STATE OF GUJARAT v. UKAJI DEVAJI — 1961 DIGILAW 105 (GUJ)

J. M. SHELAT, J. ( 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. . . 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. (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. 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 :it is impossible to accept the contention of the Advocate General as it was first pressed that the expression drunk in sub-sec. 3 of sec. 85 (1) is synonymous with the expression to drink. The definition section section 2 expressly provides that these definitions are to apply unless there is anything repugnant in the subject or context and as we shall presently point out it is repugnant to the context of this sub-section to construe the expression drunk in the light of the definition given of the expression to drink. In our opinion it is necessary in this context to give to the expression drunk its plain natural meaning which it has in the English language. ( 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. 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. ( 4 ) THE Advocate General relied on sub-sec. 2 of sec. 85. Now that subsection introduces a rule of evidence and in the first place in our opinion it is not proper to construe sub-sec. 3 and to determine what the ingredients of an offence are by construing the rule of evidence introduced by the legislature. It may also be pointed out that this rule of evidence was introduced subsequently by amending Act 26 of 1952. That sub-section 2 is in the following terms :-IN prosecution for an offence under sub-sec. 1 it shall be presumed until the contrary is proved that the person accused of the said offence has drunk liquor or consumed any other intoxicant for the purpose of being intoxicated and not for a medicinal purpose. ( 5 ) NOW if the ingredient of the offence under sub-sec. 3 is the mere fact of drinking and being in a public place then it is difficult to understand how this rule of evidence can have any application whatsoever. The intention of the drinker is irrelevant if the mere act of drinking has been constituted an offence. This rule of evidence as we shall later point out can only have application if we construe sub-sec. 3 in the way we Are suggesting and give to the expression drunk its plain natural meaning. ( 6 ) THERE is no difficulty with regards to sub-secs. 1 and 2 of sec. 85. This rule of evidence as we shall later point out can only have application if we construe sub-sec. 3 in the way we Are suggesting and give to the expression drunk its plain natural meaning. ( 6 ) THERE is no difficulty with regards to sub-secs. 1 and 2 of sec. 85. If a person is drunk and incapable of taking care of himself or if a person behaves in a disorderly manner under the influence of drink the facts that go to constitute these offences can be easily established and no difficulty would arise with regard to these facts. But when we go to sub-sec. 3 as we have already pointed out this is the first time that the legislature has made intoxication by itself an offence. Now it is in very rare cases that a case which does not fall under sec. 85 (1) (1) or 85 (1) (2) would fall under sub-clause 3. Ordinarily when a person is intoxicated he is either incapable of taking care of himself or behaving in a disorderly manner. But we grant that there may be cases of intoxication which may not fall under sub-secs. 1 and 2 but may still fall under sub-clause 3 But in order that a person can be held guilty to be drunk it is not sufficient that he should merely smell of alcohol. As we pointed out the definition of drunk requires that he should be overcome by alcohol or be intoxicated. Therefore as a result of a drink he must not be his normal self. There must be some evidence produced by the prosecution beyond the fact of his having drunk alcohol and smelling of alcohol which would induce the Court to hold that he is overcome by drink or is in a state of intoxication. If a person has been proved to have committed any act which falls under sub-secs. 1 2 and 3 of sec. 85 (1) it may still be open to him under sub-sec. 2 to prove that he consumed liquor not for the purpose of being intoxicated but for a medicinal purpose. It may happen that a person may bona fide and under medical advice take a medicine containing alcohol and it may also happen though it may be very rare that such medicines may go to his head and may lead to a state of intoxication. It may happen that a person may bona fide and under medical advice take a medicine containing alcohol and it may also happen though it may be very rare that such medicines may go to his head and may lead to a state of intoxication. In the circumstances like these it would be open to the accused to rebut the presumption which the legislature has raised under sub-sec. 2 of sec. 85. It may be pointed out here that subsec. 2 itself gives an indication of the meaning to be attached to the expression drunk because the presumption that is raised is that the liquor was consumed for the purpose of being intoxicated and not for a medicinal purpose. Therefore under sub-sec. 2 also the legislature is emphasising the fact that liquor is consumed for the purpose of intoxication and is not emphasising the mere act of drinking. ( 7 ) IN State v. Pandu Janu A. I. R. 1956 Bombay 173 a Division Bench of the Bombay High Court consisting of Dixit and Vyas JJ. followed the judgment of Chagla C. J. and Dixit J already referred to in the case of State v. Trimbak Dhondu I. L. R. 1955 Bombay 924 and held that the word drunk must be given its plain natural meaning which it has in the English language viz. as overcome by alcoholic liquor or intoxicated. The same view was expressed by a Division Bench of the Bombay High Court consisting of Chainani and Gokhale JJ in State v. Mehebub A. I. R. 1956 Bombay 270 with great respect to this galaxy of Judges for the reasons already given in all humility we feel that the view taken by the Bombay High Court is not supported by the warding of sec. 85 and sec. 2 (12) of the Bombay Prohibition Act. We may in all humility also point out that in view of clause (12) of definition section 2 which assigns a special meaning to the word to drink with its grammatical variations and in view of the fact that section 2 applies unless there is anything repugnant in the context in order to determine the meaning of the expression found drunk in sec. 85 we have only to look to sec. 2 (12) and the context of the words used in sec. 85. 85 we have only to look to sec. 2 (12) and the context of the words used in sec. 85. Reference to any Dictionary or considerations of the natural meaning of the expression would not be proper in view of sec. 2 (12 ). Even the Shorter Oxford English Dictionary to which reference is made by Chagla C. J. mentions different meanings of the expression drunk. ( 8 ) THE Shorter Oxford Dictionary defines the word drunk as past participle of the word drink. This also makes it clear that the natural meaning of the word drunk is that it is the past participle of the word drink. The second sense mentioned in the Shorter Oxford Dictionary is overcome by alcoholic liquor or intoxicated. The word drunk can therefore be used in two senses according to the Shorter Oxford Dictionary. Drunkard is explained in the Dictionary as one addicted to drinking esp. to excess. Drunkenness in the Shorter Oxford Dictionary is explained as the state of being drunk another sense is intoxication and a third sense is the habit of drinking to excess. It is therefore clear that even according to the Oxford Dictionary the word drunk is used in different senses namely as past participle of to drink and also in the sense of past participle of to drink in excess. But there is nothing in sec. 85 of the Prohibition Act to show that the word drunk or the expression found drunk in sec. 85 (1) (3) is used in a sense different from that explained in sec. 2 (12) of the Prohibition Act. In fact the context of sec. 85 clauses (1) (2) and (3) makes it clear that the expression found drunk is definitely used in the sense explained in sec. 2 (12 ). ( 9 ) AS regards the argument at sub-section (2) of sec. 85 gives an indication of the meaning to be attached to the expression drunk because the presumption that it has raised is that the liquor was consumed for the purpose of being intoxicated and not for a medicinal purpose and therefore under sub-section (2) of sec. 85 the Legislature has emphasised the fact that liquor is consumed for the purpose of being intoxicated and has not emphasised the mere act of drink. But Chagla C. J. himself has observed earlier that sub-section (2) of sec. 85 the Legislature has emphasised the fact that liquor is consumed for the purpose of being intoxicated and has not emphasised the mere act of drink. But Chagla C. J. himself has observed earlier that sub-section (2) of sec. 85 introduced a rule of evidence and in the first place it is not proper to construe sub-section (3) and to determine what the ingredients of the offence are by construing the rule of evidence introduced by the Legislature. According to Chagla C. J. it is improper to determine what the ingredients of an offence are by construing the rule of evidence introduced by the legislature. In this view it would be improper and unnecessary to refer to the rule of evidence contained in sub-section (2) of sec. 85 even if we look at sub-section (2) of sec. 85 there is a clear indication that the word drunk in sub-section (1) refers to the mere act of drinking liquor or consuming any other intoxicant. Sub-sec. (2) provides that it shall be presumed until the contrary is proved that the person accused of an offence under sub-section (1) has drunk liquor or consumed any other intoxicant. The expression used is has drunk liquor or consumed any other intoxicant. Sub-section (2) presumes that for constituting an offence under sub-section (1) of the ingredients to be proved is that the person has drunk liquor or consumed any other intoxicant. Sub-section (2) equates the expression drunk liquor with consumption of any other intoxicant. It is mere consumption that is emphasised. Sub-section (2) then provides for the presumption of the ingredient to be proved It is true that sub-section (2) further provides that it shall be presumed that the purpose is for being intoxicated and not for a medicinal purpose This provision must have been made having regard to the view that drinking liquor for medicinal purpose is not prohibited while drinking liquor for the purpose of being intoxicated is prohibited. It is therefore clear from sub-section 2 of sec. 85 itself that the words found drunk in clause (3) of sub-section (1) of section 83 refer to consumption of liquor or drinking of liquor and not to the state of intoxication. It is therefore clear from sub-section 2 of sec. 85 itself that the words found drunk in clause (3) of sub-section (1) of section 83 refer to consumption of liquor or drinking of liquor and not to the state of intoxication. As Chagla C. J. has observed it is not proper to construe clause (3) of sub-section (1) of section 85 and to determine what the ingredient of an offence are by construing the rule of evidence introduced by the Legislature. ( 10 ) CHAGLA C. J. as himself recognised that the construction put by him would lead to one difficulty because is difficult to understand how under clause (3) of sub-sec. (1) of sec. 85 the holders of permits are exempted. With great respect the construction put by Chagla C. J. leads to a difficulty and is not supported by the context of section 85. Again with great respect and in all humility we may observe that the construction which appeals to us presents no anomaly and is in harmony with the context of section 85. ( 11 ) EVEN if we turn to section 84 of the Prohibition Act we see that the expression found drunk is used in the sense assigned in sec. 2 (12 ). Sec. 84 reads as follows:-WHOEVER is found drunk or drinking in a common drinking house or is found there present for the purpose of drinking shall an conviction be punished with fine which may extend to five hundred rupees. Any person found in a common drinking house during any drinking therein shall be punished until the contrary is proved to have been there for the purpose of drinking. ( 12 ) THIS section penalises a person who is found drunk or drinking in a common drinking house or is found there present for the purpose of drinking. The expression found drunk is therefore used in this section in the sense of a person found drunk or drinking in a common drinking house. In this section the word drunk is used merely as a past participle of to drink. The word drunk has the same meaning in the phrase found drunk. ( 13 ) WITH very great respect we are constrained to differ from the view of the Bombay High Court. We therefore refer the following question to a Full Bench:whether the expression found drunk used in sec. The word drunk has the same meaning in the phrase found drunk. ( 13 ) WITH very great respect we are constrained to differ from the view of the Bombay High Court. We therefore refer the following question to a Full Bench:whether the expression found drunk used in sec. 85 (1) (3) of the Bombay Prohibition Act has the same meaning as that assigned in sec. 2 (12) of the Act ? ( 14 ) THIS reference to the Full Bench is necessary in view of the decision of the Full Bench of our High Court in the Anand Municipality v. The Union of India and Others I Gujarat Law Reporter 82 Gujarat High Court Reporter 92 the papers should be placed before the Honble Chief Justice. ( 15 ) THE question referred to was considered by a full bench composed of K. T. Desai Chief Justice and J. M. Shelat and M. R. Mody JJ. ( 16 ) B. R. Sompura Asst. Govt. Pleader for the State. G. S. Barot (appointed) for the Respondent. ( 17 ) K. T. DESAI C. J. The question referred to this Full Bench is as follows:-WHETHER the expression found drunk used in section 85 (1) (3) of the Bombay Prohibition Act has the same meaning as that assigned in section 2 (12) of the Act. ( 18 ) SECTION 85 of the Bombay Prohibition Act 1949 to the extent that is relevant provides 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 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 which may extend to one month and with fine which may extend to two hundred rupees; xx xx xx xx (ii) for an offence under clause (2)- (a) for a first offence with imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees. xx xx xx xx (3) In prosecution for an offence under sub-section (1) it shall be presumed until the contrary is proved that the person accused of the said offence has drunk liquor or consumed any other intoxicant for the purpose of being intoxicated and not for a medicinal purpose. ( 19 ) SECTION 2 (12) of the Act referred to in the question runs as follows:- (2 ). In this Act unless there is anything repugnant in the subject or context xx xx xx xx (12) to drink with its grammatical variations means to drink liquor or to consume any intoxicating drug. ( 20 ) HAVING considered the provisions of section 85 (1) (3) and section 2 (12) we feel that the question as framed does not bring out the real point in controversy. Section 85 (1) (3) refers to a person who in any street or thoroughfare or public place or in any place to which the public have or are permitted to have access is found drunk. In enacting section 85 (1) (3) the legislature intended to deal with persons who had drunk liquor or consumed any intoxicating drug. A reference to section 2 (12) is necessary to import the element of having drunk liquor or consumed any intoxicating drug whilst considering whether an offence has or has not been committed under section 85 (1) (3 ). Having read the judgment of the referring Bench we find that the question that was really intended to be referred to us for decision was Whether the expression is found drunk in section 85 (1) (3) of the Bombay Prohibition Act 1949 means found overcome or intoxicated by liquor or any intoxicating drug as construed in State V. Trimbak reported in I. L. R. 1956 Bombay 924 or merely found to have drunk liquor or consumed any intoxicating drug ? . ( 21 ) WE accordingly reframe the question as above. ( 22 ) BEFORE dealing with the provisions contained in section 85 (1) (3) it would not be out of place to refer to some of the other provisions of the Act and consider the scheme of the Act. By section 13 it has been provided inter alia that no person shall consume or use liquor. By section 14 it is provided inter alia that no person shall consume or use any intoxicating drug. By section 13 it has been provided inter alia that no person shall consume or use liquor. By section 14 it is provided inter alia that no person shall consume or use any intoxicating drug. By section 22a it is provided that no person other than a registered medical practitioner shall issue any prescription for any intoxicating liquor. It is further provided that no registered medical practitioner shall prescribe such intoxicating liquor unless he believes in good faith alter careful medical examination of the person for whose use such prescription is sought that the use of such intoxicating liquor by such person is necessary and will afford relief to him from some known ailment. By section 35 it is provided that the State Government may by rules or an order in writing authorise an officer to grant licences to the managers of hotels to sell foreign liquor to the holders of permits granted under the Act. It is further provided that such licences would be issued on the conditions therein set out. One of the conditions is that the consumption of liquor sold shall not be allowed in any of the rooms of the hotel to which any member of the public has access. Sections 40 40 41 46 46 and 47 refer to permits which may be granted to persons for consumption of foreign liquor. Section 40b provides for the granting of an emergency permit for the use or consumption of brandy rum or champagne or any other kind of liquor to any person for his own use or consumption or to any head of a household for the use of his household for medicinal use on emergent occasions. One of the provisos to section 40 provides for allowing the use or consumption of such liquor by any other person for medicinal purposes on emergent occasions. Section 43 provides that no holder of a permit granted under any of the provisions of the Act other than section 40b shall drink in a public place or in the rooms of a hotel or institution to which the public may have access. It is further provided that no holder of a permit granted under section 40a that is for the purpose of health shall allow the use or consumption of any part of the quantity held by him to any other person. It is further provided that no holder of a permit granted under section 40a that is for the purpose of health shall allow the use or consumption of any part of the quantity held by him to any other person. Section 44 provides for the grant of a licence to a club to sell foreign liquor to its members holding permits. Such a licence could only be granted subject to the condition that no liquor would be served in any room of the club to which the public had access at the time where any person who did not held such permit was present. By section 48 provision is made for the grant of permits for the consumption or use of intoxicating drugs and opium. Section 66 by clause (1) provides that whoever in contravention of the provisions of the Act or of any rule regulation or order made or of any licence permit pass or authorisation issued thereunder consumes uses possesses or transports any intoxicant (other than opium or hemp) shall on conviction be punished for a first offence with imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees. By section 75a it is provided inter alia that any person who in contravention of the provisions of section 43 drinks in a public place or in the rooms of a hotel or institution to which the public may have access shall be punished with imprisonment which may extend to six months or with fine which may extend to Rs. 1 0 or with both. By section 84 it is provided as follows:-WHOEVER is found drunk or drinking in a common drinking house or Is found there present for the purpose of drinking shall on conviction be punished with fine which may extend to five hundred rupees. Any person found in a common drinking house during any drinking therein shall be presumed until the contrary is proved to have been there for the purpose of drinking. ( 23 ) THEN comes section 85 which we have referred to earlier. From the provisions of the Act and its scheme it is clear that the legislature has prohibited the drinking of liquor or consumption of any intoxicating drug without a permit. ( 23 ) THEN comes section 85 which we have referred to earlier. From the provisions of the Act and its scheme it is clear that the legislature has prohibited the drinking of liquor or consumption of any intoxicating drug without a permit. Even where a permit is granted it has prohibited the drinking of liquor or the consumption of any intoxicating drug in a public place or in the rooms of a hotel or institution to which the public may have access. An exception is made in connection with medicinal use on emergent occasions by holder of a permit under section 40b. The object of the legislature seems to be not merely that reasons should not drink except under a permit but even when they drink under a permit they may not do so publicly. When we come to section 85 (1) clauses (1) and (2) deal with cases where a person may have drunk liquor or consumed an intoxicating drug whether under a permit or without a permit. Clause (3) deals with the case of A person who has drunk liquor or consumed an intoxicating drug who is not the holder of a permit or who is not eligible to hold a permit. Section 85 is intended to cover persons in any street or thoroughfare or public place or in any place to which the public have or are permitted to have access. When we turn to sub-section (2) we find a rule of presumption. It is laid down that a person accused of any offence under the provisions contained in section 85 (1) shall be presumed to have drunk liquor or consumed any other intoxicant for the purpose of being intoxicated and not for medicinal purpose until the contrary is proved. A section which provides for anything being presumed in connection with an offence can only relate to that which constitutes an ingredient of the offence or which if established may result in the offence not being committed. Having that in mind the legislature has provided that it shall be presumed that a person who is accused of an offence under section 85 (1) has not drunk liquor or consumed any other intoxicant for a medicinal purpose. Having that in mind the legislature has provided that it shall be presumed that a person who is accused of an offence under section 85 (1) has not drunk liquor or consumed any other intoxicant for a medicinal purpose. The object of such a presumption is clear and that is to negative a defence that may be available to a person who has drunk liquor or consumed any other intoxicant unless the contrary is established. The object of the presumption that a person accused of such offence has drunk liquor or consumed any other intoxicant for the purpose of being intoxicated however can only be to facilitate the prosecution in establishing an ingredient of the offence. But for such an intention on the part of the legislature the raising of such a presumption would be devoid of meaning. It was urged by Mr. Sompura the learned Assistant Government Pleader that the legislature has used the words for the purpose of being intoxicated and not for medicinal purpose only with a view to negative the ordinary presumption of innocence which would arise in criminal cases. In his submission the words for the purpose of being intoxicated have been used only to lend emphasis to the words and not for medicinal purpose. We are unable to accept this submission. The legislature has not merely laid down that it shall be presumed that the liquor or intoxicant was consumed not for a medicinal purpose but has further laid down that a positive presumption should be raised that the liquor was drunk or the intoxicant was consumed for the purpose of being intoxicated until the contrary was proved. Such a positive presumption can only be raised with a view to establish- ing the ingredient of an offence. Such a positive presumption could not have been intended to be raised in vain. Reading section 85 as a whole the intention of the legislature appears to be to deal with a person who is in any street or thoroughfare or public place or in a place to which the public have or are permitted to have access and has drunk liquor or consumed any other intoxicant for the purpose of being intoxicated. We shall next consider what other requirements must be satisfied before an offence can be said to have been committed under section 85 (1 ). We shall next consider what other requirements must be satisfied before an offence can be said to have been committed under section 85 (1 ). When we look at clause (1) of section 85 (1) it is clear that the person concerned must be in an intoxicated state. The words there used are is drunk and incapable of taking care of himself. The state of intoxication must be such that he must be incapable of taking care of himself. When we turn to clause (2) of section 85 (1) it is also clear that the person concerned must be in an intoxicated state. The words there used are behaves in a disorderly manner under the influence of drink. The intoxication must have reached such a stage that the person concerned behaves in a disorderly manner under the influence of drink. Then we come to clause 3. On behalf of the State the words is found drunk appearing therein are sought to be given a meaning which would obviate the necessity of a person being found intoxicated. It is urged that the word drunk must be interpreted to mean one who has drunk liquor or consumed any intoxicating drug having regard to the definition in section 2 (12 ). It is urged that it is sufficient if it is established that the offender has drunk liquor or consumed any intoxicating drug provided the other conditions laid down in the section are fulfilled. It is urged that the very fact of a person having taken such a drink or such an intoxicant is sufficient to bring him within the ambit of the section if such person is in any street or thoroughfare or public place or any place to which the public have or are permitted to have access. If such an argument were to be given effect to a person who has drunk liquor or consumed any intoxicating drug at any time say two days ten days a month or a year before the date on which he is found in a street or thoroughfare or public place or in a place to which the public have or are permitted to have access would be considered to have committed the offence the moment he steps in a street or thoroughfare or such a place. He would then be committing a fresh offence every time he steps in such street thoroughfare or place. The section does not lay down any time within which such drink or intoxicant must have been consumed before such person steps in such street thoroughfare or place. The legislature has by section 66 (1) made the very consumption of such drink or intoxicant without a permit an offence punishable with imprisonment which may extend to six months or with a fine of Rs. 1 0 or with both for the first offence. The legislature could not have intended there after to take away his freedom of movement for ever and to lay down that whenever he thereafter steps into any street or thoroughfare or such a place he would be committing a fresh offence punishable with imprisonment or fine or with both. The section lays down that he must be found drunk that is he must be drunk when he is so found in such street thoroughfare or place so that he must not only have taken such liquor or intoxicant for the purpose of being intoxicated but he must be under the influence of such liquor or intoxicant when he is so found. It is not sufficient to establish that he had prior to his being found in a street thoroughfare or such a place taken at any time such liquor or intoxicant. The legislature has used in clause (3) language which is a little different from that used in clause (1 ). In clause (1) the words used are is drunk and these words are followed by the words and incapable of taking care of himself. In clause (3) which is intended to provide for a separate offence the words used are is found drunk. Some meaning must be given to the word found. A person who might have taken a drink a week before he is found in a public street or place cannot be said to be found drunk. The object of the legislature in enacting clause (3) is to see that people who have drunk liquor or consumed any intoxicating drug without a permit are not found in any street thoroughfare or public place or a place to which the public have or are permitted to have access whilst they are under the influence of such liquor or intoxicant. Even where the legislature has provided for the grant of a licence to hotels or clubs for selling foreign liquor it has restricted the consumption of foreign liquor to places to which the public have no access. The legislature in enacting clause (3) has sought to punish once again those who have committed a breach of the provisions of the Act by drinking liquor or consuming any intoxicating drug without a permit when they appear in any street thoroughfare or such a place under the influence of such liquor or intoxicant. The object of the legislature seems to be to prevent such breaches openly coming to the notice of the public having regard to the influence which such flagrant breaches might produce on the minds of the public. The influence of the drink must be such as to betray the man. Reading the section as a whole it seems to us that the object of the legislature in using the words is found drunk was to describe the condition of a person who was overcome or intoxicated by liquor or an intoxicating drug. When he is so overcome or intoxicated that he is incapable of taking care of himself he would also be committing an offence under clause (1 ). When he is so overcome or intoxicated as to behave in a disorderly manner he would also be committing an offence under clause (2 ). Even if he is capable of taking care of himself and does not behave in a disorderly manner he would be covered by clause 3 if he is overcome or intoxicated by liquor or an intoxicating drug. Clause 3 is wide enough to cover the case of a person who is overcome or intoxicated by liquor or an intoxicating drug whether he is capable of taking care of himself or not and whether he behaves in a disorderly manner or not. A Division Bench of the Bombay High Court consisting of Chief Justice Chagla and Mr. Justice S. T. Desai as he then was had to deal with a similar problem in the case of State v. Trimbak Dhondu Bhoir reported in 57 Bom. A Division Bench of the Bombay High Court consisting of Chief Justice Chagla and Mr. Justice S. T. Desai as he then was had to deal with a similar problem in the case of State v. Trimbak Dhondu Bhoir reported in 57 Bom. L. R. 541 After referring to section 85 and the definition given in section 2 (12) Chief Justice Chagla in the course of his judgment observes at page 543 as follows:-IN our opinion it is impossible to accept the contention of the Advocate General as it was first pressed that the expression drunk in sub-section (3) of section 85 is synonymous with the expression `to drink. ( 24 ) AFTER referring to the meaning of the expression drunk as given in the Shorter Oxford Dictionary namely as overcome by alcoholic liquor or intoxicated he held that in order to constitute an offence under the provisions of this clause there must be evidence produced which would induce the Court to hold that the offender was overcome by drink or was in a state of intoxication. ( 25 ) OUR attention was called to the following passage in the judgment of Chief Justice Chagla at page 545 of the report:-WE must frankly confess that even this construction itself would lead to one difficulty and that is that it is difficult to understand why under sub- sec. (3) holders of permits are exempted. The Advocate General suggested that is a person was given a permit he was allowed to drink and therefore his case was taken out of sub-section (3) of section 85 (1); but we do not understand why If the person is given a permit to drink he should get intoxicated and go to a public place. It almost seems as if permit holders have been looked upon under this section as a favoured class. To be intoxicated in a public place or to be incapable of taking care of oneself while drunk In a public place or behaving in a disorderly manner under the influence of drink in a public place is indefensible whether the act proceeds from a person who has a permit or proceeds from a person who has no permit and who has taker a medicinal preparation. ( 26 ) PLACING reliance upon this passage the learned Assistant Government Pleader urged that if the result of putting the construction that was placed by the learned Chief Justice Upon that clause was to introduce such an anomalous position there was something wrong with the construction itself. With respect in our view in enacting section 85 (1) clause 3 the legislature has not given rise to any real anomaly. The intention of the legislature in enacting clause (3) was to see that a person who was overcome or intoxicate by liquor or any intoxicating drug who did not hold a permit or who was not eligible to hold a permit under sections 40 41 46 or 46a was not found in a street or thoroughfare or public place or place to which the public had or were permitted to have access. The legislature was providing for a new offence being committed by a person who had already committed an offence punishable under section 66 (1) by drinking liquor or consuming an intoxicant without a permit. The legislature was dealing with the evil of the violation of the new law being flagrantly brought to the notice of the public by the violators themselves. So far as persons holding permits ale concerned if the result of the taking of liquor or the consumption of such drug was to bring them within the ambit of clauses 1 and 2 they were intented to be punished. If they did not fall within the ambit of clauses (1) and (2) the legislature has thought fit not to constitute their state of being overcome or intoxicated by liquor or any intoxicating drug into a separate offence punisable under clause 3 having permitted them to consume such liquor or intoxicating drug under a permit subject to such conditions as may be prescribed. ( 27 ) THE learned Assistant Government Pleader strongly relied upon the language used in section 84 and he said that the words is found drunk also appear in section 84. That no doubt is true. That is a section dealing with persons found in a common drinking house. That section is intended to cover those who are found present there for the purpose of drinking those who are found drinking there and those who are found drunk there. That no doubt is true. That is a section dealing with persons found in a common drinking house. That section is intended to cover those who are found present there for the purpose of drinking those who are found drinking there and those who are found drunk there. Even in the context of section 84 those words cannot possibly cover the case of a person who might have drunk liquor or consumed such intoxicant a few days or a week or a month before he is found in such common drinking house. It is not necessary for the purpose of this reference to decide the exact meaning of the words is found drunk used in that section in the context in which they are used and we refrain from doing so. Having regard to the context in which those words are used in section 85 (1) clause 3 they mean that the person concerned must have been overcome or intoxicated by liquor or an intoxicating drug. ( 28 ) OUR answer to the question as re-cast by us is that the expression is found drunk in section 85 (1) clause (3) of the Bombay Prohibition Act 1949 means is found overcome or intoxicated by liquor or any intoxicating drug. Answer Accordingly. .