This article has been written by Sucheta Pravin Kudale, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution at LawSikho and edited by Shashwat Kaushik.
It has been published by Rachit Garg.
Table of Contents
Introduction
Driving under the influence of alcohol is considered one of the key contributors to road traffic crashes around the world. According to the World Health Organization’s Global Road Safety Report, 11% of all accidental deaths worldwide occur in India. The epidemiological survey says that 20%-25% of road crashes happen because of the consumption of alcohol by drivers. After the driver consumes alcohol, the central nervous system slows down, which affects the performance of drivers in areas like speeding behaviour, lane position maintenance, reaction time when applying immediate breaks, and minor driving errors. Drunken driving is a criminal offence in India. The punishment and damages depend on how badly you injured a person. If any person dies in a drunken driving case, then that driver has to pay damages to the family members of the deceased person, and he is also liable for imprisonment.
A vehicle insurance claim is also not admissible for accidents that occur due to drink-driving because this is only the driver’s fault.
Drinking legal age
The legal drinking age varies in India between 18-25 and laws from state to state also vary; Manipur, Gujrat, Bihar, Nagaland, and the union territory of Lakshadweep have banned alcohol entirely, while Delhi, Haryana, and other states have 25 years, and Goa, Himachal Pradesh, and Karnataka have 18 years as a legal drinking age. In most of the states in India, 21 is the legal drinking age.
The alcohol limit while driving
Traffic police use a machine called a “breathalyser” to find out the quantity of alcohol in the driver’s body. It takes a breath sample. Police ask the driver to blow into that device and it shows a quantity of alcohol in the body. The standard ratio is 30mg per 100 ml of blood. If this proportion exceeds it, then the driver is considered guilty of the offence of drunken driving.
Attracted laws
The Motor Vehicles Act of 1988
As per Section 185 of the Motor Vehicles Act of 1988, driving by a drunken person or a person under the influence of drugs, driving or attempting to drive a motor vehicle-If;
- The alcohol found in his blood was more than 30mg per 100 ml of blood in the breathalyser test, or
- due to the influence of drugs, he/she is incapable of controlling the vehicle and shall be punishable for the first offence with imprisonment for a term that may extend to six months or with a fine that may extend to two thousand rupees or with both; and for second or subsequent offence, if committed within three years of the commission of previous similar offence, with imprisonment for a term that may extend to two years or with fine that may extend to three thousand rupees or with both.
Punishment for drink-driving
Section 185 of the Motor Vehicle Act says that drunk driving is a criminal offence and the punishment for this is imprisonment for 6 months and a fine of Rs. 2,000. And if any person repeats the same crime within 3 years, that person is punished with imprisonment for up to 2 years and a fine of Rs. 3,000 or both.
Motor Vehicle Amendment Bill, 2016
With the rapid growth of urbanisation and rising incomes, the number of registered motor vehicles has also increased. This is also an alarming issue of increased pollution and road accidents. So, it was a necessary to amend the existing Motor Vehicle Act to focus on road safety.
The Bill seeks to amend the Motor Vehicle Act of 1988 to provide that not more than one motor vehicle of the same category will not be registered at the same residence or the place of a business where the vehicle is used.
There was an Amendment to the Motor Vehicle Bill in 2016 from the Union Cabinet, chaired by PM Narendra Modi. Under this bill, the penalty for drunken driving has been increased to Rs. 10,000 from Rs. 2000 and improved road safety standards have increased fines and penalties.
The Bill came up with various issues like road safety, third-party insurance, regulation of taxi aggregators, recall of unsafe vehicles, and compensation for victims in cases of road accidents.
Major changes in the Motor Vehicle Act after this Amendment are:
- The validity of a driving licence is 20 years or until the person reaches the age of 50, whichever is earlier. After the age of 50, licences will be provided for another 5 years. People from various age groups apply for a licence and the validity of the licence is as follows;
- Under 30 years, until he/she turns 40.
- Between 30-50 – 10 years.
- Between 50-55 – till he/she turns 60 years.
- Above the age of 55- another 5 years
- If there is any defect in a vehicle that is harmful to the environment, dangerous to its driver, or damages the road, then the manufacturer is liable for its replacement or reimbursement for damages.
- A person who is helping in good faith the victims of road accidents will not be held liable for any civil or criminal proceedings if that victim dies during his medical treatment.
- There will be electronic monitoring of the registration of vehicles, the issuance of a licence, the receipt of fines, and the change of address.
- If the manufacturer of motor vehicles fails to comply with manufacturing standards, he will be punished with a fine of up to Rs. 100 crore, a fine or both.
On June 6, 2020, high profile IAS officer Sriram Venkataraman drove his car under the influence of alcohol and killed Journalist KM Basheer. For his offence, he was charged with a maximum punishment of 10 years under Section 304 of the IPC.
Criminology behind drink-driving
Under this heading, we will discuss how the act of drink-driving attracts criminology.
The Indian Penal Code, 1860
To know how criminology attracts drunk and driving cases, we need to understand two basic terms from a legal perspective.
- Accident, and
- Intoxication
Accident (Section 80)
Ingredients of an accident are:
- Act should be without any criminal intention or knowledge.
- While lawfully doing a lawful act by lawful means.
- Mishaps happen even after proper care and caution.
As stated above, if any act fulfils all the ingredients, then and only then is it an accident.
E.g., A takes up a gun and, without examining whether it is loaded or not, points it in sport at B and pulls the trigger. B dies. Such a death is not accidental, as there was a lack of proper care and caution. If A had reason to believe that the gun was not loaded, the death would have been accidental.
In the case of Salman Salim Khan vs. The State of Maharashtra (2015), Salman Khan took the defence of accident under Section 80 of the IPC, but it is a crystal-clear case that he was under the influence of alcohol and driving the car in a rash and negligent manner, thereby causing the incident, killing one person, and injuring four others.
He drove the car voluntarily at a very high speed of about 90 to 100 km/h after drinking. Ravindra Patil, his bodyguard, cautioned him to lower the speed but he did not pay attention. Consequently, he lost control of the car and dashed it on a shutter of American Laundry, which is situated at the junction. It resulted in the death of one person named Nurulla and injuries to four others.
The Bombay High Court charged Salman Khan by:
- Section 304 of the Indian Penal Code
- Section 33 of the Indian Evidence Act, 1872
Intoxication (Sections 85 and 86)
“Intoxication is the state of mind in which a person loses self-control and his ability to judge”.
Intoxication is of two types:
- Voluntary, and
- Involuntary
Voluntary toxication is punishable under the IPC. There is a Latin term, “Qui pecat ebrius luat sobrius.” It means “let him who sins when drunk, be punished when he is sober”. If a man chooses to get drunk, it is a voluntary act. That voluntary species of madness from which it is the party’s power to abstain must be answered for. An offence committed because of voluntary drunkenness has no excuse in law.
In short, Section 85 declares that voluntary intoxication is no excuse for the commission of the crime. But if he gets intoxicated through the fraud or stratagem of others and thereby becomes incapable of understanding the nature and quality of the act, he must be excused.
In the case of Basdev vs. the State of Pepsu (1956), the appellant, Basdev, a retired military jamadar, joined a marriage ceremony with his friends. Everybody drank alcohol in that ceremony voluntarily. During the ceremony, Basdev asked a 13 year old boy to vacate his seat because he wanted to sit there. The boy refused to do so, and Basdev, in unconsciousness, pulled out his service revolver and shot the boy dead. Basdev was held liable on a charge of murder, which he committed under voluntary intoxication, by the Supreme Court of India.
Involuntary toxication is not punishable by criminal liability because there is an absence of men’s rea (guilty mind).
In the case of Director of Public Prosecutions vs. Beared (1920), a prisoner ravished a 13 years girl and raped her. He put his hand on her mouth to prevent her from screaming and his thumb was pressing on her neck. Due to the suffocation, she died. He claimed drunkenness. The Court held that he was guilty of murder and sentenced him to the death penalty, saying that the defence of drunkenness prevails only when it is reasonable to believe that the accused did not know what he was doing or whether it was right or wrong.
Presumption or test of drunkenness
The correct test is whether, because of drunkenness, the accused was incapable of forming an intention to commit the offence. The presumptions for certain offences committed by intoxicated persons are:
- If an act is an offense only when done with a particular intention or knowledge, and such an act is committed by an intoxicated person, he will be presumed to have possessed the knowledge requisite for the offense, unless he can show that he was intoxicated without his knowledge or against his will.
- When intention or knowledge is an ingredient of the offence, a person who is voluntarily drunk must be considered to have gained the same knowledge as he would have had if he had been sober.
E.g., A is intoxicated with alcohol. He takes a large knife and goes along the road. B tries to pacify him, but A declares his intention to kill him, follows him, and inflicts injuries on B, because of which he dies. A is guilty of murder. He got drunk voluntarily and under Section 86, he will be liable for his act as if he was sober when he did it.
Involuntary toxication is not punishable under the Code. But the onus of proving his involuntary toxication is on the person who is drunk. As we discussed above, in voluntary intoxication, the intention or knowledge of a person is a very important factor in determining crime. Intention is also called mens rea, i.e., guilty mind.
Difference between knowledge and Intention
Knowledge is the awareness, foresight, or even expectation of the consequences of an act, whereas intention is such foresight coupled with desire. When the knowledge is so strong that any person with common sense would consider the result to be the inevitable consequence of the act of the wrongdoer, the law implies desire and such a mental condition will be considered by the law to be constructive intention. The main difference between both is that in the case of intention, the consequence is desired, while in knowledge, the consequence may or may not be desired.
If we think about Salman Khan’s case, though he had no intention to kill or injure people, he had very much knowledge about the consequences of what would happen if he drove the car after drinking, and he was negligent in taking reasonable care and caution while driving.
Suggestions
Drinking and driving are crimes under the IPC and are punishable, but I want to make some suggestions.
- The very first suggestion is to raise awareness about drinking.
- Bar owners can provide a cab facility at the bar itself for drunk drivers.
- Patrolling by police in nearby areas of the bar so they can control these cases at their origin.
- Making strict rules while giving licences to bar owners.
- Sensors in cars if a driver has drunk beyond the standard limit, like seatbelt sensors and lock sensors.
- Apply labels to bottles to raise awareness, like pictures on cigarette packets.
- Prefer driver, friend, taxi, or car-sharing service rides like Uber or Ola.
- If you host a party with alcohol-free beverages and remind guests to designate a sober driver.
Conclusion
Drunken driving is a very serious offence that is increasing in India. All the laws of selling, purchasing, and consuming liquor are violated by people, and the strength of such people is huge. It shows how poor the implementation of laws is in our country. People who are habitual drinkers always try to violate the law. There should be a need for laws with strict punishments and active enforcement agencies for them. This act draws on criminology from the IPC and Motor Vehicle Act and punishes with fines and imprisonment. Voluntary intoxication is punishable with a fine and imprisonment but involuntary toxication is excusable. The burden to prove his involuntary toxication is on that person alone. For this purpose, one must avoid drunken driving and spread awareness among one’s friends and family. Strict rules for granting licences should be applied to bar owners who sell liquor openly.
References
- https://indiankanoon.org/
- https://lawrato.com/indian-kanoon/ipc/section-304
- https://indiankanoon.org/doc/409589/
- Book – The Indian Penal Code, N.H. Jhabvala
- https://vakilsearch.com/blog/drunk-driving-laws-and-punishment-in-india/#:~:text=IPC%20Section%20185%2C%20Motor%20Vehicles,proper%20control%20over%20the%20vehicle.
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