J. P. DESAI, J. ( 1 ) THE question however is whether there is evidence on record to show that the accused had consumed alcohol within the territory of the State of Gujarat. There is no evidence to show that the accused had consumed alcohol in the State of Gujarat. The only fact established is that he was found at Godhra on 7-3-1979 and that when blood was extracted from his body by the doctor on that day and sent to the Chemical Analyser for analysis. it was found to contain 0. 5% of ethyl alcohol. This does not establish that the accused must have consumed alcohol within the territory of the State of Gujarat. The evidence of the Police Officer Vajesinh Nanabhai shows that he apprehended the accused in a drunken condition at Bhoiwada in Godhra on 7-3-1979 but he admitted that he had no knowledge as to where the accused had consumed alcohol. He also admitted that one call arrive at Godhra from Madhya Pradesh within a period of about three to four hours. Dr. Ashaben has admitted in cross-examination that alcohol will be found in the blood for a period of about 24 hours The possibility of the accused having consumed alcohol in Madhya Pradesh and then having come to Godhra cannot thus be ruled out in the present case. the learned Additional Public Prosecutor Mr. S. T. Mehta drew my attention to the decision of this Court reported in State of Gujarat v. Amarsinh Chhotabhai 17 G. L. R. 96 wherein this Court held on the facts of that case that the prosecution was successful in that case in establishing that the accused had consumed alcohol within the territory of the State of Gujarat. At appears from the facts of that case that the accused in that case did not raise any defence viz. that he had consumed alcohol outside the territory of the State of Gujarat. In view of this the learned single Judge of this Court very rightly observed that it was within the special knowledge of the accused as to where he had consumed alcohol and when he did not raise any defence that he had consumed alcohol outside the State of Gujarat it can be said that that defence was not available to him. In the present case a suggestion was made even in cross-examination of the Police Officer that the accused could have consumed alcohol in Madhya Pradesh and the accused made a specific statement in his Statement recorded after the close of the prosecution evidence; that he had consumed alcohol in the State of Madhya Pradesh and then come to Godhra. In view of this. the decision of this Court cited by Mr. Mehta does not assist the prosecution. ( 2 ) BY an amendment made by Gujarat Act No. 9 of 1978 clause (e) has been added to sec. 66 (1) of the Bombay Prohibition Act which provides that a person who enters the territory of the State of Gujarat in an intoxicated condition or under the influence of the intoxicant (other than opium) or hemp after having consumed such intoxicant or hemp at any place outside the State shall be liable to punishment on conviction as provided in the said Act. Now the say of the accused does show that he consumed alcohol outside the State of Gujarat and then entered the territory of the State of Gujarat. But the prosecution has not put forward any such case against the accused. The offence is alleged to have been committed by the accused on 7-3-1979. The Gujarat Act No. 9 of 1978 whereby clause (e) was inserted in sec. 66 (1) of the Act came into force from 14-2-1978. The accused thus could have been prosecuted on the allegation that he committed an offence punishable under sec. 66 (1) (e) but such a case has not been put up by the prosecution. We cannot take into consideration the statement of the accused and hold him guilty of the offence punishable under sec. 66 (1) (e) of the Act when no such case has been put up by the prosecution. It is true that the prosecution could ordinarily not have some direct evidence to show that the accused had consumed alcohol at a particular case but the prosecution could have very well put up an alternative case against the accused that he had entered the territory of the State of Gujarat after consuming alcohol outside the State of Gujarat and entered the territory of Gujarat and thereby committed an offence punishable under sec. 66 (1) (e) of the Act. 66 (1) (e) of the Act. The prosecution ought to have put up such a case particularly when the place of offence in the present case is Godhra which is not far away from the border of Madhya Pradesh as admitted by the Police Officer who says that one can come to Godhra from that territory within a period of three to four hours. The prosecution having not put such an alternative case against the accused the accused cannot be convicted of the offence punishable under sec. 66 (1) (e) of the Act even though the statement of the accused shows that he did consume alcohol outside the State of Gujarat and then entered the State of Gujarat on the day of this incident. I may mention here that the prosecution did not even mention in the charge-sheet in column 5 in the alternative that the accused had entered the territory of the State of Gujarat after consuming alcohol outside the State of Gujarat. Non-mentioning of sec. 65 (1) (e) may not be fatal to the prosecution but the facts ought to have been stated in column 5 so as to give a notice to the accused that he was also being tried for having consumed alcohol outside the State of Gujarat and the entering the State of Gujarat in the state of intoxication. In the absence of any such facts in column 5 of the charge-sheet. the accused cannot be convicted of the offence punishable under sec. 66 (1) (e) of the Act. It would have been possible to convict the accused of the offence punishable under sec. 66 (1) (e) of the Act if such a case was put up against the accused in the Court below. Appeal dismissed .