JUDGMENT - D.M. REGE, J.:---This is an appeal filed by the accused against the order passed by the learned Presidency Magistrate, 15th Court, Mazgaon, Bombay, convicting the accused under section 66(1)(b) of the Bombay Prohibition Act. The short facts are that on 9th October, 1970 at about 2-30 p.m., the accused was accosted by a Traffic Police Sub-Inspector and the Constable while carrying in the car 23 tins of liquor, two tins on the front seat and 6 tins on the rear seat and 15 tins in the dicky, after being followed by a wireless van. The said articles were taken charge of and samples were sent to the Chemical Analyser, after taken certain quantities therefrom in three bottles and sealing them. After receipt of the Chemical Analysers report, a prosecution was launched and the accused was charged for offence under section 66(1)(b) of the Bombay Prohibition Act. The accused pleaded not guilty to the charge. He denied that he was driving the car or that the police van was following him or that any incriminating article was found with him. The prosecution examined three witnesses, being Haribhau Bhimji (P.W. 1), Police Sub-Inspector Tawade (P.W. 2) and Police Constable Atmaram Rajaram (P.W. 3). Admittedly the Panch Haribhau Bhimji (P.W. 1) did not support the prosecution. The only evidence that was found to be reliable by the learned Magistrate was the evidence of the Sub-Inspector Tawade (P.W. 2) who was the Inspector from the Traffic Department, and Police Constable Atmaram Rajaram (P.W. 3). The Chemical Analysers report which was produced before the Court showed that on analysing the sample sent to him he could that the said samples contained 34%,30% and 27% v/v of ethyl alcohol respectively in water and that no recognizable medicinal ingredient was detected in them. Relying on the said evidence, the learned Magistrate convicted the accused of the charge under section 66(1)(b) of the Bombay Prohibition Act and sentenced him as above. Against the said order, this appeal has been filed by the accused. Relying on the said evidence, the learned Magistrate convicted the accused of the charge under section 66(1)(b) of the Bombay Prohibition Act and sentenced him as above. Against the said order, this appeal has been filed by the accused. The learned Counsel for the accused had contended that even if one relied on the evidence of the Police Sub-Inspector Tawade (P.W. 2) and Police Constable Atmaram Rajaram (P.W. 3), the same would not show that the samples sent to the Chemical Analyser were proper as the Panch Haribhau (P.W. 1) has denied having taken the samples or put the seals and labels on those samples. In the present case that contention appears to have some substance as it is difficult to see what samples were sent to the Chemical Analyser and analysed by him. Apart from that, one important contention that has been raised by the learned Counsel for the accused is that even if the contents of the sample were fould to be one as fould by the Chemical Analyser, still the prosecution has not proved the charge against the accused. The relevant part of section 66(1) provides : "66(1) Whoever in contravention of the provisions of this Act, or of any rule, regulation or order made, or of any licence, permit, pass or authorization issued, thereunder. (b) Consumers, uses, possesses or transports any intoxicant other than opium of hemp, Shall, on conviction, be punished........... Sub-section (2) of section 66 shows that once in a trial of an offence of consumption of an intoxicant under section 66(1)(b) it is proved by the prosecution that concentration of alcohol in the blood of the accused person was not less than 0.05 per cent weight in volume, then the burden of proving that the liquor consumed was one of the things mentioned in section 24-A of the said Act was on the accused. The learned Counsel for the accused has, therefore, contended and in my view rightly that in the present case the offence being for possession of liquor under section 66(1)(b) of the said Act, the burden of proving that prohibited liqour found in the possession of the accused was not any of the items covered by section 24-A of the said Act, namely, (1) toilet preparation containing alcohol which is unfit for use as intoxicating liquor. (2) any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor, (3) any antiseptic preparation or solution containing alcohol which is unfit for use as intoxicating liquor and (4) any flavouring extract, essence or syrup containing alcohol which is unfit for use as intoxicating liquor. In the case the Chemical Analysers report only states that the liquid analysed by him did not have any medicinal traces and does not make any reference to the other three items in section 24-A There is also no other evidence on record to that effect. The prosecution has, therefore, failed to discharges its burden that the liquor found with the accused was prohibited one and was not within the categories covered by section 24-A of the said Act. The said contention of the learned Counsel for the accused finds support in the unreported decision of the Supreme Court in (The State of Bombay v. Bhalchandra Govind Hazare and another)1, Criminal Appeal No. 212 of 1959, decided on 28-2-1961, S.C. That was a case where the accused was charged under section 66(1)(b) of the Bombay Prohibition Act, 1949, for being in possession of liquor and where the alcohol contents fould were 40% from the alcohol siezed from the accused. In that case the Supreme Court, while acquitting the accused, has observed as follows : "The alcohol seized was a very small quantity which, on Chemical Analysis, was found to have contained about 41 per cent alcohol. But the proof stopped short there and there is no expert evidence to the effect, as required by law, not only that it was alcohol, but that it was of a variety the use of which was prohibited under the law. The case must, therefore, fail on the simple ground that the necessary evidence had not been adduced by the prosecution." In this connection, I may also refer to the decision of this Court, which also supports the said contention of the learned Counsel for the accused, in the case of (State v. Bhausa)2, 64 Bom.L.R. 303 where the main question that was considered was the conclusiveness of the contents of the report of the Chemical Analyser produced in evidence. While dealing with that question, this Court observed that the burden of establishing that a particular article does not fall under section 24-A of the Bombay Prohibition Act, 1949, rests on the prosecution and, therefore, the burden of establishing that any article referred to in section 22-A of the said Act is not unfit for use as intoxicating liquor is on the prosecution. Looking to the said decisions, in my view, the contention raised by the learned Counsel for the accused has got to be accepted. The Chemical Analysers report in this case contained 34%, 30% and 27% v/v of ethyl alcohol respectively, that no recognizable medicinal ingredient was detected in them. It is, however, silent about the three other items mentioned in section 24-A. It cannot, therefore, be said that the prosecution has successfully discharged its burden in this case. The result, therefore, is that the appeal is allowed, the order of conviction and sentence made against the accused is set aside and the accused is acquitted. Bail bond cancelled. -----