Full Judgment Text
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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.
Leave granted.
2. This appeal has been filed against the judgment
dated 16.02.2018 of the High Court of Patna dismissing
the application of the appellants filed under Section
482 Cr.P.C. for setting aside the order dated
30.04.2016 passed by the Judicial Magistrate, Nawada in
Rajauli Excise Case No.316 of 2016 by which he has
taken cognizance of the offence punishable under
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2019.07.01
16:30:38 IST
Reason:
Section 53(a) of the Bihar Excise (Amendment) Act,
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2016. The appellants aggrieved by the order of the High
Court have come up in this appeal.
3. Brief facts of the case necessary to be noticed for
deciding this appeal are:
The appellants, all Rotarians, were travelling from
Giridih, Jharkhand to Patna, Bihar to attend a meeting
of Rotary Club on 25.06.2016. The appellants were
travelling by vehicle No.JH11K/8146. The vehicle was
stopped for routine checkup at Rajauli Check Post,
District Nawada, State of Bihar by one Sachidanand,
Bharati, SupInspector Excise. Nothing incriminating
nor any liquor was found in the vehicle in which
appellants were travelling. The appellants were
subjected to breath analyser test in which test as per
the prosecution case certain quantity of alcohol was
found. The appellants were arrested and remained in
custody for two days. First Information Report was
lodged on 25.06.2016 on which Excise Case No.316 of
2016 was registered. The Chief Judicial Magistrate,
Nawada took cognizance by order dated 30.07.2016. The
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appellants filed application under Section 482 Cr.P.C.
praying for setting aside the order dated 30.07.2016
passed by the Chief Judicial Magistrate taking
cognizance. The High Court vide its order dated
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 as Shri Shivam Singh, appearing for the State of
Bihar.
5. Learned counsel for the appellants submits that no
offence was made out under Section 53(a) of the Bihar
Excise (Amendment) Act, 2016. The Chief Judicial
Magistrate committed an error in taking cognizance of
the offence. It is submitted that the appellants were
travelling in their vehicle from Giridih, State of
Jharkhand to Patna, State of Bihar to attend a Rotary
Club meeting. The vehicle in which they were travelling
cannot be said to be public place within the meaning of
Section 2(17A) of Bihar Excise (Amendment) Act, 2016.
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Further, ingredient of Section 53(a) regarding
consumption of liquor in a public place is not
satisfied. It is further submitted that in the search
no liquor bottles or any other incriminating materials
were found which is also mentioned in the report.
Hence, ingredient of offence that liquor is consumed is
not satisfied.
6. Learned counsel for the appellants has referred to
provision of Section 2(54) of Bihar Prohibition and
Excise Act, 2016 in which public place has been defined
which includes any transport, whether public or
private. Thus, as per definition under Section 2(54) of
Bihar Prohibition and Excise Act, 2016 a private
vehicle is also a public place which definition was not
there in Bihar Excise (Amendment) Act, 2016. It is
further submitted Section 37 provides for penalty for
consumption of liquor where now it is also an offence
if a person is found drunk or in a state of drunkenness
at any place, whereas under Bihar Excise (Amendment)
Act, 2016 there was no such offence in Section 53 of
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the Act. The word 'consumed' shall be interpreted in
the present continuous tense.
7. Learned counsel for the State of Bihar refuting
the submission of the learned counsel for the
appellants contends that Bihar is a State where
prohibition is imposed under Section 19(4) of the Bihar
Excise (Amendment) Act, 2016, there being prohibition
in the entire State of Bihar anyone found violating the
prohibition has to be treated as having committed
offence. It is submitted that vehicle of the appellants
was intercepted at a public road, hence, the appellants
are not correct in their submission that they were not
intercepted at a public place. It is submitted that
ingredients of Section 53(a) of the Bihar Excise
(Amendment) Act, 2016 are fully satisfied and no error
has been committed by the Chief Judicial Magistrate in
taking cognizance.
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8. It is further submitted by the learned counsel for
the State that the notification dated 05.04.2016
imposing prohibition issued under Section 19(4) of
Bihar Excise (Amendment) Act, 2016 was challenged in
the High Court and the Division Bench of the Patna High
Court vide its judgment dated 30.09.2016 set aside the
notification dated 05.04.2016 in
Confederation of India
Alcoholic Beverage Companies & Anr. vs. Manoj Kumar &
Ors., 2016(4) PLJR 369, which judgment has been stayed
by this Court by order dated 07.10.2016 in SLP(C)No.
2974929763 of 2016, State of Bihar and ors. etc.etc.
vs. Confederation of Indian Alcoholic Beverage
Companies and Anr. etc.etc., which restored back the
legal position as existed after Bihar
Excise(Amendment) Act, 2016.
9. Learned counsel for the State submits that
before the High Court the appellants had made only
submission regarding competence of Chief Judicial
Magistrate to take cognizance which submission was
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rejected.
10. We have considered the submissions of the
learned counsel for the parties and have perused
the records.
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
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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:
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"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:
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“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.”
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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,
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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
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(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.
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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
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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
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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:
th
" (S.O. 941 dated the 29 July, 1978
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(Published in Bihar Gazette Extraordinary
th
dated the 29 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
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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
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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.”
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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.
27. Now, we come to other submission of the appellants
that offence under Section 53(a) can be committed only
when appellant consumes liquor in a public place. It is
submitted that words 'consumes liquor' have to be given
meaning and substance for constituting the offence. 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 use up or wear out gradually,
as by burning or eating the house was consumed
by fire. . To expend wastefully; to waste; to
2
squander he consumed all his resources within
four months. 3. To use up (time, resources,
etc.), whether fruitfully or fruitlessly 45%
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of the paper we consume is recycled. 4. To eat
or drink; to devour no alcohol may be consumed
on these premises. To engage the attention
5.
or interest of fully; to obsess she was
consumed with guilt after her father's death.”
28. When the word 'consumes' is followed by liquor, the
action denoted by verb passes over from the doer to
object i.e. liquor to constitute the offences within
the meaning of Section 53(a). The action of consumption
of liquor has to happen within the State of Bihar. A
person who consumes liquor in a different State cannot
be fastened with a penalty under Section 53(a) unless
there is some evidence to prove that consumption of
liquor by the accused has taken place in the State of
Bihar. We may at this juncture further notice that now
as per Bihar Prohibition and Excise Act, 2016 another
category of offences which has been included in Section
37 is Section 37 subsection (b) which “is found drunk
or in a state of drunkenness at any place; or”, thus,
as per Bihar Prohibition and Excise Act, 2016 even a
person consumes liquor outside the State of Bihar and
enter into the territory of Bihar and is found drunk or
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in a state of drunkenness, he can be charged with
offences under Section 37(b). But no offence as now
contemplated by Section 37(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 charge that consumption of
liquor has taken place within the State of Bihar is
made out in the facts of the present case are questions
which need to be decided by the learned Magistrate
after looking into the materials brought on record by
means of the chargesheet. We, in the facts of the
present case, are of the view that the ends of justice
be served in providing that appellants shall be at
liberty to file an application to discharge before the
learned Magistrate who after considering the materials
on record shall decide the said application of
discharge in accordance with law.
29. In result, we, dispose of this appeal by providing
that the appellants shall be at liberty to file an
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application for discharge before the learned
Magistrate, who shall decide the said application
taking into consideration the materials on record, in
accordance with law.
......................J.
( ASHOK BHUSHAN )
......................J.
( K.M. JOSEPH )
New Delhi,
July 01, 2019.