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2019 (7) TMI 52 - SC - VAT and Sales TaxOffence punishable under Section 53(a) of the Bihar Excise (Amendment) Act, 2016 - appellants were subjected to breath analyser test in which test as per the prosecution case certain quantity of alcohol was found - prohibition on foreign liquor - case of appellant is that the vehicle in which they were travelling cannot be said to be public place within the meaning of Section 2(17A) of Bihar Excise (Amendment) Act, 2016 - HELD THAT - The ommission of public conveyance in the definition of Section 2(17A) brought by the Bihar Excise (Amendment)Act, 2016 also indicates that the difference between public conveyance and private conveyance was done away in the statutory amendment. We, thus, cannot accept the submission of the learned counsel for the appellant that private conveyance will be excluded from the definition of 'public place' as contained in Section 2(17A). When the word 'consumes' is followed by liquor, the action denoted by verb passes over from the doer to object i.e. liquor to constitute the offences within the meaning of Section 53(a). 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 - Whether charge that consumption of liquor has taken place within the State of Bihar is made out in the facts of the present case are questions which need to be decided by the learned Magistrate after looking into the materials brought on record by means of the chargesheet. In the facts of the present case, we are of the view that the ends of justice be served in providing that appellants shall be at liberty to file an application to discharge before the learned Magistrate who after considering the materials on record shall decide the said application of discharge in accordance with law.
Issues Involved:
1. Validity of cognizance taken under Section 53(a) of the Bihar Excise (Amendment) Act, 2016. 2. Definition and interpretation of "public place" under the Bihar Excise (Amendment) Act, 2016. 3. Applicability of the Bihar Excise (Amendment) Act, 2016 to the appellants' case. 4. Competence of the Chief Judicial Magistrate to take cognizance. Issue-wise Detailed Analysis: 1. Validity of Cognizance Taken Under Section 53(a) of the Bihar Excise (Amendment) Act, 2016: The appellants contended that no offence was made out under Section 53(a) as they were traveling in a private vehicle, which they argued was not a "public place" under the Act. They also argued that no liquor bottles or incriminating materials were found during the search, and thus, the ingredients of the offence were not satisfied. The State argued that the vehicle was intercepted on a public road, making it a public place, and that the prohibition law was applicable statewide. 2. Definition and Interpretation of "Public Place" Under the Bihar Excise (Amendment) Act, 2016: The court examined the definitions provided in the Bihar Excise Act, 1915, and the Bihar Prohibition and Excise Act, 2016. The term "public place" was defined in Section 2(17A) of the Bihar Excise (Amendment) Act, 2016, as any place to which the public has access, whether as a matter of right or not, and includes all places visited by the general public and any open space. The court noted that the definition of "place" included vehicles, and thus, a private vehicle on a public road could be considered a public place. The court rejected the appellants' argument that their private vehicle was not a public place under the Act. 3. Applicability of the Bihar Excise (Amendment) Act, 2016 to the Appellants' Case: The court noted that the Bihar Excise (Amendment) Act, 2016, was in force at the time of the incident. The appellants were found with alcohol in their breath analyzer test while traveling in Bihar, where prohibition was in effect. The court emphasized that the consumption of liquor had to occur within the State of Bihar for the offence to be applicable. However, the court could not decide on this issue in the appeal and left it to the Magistrate to determine based on the evidence. 4. Competence of the Chief Judicial Magistrate to Take Cognizance: The appellants had argued before the High Court that the Chief Judicial Magistrate was not competent to take cognizance of the offence. The High Court rejected this submission. The Supreme Court did not find any error in the Chief Judicial Magistrate taking cognizance of the offence under Section 53(a) of the Bihar Excise (Amendment) Act, 2016. Conclusion: The Supreme Court disposed of the appeal by providing that the appellants could file an application for discharge before the learned Magistrate. The Magistrate was directed to decide the application based on the materials on record and in accordance with the law. The court emphasized that the definition of "public place" under the Bihar Excise (Amendment) Act, 2016, included private vehicles on public roads and that the consumption of liquor had to occur within the State of Bihar for the offence to be applicable.
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