Consumption of Liquor in private vehicle
Satvinder Singh @ Satvinder Singh ... vs The State Of Bihar on 1 July, 2019
Author: A Bhushan
Bench: K Joseph, A Bhushan
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.951 OF 2019
(Arising out of SLP(Criminal) No.4994 of 2018)
SATVINDER SINGH @ SATVINDER SINGH
SALUJA & ORS. APPELLANT(S)
VERSUS
THE STATE OF BIHAR RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
...
11. We recapitulate the facts again. The appellants were enroute by vehicle No. JH11K/8146 from Giridih, State of Jharkhand to Patna, State of Bihar. Their vehicle was stopped and searched in Rajauli, Nawada. In the search of the vehicle no kind of excise article was recovered but the persons who were sitting inside the vehicle were subjected to breath analyser test and with regard to driver and two other persons alcohol was not found but with regard to appellants alcohol was found and they were taken into custody. A chargesheet was filed by the Additional Inspector, Excise under Section 53(a) of Bihar Excise(Amendment) Act, 2016 and cognizance was taken on 30.07.2016.
12. We may now refer to the relevant statutory provisions which were in force at the relevant time, i.e., 25.06.2016. The Legislation which was current at the time of incident was the Bihar Excise Act,1915. The word 'place' was defined under Section 2(17) of the Act, 1915 which is to the following effect:
Section 2(17) place includes building, house, shop, booth, vessel, raft, vehicle or tent;
13. In the State of Bihar although Bihar Prohibition Act, 1938 had been enacted but the said Act had not been enforced. The State Government introduced in the year 2015 an Excise Policy known as New Excise Policy, 2015. The New Excise Policy contemplated implementation of total prohibition in a phased manner. To achieve the objective of New Excise Policy, 2015 amendments were made in Bihar Excise Act, 2015 by Bihar Excise(Amendment) Act, 2016 (Bihar Act 3 of 2016) Gazetted on 31.03.2016. By Section 2(17A) definition of 'Public Place' was inserted in the following manner:
Section 2(17A) Public Place means any place to which public have access, whether as a matter of right or not and includes all places visited by general public and also includes any open space.
14. In Section 19 of the Act, subsection (4) was substituted in the following manner:
subsection(4) Notwithstanding anything contained in this Act and the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the State Government may by notification, absolutely prohibit the manufacture, bottling, distribution, sale, possession or consumption by any manufactory, bottling plant, license holder or any person in the whole State of Bihar or in any specified local area in respect of all or any of the intoxicants either totally or subject to such conditions as it may prescribe.
15. Chapter VIII of the Bihar Excise Act, 1915 dealt with Offences and Penalties, by Bihar Excise(Amendment) Act, 2016 a new Section 53 'Penalty for consumption of liquor in public place' has been inserted. Section 53 of the Bihar Excise(Amendment) Act, 2016 is as follows: 53 Penalty for consumption of liquor in public place. Whoever, in contravention of this Act or the rules, notification or order made there under
(a) consumes liquor in a public place or an unauthorized place; or
(b) consumes liquor in a public place or an unauthorized place or an authorized place and creates nuisance; or
(c) permits drunkenness or allows assembly of unsocial elements in his premises or on the premises of liquor establishment;
shall be punishable, (1)in case of an offence falling under clause
(a), with a term which shall not be less than five years but which may extend to seven years and with fine, which shall not be less than one lakh rupees which may extend to ten lakh rupees.
(2) In case of an offence falling under clause
(b) with a term which shall not be less than seven years but which may extend to ten years and with fine, which shall not be less than one lakh rupees which may extend to ten lakh rupees.
(3) In case of an offence falling under clause (c), with a term which shall not be less than ten years but which may extend to imprisonment for life and with fine, which shall not be less than one lakh rupees which may extend to ten lakh rupees.
16. It is also relevant to note that under Section 19 subSection (4) a notification dated 05.04.2016 was issued by the State of Bihar imposing total prohibition on foreign liquor. By notification dated 01.04.2016 prohibition on country liquor was already enforced.
17. The State Legislature enacted Bihar Prohibition and Excise Act, 2016 to enforce, implement and promote complete Prohibition of liquor and intoxicants in the territory of the State of Bihar. The preamble of the Act is as follows:
AN ACT to enforce, implement and promote complete Prohibition of liquor and intoxicants in the territory of the State of Bihar and for matters connected therewith or incidental thereto.
Whereas it is expedient to provide for a uniform law relating to Prohibition and regulation of liquor and intoxicants, the levy of duties thereon and punishment for the violation of law in the State of Bihar;
18. In the Bihar Prohibition and Excise Act, 2016, the definition of 'place' and 'Public Place' has been changed to the following effect:
Section 2(53) place includes building, house, shop, boat, booth, vessel, raft, vehicle, conveyance or tent enclosure;
(54) Public Place means any place to which public has access whether as a matter of right or not and includes all places visited by public and also includes any open space or any transport, whether public or private;
19. In the definition clause 2(54) specific inclusion of any transport, whether public or private has been made. In place of Section 53 which provided for penalty for consumption of liquor in public place, a new section, namely, Section 37 providing for 'penalty for consumption of liquor' has been introduced. Section 37 of the Act, 2016 is as follows:
Section 37. Penalty for consumption of liquor.Whoever, in contravention of this Act or the rules, notification or order made there under
(a) consumes liquor or intoxicant in any place; or
(b) is found drunk or in a state of drunkenness at any place; or
(c) drinks and creates nuisance or violence at any place including in his own house or premises; or
(d) permits or facilitates drunkenness or allows assembly of drunken elements in his own house or premises;
shall be punishable, (1) in case of an offence falling under clause (a) and (b), with a term which shall not be less than five years but which may extend to seven years and with fine, which shall not be less than one lakh rupees which may extend to ten lakh rupees.
(2) In case of an offence falling under clause
(c) and (d), with a term which shall not be less than ten years but which may extend to imprisonment for life and with fine, which shall not be less than one lakh rupees which may extend to ten lakh rupees.
Explanation (a) Consuming intoxicant includes consumption of any medicine or any ingredient of a medicine or medicinal preparation that may have an intoxicating effect.
Explanation (b) drunkenness includes drunkenness due to any medicine or medicinal preparation.
20. We now proceed to consider the submissions made by the learned counsel for the parties in support of their respective cases.
21. The first submission which has been raised by the learned counsel for the appellants is that even if it is presumed that they were found intoxicated on 25.06.2016 while travelling by their private vehicle, their vehicle cannot be treated to be a public place hence, Section 53(a) shall not be applicable. Learned counsel has emphasised on the specific inclusion of any transport, whether public or private in definition clause of Section 2(54) of the Bihar Prohibition and Excise Act, 2016 which clearly indicates that said concept was not present in the definition of 'public place' introduced by Section 2(17A) by Amendment Act, 2016. On first blush, the submission of the appellants seems to be correct but on a closer scrutiny we are unable to subscribe to the above submission. It is true that the earlier definition of 'public 'place' as contained in Section 2(17A) did not include any transport, whether public or private, but we have to examine as to whether the definition of 'public place' as introduced by Section 2(17A) shall include a private vehicle. We have noticed that definition of 'place' as contained in Bihar Excise Act, 1915, Section 2(17) is the inclusive definition which specifically includes vehicle. When word 'place' includes vehicle the words 'public place' have to be interpreted in the same light. What Section 2(17A) defines is that a 'public place' means any place to which public have access, whether as a matter of right or not and includes all places visited by general public and also includes any open space. The key words are 'any place to which public have access', which phrase is further qualified by phrase whether as a matter of right or not. Whether public have access to private vehicle or not is a question to be answered. The word 'access' is defined in Black Law Dictionary Dictionary in the following words:
access A right, opportunity, or ability to enter, approach, pass to and from, or communicate with access to the courts.
22. We have to further take into notice that private vehicle of the appellants was intercepted when it was on the public road. When private vehicle is passing through a public road it cannot be accepted that public have no access. It is true that public may not have access to private vehicle as matter of right but definitely public have opportunity to approach the private vehicle while it is on the public road. Hence, we are not able to accept the submission that vehicle in which appellants are travelling is not covered by definition of 'public place' as defined in Section 2(17A) of the Bihar Excise (Amendment) Act, 2016.
23. We may notice that under the Bihar Excise Act, 1915 prior to Bihar Excise (Amendment) Act, 2016 there was no definition of 'public place'. Although, in the notification dated 29.07.1978 issued by the State of Bihar in exercise of power under Section 19(4) word 'public place' was defined. Notification dated 29.07.1978 issued by the State of Bihar in exercise of power under Section 19(4) provided:
(S.O. 941 dated the 29th July, 1978 (Published in Bihar Gazette Extraordinary dated the 29th July, 19789). The Governor of Bihar, in exercise of the powers conferred by subsection (4) of section 19 of the Bihar and Orissa Excise Act, 1915 (Bihar and Orissa Act II of 1915), is pleased to make the following orders:
1.(a) No person while being in a public place shall possess and consume any intoxicant in a public place not licenced for consumption of the same. For this purpose a public place shall mean any place intended for use by or accessible to the public and shall include any public conveyance.
24. The same definition of public place was contained in subsequent notifications dated 27.03.1979 and 19.09.1980. It is to be noted that the State Government in the above notifications defined 'public place' as any place intended for use by or accessible to the public and shall include any public conveyance. It is clear that private conveyance was not included in the notification and State did not prohibit possession and consumption of any intoxicant in a 'private conveyance' under the aforesaid notifications. But the above notifications are no more relevant after the Bihar Excise (Amendment) Act, 2016 which Amendment was brought in the statute to implement the Bihar Excise Policy, 2015. The Bihar Excise Policy, 2015 was framed by the State to implement prohibition effectively.
25. The ommission of public conveyance in the definition of Section 2(17A) brought by the Bihar Excise (Amendment)Act, 2016 also indicates that the difference between public conveyance and private conveyance was done away in the statutory amendment. We, thus, cannot accept the submission of the learned counsel for the appellant that private conveyance will be excluded from the definition of 'public place' as contained in Section 2(17A). In this reference, we may also notice a judgment of learned Single Judge of the Kerala High Court cited before us i.e. Manikandan vs. State of Kerala, (1999) 2 KLT 592. In the above case the Assistant Sub Inspector of Police found a Maruti car parked on the road, accused Nos.2 and 3 were inside the car and consuming liquor. The case of the accused was that alleged offence was not committed in a public place, hence, the provisions of Section 15C were not attracted. In paragraphs 3 and 4 of the judgment following was held:
3. The charge sheet in this case is produced as Annexure B. The first information statement and the charge sheet show that on 2212.1998 the Assistant Sub Inspector of Police, Wadakkancherry found a maruthi car parked on the road near the Vyasa College Bus Stop. Accused 2 and 3 were inside the car. The first accused was outside. They were consuming liquor. The case is registered on the basis of this report. Now, it is contended for the petitioners that the alleged offence was not committed in a public place and hence the provisions in S.15C of the Act were not attracted. The argument has to be accepted as regards petitioners 2 and 3 who were found inside the car only. Explanation 1 to S.15C defines a public place as a street Court, Police Station etc.
4. It includes a public passenger vehicle. Explanation II makes it clear that the term public passenger vehicle does not include a vehicle which carries passengers for hire or reward under a contract. So even taxi vehicles will be excluded. A private car even on the road apparently cannot come within the definition. Hence, a private car even parked by the side of a road cannot be treated as a public place. So the charge as against petitioners 2 and 3 (accused 2 and 3) will not lie. It is liable to be quashed. However, the allegation is that the first accused was found on the road itself. So, he has necessarily to stand trial. He can take up his defences before the trial court.
26. It is to be noted that after the above judgment of the learned Single Judge delivered on 21.06.1999, Section 15C was amended to take away the basis of the aforesaid judgment by including the private vehicles also. The Kerala judgment was, thus, on the statutory provisions applicable in the State of Kerala and is clearly distinguishable.