistrate about the evidence of Dr. Patel that he was smelling of alcohol and was under the influence of alcohol and that his blood was collected and sent to the chemical analyser for test. In reply to that question the accused admitted that he was examined. He however stated that he had not consumed alcohol and was not drunk. According to him he had consumed medicine and produced one empty bottle. It was not the say of the accused that he had consumed particular quantity from that bottle. He merely vaguely stated that he had consumed medicine. He did not name the medicine. He did not produce any bill showing that he had purchased that medicine from a dealer. He has not produced any prescription of a doctor showing that this medicine was prescribed to him. This bottle was produced in cross examination of the medical officer by his advocate. In the absence of a specific statement of the accused that he had consumed this medicine or that he had consumed particular quantity of this medicine it would not be proper to hold that he had discharged the burden laid down in sec. 66 (2) of the Act by a mere statement that he had consumed medicine and not alcohol. The learned defence advocate referred to the case of State of Maharashtra v. Laxman Jairams reported in A. I. R. 1962 Supreme Court 1204 in support of his say that bare statement of the accused would be sufficient to discharge the burden. In that case the breath of the accused was smelling of liquor at the time of his arrest and on examination of his blood it was found to contain 0. 148%. w/v of ethyl alcohol. The accused in his statement recorded under sec. 342 of the Code of Criminal Procedure gave an explanation that he had not consumed prohibited alcohol but had taken 6 ounces of Tincture of Neem as he was used to take it. The doctor who examined the accused also deposed that consumption of 6 ounces of that substance would produce that amount of concentration in his blood. 342 of the Code of Criminal Procedure gave an explanation that he had not consumed prohibited alcohol but had taken 6 ounces of Tincture of Neem as he was used to take it. The doctor who examined the accused also deposed that consumption of 6 ounces of that substance would produce that amount of concentration in his blood. The Courts below accepted the explanation of the accused and acquitted him holding that no offence was committed by him. In an appeal it was held by the Supreme Court that. :-THE explanation given by the accused in his statement under sec. 342 Criminal Procedure Code of the cause of his smelling of liquor and of the blood concentration was sufficient to discharge onus placed on him under sec. 66 (2) of the Act. The object of examination under sec. 342 Criminal Procedure Code is to give the accused an opportunity to explain the case made against him and that statement can be taken into consideration in judging the innocence or guilt of the person so accused. Relying on the ratio of this ruling the learned defence Advocate urged that a mere statement of the accused recorded under sec. 342 of the Code of Criminal Procedure offering explanation for the find of alcohol in his blood would be sufficient to discharge the onus placed on him under sec. 66 (2) of the Act. He urged that no further evidence was necessary and therefore the accused was rightly acquitted by the learned Magistrate below. Mr. Chhaya learned Assistant Government Pleader however urged that if alcohol exceeding 0. 050 was found concentrated in his blood in order to discharge this burden the accused has to show that he had not consumed liquor and that he had consumed some medicinal or toilet preparation. He urged that bare word of the accused would not be enough to discharge the said burden. 050 was found concentrated in his blood in order to discharge this burden the accused has to show that he had not consumed liquor and that he had consumed some medicinal or toilet preparation. He urged that bare word of the accused would not be enough to discharge the said burden. In support of his say he referred to the case of C. S. D. Swami v. State reported in A. I. R. 1960 Supreme Court 7 At page 11 it was observed by the Supreme Court that in this case no acceptable evidence beyond the bare statements of the accused has been adduced to show that the contrary of what has been proved by the prosecution has been established because the requirement of the section is that the accused person shall be presumed to be guilty of criminal misconduct in the discharge of his official duties unless the contrary is proved. The words of the statute are peremptory and the burden must lie all the time on the accused to prove the contrary. This ruling was distinguished by the Supreme Court in the reported decision in 1962 S. C. 1204 referred to above by observing that all that the learned Judge there meant to say was that the evidence of the statement of the accused in the circumstances of that case was not sufficient to discharge the onus but that does not mean that in no case can the statement of an accused person be taken to be sufficient for the purpose of discharging the onus if a statute places the onus on him. Under sec. 342 of the Criminal Procedure Code the Court has the power to examine the accused so as to enable him to explain any circumstance appearing in evidence against him. Under sub-sec. (3) of that section the answers given by an accused person may be taken into consideration in such inquiry or trial. The object of examination under sec. 342 therefore is to give the accused an opportunity to explain the case made against him and that statement can be taken into consideration in judging the innocence or guilt of the person so accused. Therefore if the Courts below have accepted this explanation it must be held that the respondent has discharged the onus which was placed on him by sec. 66 (2) of the Act. Therefore if the Courts below have accepted this explanation it must be held that the respondent has discharged the onus which was placed on him by sec. 66 (2) of the Act. In my opinion this case does not lay down a proposition that a bare statement of the accused would be sufficient to discharge onus placed on him under sec. 66 (2) of the Act in all cases. It is true that the statement of the accused person has got to be taken into consideration in order to decide the guilt or innocence of the accused. If the explanation offered by him is plausible then it is open to the Court to accept the same and it is not necessary for him to lead any other evidence to show that he is innocent. But that would not mean that in every case a bare statement of the accused that he had not consumed liquor and that he had consumed some medicine would be enough to discharge the burden laid on him under sec. 66 (2) of the Act. This decision of the Supreme Court cannot be taken as authority to hold that a mere statement of the accused under sec. 342 of the Code of Criminal Procedure that he had taken a particular medicine and not liquor would be sufficient to discharge the burden laid on him under sec. 66 (2) of the Act. It is merely an authority on the point that a statement of the accused person recorded under sec. 342 of the Code of Criminal Procedure has got to be taken into consideration. This point was considered by the Bombay High Court in the case of State of Maharashtra v. Vijaysingh Dinkarrao Rajurkar reported in 66 B. L. R. 42. Mr. Justice Abhyankar has considered all other relevant rulings and in his lucid judgment has observed that - the presumption that sec. 66 (2) of the Bombay Prohibition Act 194 draws from the presence of a certain percentage of alcohol concentration in the blood of the accused charged with having consumed prohibited liquor is a compelling presumption. This presumption is liable to be rebutted by showing that what was consumed was not only a medicine but a medicinal preparation permitted under the Act or its rules and regulations. Therefore it cannot be accepted as a valid defence to a prosecution for being intoxicated under sec. This presumption is liable to be rebutted by showing that what was consumed was not only a medicine but a medicinal preparation permitted under the Act or its rules and regulations. Therefore it cannot be accepted as a valid defence to a prosecution for being intoxicated under sec. 66 (1) (b) of the Act that the moment the accused person shows that he has taken a medicinal preparation containing high percentage of alcohol he has discharged the burden under sec. 66 (2) of the Act. In the appeal before the Supreme Court reported in the case of Vijay Sin A v. The State of Maharashtra A. I. R. 1966 Supreme Court 145 the decision of the Bombay High Court was confirmed. It was observed in a trial for an offence under sec. 66 (1) (b) when the prosecution proves that the accused person consumed liquor and that the concentration of alcohol in his blood was more than 0. 05 per cent weight in volume the onus of proving that the liquor consumed was a medicinal preparation containing alcohol the consumption of which did not contravene the Act or the rules made thereunder shifts to the accused under sec. 66. He can discharge this onus by proving inter alia that the medicinal preparation containing alcohol which he had taken was unfit for use as an intoxicating liquor; if so much is established the accused would not be committing any offence under the Act since under sec. 24a the Act itself does not apply to such medicinal preparations. In the instant case the accused had not shown by leading any other evidence that the Medicinal preparation containing alcohol which he is alleged to have taken was unfit for use as an intoxicating liquor. On the contrary in cross-examination by the accused the medical officer Padra stated that 8 or 9 ounces of the contents of winopal would show concentration of alcohol containing 0 1081% w/v of ethyl alcohol. The testimony of the medical officer Padra shows that when he examined the accused he was under the influence of drink. It cannot therefore be said that the alleged drink was unfit for use as intoxicating liquor. In Vijay Singhs case the case of State of Maharashtra v. Laxman Jairam reported in A. I. R. 1962 Supreme Court 1204 was referred to and distinguished by the Supreme Court. It cannot therefore be said that the alleged drink was unfit for use as intoxicating liquor. In Vijay Singhs case the case of State of Maharashtra v. Laxman Jairam reported in A. I. R. 1962 Supreme Court 1204 was referred to and distinguished by the Supreme Court. Evidently the Supreme Court did not go to the extent of holding that a bare statement of the accused would be sufficient to discharge the presumption that he had consumed liquor. In my opinion therefore the learned Magistrate was clearly in error in holding that the accused had discharged the burden merely because in his statement recorded under sec. 342 of the Code of Criminal Procedure he came out with the story that he had consumed medicinal preparation viz. winopal B 12. In my opinion the decision of the Supreme Court reported in A. I. R. 1962 S. C. referred to above did not warrant this conclusion. As observed earlier that decision is merely an authority on the point that a statement of the accused recorded under sec. 342 of the Code of Criminal Procedure can be taken into consideration and if the explanation given by the accused is plausible it may be considered sufficient to rebut the presumption raised under sec. 66 (2) of the Act. But it does not lay down in particular that in every case a bare statement of the accused would be sufficient to rebut the presumption under sec. 66 (2) of the Act. In my opinion the accused has failed to rebut the presumption that he had consumed liquor in view of the fact that concentration of alcohol in his blood was found to be 0. 1081% w/v as stated in the report ex. 16 of the chemical analyser. It is presumed that the accused had consumed liquor in the absence of any evidence showing that the accused had consumed medicine preparation. The order for acquittal passed by the learned Magistrate therefore could not be sustained. Acquittal set aside. .