SATVINDER SINGH @ SATVINDER SINGH SALUJA & ORS versus THE STATE OF BIHAR on 1 July 2019

SATVINDER SINGH @ SATVINDER SINGH SALUJA & ORS.

v.

THE STATE OF BIHAR

(Criminal Appeal No. 951 of 2019)

JULY 01, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Bihar Excise Act, 1915:

ss. 2(17A) and 53(a) [as inserted by Bihar Excise (Amendment)Act, 2016] – Offence of Consumption of liquor in public place –Cognizance taken – Application u/s. 482 Cr.P.C. for quashing theproceedings – Dismissal of – Appeal to Supreme Court – Held:The vehicle in which the accused were travelling would come withindefinition of ‘Public Place’ as defined in s. 2(17A) – However,whether the charge that consumption of liquor took place withinthe State of Bihar, needs to be decided by the Magistrate – Theaccused shall be at liberty to file application for discharge beforethe Magistrate – Bihar Prohibition and Excise Act, 2016 – s. 37(b).

Disposing of the appeal, the Court

HELD : 1.1 Definition of ‘place’ as contained inSection 2(17) of Bihar Excise Act, 1915, is the inclusive definitionwhich specifically includes “vehicle”. When word ‘place’ includesvehicle the words ‘public place’ have to be interpreted in thesame light. What Section 2(17A) defines is that a ‘public place’means any place to which public have access, whether as a matterof right or not and includes all places visited by general publicand also includes any open space. The key words are ‘any placeto which public have access’, which phrase is further qualified byphrase “whether as a matter of right or not”. [Para 21][820-A-C]

1.2 Under the Bihar Excise Act, 1915 prior to Bihar Excise(Amendment) Act, 2016 there was no definition of ‘public place’.In the notification dated 29.07.1978 issued by the State of Biharin exercise of power under Section 19(4) word ‘public place’ wasdefined. The same definition of public place was contained in

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Asubsequent notifications dated 27.03.1979 and 19.09.1980. TheState Government in the above notifications defined ‘public place’as “any place intended for use by or accessible to the public andshall include any public conveyance”. It is clear that privateconveyance was not included in the notification and State did notprohibit possession and consumption of any intoxicant in a ‘privateBconveyance’ under the aforesaid notifications. But the abovenotifications are no more relevant after the Bihar Excise(Amendment) Act, 2016 which Amendment was brought in thestatute to implement the Bihar Excise Policy, 2015. The BiharExcise Policy, 2015 was framed by the State to implementCprohibition effectively. [Paras 23, 24] [820-F-G; 821-B-D]

1.3 The private vehicle of the appellants was interceptedwhen it was on the public road. When private vehicle is passingthrough a public road it cannot be accepted that public have noaccess. It is true that public may not have access to private vehicleDas a matter of right but definitely public have opportunity toapproach the private vehicle while it is on the public road. Hence,it cannot be said that vehicle in which appellants were travellingwas not covered by definition of ‘public place’ as defined in Section2(17A) of Bihar Excise Act, 1915 as inserted by the Bihar Excise(Amendment) Act, 2016. [Para 22] [820-E]E

1.4 The ommission of public conveyance in the definitionof Section 2(17A) brought by the Bihar Excise (Amendment)Act,2016 also indicates that the difference between public conveyanceand private conveyance was done away in the statutoryamendment. Therefore, it cannot be said that private conveyanceFwill be excluded from the definition of ‘public place’ as containedin Section 2(17A). [Para 25] [821-D-E]

Manikandan v. State of Kerala (1999) 2 KLT 592– referred to.

GBlack Law’s Dictionary – referred to.

2. The word ‘consumes’ is a verb transitive. When theword ‘consumes’ is followed by liquor, the action denoted by verbpasses over from the doer to object i.e. liquor to constitute theoffences within the meaning of Section 53(a). The action of H

consumption of liquor has to happen within the State of Bihar. Aperson who consumes liquor in a different State cannot befastened with a penalty under Section 53(a) unless there is someevidence to prove that consumption of liquor by the accused hastaken place in the State of Bihar. As per Bihar Prohibition andExcise Act, 2016 even if a person consumes liquor outside theState of Bihar and enter into the territory of Bihar and is founddrunk or is in a state of drunkenness, he can be charged withoffences under Section 37(b). But no offence as now contemplatedby Section 37(b) was provided for in Bihar Excise (Amendment)Act, 2016. Thus, the consumption of liquor has to be in the Stateof Bihar. However, whether the charge that consumption of liquorhas taken place within the State of Bihar is made out in the factsof the present case are questions which need to be decided bythe Magistrate after looking into the materials brought on recordby means of the chargesheet. The ends of justice will be servedin providing that appellants shall be at liberty to file an applicationto discharge before the Magistrate who after considering thematerials on record shall decide the said application of discharge in accordance with law. [Paras 27, 28] [822-F; 823-A-E]

Confederation of India Alcoholic Beverage Companies& Anr. v. Manoj Kumar & Ors. 2016 (4) PLJR 369– referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 951 of 2019.

From the Judgment and Order dated 16.02.2018 of the High Courtof Judicature at Patna in Criminal Miscellaneous Application No. 23009of 2017.

Rahul Shyam Bhandari, Akash Sinha, Ms. Bhavya Vijay Tangri,A. Siva, Advs. for the Appellants.

Shivam Singh, Gopal Singh, Advs. for the Respondent.

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AThe Judgment of the Court was delivered byASHOK BHUSHAN, J. 1. Leave granted.

2. This appeal has been filed against the judgment dated 16.02.2018of the High Court of Patna dismissing the application of the appellantsfiled under Section 482 Cr.P.C. for setting aside the order dated 30.04.2016Bpassed by the Judicial Magistrate, Nawada in Rajauli Excise Case No.316of 2016 by which he has taken cognizance of the offence punishableunder Section 53(a) of the Bihar Excise (Amendment) Act, 2016. Theappellants aggrieved by the order of the High Court have come up in thisappeal.

C3. Brief facts of the case necessary to be noticed for deciding thisappeal are:

The appellants, all Rotarians, were travelling from Giridih,Jharkhand to Patna, Bihar to attend a meeting of Rotary Club on25.06.2016. The appellants were travelling by vehicle No.JH-11K/8146.DThe vehicle was stopped for routine checkup at Rajauli Check Post,District Nawada, State of Bihar by one Sachidanand, Bharati, Sup-Inspector Excise. Nothing incriminating nor any liquor was found in thevehicle in which appellants were travelling. The appellants were subjectedto breath analyser test in which test as per the prosecution case certainEquantity of alcohol was found. The appellants were arrested and remainedin custody for two days. First Information Report was lodged on25.06.2016 on which Excise Case No.316 of 2016 was registered. TheChief Judicial Magistrate, Nawada took cognizance by order dated30.07.2016. The appellants filed application under Section 482 Cr.P.C.praying for setting aside the order dated 30.07.2016 passed by the ChiefFJudicial Magistrate taking cognizance. The High Court vide its orderdated 16.02.2018 dismissed the application under Section 482 Cr.P.C.aggrieved by which order this appeal has been filed.

4. We have heard learned counsel for the appellants as well asShri Shivam Singh, appearing for the State of Bihar.G

5. Learned counsel for the appellants submits that no offencewas made out under Section 53(a) of the Bihar Excise (Amendment)Act, 2016. The Chief Judicial Magistrate committed an error in takingcognizance of the offence. It is submitted that the appellants weretravelling in their vehicle from Giridih, State of Jharkhand to Patna, StateHof Bihar to attend a Rotary Club meeting. The vehicle in which they were travelling cannot be said to be public place within the meaning ofSection 2(17A) of Bihar Excise (Amendment) Act, 2016. Further,ingredient of Section 53(a) regarding consumption of liquor in a publicplace is not satisfied. It is further submitted that in the search no liquorbottles or any other incriminating materials were found which is alsomentioned in the report. Hence, ingredient of offence that liquor isconsumed is not satisfied.

6. Learned counsel for the appellants has referred to provision ofSection 2(54) of Bihar Prohibition and Excise Act, 2016 in which publicplace has been defined which includes any transport, whether public orprivate. Thus, as per definition under Section 2(54) of Bihar Prohibitionand Excise Act, 2016 a private vehicle is also a public place whichdefinition was not there in Bihar Excise (Amendment) Act, 2016. It isfurther submitted Section 37 provides for penalty for consumption ofliquor where now it is also an offence if a person is found drunk or in astate of drunkenness at any place, whereas under Bihar Excise(Amendment) Act, 2016 there was no such offence in Section 53 of theAct. The word ‘consumed’ shall be interpreted in the present continuoustense.

7. Learned counsel for the State of Bihar refuting the submissionof the learned counsel for the appellants contends that Bihar is a Statewhere prohibition is imposed under Section 19(4) of the Bihar Excise(Amendment) Act, 2016, there being prohibition in the entire State ofBihar anyone found violating the prohibition has to be treated as havingcommitted offence. It is submitted that vehicle of the appellants wasintercepted at a public road, hence, the appellants are not correct in theirsubmission that they were not intercepted at a public place. It is submittedthat ingredients of Section 53(a) of the Bihar Excise (Amendment) Act,2016 are fully satisfied and no error has been committed by the ChiefJudicial Magistrate in taking cognizance.

8. It is further submitted by the learned counsel for the State thatthe notification dated 05.04.2016 imposing prohibition issued under Section19(4) of Bihar Excise (Amendment) Act, 2016 was challenged in theHigh Court and the Division Bench of the Patna High Court vide itsjudgment dated 30.09.2016 set aside the notification dated 05.04.2016 inConfederation of India Alcoholic Beverage Companies & Anr.vs. Manoj Kumar & Ors., 2016(4) PLJR 369, which judgment hasbeen stayed by this Court by order dated 07.10.2016 in SLP(C)No. 29749- AB

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A29763 of 2016, State of Bihar and ors. etc.etc. vs. Confederation ofIndian Alcoholic Beverage Companies and Anr. etc.etc., whichrestored back the legal position as existed after Bihar Excise(Amendment)Act, 2016.

9. Learned counsel for the State submits that before the HighBCourt the appellants had made only submission regarding competenceof Chief Judicial Magistrate to take cognizance which submission wasrejected.

10. We have considered the submissions of the learned counselfor the parties and have perused the records.

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11. We recapitulate the facts again. The appellants were enrouteby vehicle No. JH-11K/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 wasrecovered but the persons who were sitting inside the vehicle wereDsubjected to breath analyser test and with regard to driver and two otherpersons alcohol was not found but with regard to appellants alcohol wasfound and they were taken into custody. A chargesheet was filed by theAdditional Inspector, Excise under Section 53(a) of BiharExcise(Amendment) Act, 2016 and cognizance was taken on30.07.2016.E

12. We may now refer to the relevant statutory provisions whichwere in force at the relevant time, i.e., 25.06.2016. The Legislation whichwas current at the time of incident was the Bihar Excise Act,1915. Theword ‘place’ was defined under Section 2(17) of the Act, 1915 which isto the following effect:F

“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 hadbeen enacted but the said Act had not been enforced. The StateGovernment introduced in the year 2015 an Excise Policy known asGNew Excise Policy, 2015. The New Excise Policy contemplatedimplementation of total prohibition in a phased manner. To achieve theobjective of New Excise Policy, 2015 amendments were made in BiharExcise Act, 2015 by Bihar Excise(Amendment) Act, 2016 (Bihar Act 3of 2016) Gazetted on 31.03.2016. By Section 2(17A) definition of ‘PublicHPlace’ was inserted in the following manner:

“Section 2(17A)- Public Place means any place to which publichave access, whether as a matter of right or not and includes allplaces visited by general public and also includes any open space.”

14. In Section 19 of the Act, sub-section (4) was substituted in thefollowing manner:

“sub-section(4)- Notwithstanding anything contained in this Actand the Narcotic Drugs and Psychotropic Substances Act, 1985(61 of 1985), the State Government may by notification, absolutelyprohibit the manufacture, bottling, distribution, sale, possession orconsumption by any manufactory, bottling plant, license holder orany person in the whole State of Bihar or in any specified localarea in respect of all or any of the intoxicants either totally orsubject 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 anew Section 53- ‘Penalty for consumption of liquor in public place’ hasbeen inserted. Section 53 of the Bihar Excise(Amendment) Act, 2016 isas follows:

“53- Penalty for consumption of liquor in public place. –Whoever, in contravention of this Act or the rules, notification ororder 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 oran authorized place and creates nuisance; or

(c) permits drunkenness or allows assembly of unsocial elementsin his premises or on the premises of liquor establishment; shall be punishable,

(1) in case of an offence falling under clause (a), with a termwhich shall not be less than five years but which may extend toseven years and with fine, which shall not be less than one lakhrupees which may extend to ten lakh rupees.

(2) In case of an offence falling under clause (b) with a termwhich shall not be less than seven years but which may extend toten years and with fine, which shall not be less than one lakhrupees which may extend to ten lakh rupees.

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A(3) In case of an offence falling under clause (c), with a termwhich shall not be less than ten years but which may extend toimprisonment for life and with fine, which shall not be less thanone lakh rupees which may extend to ten lakh rupees.”

16. It is also relevant to note that under Section 19 sub-SectionB(4) a notification dated 05.04.2016 was issued by the State of Biharimposing total prohibition on foreign liquor. By notification dated01.04.2016 prohibition on country liquor was already enforced.

17. The State Legislature enacted Bihar Prohibition and ExciseAct, 2016 to enforce, implement and promote complete Prohibition ofCliquor and intoxicants in the territory of the State of Bihar. The preambleof the Act is as follows:

“AN ACT to enforce, implement and promote complete Prohibitionof liquor and intoxicants in the territory of the State of Bihar andfor matters connected therewith or incidental thereto.

DWhereas it is expedient to provide for a uniform law relating toProhibition and regulation of liquor and intoxicants, the levy ofduties thereon and punishment for the violation of law in the Stateof Bihar;”

18. In the Bihar Prohibition and Excise Act, 2016, the definition ofE‘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 accesswhether as a matter of right or not and includes all places visitedFby 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 whichprovided for penalty for consumption of liquor in public place, a newGsection, namely, Section 37 providing for ‘penalty for consumption ofliquor’ has been introduced. Section 37 of the Act, 2016 is as follows:

“Section 37. Penalty for consumption of liquor.—Whoever, incontravention of this Act or the rules, notification or order madethere under - H

(a) consumes liquor or intoxicant in any place; or A

(b) is found drunk or in a state of drunkenness at any place; or

(c) drinks and creates nuisance or violence at any place includingin his own house or premises; or (d) permits or facilitates drunkenness or allows assembly of drunkenelements in his own house or premises; B

shall be punishable,

(1) in case of an offence falling under clause (a) and (b), with aterm which shall not be less than five years but which mayextend to seven years and with fine, which shall not be lessCthan one lakh rupees which may extend to ten lakh rupees.

(2) In case of an offence falling under clause (c) and (d), with aterm which shall not be less than ten years but which mayextend to imprisonment for life and with fine, which shall notbe less than one lakh rupees which may extend to ten lakhDrupees.

Explanation (a)– “Consuming intoxicant” includes consumptionof any medicine or any ingredient of a medicine or medicinalpreparation that may have an intoxicating effect.

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Explanation (b)- “drunkenness” includes drunkenness due to anymedicine or medicinal preparation.”

20. We now proceed to consider the submissions made by thelearned counsel for the parties in support of their respective cases.

21. The first submission which has been raised by the learnedcounsel for the appellants is that even if it is presumed that they werefound 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 specificinclusion of “any transport, whether public or private” in definition clauseof Section 2(54) of the Bihar Prohibition and Excise Act, 2016 whichclearly 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 buton 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 F

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ASection 2(17A) did not include any transport, whether public or private,but we have to examine as to whether the definition of ‘public place’ asintroduced by Section 2(17A) shall include a private vehicle. We havenoticed 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’Bhave to be interpreted in the same light. What Section 2(17A) defines isthat a ‘public place’ means any place to which public have access,whether as a matter of right or not and includes all places visited bygeneral public and also includes any open space. The key words are‘any place to which public have access’, which phrase is further qualifiedCby phrase “whether as a matter of right or not”. Whether public haveaccess to private vehicle or not is a question to be answered. The word‘access’ is defined in Black Law Dictionary Dictionary in the followingwords:

“access – A right, opportunity, or ability to enter, approach, passDto and from, or communicate with access to the courts.”

22. We have to further take into notice that private vehicle of theappellants was intercepted when it was on the public road. When privatevehicle is passing through a public road it cannot be accepted that publichave no access. It is true that public may not have access to privateEvehicle as matter of right but definitely public have opportunity to approachthe private vehicle while it is on the public road. Hence, we are not ableto accept the submission that vehicle in which appellants are travelling isnot covered by definition of ‘public place’ as defined in Section 2(17A)of the Bihar Excise (Amendment) Act, 2016.

F23. We may notice that under the Bihar Excise Act, 1915 prior toBihar Excise (Amendment) Act, 2016 there was no definition of ‘publicplace’. Although, in the notification dated 29.07.1978 issued by the Stateof Bihar in exercise of power under Section 19(4) word ‘public place’was defined. Notification dated 29.07.1978 issued by the State of Biharin exercise of power under Section 19(4) provided:G

“(S.O. 941 dated the 29[th] July, 1978 (Published in BiharGazette Extra-ordinary dated the 29[th] July, 19789).- TheGovernor of Bihar, in exercise of the powers conferred by sub-section (4) of section 19 of the Bihar and Orissa Excise Act, 1915(Bihar and Orissa Act II of 1915), is pleased to make the followingHorders:-

1. (a) No person while being in a public place shall possess andconsume any intoxicant in a public place not licenced forconsumption of the same. For this purpose a “public place” shallmean “any place intended for use by or accessible to the publicand shall include any public conveyance.”

24. The same definition of public place was contained in subsequentnotifications dated 27.03.1979 and 19.09.1980. It is to be noted that theState Government in the above notifications defined ‘public place’ as“any place intended for use by or accessible to the public and shall includeany public conveyance”. It is clear that private conveyance was notincluded in the notification and State did not prohibit possession andconsumption of any intoxicant in a ‘private conveyance’ under theaforesaid notifications. But the above notifications are no more relevantafter the Bihar Excise (Amendment) Act, 2016 which Amendment wasbrought in the statute to implement the Bihar Excise Policy, 2015. TheBihar Excise Policy, 2015 was framed by the State to implementprohibition effectively.

25. The ommission of public conveyance in the definition of Section2(17A) brought by the Bihar Excise (Amendment)Act, 2016 alsoindicates that the difference between public conveyance and privateconveyance was done away in the statutory amendment. We, thus,cannot accept the submission of the learned counsel for the appellantthat private conveyance will be excluded from the definition of ‘publicplace’ as contained in Section 2(17A). In this reference, we may alsonotice a judgment of learned Single Judge of the Kerala High Courtcited before us i.e. Manikandan vs. State of Kerala, (1999) 2 KLT592. In the above case the Assistant Sub Inspector of Police found aMaruti car parked on the road, accused Nos.2 and 3 were inside the carand consuming liquor. The case of the accused was that alleged offencewas not committed in a public place, hence, the provisions of Section15C were not attracted. In paragraphs 3 and 4 of the judgment followingwas held:

“3. The charge sheet in this case is produced as Annexure B.The first information statement and the charge sheet show thaton 22-12.1998 the Assistant Sub Inspector of Police,Wadakkancherry found a maruthi car parked on the road nearthe Vyasa College Bus Stop. Accused 2 and 3 were inside thecar. The first accused was outside. They were consuming liquor.

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The case is registered on the basis of this report. Now, it iscontended for the petitioners that the alleged offence was notcommitted in a public place and hence the provisions in S.15C ofthe Act were not attracted. The argument has to be accepted asregards 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.”

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4. It includes a public passenger vehicle. Explanation II makesit clear that the term “public passenger vehicle” does not includea “vehicle which carries passengers for hire or reward under acontract.” So even taxi vehicles will be excluded. A private careven on the road apparently cannot come within the definition.Hence, a private car even parked by the side of a road cannot betreated as a “public place”. So the charge as against petitioners 2and 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 theroad itself. So, he has necessarily to stand trial. He can take uphis defences before the trial court.”

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26. It is to be noted that after the above judgment of the learnedSingle Judge delivered on 21.06.1999, Section 15C was amended to takeaway the basis of the aforesaid judgment by including the private vehiclesEalso. The Kerala judgment was, thus, on the statutory provisions applicablein the State of Kerala and is clearly distinguishable.

27. Now, we come to other submission of the appellants thatoffence under Section 53(a) can be committed only when appellantconsumes liquor in a public place. It is submitted that words ‘consumesFliquor’ have to be given meaning and substance for constituting theoffence. The word ‘consumes’ is a verb transitive. The word ‘consume’has been defined in Black Law Dictionary in the following words:

“consume – 1. To destroy the substance of, esp.by fire; to useup or wear out gradually, as by burning or eating the house wasconsumed by fire. 2. To expend wastefully; to waste; to squanderhe consumed all his resources within four months. 3. To use up(time, resources, etc.), whether fruitfully or fruitlessly 45% of thepaper we consume is recycled. 4. To eat or drink; to devour noalcohol may be consumed on these premises. 5. To engage theattention or interest of fully; to obsess she was consumed withguilt after her father’s death.”

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28. When the word ‘consumes’ is followed by liquor, the actiondenoted by verb passes over from the doer to object i.e. liquor toconstitute the offences within the meaning of Section 53(a). The actionof consumption of liquor has to happen within the State of Bihar. Aperson who consumes liquor in a different State cannot be fastened witha penalty under Section 53(a) unless there is some evidence to provethat consumption of liquor by the accused has taken place in the State ofBihar. We may at this juncture further notice that now as per BiharProhibition and Excise Act, 2016 another category of offences whichhas been included in Section 37 is Section 37 sub-section (b) which “isfound drunk or in a state of drunkenness at any place; or”, thus, as perBihar Prohibition and Excise Act, 2016 even a person consumes liquoroutside the State of Bihar and enter into the territory of Bihar and isfound drunk or in a state of drunkenness, he can be charged with offencesunder Section 37(b). But no offence as now contemplated by Section37(b) was provided for in Bihar Excise (Amendment) Act, 2016, thus,the consumption of liquor has to be in the State of Bihar. We, however,cannot take a decision on the above issue in this appeal. Whether chargethat consumption of liquor has taken place within the State of Bihar ismade out in the facts of the present case are questions which need to bedecided by the learned Magistrate after looking into the materials broughton record by means of the chargesheet. We, in the facts of the presentcase, are of the view that the ends of justice be served in providing thatappellants shall be at liberty to file an application to discharge before thelearned Magistrate who after considering the materials on record shalldecide the said application of discharge in accordance with law.

29. In result, we, dispose of this appeal by providing that theappellants shall be at liberty to file an application for discharge beforethe learned Magistrate, who shall decide the said application taking intoconsideration the materials on record, in accordance with law.

Kalpana K. Tripathy

Appeal disposed of.

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