[Crl Appeal No. 951/2019, decided on 01.07.2019]
A bench of Justices Ashok Bhushan and K.M. Joseph held that consuming liquor in a private vehicle accessible to public is an offence under Bihar Excise (Amendment) Act, 2016. It held that a private vehicle is not exempted from the definition of a ‘public place’ under the said Act.
The ruling came during the dismissal of an appeal filed against the order of Patna High Court. In the said order, the High Court had refused to exercise its powers under Section 482 of the Code of Criminal Procedure to quash the charge-sheet filed against the appellants. The appellants were travelling from Giridih, Jharkhand, where they had gone to attend a Rotary Club meeting. The excise party had found them in an inebriated condition inside a private vehicle at Rajauli check-post in Bihar. Thus, the appellants were charge-sheeted under Section 53(a) of Bihar Excise (Amendment) Act, 2016. For quashing the chargesheet, the appellants had put forth arguments which had two facets. First, that Section 53(a) of the aforementioned Act is not applicable on them as it penalises drinking in public places. They were drinking inside a private vehicle which is not a public place. Second, that they cannot penalised under the Bihar laws for consuming liquor in Jharkhand.
Section 2(17A) of the Bihar Excise (Amendment) Act defines “public place” as “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 court said that irrespective of any matter of right it has or not, any place to which public has access is a public place. As per the court, the key word in the definition is “access”. The court observed that public can have access to a private vehicle on a road. So, the apex court dismissed the first argument on the basis of the definitions of ‘public place’ provided in Bihar Excise (Amendment) Act, 2016 and Bihar Prohibition and Excise Act 2016. The court also observed that under Section 2(53) of the Bihar Prohibition and Excise Act 2016, definition of “public place” specifically includes both public and private means of transport.The court further noted the definition of “access” given in the Black’s Law dictionary as “A right, opportunity, or ability to enter, approach, pass to and from, or communicate with access to the courts”.
The court said, “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 further added:
“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)”.
The second argument of the appellants also could not hold water. They had argued that only the consumption of liquor within the state of Bihar was made punishable under Section 53(a). The court made an interesting observation with regard to this contention. It said that the Bihar Prohibition and Excise Act 2016 had created a new class of offence. Anyone “found” drunk within Bihar would be punished under Section 37(b) of the Act. The court stated, “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 in a state of drunkenness, he can be charged with offences under Section 37(b)”.
However, the court had given liberty to the appellants to seek discharge from the Magistrate on the second issue. It said that whether the appellants consumed liquor within Bihar or not was a question of fact. It stated that under Section 482 of CrPC, a question of fact cannot be decided in an appeal from a proceeding. Therefore, the appeal was dismissed.