RUSTAM S. SIDHWA, J.---This is an appeal by Mushtaq Ahmad appellant against the judgment of a learned Single Judge of the Lahore High Court dated 17-2-1985 dismissing his revision petition and maintaining his conviction under Article 4 of the Prohibition (Enforcement of Hadd) Order 4 of 1979 (hereinafter to be referred to as "the Order".
2. The brief facts of the case are that Faiz Ahmad SI, Incharge Police Post ('-Division, Sialkot, was on patrol duty on 25-8-1982 at about 8-45 p.m. Along with Riaz Ahmad and Nazir Ahmad, Constables.
Malik Muhammad Rafiq P.W. Was two with them at that time. The appellant Mushtaq Ahmad met the raiding party near Jinnah Park. He was holding a brown rexine bag. On seeing the raiding party, the appellant tried to escape. However, Faiz Ahmad S.I. Was able to apprehendhim with the aid of his companions. The bag was opened and three bottles of alcohol were recovered from the bag.
Six ounces of liquid from each bottle were separated and were made into separate scaled parcels to be sent to the Chemical Examiner for analysis. The bottles of alcohol were taken into possession by the police. The appellant could not produce any licence/permit for keeping the same.
3. The appellant was convicted under Article 4 of the Order and sentenced to 18 months' R.I. The learned Additional Sessions Judge, Sialkot on appeal maintained the conviction, but reduced his sentence to one year's R.I. The revision of the appellant having been dismissed by a learned Single Judge of the High Court on 17-2-1985, he petitioned this Court for leave, which was granted to consider the question whether the three bottles which were recovered from him contained "intoxicant" or "intoxicating liquor" within the meaning of clauses (g) and (h) of Article 2 of the Order.
4. On behalf of the appellant it is submitted that the three bottles of liquid recovered from the appellant were found by the Chemical Examiner to contain diluted rectified spirit and since rectified spirit is not an intoxicating liquor within the meaning of Article 2(h) of the Order, the conviction and sentence of the appellant is illegal. It is submitted that the word "intoxicant" as appearing in Article 2(g) of the Order means an article either specified in the Schedule or intoxicating liquor or any other article or substance which the Provincial Government may, by notification in the official Gazette, declare to be an intoxicant for the purposes of the Order and the words "intoxicating liquor" as contained in Article 2(h) of the Order includes toddy, spirits of wine, wine, beer and all liquids consisting of or containing alcohol normally used for purposes of intoxication, but does not include a solid intoxicant even if liquefied. Since rectified spirit is industrial alcohol not used normally as a beverage or drink for the purposes of intoxication, the possession of the same by the appellant was not criminal as to be liable for any penalty under the Order.
5. On behalf of the State it is submitted that persons normally used to alcoholic drinks even go to the extent of drinking rectified and denatured spirits which are meant for industrial use and since the three bottles of rectified spirit found in possession of the appellant were found to be sufficiently diluted, it must be presumed that it was intended to serve as alcoholic liquor for the purposes of intoxication. It is, therefore, submitted that the appellant was rightly convicted and sentenced.
6. We have heard the arguments of the learned counsel for the appellant and the State and have given our anxious consideration to this case. Under Article 4 of the Order, whoever owns, possesses or keeps in his custody any intoxicant is liable to punishment under the Order. Article 2(g) of the Order defines "intoxicant" to mean-- "an article specified in the Schedule and includes intoxicating liquor and other article or any substance which the Provincial Government may, by notification in the official Gazette, declare to be an intoxicant for the purposes of this order."
Article 2(h) of the Order defines "intoxicating liquor" as-- "including toddy, spirits of wine, wine, beer and all liquids consisting of or containing alcohol normally used for purposes of intoxication, but does not include a solid intoxicant even if liquified:"
The Schedule to the Order reads as under:-- "(1) The leaves, small stalks and flowering or fruiting tops of the Indian hemp plant (cannabis satiya L.), including all forms known as bhang siddhi or ganja.
(2) Charas, that is, the resin obtained from the Indian hemp plant, which has not been submitted to any manipulations other than those necessary for packing or transport.
(3) Any mixture, with or without neutral materials, of any of the articles mentioned in entries 1 and 2, or any drink prepared there from.
(4) Opium and opium derivatives as defined in the Dangerous Drugs Act, 1930(11 of 1930).
(5) Coca leaf and coca derivatives as defined in the aforesaid Act.
(6) Hashish:"
The question, therefore, that arises is whether the three bottles of liquid which the appellant was carrying was intoxicating liquor and therefore an intoxicant to bring the charge of guilt to the appellant.
7. Para 7 of the judgment of the learned Additional Sessions Judge, Sialkot, dated 6-2-1985 states that the report of the Chemical Examiner Ex. P.D. Showed that the bottles contained coloured diluted rectified spirit which could be used as a substitute for liquor. Under Article 2(g) of the Order, "intoxicant" means an article specified in the Schedule or intoxicating liquor and other article or any substance which the Provincial Government may, by notification in the official Gazette, declare to be an intoxicant for the purposes of this Order. Rectified spirit is not one of the items listed in the Schedule to the Order. It is also not the case of the learned counsel for the State that rectified spirit has been notified in the official Gazette by the Provincial Government as an intoxicant within the meaning of the Order. Uptil date no article has been notified as an intoxicant. The only question, therefore, that remains to be decided is whether diluted rectified spirit can be treated as intoxicating liquor.
8. Article 2(h) of the Order defines "intoxicating liquor" to include toddy, spirits of wine, wine, beer and all liquids consisting of or containing alcohol normally used for purposes of intoxication, but does not include a solid intoxication even if liquified. The word "liquor" does not necessarily mean liquid containing alcohol, such as beverage drink produced by fermentation or distillation. In common parlance it also denotes liquids, fluids or matters in a liquid state; chemical solutions used in the manufacture and preparation of articles and in certain processes; liquid solutions used as a wash or bath, or to cure or purify articles etc. The expression "intoxicating liquor", therefore, obviously has reference to liquids consisting of or containing something which produce intoxication. The word "includes" contained in Article 2(b) of the Order requires examination. In Dilworth v Commissioner for Land and Income Tax (1899,A.C. 99 P.C.), Lord Watson observed:-- "The word `include' is very generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statutes; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word `include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to `mean and include' and in that case it may afford an exhaustive explanation of the meaning which for the purposes of the Act, must invariably be attached to these words or expressions:'
The question, therefore, that arises is whether the word "includes" has been used to enlarge the meaning of the expression "intoxicating liquor" or to limit its meaning and render it exhaustive. As a general rule, the word "includes" is used as a word of enlargement and ordinarily implies that something else also falls within that definition beyond the general or generic meaning of that expression which precedes it, i.e. a species which does not naturally belong to it or a species which normally or naturally attaches to it. What is the general or generic meaning attaching to the expression "intoxicating liquor", so that the items that succeed the word "includes" either constitute a species which do not naturally belong to it or a species deemed included in the general or generic meaning of that expression or to its natural import. The word "intoxicant" has been defined in Article 2(g). The items listed in the Schedule to the Order are derivatives of plants. These articles when consumed produce intoxication. They are also normally used by persons for purposes of intoxication. Some of these items can be consumed in liquid form. The expression therefore, "intoxicating liquor" as used in its general or generic sense would therefore include all forms of drinks, beverages or liquids containing p the articles specified in the Schedule to the Order, i.e. Intoxicants which are derivatives of certain stated plants, which are normally used by persons for the purposes of intoxication. "Toddy, spirits or wine are derivatives of cereals and fruits. These articles when consumed also produce intoxication. What is common to them is alcohol. Thus, if the expression "intoxicating' liquor" covers liquids containing intoxicants derived from plants, the words "toddy, spirits of wine,..:" which follow the word "includes" refer to the species of liquids consisting of or containing alcohol derived from the fermentation or distillation of cereals or fruits. In short, the expression "intoxicating liquor" in its totality would cover all drinks, beverages or liquids consisting of or containing the articles stated in the Schedule or alcohol which are normally used by persons for purposes of intoxication. The word "intoxication" in Article 2(h) of the Order does not mean to get drunk or unconscious or inebriated or elated beyond the bounds of sobriety. What is intended to convey is that the liquid can produce a state of intoxication, i.e. Stimulation, depression, elation, semi-consciousness, etc.
9. The main question that arises for consideration is whether diluted rectified spirit can be treated as "liquid consisting of or containing alcohol normally used for purposes of intoxication" to bring the case within the definition of "intoxicating liquor". The normal alcoholic beverages like toddy, whiskey, wine, beer, gin, rum, brandy all contain alcohol. They are all normally used by persons who drink at home or socialise or mix to bars, clubs. Etc. Beer and wine are festinated liquors, whereas the rest arc, distilled liquors. Wines are prepared out of the fermentation of grapes, whereas beer is prepared out of fermentation of barley and hops. Brandy is distilled from grapewine, whisky from cereal grain toasted with male, rum from sugarcane juice and gin from cc, cal grain. Beer and toddy contain two to six per cent alcohol, wine eight to nine per cent alcohol and whiskey, rum and gin between forty to fifty per cent alcohol. All these alcoholic beverages are so prepared that they have a peculiar taste, peculiar to the particular beverage concerned. This is brought about by adding certain ingredients during their manufacture and by varying the mode of fermentation and distillation. Though the beverages all contain alcohol, they don't give the taste of pure alcohol.
Thus, it is the special taste of each beverage that draws the consumer in the normal course to the beverage concerned and not the thought or taste of alcohol. Rectified, methylated and denatured spirits are basically industrial, alcohols used for the manufacture and production of a thousand products. Rectified spirit is a form of pure alcohol. It is also used in medicine. It is liquid which contains up to ninety per cent alcohol. Methylated and denatured spirits are pure forms of alcohol, i.e. Liquids containing about forty per cent of alcohol mixed with very small percentages of chemicals or other poisonous liquids, so as to render them unfit for human consumption. Methyl alcohol or wood neptha is generally added to produce methylated spirits, whereas pyridine or cochicine is added to produce denatured spirits. Denaturing chemicals or liquids are almost in all cases of a poisonous nature and intended to render the alcohol unfit for human consumption.
Some medicinal tinctures both fit and unfit for human consumption also contain alcohol. It is true that certain persons specially the poor, not finding the normal alcoholic beverages, are tempted to drink diluted rectified, methylated or denatured spirits or some medicinal tinctures, in order to find some intoxication, but the question would still remain, as required by Article 2(h) of the Order, whether any of the said liquids consisting of or containing alcohol are such as arc normally used for, purposes of intoxication.
10. In The State of Bombay v. F.N. Balsam (AIR 1951 SC 318) the word "liquor" in section 2(24) of the Bombay Prohibition Act, XXV of 1949, came up for consideration before the Supreme Court of India.
The said section reads:-- "liquor" includes:--
(a) spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol: and
(b) any other intoxicating substance which the Provincial Government may, by notification in the official Gazette, declare to be liquor for purposes of this Act."
The Bombay High Court had held that the word "liquor" ordinarily meant "a strong drink, as opposed to a soft drink", but that it had in any event to be a beverage which was ordinarily drunk.
Proceeding upon this view, the 1-High Court had held that although the Legislature could while legislating prevent the consumption of non-intoxicating beverages and also prevent the use as drinks of alcoholic liquids which were not normally consumed as drinks, it could not prevent the legitimate use of alcoholic preparations which were not beverages nor the use of medicinal and toilet preparations containing alcohol. The Supreme Court of India, however, on a review of various other provincial enactments dealing with liquor held that the word "liquor" as contained in section 2(24) of tile Bombay Act XXV of 1949 covered not only those alcoholic liquids which were generally used for beverage purposes and produced intoxication, but also all liquids containing alcohol. It further held that though it was possible that the latter meaning .Was not the meaning which was attributed to the word "liquor" in common parlance, specially when that word was prefixed by the qualifying word "intoxicating", but in their opinion, having regard to the numerous statutory definitions of that word, such a meaning could not have been intended to be excluded from the scope of the term "intoxicating liquor" as used in entry No.31 of list (ii) of the Indian Constitution. In clause (a) of section 2(24) of the Bombay Act XXV of 1949 the words are "all liquids consisting of or containing alcohol", whereas in Article 2(h) of the Order the words are' "liquids consisting of or containing alcohol normally used for purposes of intoxication". The last six words are not to be found in the Bombay Act. This accounts for the reason why the Supreme Court of India held that the word "liquor" in section 2(24) of the Bombay Act XXV of 1949 covered not only those alcoholic liquids which were generally used for beverage purposes and produced intoxication, but also all liquids containing alcohol.
11. The position here is different. What is covered by Article 2(h) of the Order is not only all alcoholic liquids which are generally used for beverage purposes and produce intoxication, but all liquids containing alcohol normally used for purposes of intoxication. The question, therefore, that would arise is whether rectified spirit is a product normality used by persons for purposes of securing any form of intoxication. The word "normally" means in a normal manner, according to rule or general course of events or custom. Methylated and denatured spirits and medicinal tinctures containing alcohol which are not fit for human consumption are neither liquids normally consumed by persons who drink, whether for enjoyment within the bounds of sobriety or for getting highly intoxicated within the polarities of boisterous madness or stark unconsciousness, nor are they products which persons used to drinking would normally look for as fair substitutes. However, medicines and medicinal tinctures containing alcohol which are not unfit for human consumption are consumed by persons who normally look for adequate substitutes. A person found drunk or taking such a medicine or medicinal tincture, without "iztarar" (a situation in which he is in apprehension of death due to extreme hunger or thirst or serious illness) would be liable for the offence of drinking under Article 6 of the Order, but the Federal Shariat Court has held that no culpability attaches to the use of prohibited items of food or drink permitted under compulsion of necessity, provided their use is bona fide See Ghulam Nabi Awan v. The Federation of Pakistan (PLD 1983 F.S.C. 55). This court has also held that the use of medicine containing an intoxicant if prescribed by a physician for illness, is not culpable. See Ishtiaq v. State (PLD 1984 SC 361). A fortiori, a person found in possession of or drinking medicine or medicinal tincture containing alcohol, which is otherwise not unfit for human consumption and which has not been prescribed by a physician for bona fide illness, would be liable under the Order. Rectified spirit is a form of pure alcohol and the same in various diluted forms, with or without colour and flavouring, can be used as a good substitute for an alcoholic beverage type drink. Since it can be so used as a good substitute, rectified spirit therefore would fall in the category of liquid consisting of or containing alcohol normally used for purposes of intoxication. This would, therefore, bring the case within the definition of Article 2(h) of the Order. The Chemical Examiner's report also shows that the liquid in the bottles was coloured diluted rectified spirit which could be used as a substitute for liquor. The bottles therefore contained intoxicating liquor and the appellant appears to have been properly convicted and sentenced.
12. There is no merit in this appeal, which is dismissed.