IMPORTANT POINTS
Private conveyance not excluded from definition of 'public place'.
Whether liquor consumed in Bihar is a matter of fact.

JUDGMENT

Ashok Bhushan, J.

Leave granted.

2. This appeal has been filed against the judgment dated 16.02.2018 of the High Court of Patna dismissing the application of the appellants filed under Section 482 Cr.P.C. for setting aside the order dated 30.04.2016 passed by the Judicial Magistrate, Nawada in Rajauli Excise Case No. 316 of 2016 by which he has taken cognizance of the offence punishable under Section 53(a) of the Bihar Excise (Amendment) Act, 2016. The appellants aggrieved by the order of the High Court have come up in this appeal.

3. Brief facts of the case necessary to be noticed for deciding this appeal are:

The appellants, all Rotarians, were travelling from Giridih, Jharkhand to Patna, Bihar to attend a meeting of Rotary Club on 25.06.2016. The appellants were travelling by vehicle No.JH-11K/8146. The vehicle was stopped for routine checkup at Rajauli Check Post, District Nawada, State of Bihar by one Sachidanand, Bharati, Sup-Inspector Excise. Nothing incriminating nor any liquor was found in the vehicle in which appellants were travelling. The appellants were subjected to breath analyser test in which test as per the prosecution case certain quantity of alcohol was found. The appellants were arrested and remained in custody for two days. First Information Report was lodged on 25.06.2016 on which Excise Case No.316 of 2016 was registered. The Chief Judicial Magistrate, Nawada took cognizance by order dated 30.07.2016. The appellants filed application under Section 482 Cr.P.C. praying for setting aside the order dated 30.07.2016 passed by the Chief Judicial Magistrate taking cognizance. The High Court vide its order dated 16.02.2018 dismissed the application under Section 482 Cr.P.C. aggrieved by which order this appeal has been filed.

4. We have heard learned counsel for the appellants as well as Shri Shivam Singh, appearing for the State of Bihar.

5. Learned counsel for the appellants submits that no offence was made out under Section 53 (a) of the Bihar Excise (Amendment) Act, 2016. The Chief Judicial Magistrate committed an error in taking cognizance of the offence. It is submitted that the appellants were travelling in their vehicle from Giridih, State of Jharkhand to Patna, State of Bihar to attend a Rotary Club meeting. 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. Further, ingredient of Section 53(a) regarding consumption of liquor in a public place is not satisfied. It is further submitted that in the search no liquor bottles or any other incriminating materials were found which is also mentioned in the report. Hence, ingredient of offence that liquor is consumed is not satisfied.

6. Learned counsel for the appellants has referred to provision of Section 2(54) of Bihar Prohibition and Excise Act, 2016 in which public place has been defined which includes any transport, whether public or private. Thus, as per definition under Section 2(54) of Bihar Prohibition and Excise Act, 2016 a private vehicle is also a public place which definition was not there in Bihar Excise (Amendment) Act, 2016. It is further submitted Section 37 provides for penalty for consumption of liquor where now it is also an offence if a person is found drunk or in a state of drunkenness at any place, whereas under Bihar Excise (Amendment) Act, 2016 there was no such offence in Section 53 of the Act. The word 'consumed' shall be interpreted in the present continuous tense.

7. Learned counsel for the State of Bihar refuting the submission of the learned counsel for the appellants contends that Bihar is a State where prohibition is imposed under Section 19(4) of the Bihar Excise (Amendment) Act, 2016, there being prohibition in the entire State of Bihar anyone found violating the prohibition has to be treated as having committed offence. It is submitted that vehicle of the appellants was intercepted at a public road, hence, the appellants are