STATE Vs. TRIMBAK DHONDU BHOIR

JUDGEMENT

(1.) A rather important question under the Bombay Prohibition Act arises in this appeal which is preferred by the State against acquittal of the accused by the Sessions Judge, Thana, The accused was charged under Section 85(1)(3) of the Prohibition Act and he was convicted by the Judicial Magistrate, First Class, to 1 day's simple imprisonment and to pay a fine of Rs. 50, in default simple imprisonment for one week. The accused appealed and the Sessions Judge acquitted the accused. The State has preferred this appeal, as according to the State, it raises a principle and also an important question of the interpretation of Section 85(2)(3) of the Bombay Prohibition Act.

(2.) SECTION 85, as the marginal note indicates, deals with the penalty for being drunk and for disorderly behaviour and Sub -section 1 of that section provides: Whoever in any street or thoroughfare or public place or in any place to which the public have or are permitted to have access -

(3.) BEFORE we construe Section 85, it may be perhaps both important and interesting to look at the history of legislation with regard to intoxication. Intoxication by itself was never an offence before the Prohibition Act was passed. If there were other circumstances or factors besides intoxication, then the law punished not so much the fact of drunkenness as the results produced by drunkenness and therefore we find that under the Penal Code under Section 510 what is punished is not the fact that a person in a state of intoxication appears in any public place, but being in a state of intoxication and appearing in any public place and further conducting himself in such a manner as to cause annoyance to any person. Therefore as far as the Penal Code is concerned, if a person appears in a public place intoxicated and does not cause any annoyance to anyone, he would not be guilty of any offence. The same was the position with both the District Police Act and the Bombay Police Act before the Prohibition Act was passed. Under Section 61AA of the District Police Act which was repealed by the Prohibition Act, what was constituted an offence was a person being drunk and incapable of taking care of himself or behaving in a disorderly manner under the influence of liquor and there was a similar provision in Section 122 -A of the City Police Act. Therefore it will be noticed that under both these Police Acts what was made punishable was not drinking as such or even drunk as such, but the commission of cartain acts which resulted from a person being drunk.