Penalty for Drinking (Section 85)

Section 85 is the public-face penal provision of the dry law - the section a policeman invokes when he finds a man swaying on a public road, picking a quarrel, or simply smelling of liquor. Headed Penalty for being drunk and for disorderly behaviour, it does not punish the act of drinking as such (that work is done by the consumption offence in Section 66); it punishes the visible state of intoxication in or near a public place. To read it correctly one must grasp three things the Gujarat High Court settled long ago - that the section grades drunkenness into three clauses, that the word "drunk" can mean nothing more than "having drunk", and that the accused starts the trial under a statutory presumption against him. This note unpacks each, set against the broader scheme explained in our Gujarat Prohibition Act hub.

The Text and Scheme of Section 85

Section 85 falls in the penal chapter of the Act alongside the consumption and possession offences. Its core, sub-section (1), reaches any person who, in any street, thoroughfare or public place, or in any place to which the public have or are permitted to have access, is found in one of three conditions. The locus is thus an element of the offence, not mere background: the prosecution must establish that the drunkenness occurred in, or in a place open to, the public. The provision is therefore confined to public manifestation: drinking sealed away in a private home, however heavily, does not attract Section 85 (though it may attract the consumption offence under Section 66, which carries no public-place requirement). A place to which the public "have or are permitted to have access" is read broadly, capturing roads, public conveyances, and premises temporarily thrown open, so the practical reach of the section is wide even though private drinking lies outside it. The actus reus is being drunk in public; the gravamen shifts with how the drunkenness shows itself. The section is the lineal successor of identical wording in the parent Bombay Prohibition Act, 1949 (Bombay Act XXV of 1949), from which the Gujarat statute descends - a pedigree explained in our introduction. The same public-place vocabulary recurs throughout the Act, so the definitions of "public place", "liquor" and "drink" do real work in fixing the section's reach.

Three Clauses, Three Degrees of Drunkenness

The decisive analytical move came in State of Gujarat v. Ukaji Devaji (decided 22 September 1961). The Gujarat High Court read sub-section (1) as drawing three descending grades of intoxication. The first clause catches a person so drunk as to be incapable of taking care of himself - the helpless, collapsed drunkard who cannot walk or speak coherently. The second catches a person who, under the influence of drink, behaves in a disorderly manner - quarrelling, abusing, fighting, or otherwise creating a public scene. The third is a residuary clause: a person who is found drunk but who is neither so incapacitated as to fall in clause one nor disorderly enough for clause two. The structure matters because the conduct charged must fit the clause pleaded; a charge framed under one clause cannot silently be sustained on the factual basis of another, and the punishment ceiling itself varies with the clause invoked. Each clause carries its own actus reus: clause (1) requires proof of helpless incapacity, clause (2) requires proof of an outward act of disorder, and clause (3) requires only the fact of having drunk. Mislabelling the clause in the charge sheet is therefore not a harmless slip - it can determine both conviction and sentence. The court's taxonomy in Ukaji Devaji remains the standard frame through which every Section 85 prosecution is read, and it is the single authority an examinee must cite when asked to explain the structure of the section.

"Drunk" as the Past Participle of "To Drink"

The most consequential holding in Ukaji Devaji concerned the third clause. The respondent had been arrested on a public road and sent for medical examination; the medical officer certified that he had consumed alcohol but was not under its influence. On the natural reading of "drunk" as meaning intoxicated, no offence would lie, and that was the basis on which the acquittal was sought to be defended. The High Court rejected that reading for clause (3). It held that "drunk" there is used as the past participle of the verb "to drink" - it means "having drunk" - and is governed by the definition of "to drink" in Section 2(12), under which the degree or quantity consumed is immaterial. The verb "to drink", its past tense "drank" and its past participle "drunk" all refer simply to the consumption of liquor, whatever the quantity. The upshot is severe: under clause (3) a person commits the offence by having consumed any quantity of liquor without a permit, even if stone-cold sober in his bearing and perfectly capable of taking care of himself. The clause thus operates as a near-strict prohibition on having drunk at all in a public setting, while clauses (1) and (2) demand demonstrable intoxication or disorder. This construction collapses much of the distance between Section 85(1)(3) and the pure consumption offence, which is exactly why the two are so frequently paired - Section 85(1)(3) being the residuary catch-all and the consumption charge under Section 66(1)(b) the principal count in raid prosecutions.

The Statutory Presumption: Drink Was for Intoxication, Not Medicine

Section 85 builds in a presumption that tilts the evidential burden. In a prosecution under sub-section (1) it shall be presumed, until the contrary is proved, that the accused drank liquor or consumed an intoxicant for the purpose of being intoxicated and not for a medicinal purpose. The defendant who pleads a medicinal justification - say, alcohol taken on a doctor's advice or under a health permit - must therefore positively establish it; the prosecution need not negate it. This dovetails with the permit machinery in the Act, where lawful consumption is channelled through health permits and tourist permits issued under the permit provisions. Absent such a permit and absent affirmative proof of a medicinal occasion, the presumption is left unrebutted and the conduct stands criminalised. The presumption is a recurring legislative technique in this Act, designed to ease the State's burden in the face of a vice it treats as inherently suspect.

Graded Punishment Across the Clauses

The punishment under Section 85 is itself graded, reflecting the clause-based hierarchy. For a first offence under clause (1) or clause (3) - incapacity or mere found-drunk - the imprisonment may extend to one month and the fine to two hundred rupees. The disorderly-conduct clause (2) is treated as graver: a first offence may attract imprisonment up to three months and fine up to five hundred rupees, the heavier ceiling tracking the public-order harm of a quarrelsome or abusive drunk. Repeat offending escalates the ceilings further, the legislature treating the habitual public drunkard more sternly than the first-time offender. Two features of the sentencing structure deserve emphasis. First, the grading confirms why correct clause-labelling matters: a conviction wrongly recorded under clause (2) when the facts fit only clause (3) exposes the accused to a heavier maximum than the proven conduct warrants. Second, these quanta are modest beside the consumption and possession penalties in Section 66 as toughened by later amendment, which is why prosecutors often add the consumption count rather than rely on Section 85 alone. The graded scheme nonetheless reflects a deliberate legislative judgment that disorder in public is a greater mischief than quiet incapacity, and that mere having-drunk, while still an offence, sits at the lowest rung of culpability.

Proof of Drunkenness: The Blood Test and the 0.05% Threshold

Because clauses (1) and (3) hinge on whether a person was drunk, the medico-legal proof of consumption becomes central. The Act supplies a scientific shortcut. Section 66(2) provides that where the concentration of alcohol in the blood is found to be not less than 0.05 per cent weight in volume, the court shall presume that the person consumed liquor in contravention of the Act, casting on the accused the burden of proving that what was consumed was a medicinal, toilet or antiseptic preparation or similar exempt article. In State of Gujarat v. Dhulaji Bavaji (19 July 1962) the accused, charged under Sections 85(1)(i) and 66(1)(b), was found lying intoxicated on a public road and his blood, on chemical analysis, contained 0.130 per cent W/V of ethyl alcohol - well above the threshold. The case illustrates how the clinical panchnama (unsteady gait, smell of liquor, incoherent speech) and the chemical analyser's report combine to prove the public-drunkenness charge.

Procedural Safeguards and Acquittals on Compliance

The presumptions cut hard, so the courts have insisted on strict compliance with the collection machinery before they bite. The blood evidence must be gathered under the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, which prescribe how a sample is to be taken, sealed and forwarded to the chemical analyser. Where the rules are breached - improper sealing, broken chain of custody, doubt over whose blood was tested - the presumption under Section 66(2) cannot be invoked and the prosecution must prove drunkenness by ordinary evidence. Courts have acquitted accused persons under Section 85(1)(3) read with 66(1)(b) where the medical officer's own testimony showed the person was steady and clear-eyed, or where lapses in blood collection undermined the analyser's report. The clinical examination is itself discretionary: the medical officer takes blood "if he deems it necessary", typically when clinical signs are inconclusive. These safeguards are the practical counterweight to a section that otherwise leans heavily against the citizen.

Section 85 and the Consumption Offence Distinguished

Section 85 is best understood against its companion, the consumption offence in Section 66(1)(b), which penalises consuming or using liquor without a permit irrespective of where it occurs. The two overlap heavily - both reach the man who has drunk - but they aim at different evils. Section 66 targets the act of unlawful consumption wherever committed; Section 85 targets the public state of being drunk, with clause (2) reaching public disorder specifically. A single episode commonly yields charges under both, and after the Gujarat Prohibition (Amendment) Act, 2017 (Gujarat Act 9 of 2017) broadened Section 66(1)(b) to cover possession and transport as well, the consumption count carries a stiffer first-offence punishment than Section 85. The practical division of labour is clear: Section 66 does the heavy penal lifting, while Section 85 adds the public-order dimension and the disorderly-behaviour aggravation. Both are part of the larger penal architecture set out in our note on offences and penalties.

The Constitutional Backdrop to Criminalising Drink

That a State may make being drunk in public a crime, and may presume the worst against the drinker, rests on the constitutional foundation laid in State of Bombay v. F.N. Balsara, AIR 1951 SC 318 (1951 SCR 682). The Supreme Court there upheld the legislative competence of the State to prohibit the manufacture, sale, possession, consumption and use of intoxicating liquor under the relevant State List entry, treating prohibition as a legitimate restriction in aid of public health and the directive principle on intoxicants. The Court did, however, strike down the parts of the original Act that swept in liquid medicinal and toilet preparations containing alcohol, holding the blanket ban on possessing and consuming such articles to be an unreasonable restriction. Balsara thus both validated the core prohibition - the bedrock on which Section 85 stands - and carved out the medicinal sphere that the section's own "not for a medicinal purpose" presumption presupposes. The provision therefore sits squarely within a scheme the apex court has blessed in principle while policing at its edges.

Practical Takeaways for the Exam and the Court

For an aspirant, Section 85 distils into a few load-bearing propositions. First, it is a public-place offence - the locus is an element, fixed by the definition of "public place". Second, it is tripartite: incapacity, disorderly conduct, and the residuary "found drunk", with Ukaji Devaji holding that the third clause needs no intoxication at all, only proof of having drunk in any quantity. Third, the accused enters the dock under a presumption that the drink was for intoxication and not medicine, which he must affirmatively rebut, usually by producing a permit. Fourth, the 0.05 per cent blood-alcohol presumption in Section 66(2) and the analyser's report do the evidential heavy lifting, but only if the Medical Examination and Blood Test Rules, 1959 are scrupulously followed - Dhulaji Bavaji and its progeny show acquittals turning on such compliance. Finally, the section nearly always travels with the Section 66 consumption count, so a complete answer treats the two together while keeping their distinct objects in view.