Bihar Prohibition: Private vehicle plying on public road is Public Place, Supreme Court

Source: barandbench.com

The Supreme Court today held that a private vehicle plying on public road will fall within the definition of “public place” under Bihar Excise (Amendment) Act 2016 (Act).

The judgment was rendered by a Bench of Justices Ashok Bhushan and KM Joseph in an appeal against a decision of the Patna High Court.

The petitioners were travelling in their car from Giridih in Jharkhand to Patna. Their vehicle was stopped at the Rajauli Check Post at the Bihar Jharkhand border for a routine checkup.

Though there was nothing incriminating in the vehicle, the sub-inspector allegedly demanded a bribe.

It is the petitioner’s case that when they refused to pay, false charges under Section 53(a) of the Act was slapped against them based on forged breath analyser test.

Subsequently, by way of an order passed in July 2016, Judicial Magistrate, Nawada took cognizance of the case. Against the same, the petitioner approached the Patna High Court under Section 482 of Code of Criminal Procedure (CrPC) seeking quashing of the FIR.

The High Court, however, dismissed the plea and gave green signal for the trial whereupon the petitioners moved the Supreme Court.

Before the Supreme Court, it was contended that the courts below failed to take into account that there was no definitive proof that the petitioners consumed alcohol in Bihar.

As per section 53(a) of the Act, consumption of alcohol in a public or prohibited area in the territory of State of Bihar is an offence. As no alcohol was found on person or vehicle of the petitioners, the FIR against the petitioners was not maintainable, it was submitted.

It was further argued that no alcohol was found in the vehicle and since the arrest was made at the Jharkhand- Bihar border, it was impossible that the petitioners could have consumed alcohol within the territory of Bihar.

Interestingly, the petitioners also submitted that a car plying on the road cannot be considered a public place under the Section 2(17A) of Bihar Excise (Amendment) Act, 2016.

Section 2(17A) reads as follows:

“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.”

When a private vehicle is passing through a public road it cannot be accepted that the public has no access to it, the Court said. While the public may not have access to the private vehicle as a matter of right, they definitely have the opportunity to approach the private vehicle while it is on the public road.

Further, the omission of the words ‘public conveyance’ (which was earlier present in a 1978 notification defining ‘public place’) in the definition of Section 2(17A) brought by the Bihar Excise (Amendment)Act, 2016 also indicated that the difference between public conveyance and private conveyance was done away in the statutory amendment.

Thus, the Court held that it cannot accept the submission of the petitioners that private conveyance will be excluded from the definition of ‘public place’ as contained in Section 2(17A). Thus, a private vehicle on a public road is covered by the definition of public place under Section 2(17A), the Court ruled.

However, regarding the contention that the offence under Section 53(a) was not made out, the Court took a more considerate view. It 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.

The Court also 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 a 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).

However, since the same was not provided for in Bihar Excise (Amendment) Act, 2016, the petitioners will get the benefit of the same.

The Court, however, said that it will not be able to decide whether the appellants/ petitioners actually consumed liquor in the territory of Bihar or not.

The same should be gone into the by the Magistrate after looking into the materials brought on record by means of the chargesheet, the Court said.

It, therefore, ordered that the petitioners shall be at liberty to file an application to discharge before the Magistrate who after considering the materials on record shall decide the said application in accordance with the law.