TMI Blog2019 (7) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - 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. In the facts of the present case, we 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. - CRIMINAL APPEAL NO. 95 1 OF 2019 ( Arising out of SLP (Criminal) No. 4994 of 2018 ) - - - Dated:- 1-7-2019 - ASHOK BHUSHAN And K.M. JOSEPH, JJ. JUDGMENT ASHOK BHUSHAN, J. Leave granted. 2. This appeal ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ihar Excise (Amendment) Act, 2016. 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 the Act. The word 'consumed' shall be interpreted in the present continuous tense. 7. Learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heet 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h rupees which may extend to ten lakh rupees. 16. It is also relevant to note that under Section 19 Sub Section (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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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 ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 2. To expend wastefully; to waste; to squander he consumed all his resources within four months. 3. To use up (time, resources, etc.), whether fruitfully or fruitlessly 45% of the paper we consume is recycled. 4. To eat or drink; to devour no alcohol may be consumed on these premises. 5. To engage the attention or interest of fully; to obsess she was consumed with guilt after her father's death. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
