SATVINDER SINGH v. THE STATE OF BIHAR

Citation: Criminal Appeal No. 64 of 1977 Court: High Court of Patna Parties Involved: Satvinder Singh, Saluja, Sachidanand Appellant:  SATVINDER SINGH, SALUJA & ORS. Respondent: THE STATE OF BIHAR Bench: ASHOK BHUSHAN, J. K JOSEPH Facts: - 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 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. 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. 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. 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. The top court’s clarification came on a plea filed by Satvinder Singh, through his lawyer, Rahul Bhandari. Singh challenged a Patna High Court order that dismissed his plea to set aside a trial court order which took cognisance of offences under Bihar’s 2016 prohibition law. In 2016, Singh was travelling along with others in their private vehicle from Giridih, Jharkhand to Patna, Bihar, which is almost 236 kilometres away. At Rajauli, which is on the Jharkhand-Bihar border, their car was stopped, searched, and the occupants were subjected to a breath-analyser test. The state officials did not find alcohol in the car, though Satvinder, who was a passenger, tested positive on the breath-analyser. Singh was then charged and booked under the relevant provisions of the law. Even if a person consumes liquor outside the state borders but enters the territory of Bihar and is found in a state of drunkenness, he is liable to be penalised under Section 37(b) of the 2016 Prohibition Act. However, Singh argued that at the time of his arrest, Section 37(b) had not yet been introduced, and hence, he was not liable for being found drunk in Bihar. Judgement As per Section 2(17A) of the Bihar Excise (Amendment) Act, 2016, “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.” According to the court, the key in the definition was “access”. Any place to which public have access, whether as a matter of right or not, is a public place. It observed that public can have access to a private on a road. The court noted that ‘access’ has been defined in Black’s Law Dictionary as “A right, opportunity, or ability to enter, approach, pass to and from, or communicate with access to the courts.” “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,” the court said. Further, the court added that “The omission 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).” Regarding the contention that the offence under Section 53(a) was not made out, the court noted that as per Section 53(a) of Bihar Excise (Amendment) Act 2016, 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. But the court observed that this position has changed now with the enactment of the Bihar Prohibition and Excise Act, 2016. As per this Act, another category of offences have been included in Section 37 which provides for situation explained as: “is found drunk or in a state of drunkenness at any place”. Thus, as per Bihar Prohibition and Excise Act, 2016 even if a person consumes liquor outside the State of Bihar and enters into the territory of Bihar and is found drunk or in a state of drunkenness, he can be charged with offences under Section 37(b). The court agreed with Singh partially. “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,” the verdict read. “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,” the verdict read. “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.” Bihar had imposed total prohibition on all forms of liquor in April 2016. The state legislature had enacted Bihar Prohibition and Excise Act, 2016, to enforce, implement and promote complete prohibition of liquor and intoxicants in the state.