Andhra HC (Pre-Telangana)
A. Subramanyam vs Prohibition And Excise Inspector, ... on 6 March, 2000
Equivalent citations: 2000(4)ALD529, 2000(1)ALD(CRI)671, 2000(1)ALT(CRI)567
Author: Vaman Rao
Bench: Vaman Rao
ORDER
1. This criminal petition, under Section 482 of Criminal Procedure Code, has been filed seeking quashing of the proceedings in PR No.297/97-98 dated 19-8-1998 on the file of the Prohibition and Excise Station, Tirupathi in which a case has been registered against the petitioner for offence punishable under Section 36(d) of the A.P. Excise Act, (for short "the Act").
2. It appears that on 19-8-1998, at about 8.50 p.m., when the Excise Inspector inspected the shop of the petitioner, who is a licensee under Rule 23 of the A.P. Excise Rules for sate of Indian Liquor/Foreign Liquor and beer, he found that a person was consuming beer in the licenced premises of the petitioner situated at Tirupathi town. On finding this, the first information was recorded and presumably investigation was taken up. The contention of the learned Counsel for the petitioner is that even according to the first information report the petitioner never permitted the person concerned to consume the liquor in the licenced premises and as such no offence has been made out against him. It is also pointed out by the learned Counsel for the petitioner that on this very ground the petitioner's excise licence was cancelled by the licencing authority and that questioning the same the petitioner filed Writ Petition No. 19229 of 1999 and that the said writ petition has been allowed setting aside the cancellation of the petitioner's licence with an observation that there is nothing to show that the petitioner had permitted the person to consume liquor in the licenced premises.
3. Learned Public Prosecutor on the other hand contends that the matter is at the investigation stage and there are no grounds for quashing the proceedings at this stage.
4. In fact the matter was adjourned a couple of times to enable the learned Public Prosecutor to seek information as to whether the petitioner is proposed to be investigated for any offence other than the offence under Section 36(d) of the Act. Learned Public Prosecutor has not reported anything on this aspect. It must be presumed that the investigation is confined to the offence mentioned in the FIR, namely the one under Section 36(d) of the Act. To appreciate whether even the alleged facts constitute an offence under Section 36(d) of the Act, the relevant provision may be extracted:
"36. Penalty for misconduct of licensees, etc :-(1) Whoever being the holder of a licence or permit granted or issued under this Act or being in the employe of such holder and acting on his behalf,-
(a) xxx
(b) xx x
(c) xxx
(d) permits drunkenness, disorderly conduct, riot or gaming in any place within any intoxicant is sold 01 manufactured; or
(e) xxx
(f) xxx
(g) x x x
(h) in contravention of Section 19 employs or permits to be employed on any part of his licensed premises referred to in that section any child or person suffering from leprosy or other contagious disease, shall, on conviction, be punished-
(i) in the case of an offence falling under clause (a), clause (b), or clause (c), with imprisonment for a term which shall not be less than six months but which shall not exceed two years and with fine which may extend to one thousand rupees:
(ii) in any other case, with imprisonment which may extend to three months or with fine which may extend to five hundred rupees, or with both. (2) Where any holder of a licence or permit under this Act or any person in his employ or acting on his behalf is charged with permitting drunkenness on the premises of such holder, and it is proved that any person was drunk on such premises, it shall lie on the person charged to prove that the holder of the licence and the persons employed by him took all reasonable steps for preventing drunkenness on such premises".
5. From a reading of the above provision under Section 36 of the Act, for contravention of which the petitioner, is sought to be prosecuted, it is apparent that what is required under clause (d) of Section 36 is the act of licensee permitting drunkenness, disorderly conduct, riot or gaming in any place wherein toxicant is sold or manufactured. It is not disputed that the licenced premises of the petitioner where the Excise Inspector found the person consuming liquor is the place where the intoxicant is sold within the meaning of clause (d) of Section 36 of the Act. The question, however, is whether if a person was found consuming liquor within the premises, would it amount to permitting drunkenness on the part of the licensee. It may be underscored that the Legislature has advisely used the word "drunkenness". What is prohibited is permitting drunkenness and not mere drinking. It cannot be disputed that there is a vast different between 'drinking' and 'drunkenness'.
6. The meaning of the word 'Drunken' as given in the Oxford English Reference Dictionary, Oxford University Press, 1995 is 'caused by or exhibiting drunkenness; fond of drinking; often drunk'. While the word 'drunken' is an adjective, the word 'drunkenness' is the noun derived from the word 'drunk'. In the same dictionary, the meaning of the word 'drunk' is given as 'render incapable by alcohol', a habitually drunk person'.
7. Black's Law Dictionary, sixth edition, St. Paul, Minn,, West Publishing Co., 1990 gives the meaning of "drunkenness" As "i. State of intoxication, ii. The condition of a person whose mind is affected by the consumption of intoxicating drinks; the state of one who is 'drunk'; the effect produced upon the mind or body by drinking intoxicating liquors to such an extent that the normal condition of the subject is changed and his capacity for rational action and conduct is substantially lessened".
8. P. Ramanatha Aiyar 's Law Lexicon, 1997 edition gives the meaning of 'drunkenness' as 'the state of being drunk or overpowered by intoxicants; the habit of indulging in intoxicants; ebriety, inebriation, intoxication'. This dictionary further mentions that 'drunkenness is specifically the becoming intoxicated by strong drunks, and is used to express both the casual state and the habit'. A further meaning for the word 'drunkenness' as given in this dictionary is "the condition of a person whose mind is affected by the consumption of intoxicating drinks". It also means according to this dictionary "the effect produced upon the mind or body by drinking intoxicating liquors to such an extent that the normal condition of the subject is changed and his capacity for rational action and conduct is substantially lessened".
9. Thus, the prohibition under clause (d) of Section 36 of the Act against! permitting drunkenness requires something more than mere drinking on the part of the persons in respect of whom the accused is I alleged to have permitted drunkenness. When drinking exceeds certain quantity or i what is drunk is of the kind or of the strength which the person drinking is unable to hold, it would lead to drunkenness,' As seen above, "drunkenness" implies not mere fact of drinking but the effect of, such drinking resulting in conduct or demeanour of the person drinking which is perceived by others as having effected or lessened his capacity for rational action and conduct substantially.
10. Thus, a person found merely drinking liquor cannot be said to be in a state of drunkenness unless the drinking resulted in some perceivable change in his conduct, which may be considered other than normal.
11. In this case, the allegation is that when Inspector went to the licenced premises of the petitioner, one person was found drinking. There is firstly no material to show mat the petitioner allowed him to drink. Even assuming that such permission could be inferred or implied by the mere fact that the person was found drinking, this cannot lead to an interfere that the petitioner had permitted 'drunkenness' within the meaning of clause (d) of Section 36 of the Act.
12. In this case, as held above, there is no satisfactory allegation of drunkenness as contemplated under clause (d) of subsection (1) of Section 36 of the A.P. Excise Act, the question of burden of proof lies on the licensee to prove that the holder of licence and the persons employed by him took all reasonable steps for preventing drunkenness on such premises does not arise. The burden will shift to the licensee to prove that he took all reasonable steps for preventing drunkenness would arise when any person was found drunk on the premises. In this case, the allegation itself is that a person was merely found drunk in the premises, these provisions are not attracted.
13. There is another circumstance which needs to be mentioned. As pointed by the learned Counsel for the petitioner, this Court in Writ Petition No.19229 of 1999 filed on behalf of the petitioner for setting aside the order of cancellation of his licence on the basis of the very allegation, has allowed the writ petition and directed restoration of his licence.
14. Considering these circumstances, it will amount to abuse of process of law if the proceedings against the petitioner for alleged contravention of Section 36(1)(d) of the Act punishable under Section 36(1)(h)(ii) of the Act allowed to continue.
15. In the result, the criminal petition is allowed and the proceedings in PRNo.297/ 97-98, dated 19-8-1998 of Prohibition and Excise Station, Tirupathi are quashed.