M. K. SHAH, J. ( 1 ) THIS is States appeal against an order of acquittal passed by the learned Metropolitan Magistrate 2 Court Ahmedabad acquitting the respondent-accused for the offenses under secs. 67 and 66 (b) of the Bombay Prohibition Act (the Act ). ( 2 ) A few facts may be stated to appreciate the points which arise for consideration in this appeal. On information received the police raided the place of the accused in Kadias chawl Chamanpura Ahmedabad and from a back room of his house drums containing a liquid appearing to be liquor were found. Samples were taken in from the said drums in three bottles and after performing the necessary formalities of sealing bottles and affixing slips thereon in the presence of panchas the samples were sent for analysis to the chemical analyser. The chemical analysers report showed that the sample bottles contained diluted denatured spirit. The accused was thereupon prosecuted for the aforesaid offenses punishable under secs. 67 and 65 (1) (b) of the Act. The learned Magistrate on the evidence led before him found that the samples analysed showed that the bottles contained diluted denatured spirit which was not potable and was not fit for being used as an intoxicant. He therefore recorded a finding not guilty against the accused and acquitted him of the offenses with which he was charged. It is this order of acquittal which is challenged by the State in this appeal. ( 3 ) MR. Vaidya the learned Public Prosecutor submits that the learned Magistrate erred in acquitting the accused on the ground that as the liquid was diluted denatured spirit the accused could not be held guilty of possessing any spirit in respect of which he knew or had reason to believe that any such alteration or attempt to alter as provided in sec. 21 of the Act was made. It is also submitted by Mr. Vaidya that the learned Magistrate also erred in not convicting the accused for the offense under sec. 65 (1) (b) because the and chemical analysers report in terms shows that the sample analysed contained alcohol percentage whereof was set out in the report under the head Quantitatives. ( 4 ) SEC. It is also submitted by Mr. Vaidya that the learned Magistrate also erred in not convicting the accused for the offense under sec. 65 (1) (b) because the and chemical analysers report in terms shows that the sample analysed contained alcohol percentage whereof was set out in the report under the head Quantitatives. ( 4 ) SEC. 2 (22) of the Act defines intoxicant as meaning any liquor intoxicating drug opium or any other substance which the State Government may by notification in the official gazette declare to be an intoxicant and as per sec. 2 (24) liquor includes spirits denatured spirits wine beer toddy and all liquids consisting of or containing alcohol. Clause (10) of sec. 2 defines the word denatured as meaning subjected to a process prescribed for the purpose of rendering unfit for human consumption. Now if we turn to sec. 21 to which my attention has been drawn by Mr. Vaidya it is found to provide that no person shall (a) alter or attempt to alter any denatured spirit by dilution with water or by any method whatsoever with the intention that such spirit may be used for human consumption whether as a beverage or internally as a medicine or in any other way whatsoever or (b) have in his possession any denatured spirit in respect of which he knows or has reason to believe that such alteration or attempt has been made and sec. 67 prescribes penalty for breach of sec. 21. ( 5 ) RELYING on these provision Mr. Vaidyas submission is that as the liquid found form the place of the accused was diluted denatured spirit containing some alcohol it should be presumed as provided in sec. 103 of the Act that the accused had committed an offence in respect of this substance that means he was in possession of liquor i. e. intoxicant and should have been therefor held guilty under sec. 66 (1) (b) of the Act. It also means he was in possession of denatured spirit which had been altered or attempted to be altered by dilution with water or by any other human whatsoever with the intention that the same any be used for human consumption and therefore be should have been also held guilty for the offence under sec. 67 sec. It also means he was in possession of denatured spirit which had been altered or attempted to be altered by dilution with water or by any other human whatsoever with the intention that the same any be used for human consumption and therefore be should have been also held guilty for the offence under sec. 67 sec. 103 reads thus:-"in prosecutions under any of the provisions of this Act it shall be presumed without further evidence until the contrary is proved that the accused person has committed an offence under this Act in respect of any intoxicant hemp mhowra flowers or molasses or any still utensil implement or apparatus whatsoever for the manufacture of any intoxicant or any other materials which have undergone any process towards the manufactured of any intoxicant or from which an intoxicant has been manufactured for the possession of which he is unable to account satisfactorily". BUT while canvassing the point what is lost sight of by Mr. Vaidya in this connection is that the presumption under sec. 103 would arise only when the prosecution discharges the initial burden of proving that the accused was found in possession of any such article as is mentioned in the said section. In the instant case therefore the initial burden which is required to be discharged by the prosecution will be to show that the accused was found in possession of an intoxicant or any material which has undergone any process towards the manufacture of. an intoxicant. Diluted denatured spirit cannot be equated with intoxicant or any material which has undergone any process towards the manufacture of any intoxicant or from which intoxicant has been manufactured. It is true liquor will be an intoxicant and liquor includes as per sec. 2 (24) denatured spirit as also any liquid which consists of or contains alcohol. But diluted denatured spirit again cannot be equated with denatured spirit so as to be included within the definition of liquor. It is however true that any liquid which consists of or contains alcohol is also liquor and in that sense the three samples which were analysed by the Assistant Chemical examiner of the Government of Gujarat Drugs Laboratory Baroda did contain alcohol as per the percentage mentioned in reports exs. 10 11 and 12. But here also as pointed out by Mr. Shah the bar contained in sec. 10 11 and 12. But here also as pointed out by Mr. Shah the bar contained in sec. 24 A of the act will come into play. Sec. 24 A provides thus"nothing in this Chapter shall be deemed to apply to (1) any toilet preparation containing alcohol which is unfit for use as intoxica ting 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; (4) any flavoring extract essence or syrup containing alcohol which is unfit for use as intoxicating liquor. THE prosecution therefore will have to establish that though the sample contained alcohol it was not any toilet preparation medicinal preparation antiseptic preparation or any flavoring extract essence or syrup containing alcohol which is unfit for use as intoxicating liquor. The burden is on the prosecution to show that the samples did not contain any such preparation. ( 6 ) RELIANCE is placed in this connection on a decision of B. J. Divn J. (as he then was) in criminal Revision Application 361 of 1964 decided on 21st July 1965 (Bai Teji v. State of Gujarat ). Here also similar question arose and reference was made to sec. 24 and relying on a Supreme Court decision in State of Bombay Narandas A. I. R. 1962 S. C. 579 as also an earlier decision of this court in Mansukh Morarji v. State of Gujarat I. L. R. IV Gujarat 1197 it was held that the burden lying upon the State to establish in any given case in which it is alleged that the accused has infringed the prohibition contained in sec. 12 and 13 of the Act that the infringement was not in respect of an article or preparation which was not covered by sec. 24a is not shifted on to the shoulders of the accused. The burden lying upon the State is not shifted on to the accused even in a case where there is no plea raised by the accused that the substance for with him was medicinal or toilet or antiseptic preparation. 24a is not shifted on to the shoulders of the accused. The burden lying upon the State is not shifted on to the accused even in a case where there is no plea raised by the accused that the substance for with him was medicinal or toilet or antiseptic preparation. This was a case in which The opinion of the chemical analyser did not indicate that the sample did not contain or was not an antiseptic preparation or a solution containing alcohol or a syrup which was unfit for use as intoxicating liquor and it was held that the burden of proving that the substance which was found in possession of the accused was not one of the substance mentioned in sec. 24a and therefor it fell within the prohibition contained in sec. 12 and 13 of the Act had not been discharged by the prosecution. In the instant case also either the evidence of the Assistant chemical examiner nor any of the reports Exs. 10 to 12 indicates that the sample did not contain any such preparation as is mentioned in sec. 24a clauses (1) to (4) and therefore no order of conviction could be passed against the accused for possession of intoxicant or liquor merely on the ground that the substance found from the accused contained some alcohol. ( 7 ) SO far as section 21 is concerned it has to be established first that the accused was in possession of any denatured spirit in report of which he had knowledge or belief that any alteration or attempt to alter by dilution with water or by any other method whatsoever was made with the intention that such spirit may be used human consumption. Now apart from the Knowledge or belief aspect concerning the accused the preparation has to be such that it may be used for human consumption whether as a beverage or internally as a medicine or in any other way whatsoever. In the instant case as the Assistant Chemical Analyser says the liquid was not potable and was not such as could be used for the purpose of intoxication. The provisions of sec. 21 therefore will not apply to any such case. In order to bring the case within the prohibition contained in sec. In the instant case as the Assistant Chemical Analyser says the liquid was not potable and was not such as could be used for the purpose of intoxication. The provisions of sec. 21 therefore will not apply to any such case. In order to bring the case within the prohibition contained in sec. 21 (b) the prosecution has not only to prove that the accused is in possession of denatured spirit in respect of which any alteration or attempt to alter has been made to the knowledge of the accused or about which the accused has reason to believe that such alteration or attempt to alter denatured spirit has been made by diluting the same with water or by any other method but also that the intention in making such alteration or in attempting such alteration is that such spirit may be used for human consumption be it as a beverage or internally as a medicine or in any other way whatsoever. Unless these ingredients are fulfilled no breach under sec. 21 (b) can be brought home. In the case on hand apart from showing that the substance found from the accused was diluted denatured spirit which is one of the requirements under sec. 21 (b) the prosecution has failed to establish the other requirements of the section. Thus. in any view of the matter there is no ground for convicting the accused either for the offense under sec. 67 or for the offense under sec. 66 (1) (b) of the Act and no case is made out for interference with the order of acquittal passed by the trial court. The result will be the following order appeal fails and is dismissed. Appeal dismissed. .