Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Jasmeet Singh, J. did not interfere with the impugned show cause notice issued by Delhi Police to a restaurant allegedly serving alcohol beyond permissible limit of 1 am and as to why its registration should not be cancelled for such repeated acts of omission and commission. The Court adjudged Delhi Police ‘respondent’ to be the competent authority to issue show case in view of Delhi Eating Houses Registration Regulations, 1980 and Delhi Police Act, 1978.

The Petitioner firm is running a cafe & bar in the name and style of “M/s Uncultured” located at Delhi is challenging the show-cause notice cum order issued by the Additional Commissioner of Police, Licensing, Delhi (‘Respondent 2′) as FIR was lodged alleging charges under section 188 of the Penal Code, 1860 (‘IPC’) for the said restaurant being open beyond the permissible time i.e., 1 am. The show cause was issued calling upon the petitioner to show cause within 15 days from the date of receipt as to why it’s registration should not be cancelled for alleged repeated acts of omission and commission.

The petitioner contended that suspending the license of the Petitioner till disposal of the matter is arbitrary, and is in gross violation of the principles of natural justice, as the Petitioner was not even afforded the opportunity of being heard and the said decision amounted to awarding the Petitioner a punishment without any adjudication on the matter, in turn affecting its livelihood.

The respondents submitted that any place or venue where alcohol or intoxicating drugs are supplied and that fell within the ambit of a “place of public entertainment” under Section 2(l) of the Delhi Police Act, 1978, was permitted to remain open only till 1 a.m. Thus, when the petitioner company operated the said restaurant beyond the permissible limit of 1 a.m. amongst the several other complaints, the Respondents had the power to suspend the license and issue the impugned show cause notice.

It was submitted that Section 28 of the Delhi Police Act, 1978 empowers the Commissioner of Police to frame regulations for the licensing and control of places of public entertainment or public amusement and to provide for the registration of eating houses, including the power to grant a certificate of Registration to an eating house. In light of this, the Delhi Eating Houses Registration Regulations, 1980 were framed. As per Section 141(2) of the Delhi Police Act, 1978 which states that any license or permission granted under the act may be suspended or revoked by the Competent Authority if any of the terms and conditions or restrictions are infringed or evaded by the person to whom it is granted.

Reliance was placed on Union of India v. VICCO Laboratories, (2007) 13 SCC 270, wherein it was observed “Where a Show Cause notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show cause notice. Interference at the show cause notice stage should be rare and not in a routine manner. The mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out.”

The Court noted that whether the petitioner violated any regulations can only be ascertained by the Competent Authority after issuing the Show Cause Notice and even though the show cause notice is in the form of an order, the pith and substance show it to be a valid show cause notice.

The Court observed that the direction of sealing the premises of the petitioner’s restaurant till disposal of the show cause notice may be harsh but will not invalidate the impugned show cause notice as the respondent has the power under section 141(2) of Delhi Police Act, 1978 to suspend the license of the petitioner. Thus, in view of Regulation 11 and 14 of the Delhi Eating Houses Registration Regulations, 1980 and Section 141(2) of the Delhi Police Act, 1978, the respondent was within their right to issue the impugned show cause notice and there is no jurisdictional error apparent in the issuance of the show cause notice.

The Court held “the court cannot entertain this petition at this stage considering the factual scenario and the background of the legal principles set out and further remarked that due to COVID 19 restaurant industry has suffered a lot and thus respondents must be sympathetic towards them.”

[Konnect Hospitality v. Commissioner of Police, 2022 SCC OnLine Del 1928, decided on 07-07-2022]


Advocates who appeared in this case :

R. K. Saini and Varun Nagrath, Advocates, for the Petitioner;

Arun Panwar, Advocate, for the Respondent.


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsDistrict Court

Dwarka Courts, New Delhi: Sushil Anuj Tyagi, ASJ while addressing a case of drink and drive, expressed that,

“There has to be a zero-tolerance for drunken driving and such cases should be dealt with stern hands for flashing proper message in the society.”

The instant appeal was filed under Section 374 of Code Criminal Procedure against the decision of M.M. Dwarka Courts whereby the appellant was convicted and sentenced to undergo simple imprisonment for 4 days and fine under Sections 185 and 194B of the M.V. Act in default of payment of fine the appellant was further sentenced to imprisonment for 7 days.

Factual Background

Challan for the offence under Sections 185 and 194B MV Act was filed against the accused/appellant on the allegations that he was found driving a vehicle in drunken condition and he was not using his seat belt.

MM had taken cognizance of the above-stated. Appellant pleaded guilty.

The accused assailed the impugned order of the trial court on the grounds that the principles of natural justice were not followed, and that the appellant was not medically examined properly and that the report filed by the traffic police before the trial court was forged.

Further, the appellant was the victim of improper investigation and that the order passed by the trial court was hasty. Adding to this he stated that he was not a previous convict and had clean past antecedents.

It was also submitted that the appellant was running his business of Tours & Travels and he was the sole bread earner of his family which consists of his wife, minor daughter and old aged parents.

Analysis, Law and Decision

The Court stated that since the appellant had voluntarily pleaded guilty to the offences challaned against him, as per Section 375 CrPC, the appellant had no right to appeal as he has been convicted on his voluntary plea of guilt. Hence this Court found no illegality, infirmity or error in the impugned order, regarding the conviction.

Quantum of Sentence

Bench stated that it is true that drunkard driver is a menace on the overcrowded roads of Delhi.

The driver of motor vehicles is expected to be alert to the emergent contingencies which may arise on the road and he cannot be expected to lower his guard of reflexes. The consumption of alcohol impacts the senses of a person which results in delayed responses and reflexes which results in serious and fatal accident.

 “…drunken driver is injurious to his own life as well as to the life of innocent road users.’’

Analyzing further, Court stated that this Court cannot be oblivious to the fact that the appellant was the first-time offender and was not a previous convict, infact he had a clean past and was the sole earner of his family, he even expressed remorse for his conduct and undertook that he won’t repeat such act in future.

While considering the aggravating and mitigating circumstances, Court opined that the appellant deserved one chance for improving himself and hence took a lenient view by modifying the sentence of imprisonment Till the Rising of the Court.

In view of the above discussion, the appeal was disposed of. [Ishan Gaur v. State, CA No. 136 of 2021, decoded on 13-12-2021]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Sophy Thomas, J., quashed proceedings against the petitioner who was charge sheeted for being under the influence of alcohol during his visit to police station for identifying an accused. The Bench stated,

“Consuming liquor in a private place without causing nuisance or annoyance to anybody will not attract any offence”

Facts of the Case

The petitioner, a Village Assistant was called to the Police Station in order to identify an accused, against whom a case was registered under Section 353 of IPC and Section 20 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act.

The grievance of the petitioner was that since that accused was a stranger to him, he could not identify him, and only because of that fact, Police had charge sheeted him under Section 118(a) of the Kerala Police Act alleging that he was under the influence of alcohol at that time.

While the FIR suggested that the petitioner was intoxicated and was unable to control himself and the 161 statements of the witnesses were to the effect that the petitioner challenged the Police and committed rioting inside the Police Station.

Findings of the Court

In order to attract an offence punishable under Section 118(a) of the KP Act, a person should be found in a public place in an intoxicated manner or rioting condition incapable of looking after himself.

The Bench opined that even if it was taken for argument sake that the petitioner had consumed alcohol at that time, the available records did not show that the petitioner was sent to doctor for a clinical examination, or to show that his blood test was conducted to prove that he was intoxicated.

The records show that he was subjected to Alco-quant test using Alcometer. All the witnesses are Police Officers except one Saseendran, who was the accused arrested under the Sand Act, to identify whom the petitioner was called to the Police Station.

The meaning of the word ‘intoxicated’ as given in Advanced Law lexicon by P.Ramanatha Aiyar is that “a man is intoxicated whenever he is so much under the influence of spirituous or intoxicating liquors that it so operates upon him, that it so affects his acts or conduct or movement, that the public or parties coming in contact with him could readily see and know that it was affecting him in that respect.”

The Bench observed, the expression ‘rioting condition’ used in Section 118 (a) would mean that the person was behaving in a way that is violent and/or not in control. While the condition ‘incapable of looking after himself’ envisaged under Section 118 (a) of the KP Act, means weakening of self-control, weakening of self-awareness, and incapacity to know or realize the consequences of the action etc are relevant factors. Similarly, incoherent speech, unsteady gait, staggering etc., and the manner in which he conducts himself towards fellow-men were also relevant factors to hold whether the accused person was in proper control of himself.

Decision

Having observed various terms used against the petitioner with regard to the particular case against him, the Bench held that even if it was taken for argument sake that the petitioner had consumed alcohol, the available facts and materials were not sufficient to suggest that, he was not able to control himself or he committed rioting inside the Police Station causing nuisance.

Moreover, the petitioner had reached Police Station, only because he was asked to be present there. Hence, the petition was allowed and the proceedings against the petitioner were quashed. The petitioner was directed to be discharged. [Salim Kumar B.S. v. State of Kerala,2021 SCC OnLine Ker 4136, decided on 10-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Advocate I.V.Pramod, Advocate K.V.Sasidharan and Advocate Saira Souraj P.

For the Respondent: Devi Shri R., Public Prosecutor

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: K. Lakshman, J., while addressing a very pertinent issue expressed that,

Intention of the Legislature is to reduce the accidents and deaths that may be caused due to driving of vehicles in intoxicated condition, and it is not the intention to harass the owners of the vehicles by detaining the vehicles for days together.

 What has been challenged?

Power of police officers to seize the vehicle from its driver/rider, who is in an intoxicated condition.

Analysis, Law and Decision

High Court while analysing the submissions stated that as per Section 185(b) of the MV Act, 1988, whoever, while driving, or attempting to drive, a motor vehicle, is under the influence of drug to such an extent as to be incapable of exercising proper control over the vehicle, is punishable. Therefore, driving a vehicle in an intoxicated condition is an offence. Thus, a person in an intoxicated condition is barred from driving a vehicle.

As per Section 202(1) of the Act, 1988 if the police officer finds a person driving the vehicle in an intoxicated condition and if he/she considers that such person is not capable of driving the vehicle under such condition, he/she may detain or take steps for the temporary disposal of the vehicle.

Court in view of the Act, 1988, the Telangana Motor Vehicles Rules, 1989 and the Central Motor Vehicles Rules, 1989 stated that the Police Officers do not have the power to detain/seize the vehicles on the ground that the person driving the vehicle was found in an intoxicated condition.

Bench explained that, for instance, a person drives the vehicle alone and Police Officer finds him in an intoxicated condition and that such person is unable to drive the vehicle, then the Police Officer has the power to seize the certificate of registration and can detain/seize the vehicle and keep it in a nearest police station/appropriate place for safe custody. At the same time, it is the duty of the Police Officer to release the said vehicle either to the owner or to any authorized person who is not in drunken condition and who is in a position to drive the vehicle and holds a valid license. If there are two persons present in the car, the person driving the vehicle found in an intoxicated condition and the other person has a valid driving license and is found not in intoxicated condition and in a position to drive the vehicle, then the police shall not seize/detain the vehicle and permit the other person to drive the vehicle.

High Court elaborated further observing that Police Officers do not have the power to detain/seize the vehicles under Sections – 19 (1) (f), 185, 206, 207 of the Act, 1988 and Rule 21 (16) of the Central Rules. They have to release the vehicle in terms of Rule – 448A of the T.S. Motor Vehicles Rules, 1989.

Bench also noted the Supreme Court decision of S. Rajaseekaran v. Union of India, (2018) 13 SCC 516, wherein while considering the steep increase in the accidents and deaths due to driving of vehicles by the drivers in intoxication condition has issued several directives.

It was brought to the notice of this Court that the Senior Officials of the State are building up pressure on the officials of the Prohibition & Excise Department, Telangana State, to collect more revenue by sale of liquor. The said officials have also been building up pressure to collect more revenue through ‘drunk and drive’ by imposing challans.

Bench stated that the above approach of the State is not appreciable.

High Court expressed that,

It is the fundamental duty of the citizens to take all precautions to avoid road accidents and deaths and also to follow the guidelines issued by the State and the Central Governments from time to time on ‘road safety’.

Conclusion

Bench expressed that this Court had previously held that under the MV Act the Police Officers do not have the power to take custody of the vehicle driven under intoxicated condition and directed the authorities/officials who have custody of the vehicle in question to release the same on the production of certificate of registration relating to the said vehicle and on production of proof of identity and also a valid driving license.

Court issued the following directions to the Police Authorities:

(a) If the driver/rider of the vehicle is found under the influence of alcohol, he/she should not be allowed to drive the vehicle. However, if the police finds another person accompanying the driver/rider not in an intoxicated condition and having a valid driving license, shall permit such person to drive the vehicle without seizing/ detaining the vehicle, subject to Section 202 of the M.V. Act, 1988;

(b) If there is no other person other than the person who drives the vehicle in an intoxicated condition, then the concerned Police Officer or the intoxicated driver shall immediately inform any nearest relative or friend to take back the custody of the vehicle;

(c) If no one comes to take back the custody of the vehicle, then the concerned Police Official shall temporarily take possession of the vehicle, and keep the vehicle in the nearest police station or any other appropriate authorized place for safe custody. However, it is made clear that the Police do not have power to detain/seize vehicle on the ground that its driver/rider drove it in an intoxicated condition.

(d) The Police or any other Official who has the custody of such vehicle shall release the same either to the owner or any authorized person on production of certificate of registration (RC) of the said vehicle, proof of identity and a valid driving license;

(e) If the concerned Police come to a conclusion that prosecution of driver or owner or both is necessary, he shall file charge sheet against him/them before the concerned Magistrate within three (03) days from the date of seizure of vehicle. The vehicle shall be released by the Officer who detained it after prosecution is completed under intimation to the concerned Regional Transport Authorities;

(f) Magistrates are directed to receive the charge sheets within three (03) days from the date of seizure in compliance of Rule – 448-A (iv) of the Telangana State Motor Vehicles Rules, 1989 if the charge sheets are otherwise in order.

(g) The Police Officers of the State are directed to strictly follow the procedure laid down under Rule – 448-A of the T.S. Motor Vehicles Rules, 1989.

(h) If no one claims the custody of the vehicle, the police shall take necessary steps in accordance with law;

(i) Any breach of the above directives will amount to Contempt and necessary proceedings will be initiated against the concerned Police.

In view of the above, petitions were disposed of. [Prannoy Pandy v. State of Telangana, 2021 SCC OnLine TS 1426, decided on 29-10-2021]


Advocates before the Court:

For the Petitioner: P SHASHI KIRAN

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Single Judge Bench comprising of V.K Jain, J., dismissed a consumer plaint for claim of insurance.

The respondent owned a vehicle which was insured with the petitioner company for which he claimed reimbursement in respect of the loss suffered by him on account of damage to the vehicle but as the driver of the vehicle was under the influence of intoxicating liquor at the time of accident, the company denied the claim by stating the respondent’s liability under Section 1(c) of the insurance policy,  which states that insurer is not liable in case of any accidental loss or damage suffered whilst the insured or any person driving the private car with the knowledge and consent of the insured was under the influence of intoxicating liquor.

After being dismissed by the District Forum, the claim was finally allowed by the State Commission by way of an appeal and as a resultant, the petitioners filed for a revision.

The prime point for consideration was as to when a person can be regarded under the influence of alcohol in order to hold him guilty for his respective act. The Court appraised Lyon’s Medical Jurisprudence and Toxicology report whereby the Blood alcohol of 0.10% was accepted as prima facie evidence of alcoholic intoxication with the prescribed limit for permissible blood alcohol in India being 30mg/100 ml of blood. This was read in consonance with the AIIMS report which expressed that if the quantity of alcohol in the blood was 100 or more mg. /dl (100 ml), it led to blurred vision, unsteady gait and ill coordination.

In this case, the alcohol content of the driver was 103.14 mg /100 ml of his blood, which clearly indicates the influence of liquor at the time he died or got injured taking into account the national limit for permissible blood alcohol.

The Court was of the view that the purpose of the insurer behind excluding such cases was to ensure that the consumption of the liquor did not contribute to the accident. Hence the impugned order was set aside. [Royal Sundaram General Insurance Co. Ltd. v. Davubhai Babubhai Ravaliya, 2018 SCC OnLine NCDRC 372, order dated 04-09-2018]

NGT
Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Bench comprising of A.K. Goel Chairperson, S.P. Wangdi JM, and Nagin Nanda EM, reiterated its earlier order in regard to Petroleum and Explosives Safety Organisation (PESO) being the competent authority to issue licenses and to ensure that no industry producing absolute alcohol functions without such license.”

In the present application, the issue is primarily in regard to enforcement of regulatory mechanism for handling absolute Alcohol or Ethanol. It has been stated that the distilleries which carry on the business of Ethanol production, they only require the approval of Petroleum and Explosive Safety Organisation (PESO). In an earlier order by the tribunal, it had shut down 5 industries in U.P for the same reason of non-attainment of license through PESO.

The tribunal in accordance of its earlier order dated 30-08-2018 gave clarity and stated that industries producing absolute Alcohol are required to comply with the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 along with obtaining license through PESO and till the time the industry doesn’t attain the said license it is prohibited to manufacture absolute Alcohol.[Social Action for Forest & Environment (SAFE) v. Union of India,2018 SCC OnLine NGT 275, order dated 24-07-2018]

Canada SC
Case BriefsForeign Courts

Supreme Court of Canada: The Court addressed an appeal on the challenge being made to Section 121 of the Constitution Act, 1867 which subsequently puts Section 134 (b) of Liquor Control Act unconstitutional in nature.

The appeal was filed by a resident of New Brunswick as he was stopped and imposed fine while returning from Quebec for carrying alcohol in excess of the applicable limit. The appellant was charged under Section 134(b). The dispute arose out of Mr. Comeau’s assertion that Section 121 of the Constitution Act, 1867 prevents the province of  New Brunswick from legislating that New Brunswick residents cannot stock alcohol from another province.

The appeal was raised on two issues, wherein it was concluded that the trial judge erred in departing from the previous decisions of this court and Section 134(b) did not infringe Section 121. The Trial Judge found Section 134(b) of no force and therefore dismissed the charge.

The appellant i.e Mr. Comeau advanced a new and radical proposition that “admitted free” in Section 121 meant that provincial laws did not do anything to impede, or made more difficult, the flow of goods across provincial borders, directly or indirectly. He essentially contended that Section 121 was a “free trade” provision that was established to foster the full unimpeded economic integration of the new federation.

However, the appeal when referred to the Supreme Court looked at the various aspects and extent of the mentioned Sections and further stated that Section 121 prohibits laws restricting inter-provincial trade, but only where restricting trade is the laws’ main purpose. Section 121 guarantee free inter-provincial trade. The prohibition that has been mentioned acted like a tariff at the extreme end of the spectrum. Therefore, the Crown’s appeal was allowed. [R v. Comeau, 2018 SCC OnLine Can SC 18, decided on 19-04-2018]