Order In these two revision petitions, the petitioner is the same. The offences involved in both these cases are of the same nature. Hence these two revision petitions can conveniently be dealt with together. The accusation against the petitioner in these two cases is that on four occasions, he behaved in a disorderly manner under the influence of drink. The Chickmagalur town police placed four charge-sheets against the petitioner for the same kind of offence punishable under section 76 of the Mysore Prohibition Act, 1961 (hereinafter referred to as the Act). The learned Munsiff-Magistrate, Chickmagalur, tried him for two offences of the same kind in each of the two cases before him and found him guilty in both the cases of offences under section 76 of the Act and sentenced him to undergo simple imprisonment for one month on each count. In each of these cases, the two sentences were directed to run concurrently. In the two appeals preferred by the petitioner-accused, the learned Sessions Judge, Shimoga, altered the conviction for offences under section 59 (b) of the Act and maintained the sentences. On each occasion the accused was found behaving in a disorderly manner under the influence of drink, the police took him before an Assistant Surgeon in the General Hospital at Chickmagalur, who examined and issued a certificate containing the medical opinion. The respective Doctors who examined the accused and issued certificates, have deposed in these two cases. The Police Head Constable and Constables who took the accused to the Police Station on different occasions have also been examined as witnesses for the prosecution and they have deposed that the accused was behaving in a disorderly manner and was smelling of arrack. During the course of his examination, under section 342, Criminal Procedure Code, in both the cases the accused has simply stated that he had not committed any offence and that the prosecution evidence was false. Mr. Gopalakrishna Shetty, the learned Counsel for the petitioner in both these cases, contended that the prosecution evidence is not sufficient to establish that the: accused had consumed alcohol and that even if it was proved that he had consumed alcohol, the prosecution had not established that the alcohol consumed by him came within the category of prohibited alcohol under the Act. Amplifying his first contention, Mr. Amplifying his first contention, Mr. Gopalakrishna Shetty said that the blood of the accused had not been tested on any of these four occasions for determining the percentage of alcohol therein and in the absence of such test, the evidence of the Doctors, as to certain symptoms observed on the person of the accused, or the evidence of the police officials that the accused was smelling of arrack or alcohol, would not be sufficient to establish that the accused had consumed alcohol. The Doctors who examined the accused on different occasions noticed the following features: (i) Pupils dilated; (ii) Pulse rate 100 or more P.M. (iii) Conjective congested; and (iv) Smell of alcohol in the mouth. The Doctors gave opinion that the accused was under the influence of alcohol. In State of Mysore v. B. Kukappa (1961) MLJ. (Crl.) 169: A.I.R. 1960 Mys. 312, the symptoms observed by the Doctor were the same as in these two cases. Following the decision of the Madras High Court In re Mahammed Sultan, (1954) 2 MLJ. 395 : A.I.R. 1955 Mad. 92, this Court held that the co-existence of all the symptoms which had been spoken to by the Doctor together with his opinion to the effect that the accused was under the influence of alcohol, was enough to establish that the accused has consumed liquor, even if the same may not have been enough to establish that the accused was in a state of intoxication. This view has been followed in Criminal Appeals Nos. 148 and 149 of 1963 before this Court. In the latter case, (Cr.A. No. 149 of 1963), this Court held that where the prosecution is not for an offence punishable under section 76 of Act but for an offence punishable under section 59 (b) of the Act, it is not obligatory on the part of the prosecution to get the blood and urine of the accused examined unless the prosecution wants to rely on the presumption under section 85 (3) of the Act. As pointed out by Narayan Pai, J., in State of Mysore v. Narasimha (1964) MLJ. (Crl.) 702: (1964) 2 Mys. L.J. 47, section 199 (9) of the Act expressly provides that the prosecution is not precluded from proving otherwise than by subjecting an accused to medical examination, that he has consumed an intoxicant. Hence, there is no substance in the contention of Mr. (Crl.) 702: (1964) 2 Mys. L.J. 47, section 199 (9) of the Act expressly provides that the prosecution is not precluded from proving otherwise than by subjecting an accused to medical examination, that he has consumed an intoxicant. Hence, there is no substance in the contention of Mr. Gopalakrishna Shetty that in the absence of blood test, the evidence in these two cases is not sufficient to establish consumption of alcohol by the accused. In order to appreciate the second contention of Mr. Gopalakrishna Shetty, it is necessary to set out the relevant provisions of the Act. Section 12, occurring in Chapter III of the Act, reads as follows: 12. Prohibition of the manufacture of traffic in and consumption of liquors and intoxicating drugs:-Save in the manner and to the extent provided by or under the provisions of this Act or in accordance with the terms and conditions of a licence, permit, pass or authorisation granted thereunder, no person shall- * * * * (j) consume or use liquor or any intoxicating drug; or * * * * Section 16 of the Act reads as follows: 16. This Chapter not to apply to certain articles.-Nothing in this Chapter shall be deemed to apply to- (1) Any toilet, medicinal or antiseptic preparation or solution, (2) any flavouring extract, essence or syrup, containing alcohol which is unfit for use as intoxicating liquor. Provided that such articles corresponds with the description and limitations mentioned in section 49. * * * * (The Second Proviso is not relevant for the present purpose). Section 16 of the Act makes the Act confirm to the law laid down by the Supreme Court in State of Bombay v. F.N. Balsara (1951) S.C.J. 478: (1951) S.C.R. 682: (1951) 2 MLJ. 141: A.I.R. 1951 S.C. 318, to the effect that total prohibition of alcoholic liquor is unconstitutional in so far as it affects the consumption or use of medicinal or toilet preparations containing alcohol. The relevant portion of the penal provision in section 59 of the Act, reads as follows: 59. 141: A.I.R. 1951 S.C. 318, to the effect that total prohibition of alcoholic liquor is unconstitutional in so far as it affects the consumption or use of medicinal or toilet preparations containing alcohol. The relevant portion of the penal provision in section 59 of the Act, reads as follows: 59. Penalty for illegal cultivation and collection of hemp and other matters.-Whoever in contravention of the provisions of this Act, or of any rule or order made, or of any licence, permit pass or authorisation issued thereunder- (a) * * * * (b) consumes, uses, possesses or transports any intoxicant or hemp; * * * * shall, on conviction, be punished- * * * * Section 85 of the Act creates certain presumptions as to commission of offences in certain cases. Sub-section (3) of this section reads as follows: “Subject to the provisions of sub-section (4), where in any trial of an offence under clause (b) of section 59 for the consumption of an intoxicant, it is alleged that the accused person consumed liquor and it is proved that the concentration of alcohol in the blood of the accused person is not less than 0.05 per cent. then the burden of proving that the liquor consumed was a medicinal or toilet preparation or an antiseptic preparation or solution or a flavouring extract, essence or syrup, containing alcohol, the consumption of which is not in contravention of this Act or any rules or orders made thereunder, shall be upon the accused person, and the Court shall in the absence of such proof, presume the contrary.” Sub-section (4) of section 85 of the Act, provides that the provisions of the above sub- section shall not apply to the consumption of any liquor by indoor-patients during the period they are being treated in any hospital etc. Mr. Gopalakrishna Shetty contended that the prosecution must not only establish that the accused had consumed alcohol but also that the alcohol so consumed by him was not contained in any of the articles set out in section 16 of the Act. On the other hand, Mr. Mahajan, the learned Government Pleader, contended that section 16 of the Act should be read as an exception to section 12 of the Act and that the burden of establishing that the alcohol consumed by him was an excepted category is on the accused. On the other hand, Mr. Mahajan, the learned Government Pleader, contended that section 16 of the Act should be read as an exception to section 12 of the Act and that the burden of establishing that the alcohol consumed by him was an excepted category is on the accused. In Behram Khurshid v. Bombay State (1955) 1 MLJ. (S.C.) 32: (1955) S.C.J. 73: (1955) 1 S.C.R. 613 : A.I.R. 1955 S.C. 123, Mahajan, C.J., who spokes for the majority opinion of the Constitution Bench, observed as follows: “…………….the offence of contravention of the section ( section 13 (b) of the Bombay Prohibition Act, 1949) can only be proved if it is established that they have used or consumed liquor or an intoxicant which is prohibited by that part of the section which has been declared valid and enforceable and without reference to its unenforceable part…………The bare circumstance that a citizen accused of an offence under section 66(b)( of the Bombay Prohibition Act) is smelling of alcohol is compatible both with his innocence as well as his guilt. It is a neutral circumstance. The smell of alcohol may be due to the fact that the accused had contravened the enforceable part of section 13 (b) of the Prohibition Act. It may well be due also to the fact that he had taken alcohol which fell under the unenforceable and inoperative part of the section. That being so, it is 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 alcohols and the onus was not discharged or shifted by merely proving a smell or alcohol………………..” Later, in the same Judgment, Mahajan, G.J., further observed: “It is open to the accused to prove in defence that what he consumed was not prohibited alcohol but failure of the defence to prove it cannot lead to his conviction unless it is established to the satisfaction of the Judge by the prosecution that the case comes within the enforceable part of section 19(b), contravention of which alone, is made an offence under the provisions of section 66 of the Bombay Prohibition Act.” Section 24-A of the Bombay Prohibition Act which was inserted consequent upon the decision of the Supreme Court in Balasara's case (1951) S.C.J. 478: (1951) S.C.R, 632: (1951)2 MLJ. 141: A.I.R. 1951 S.C. 318, is in pari materia with section 16 of the Mysore Act. Section 66 of the Bombay Act is in pari materia with section 59 (b) of the Mysore Act. Section 13 (b) of the Bombay Act is in pari materia with section 12 (j) of the Mysore Act. Dealing with a contention similar to the one advanced by the learned Government Pleader in the present case, the Supreme Court observed as follows in State of Bombay v. Narandas 3 (1962) 1 S.C.R. (Sup.) 15: (1962) MLJ. (Crl.) 649: (1962) 2 S.C.J. 542: A.I.R. 1962 S.C. 579. “In a criminal prosecution, normally the burden lies upon the prosecution to prove all the ingredients which constitute the offence charged against the accused, and, we are unable to agree with the submission of the Solicitor-General that a different rule is indicated in the trial of offences under the Act. It was for the State to prove that the substance seized, if a medicinal preparation, was not unfit for use as intoxicating liquor. The State has even under the Prohibition Act to establish that the respondents had infringed the prohibition contained in sections 12 and 13. Undoubtedly by virtue of section 24-A the prohibitions do not apply to certain categories of toilet, medicinal, antiseptic and flavouring preparations, even if they contain alcohol; but on that account the burden lying upon the State to establish in any given case in which it is alleged that the accused has infringed the prohibitions contained in sections 12 and 13 that the infringement was not in respect of an article or preparation which was covered by section 24-A is not shifted on to the shoulders of the accused. Section 24-A is, in substance, not an exception; it takes out certain preparations from the prohibition contained in sections 12 and 13……………….” In the light of the aforesaid pronouncement of the Supreme Court while considering similar provisions in the Bombay Prohibition Act, section 16 of the Mysore Act cannot be regarded as being in the nature of an exception to the general provision contained in section 12 and other sections in Chapter 111 of the Act. Section 16 must be regarded as merely declaring that the articles specified in that section are outside the pale of the Prohibition Act. Section 16 must be regarded as merely declaring that the articles specified in that section are outside the pale of the Prohibition Act. Therefore, the burden of proving that the alcohol consumed by the accused was a prohibited liquor, rests on the prosecution. Mr. Gopalakrishna Shetty is right in contending that unless the prosecution had subjected the accused to blood test and such test revealed that the concentration of alcohol was not less than 0.05 per cent., the presumption under section 85(3) of the Act will not be available to the prosecution and it is for the prosecution to establish that the alcohol consumed by the accused was from a prohibited liquor. But even in cases where the presumption is not available to the prosecution under section 85 (3) of the Act, it is open to the prosecution to establish by other evidence that the alcohol consumed by the accused was of a prohibited category. In the present cases, if the prosecution case rested entirely on the evidence of the Doctors it might have been possible for Mr. Gopalakrishna Shetty to contend that such evidence would not be sufficient to establish that the liquor consumed by the accused was of a prohibited category. But the Police Constables and Head Constables have deposed that the accused was smelling of arrack. Nothing has been elicited in the cross-examination of these witnesses on this point namely, that they smelt arrack. But Mr. Gopalakrishna Shetty contended that it was not possible for any person to find out the nature of liquor consumed by the mere smell of the person who had consumed liquor. Mr. Gopalakrishna Shetty further contended that the evidence of a witness as to the smell of liquor is, at best, an opinion of such witness and would not be sufficient to establish the nature of liquor. Mr. Gopalakrishna Shetty relied on the following observations of Somnath Iyer, J., in Govinda v. State of Mysore (1965) 1 Mys.L.J. 104: (1965) MLJ. (Crl.) 403. Mr. Gopalakrishna Shetty relied on the following observations of Somnath Iyer, J., in Govinda v. State of Mysore (1965) 1 Mys.L.J. 104: (1965) MLJ. (Crl.) 403. “…………In regard to the discrepancy between the evidence of the Police Constable and the Doctor as to the exact nature of the odour that the petitioner was exuding, it would be enough to observe that when a man imbibes alcoholic spirits the odour which he emanates depends not only upon the spirit which he has imbibed but also upon the smell which his own body exudes, and the smell which ultimately emanates from the person who is intoxicated cannot easily be identified by any one as either being attributable to one kind of liquor or to another. It is therefore not unnatural that while the Police Constable thought that the smell was that of arrack, the Doctor thought that the smell was of toddy.”……………… The above observations of His Lordship must be understood in the context of that case where the Police Constable had deposed that the accused was smelling of arrack while the Doctor had deposed that a smell of toddy was emanating from the accused. Ultimately His Lordship concluded, whether it was toddy or arrack, it was clear that the accused was found to have consumed liquor and that he had clearly committed an offence. In Beharam Khurshid v. Bombay State (1955) S.C.J. 73; (1955) 1 S.C.R. 613 : (1955)1 MLJ. (S.C.) 32: A.I R. 1955 S.C. 123, Mahajan, C.J., observed that the intensity of smell itself may be such that it may negative its being of a permissible variety of liquor. Hence, it cannot be laid down as a general propositions that the evidence of any witness as to the smell of any liquor cannot be accepted in any circumstance to determine the nature of that liquor. It is ultimately a question whether the testimony of a witness as to the smell of a particular variety of liquor should or should not be believed in the circumstances of the case. As stated earlier, nothing has been elicited in the cross-examination of the Police Constables and Head Constables to challenge their ability to identify the nature of the liquor by the smell exuding from the accused. Therefore, there is no reason to disbelieve their testimony that the accused smelt of arrack. As stated earlier, nothing has been elicited in the cross-examination of the Police Constables and Head Constables to challenge their ability to identify the nature of the liquor by the smell exuding from the accused. Therefore, there is no reason to disbelieve their testimony that the accused smelt of arrack. This evidence coupled with the testimony of Doctors that the accused had consumed alcohol, is sufficient to establish that the acceded had consumed arrack. Mr. Shetty next contended that in the absence of a Notification issued under section 2(19) of the Act declaring arrack as a ‘liquor’ for the purpose of the Act, consumption of arrack by the accused would not amount to contravention of section 12(j) of the Act which prohibits consumption or use of liquor. ‘Liquor’ as defined in section 2(19) of the Act reads as follows: 2. (19) “Liquor” includes spirits of wine, denatured spirits, wine, beer, toddy and all liquids consisting of or containing alcohol, and any other intoxicating substance, which the State Government may, by notification, declare to be liquor for the purpose of this Act: The contention of Mr. Shetty is that the adjectival clause, ‘which the State Government may, by notification, declare to be liquor’ occurring in section 2 (19) governs not merely the words, ‘any other intoxicating substance but also the words ‘all liquids consisting of or containing alcohol’ occurring in that section. A complete answer to this contention is contained in the decision of this Court in Crl.Rev. Petition No. 436/64 in which Somnath, Iyer, J, has observed as follows: “……So whether the definition contained in section 2(19) included arrack within the definition as it included spirits of wine and other substances or not, if arrack is liquor as ordinarily understood, such non-inclusion would not denude it of its character as liquor if really, it is………. His Lordship referred to the meaning of the word ‘arrack’ given in the Encyclopaedia Brittanica and pointed out that from the elucidation contained in that book, arrack was one variety of a strong distilled spirit, whatever may be substance which is used for such distillation and that arrack was clearly liquor according to the ordinary meaning of the word ‘liquor’ contained in the dictionary. Hence, there is no substance in the contention of Mr. Gopalakrishna Shetty that arrack is not liquor as defined by section 2(19) of the Act. Lastly, Mr. Hence, there is no substance in the contention of Mr. Gopalakrishna Shetty that arrack is not liquor as defined by section 2(19) of the Act. Lastly, Mr. Gopalakrishna Shetty urged that in the circumstances of the case, substantive sentences of imprisonment were not called for, and the sentences should be altered into fines. But, the learned Government Pleader contended that normally the appropriate sentence for an offence under section 59 (b) of the Act would be substantive imprisonment. As held by this Court in Govinda v. State of Mysore (1965) 1 Mys. L.J. 104: 1 (1965) MLJ. (Crl.) 403, under section 59 (i) of the Act, a sentence of imprisonment is not always obligatory. Though the learned Magistrate had come to the conclusion that the accused was found drunk and was behaving in a disorderly manner, the learned Sessions Judge had come to the conclusion that the accused can only be held to have consumed liquor. I think it would be sufficient in the circumstances of the two cases, if the accused is sentenced to a fine on each of the four counts. The proviso to section 59 (i) of the Act requires that the fine should not be less than five hundred rupees in the absence of special and adequate reasons to the contrary to be mentioned in the judgment. But, in these two cases, the accused is convicted and sentenced on four counts. If on each count, a fine of five hundred rupees is imposed, the aggregate amount of fine imposed may be beyond the means of the accused to pay. I think the ends of justice would be met by imposing a fine of two hundred rupees and in default simple imprisonment for seven days on each of four counts, in substitution of the substantive sentences of imprisonment imposed by the Courts below. That is, the aggregate fine payable by the petitioner in those two cases, is Rs.800. The petitioner is permitted to pay this sum in four equal monthly instalments. It is ordered accordingly. Before concluding, it is necessary to point out what I consider to be a serious anomaly in the penal provisions of the Act. Section 59(b) of the Act imposes penalty for consumption of liquor. The petitioner is permitted to pay this sum in four equal monthly instalments. It is ordered accordingly. Before concluding, it is necessary to point out what I consider to be a serious anomaly in the penal provisions of the Act. Section 59(b) of the Act imposes penalty for consumption of liquor. The sentence provided for this offence in the case of first offence is imprisonment for a term which may extend to six months or fine which may extend to Rs.1,000. The proviso to clause (i) of section 59 further states that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than three months and fine shall not be less than five hundred rupees. Section 76 of the Act provides for punishment for being drunk and disorderly behaviour. The section provides for a first offence, imprisonment for a term which may extend to one month, and fine which may extend to two hundred rupees. The proviso to sub-section (2) (a) of this section states that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be leas than seven days and fine shall not be less than twenty-five rupees. The offence of being drunk punishable under section 76 of the Act is a more serious offence than the mere consumption of liquor punishable under section 59(b) of the Act. Instead of providing a higher sentence for the aggravated form of offence, a more lenient punishment is provided. If a man consumes even a small quantity of liquor, under section 59(b) of the Act, the sentence prescribed is imprisonment for six months or fine which may extend to one thousand rupees and in the absence of special circumstances, the minimum sentence shall not be less than five hundred rupees. But if a person consumes a large quantity of liquor so as to be intoxicated or if he behaves in a disorderly manner under the influence of such drink, the punishment provided is only one month and fine which may extend to one hundred rupees and the minimum punishment in the absence of special circumstances, is only imprisonment for seven days and a fine of rupees twenty-five. It is a matter for the Legislature or consider whether this incongruity should not be removed by providing punishments commensurate with the gravity of the offences. Subject to the modification of the sentences as stated above, these two revisions petitions are dismissed. S.V.S.-----Petition dismissed. Order modified.