TaxTMI 
TaxTMI 
TaxTMI 
2019 (7) TMI 52
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 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 Mag....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 29749-29763 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 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 recov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....; has been inserted. Section 53 of the Bihar Excise(Amendment) Act, 2016 is as follows: "53Penalty 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 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. Learn....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 (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 ab....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ludes 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." 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 sub....