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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

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:

"(S.O. 941 dated the 29th  July, 1978

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(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

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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. 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%

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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. 5. To engage the attention 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.