STATE OF GUJARAT Vs. UKAJI DEVAJI

JUDGEMENT

(1.) One of the main questions for determination in this Criminal Appeal filed by the State of Gujarat is whether the respondent can be convicted under sec. 85(1)(3) of the Bombay Prohibition Act. The respondent was arrested on a public road and he was sent to the medical officer for examination The medical officer examined the respondent on 20-10-1959 at 9-30 P. M. and certified that the respondent had consumed alcohol. Ho also certified that the said person had consumed alcohol but was not under the influence of alcohol. A sample of the respondents blood was sent to the Chemical Analyser and he has sent a report certifying that the blood contained 0.090 per cent W/V of ethyl alcohol. The question for decision in this case is therefore whether a person who is found on a public road and to have consumed alcohol could be convicted under sec. 85(1)(3) of the Bombay Prohibition Act. Section 85(1) of the Prohibition Act reads as follows : 85 Whoever in any street or thoroughfare or public place or in any place to which the public have or are permitted to have access (1) is drunk and incapable of taking care of himself or (2) behaves in a disorderly manner under the influence of drink or (3) is found drunk but who is not the holder of permit granted under the provisions of this Act or is not eligible to hold a permit under sections 40 41 46 or 46A shall on conviction be punished (i) for an offence under clause (1) or clause (3)- (a) for a first offence with imprisonment for a term which may extend to one month and with fine which may extend to two hundred rupees:.......... The question is as to the meaning of the expression found drunk in sub-section 1(3) of section 85. In this connection a reference must be made to sec. 2 which in clause (12) defines the expression to drink as follows :- To drink with its grammatical variations means to drink liquor or to consume any intoxicating drug. In view of this definition it is clear that to drink or its past tense drank or its past participle drunk have reference to the verb to drink liquor or to consume any intoxicating drug what ever the quantity consumed be. The degree of the consumption of liquor or any intoxicant is immaterial in the expression to drink or its past tense drank and past participle drunk respectively. No doubt in sec. 2 it is provided that the definitions contained in that section apply unless there is anything repugnant in the subject or context. We have therefore to see whether there is anything repugnant in sec. 85(1)(3) to the meaning given in sec. 2(12). Sec. 85 refers to certain offences committed in any street or thoroughfare or public place or in any place to which the public have or are permitted to have access. The first clause of sub-section (1) refers to a person who is drunk and incapable of taking care of himself. If the expression is drunk is used in the sense of a person who is overcome or intoxicated by alcohol or liquor in other words a person who is not in full possession of his physical mental or moral faculties and balance then the addition of the words and incapable of taking care of himself would be redundant. Sub-section (1) of section 85 makes it clear that that mere consumption of liquor is not sufficient for applying clause (1). In addition to having consumed liquor the offender must have become incapable of taking care of himself and then only cl. (1) would apply. There is therefore nothing in clause (1) to suggest that the expression drunk is not used as a past participle of to drink. Clause (2) of sec. 85(1) also shows that mere consumption of liquor is not sufficient. In addition there must be behavior in a disorderly manner under the influence of drink. Cl. (3) also shows that the word drunk is used in the sense of the past participle of to drink as stated in cl. (12) of sec. 2. These three clauses deal with different degrees of intoxication. The first one deals with a person who is so drunk as to be incapable of taking care of himself. The second deals with a person who is drunk but not so drunk as to be incapable of taking care of himself but is so drunk that he behaves in a disorderly manner under influence of drink. The third deals with a person who is found drunk but not so drunk as to make him incapable of taking care of himself and who is also not so drunk as to behave in a disorderly manner. The consumption of any quantity of liquor would fall within clause (3). In clauses (1) and (2) it is immaterial if the person happens to be a holder of the permit. That is so because the degree of consumption of alcohol is not moderate. But cl. (3) does not penalise a person who is the holder of a permit notwithstanding that he is found drunk in any street or public place. Cl. (3) excuses a permit holder because the degree of his drunkenness or the quantity of liquor that he has consumed is of the ordinary type. For purposes of cl. (3) therefore the quantity of alcohol consumed is immaterial. The word drunk is used in the same sense in all the 3 clauses of sec. 85(1) of the Prohibition Act. It is clear from sec. 85 that it is not intended to excuse a permit holder if his degree of drunkenness causes him to be incapable of taking care of himself or to cause him to behave in disorderly manner but excuses him only when his degree of drunkenness is low. It is therefore clear that the word drunk in clause (3) of sub-section I of sec. 85 refers to any degree of drunkenness and is used merely as a past participle of to drink. A person found drunk in that sense whatever be the quantity of alcohol consumed by him is punishable under section 85(1)(3) of the Prohibition Act unless he is a permit-holder. There is therefore nothing in section 85 clauses (1) (2) and (3) to show that the word drunk is used in these clauses in a sense other than that stated in section 2(12).

(2.) But a different view has been taken by the Bombay High Court in State v. Trimbak Dhondu Bhoir I.L.R. 1955 Bom. 924 where Chagla C. J. has observed as follows :

(3.) The Shorter Oxford Dictionary defines drunk as overcome by alcoholic liquor or intoxicated. In our opinion it is necessary to keep before ones mind the essential distinction between drinking and getting drunk. It is not every act of drinking that necessarily results in drunkenness. It would depend upon the quantity drunk the constitution of the person who drinks his mental and physical condition at the time he consumes liquor. It is also a sound canon of construction not to attribute to the legislature any legislation which is unreasonable and it would seem strange indeed that the legislature having permitted a person to drink liquor which is not prohibited in the shape of a medicine or a tonic should punish him because having drunk he should leave his home and be in a public place although he may not commit any act which may be considered objectionable from any point of view.