INTOXICATION

A BRIEF ANALYSIS OF SEC

85 AND SEC 86 OF THE IN-
DIAN PENAL CODE.
 TABLE OF CONTENTS

(i) INTRODUCTION TO INTOXICATION

(ii) DRUNKENESS.
(iii) SECTIONS FOR INTOXICATION IN IPC
(iv) WAYS OF INTOXICATION
(v) TYPES OF INTOXICATION
(a) VOLUNTARY INTOXICATION
(b) INVOLUNTARY INTOXIACTION
(vi) ONUS OF PROOF
(vii) CASE LAWS
Basudev v. State of Pepsu
Venkappa Kannappa Chowdhari v. State of Karnataka
Macherla Balaswamy of Guntur v. State of Tamil Nadu
(viii) CONCLUSION

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What is drunkenness?

Drunkenness is a consequence of drinking intoxicating liquors to such an extent

as to alter the normal condition of an individual and significantly reduce his
capacity for rational action and conduct. It can be asserted as a defense in civil
and criminal actions in which the state of mind of the defendant is an essential
element to be established in order to obtain legal relief.

What is the state of intoxication referred to in Section 85 and Section 86 of the

Penal Code?

There are of course many varying degrees of drunkenness which culminate in a

state in which the person becomes incapable of knowing the nature of any act.
The word “state of intoxication”
In Section 86 can only mean intoxication which renders a person incapable of
knowing the nature of the act in question or that he is doing what is either wrong
or contrary to law when he commits the act. It would be extremely dangerous
to extend the protection under Section 86, Penal Code to persons who commit
serious offence under the influence of liquor in varying stages and differentiate
culpability in their favour as opposed to similar of- fence by perfectly sober
persons. Drunkenness makes no difference in the knowledge with which a man
is charged and a man knew what the natural consequences of his acts where it
must be presumed to have intended to have caused them. Section 85 of the
Indian Penal Code deals with the question of knowledge possessed by an
accused person at the time he commits the offence and leaves quite open the
question of intention. There must be some material record to show that the
accused person was so intoxicated that he was out of his mind for that period of
time when he was committing the offence otherwise he can not avail the
benefits of Sec 85 and Sec 86. No question of drunkenness arises here, but the
level of drunkenness plays a vital role.
Intoxication can be understood as the state of a person when he has consumed
alcohol or any drug that changes his thought process and tends him to behave in
a manner, that he would not behaved in, if he was not under the influence of that
particular substance. Intoxication and drunkenness are two words that can be
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used inter changeably. A person who is under the influence of alcohol does not
usually think before he says or does something.
The level of alcohol the person has consumed also plays a vital role in his
behavior, generally people who has consume alcohol to a large extent are the
ones who act in an inappropriate manner. They are similar to people of unsound
mind. They do not know the consequences of the act that they engage
themselves in, they might also not know that the act that they are doing is illegal
and would be punished for the same. But there are also cases when the
“intoxicated person” who has committed a crime would not be punished, this is
when the intoxication has occurred involuntarily and the burden of proof that he
was intoxicated against his will lies in the hands of the accused. Therefore, in
this paper we are going to discuss in detail about the types of intoxication, the
burden of proof, how it is diagnosed and few of the landmark cases regarding the
same.

SECTIONS AND PROVISIONS

Sec 85 and Sec 86 of the Indian Penal Code deal with intoxication.

Sec 85 - Act of a person incapable of judgement by reason of intoxication caused against his
will.

The provision says “ Nothing is an offence which is done by a person who, at the time of doing
it, is, by the reason of intoxication, incapable of knowing the nature of the act, or that he is
doing what is either wrong, or contrary to law; provided that the thing which intoxicated him
was administered to him without his knowledge or against his will.”

This section means that if a person does something against the law i.e, illegal in nature be-
cause he is intoxicated without knowing the nature of the act he is exempted from liabilities
and the act done by him is not considered as an offence given that he was intoxicated against
his will that is without his knowledge.

Sec 86 - Offence requiring a particular intent or knowledge committed by one who is intoxi-
cated.

The provision says that “ In cases where an act done is not an offence unless done with a
particular knowledge or intent, a person who does the act in a state of intoxication shall be
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liable to be dealt with as if he had the same knowledge as he would have had if he had not
been intoxicated, unless the thing which intoxicated him was administered to him without his
knowledge or against his will.

This means that if a person has an intention to do the act even before he was intoxicated and
committs the act after intoxication, it will mean under the eyes of law that the act was done like
as if he was not intoxicated. This is valid as a defense only if the intoxication was involuntary.

WAYS IN WHICH A PERSON CAN BE INTOXICATED

A person can be intoxicated in a number of ways, but the most common way would either be
drugs or alcohol. Alcohol intoxication is other wise called inebriation. The other types of
intoxication include:

Substance intoxication
Alcohol intoxication
Opioid intoxication (Toxidrome) - Hypertension and hallucination. This is also commonly
caused due to drug overdose.
Cannabinoid intoxication - caused due to overdose of medication for nausea and pain.
Sedative and Hypnotic intoxication (see benzodiazepine overdose and barbiturate
overdose)
Cocaine intoxication
Caffeine Intoxication
Hallucinogen intoxication
Stimulant intoxication
Water intoxication
Drug overdose Inhalant intoxication

Intoxication can occur in any of the above mentioned ways. But if the person that has been
intoxicated commits a crime, he will be held liable depending upon how he was intoxicated.
The intention ( mens rea ) behind the act will also play a vital role. If the person had the
intention to commit a crime before he was under the influence of the substance and was
very well aware of the legal consequences and commits the crime after consuming the
intoxicated substance voluntarily he will be held liable. But if the person commits the crime
after consuming the intoxicated substance without the knowledge of the legal
consequences and the act itself, the case will be different because here it has to be
considered if the per- son was intoxicated voluntarily or involuntarily. We will now discuss
voluntary and involuntary intoxication.
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 TYPES OF INTOXICATION

Intoxication can be of two types:

(i) Voluntary intoxication - This is where the person who consumes the intoxicated sub-
stance consumes it with full knowledge and by his own will and wish wihtout any compul-
sion of others. Even though voluntary intoxication means that someone has consumed in-
toxicating substances with their own free will, he may still have a defense to the offence
with which he is charged. The intent in case of a crime is very important and even though
a person maybe voluntarily intoxicated, the very fact that he is unable to form the required
intent works in his favor. The severity of the punishment is reduced due to this defense; for
instance, an individual will be punished for the crime of manslaughter rather than the more
serious crime of murder. A crime requiring specific intent may be reduced to one requiring
basic intent. An intoxicant does not have any separate ‘class’ but it refers to any substance,
which has an effect on the consciousness or the decision-making capacity of a person-
.Acts done under such circumstances are not exempted from any liability. He shall be
deemed to have done the act that was against the law like as if he was not intoxicated, the
knowledge of the intoxicated can in no way be of defense but the intention of the person is
to be regarded depending upon the situation of the case. More often than not intention and
knowledge merge. Intention is something which is prompted by motive and knowledge is
an awareness of the consequences of the act. So if the person is said to have sufficient
knowledge about the act he is also said to have the intention. If the person knew before he
was intoxicated that an act he does will result in death (knowledge) and commits the act
after being intoxicated voluntarily he will be punished under IPC.

(ii) Involuntary intoxication

As opposed to voluntary, involuntary intoxication is when the person has been intoxicated
against his will and knowledge. This serves as a defense to the accused because the was
incapable of knowing the nature of the act. A person seeking protection of sec 86 has to
establish :

(a) that he was incapable of knowing the nature of the act or acts committed
(b) that he didn't know that he was doing something contrary to law
(c) that the thing which intoxicated to him was against his will/ without his consent.

Section 85 applies only in cases of involuntary intoxication (drunkenness). Voluntary

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 drunkenness is no excuse for the commission of the crime.

Where the accused could not show that he was under the influence of liquor at the time of
the commission of the offence, the benefit of Section 85 was not given.

Situations where a person cannot claim the benefit of Sec 85 of IPC

i. Where the intoxication is administered to the accused by stratagem or fraud of another, as

when mixed with his food or drink and given to him in confidence he is excused.

(i) On this view if friends or relatives persuade a person to drink a little more than
he can reasonably digest, he cannot complain that he was made to drink a little more
than he can reasonably digest, he cannot complain that he was made to drink against his
will.

(ii) Where an accused takes liquor to alleviate pain, it is not a case of involuntary
drunkenness and the accused is not protected by Section 85.

(iii) Drunkenness may in extreme cases result in delirium, tremors or insanity-

whether temporary or permanent and if it is does so, the offender will be held not guilty.
Unless drunkenness either amounts to unsoundness of mind so as to enable insanity to
be pleaded by way of defence, or the degree of drunkenness is such as to establish
incapacity in the accused to form the intent necessary to constitute the crime,
drunkenness is neither a defence nor a palliation.

It is not necessary that in all cases involuntary intoxication will be excused by the law. This can be
explained with the help of the following case laws.

ONUS OF PROOF ( Difficulty of proof )

The onus of proof about reason of intoxication due to which the accused had become
incapable of having particular knowledge in forming the particular intention was on the
accused. Basically there are three propositions as regards the scope and ambit of Section
85, IPC. ( mentioned under involuntary intoxication). The normal presumption is that a man
intends the normal consequences of his acts. In a case where the defence is of drinking it
is for the accused to lead evidence to rebut such presumption by giving evidence of his
drunkenness and proving the degree of his intoxication to show that his mind was so
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affected by drink that he was not in a position to form any intent essential to constitute the
crime. Therefore, the burden of proof that he/she committed the crime only because of the
presence of alcohol in their body and would not have done so if not for it lies in the hands
of the accused. This burden of proving innocence is not an easy task.
The person cannot say that he committed a mistake while he was drunk. The consumption
of the intoxicated drink itself cannot be an excuse, if a person says that he was intoxicated
to a level that he got the idea of committing the crime only after the alcohol entered his
body and that he would have not acted in the way he did if he were sober it will not stand
as a defence. Since if an honest and reasonable mistake by sober person cannot afford a
defence, a mistake while drunk cannot do so.

Case Laws

Basudev v. State of Pepsu

A retired military officer was charged with the murder of a young boy of 15 or 16. Both of
them and others of the same village attended a marriage party. All of them went to the
house of the bride to attend the mid-day meal. Some had settled down in their seats and
some had not. A military who was very drunk and intoxicated, asked the young boy to step
aside a little so that he may occupy a convenient seat. But, when he did not move, the
military officer whipped out a pistol and shot him in the abdomen. The injury proved fatal. All
these facts, according to the SC, go to prove that there was no proved incapacity on the
accused to form the intention to cause bodily harm sufficient in the ordinary course of the
nature to cause death. In view of his failure to prove such incapacity, the law presumed that
he in- tended the natural and probable consequences of his act. In other words, he intended
to inflict bodily injuries on the deceased and the bodily injuries so intended to be inflicted,
was sufficient in the ordinary course of nature to cause death. The accused was found guilty
of murder and was convicted under Sec 302.

Venkappa Kannappa Chowdhari v. State of Karnataka

The accused, quarrelsome by nature, was addicted to liquor. The son of the accused died
in a motor accident. The accused wanted the compensation amount of 10000, which was
in the name of the accused’s wife. On the day of the decision, he came home drunk and
asked his wife to withdraw the fixed deposit amount. When his wife refused to comply, he
beat her, took a tin of kerosene oil, sprinkled it on her and set her on fire. His wife
screamed and the neighbors took her to the hospital. A dying declaration was recorded.
The accused took the plea of incapacity due to intoxication sec 85 IPC. His plea was reject-
ed because he had voluntarily consumed alcohol. He was convicted and sentenced to life
imprisonment.

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Macherla Balaswamy of Guntur v. State of Tamil Nadu

Appellant and Venkayya lived very close to each other in Guntur Town. Venkayya had a
petty shop by the road side. There was evidence of some previous ill-feeling between them
over the purchase of a house, which was ultimately bought by venkayya in competition with
the appellant. Venkayya said that he filed a complaint against the appellant about a year
ago before this offense, which was dismissed.
Appellant was been found guilty under S. 302, Penal Code of the murder of
Bhudevamma by inflicting on her a single stab in the abdomen when she intervened
when the appellant was stabbing her brother Venkayya . He has also been found guilty
under Section 324, Penal Cede, in respect of injuries he inflicted on Venkayya, although
charged in that of attempting to murder him under Section 307, Penal Code. He has been
sentenced to transportation for life and to two years rigorous Imprisonment respectively.

CONCLUSION

After analyzing the topic, it can be said that intoxication is not a very strong defense, and
even if it serves to reduce the severity of a punishment, a person cannot escape compelety
from liability. This is because common man will not have much respect for the
law if a drunken man commits something against him, and the man gets away with his con-
duct merely because he was too intoxicated to think clearly. Law aims to do justice for all,
in this case it clearly wouldnt be justice if the drunken man is let go on the basis of mere in-
toxciation.
More often than not people commit crimes and claim that they were under the influence of
alcohol to try and get the benefits of Sec 86 under the IPC. But thanks to the science and
technology prevelant it is easy for the courts to analyse whether the accused was really
under the influence of alcohol or other intoxicated substance if he was arrested or taken
into custody immediately after the crime scene. Witness also play a big role in these cases
where the judgements are to be taken where the accused was not arrested immediately
after the scene or where he claims false intoxication.

In India as well, the law that has been followed till date has its foundation in the British law.
The first categorical difference is that in case of British law, the defence of intoxication is
not codified under any specific section, while under the Indian law it has been clearly
codified in sections 85 and 86 of the Indian Penal Code.

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 BIBLIOGRAPHY

1) PSA Pillai’s Criminal law, K I VIBHUTE, tenth edition.

2) THE INDIAN PENAL CODE, 1860 (2012)
3) Indiankanoon.org
4) parliament.nsw.gov.au

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