85(1) filed by police for drinking in a roadside restaurant

Originally posted by : Pune Maharashtra
	I got caught for drinking/ sitting with a beer bottle in a enclosed shop in Pune on 8th Dec, 2019... When I was about to start drinking. Police did the check up in hospital and doctor said no consumption of alcohol but was in a place not meant for drinking with drinks. I was called by police after a month and to my surprise, they filed a FIR with IPC 85(1) I went to the court today and found a lawyer to represent my case. Now that I have searched what are the punishments are for IPC 85(1), I am shocked with the details of imprisonment. My lawyer told I am out on a 5000/- bail and will be asked to visit court around twice after a month and will be relieved. I wanted to post it to wider legal advisers, if section 85(1), will surely fetch imprisonment? I am not sure if it's bail, or simply an amount submitted… lawyer didn't explain properly

generally no imprisonment implied on this case

just you may need fine and get relief

The court is not that unkind when you are enjoying peaceful drinks without disturbing public and you can easily be let off with fine if you appear to be fine in your conduct before the court.  Now, I understand as to how a constable can become a millionaire within a decade of reporting to duty.

The offence alleged cannot be Section 85(1) IPC. It could be Section 85(1) Bombay Prohibition Act. Please verify.

Your lawyer is the best person to guide and advise, local laws apply in your case.

The relevant Section is reproduced below.  

85 (1) Whoever, in any street or thoroughfare or public place or in any place to which the public have or are permitted to have access, behaves in a disorderly manner under the influence of drink shall, on conviction, be punished,--

(a) for a first offence, with rigorous imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees;

Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such imprisonment shall not be less than three months and fine shall not be less than five hundred rupees; and

(b) for a Subsequent offence, with rigorous imprisonment for a term which may extend to one year and also with a fine of one thousand rupees:

Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than six months and fine shall not be less than one thousand rupees.

(2) In prosecution for an offence under Sub-section (1), it shall be presumed until the contrary is proved that the person accused of the said offence has drunk liquor or consumed any other intoxicant for the purpose of being intoxicated and not for a medicinal purpose.

In view of the discretion denied to the Court, except in exceptional cases,  not to impose imprisonment the matter need to be contested. However, you may enquire as to the practice prevalent at present, esp. in Pune. If, as a matter of routine, only fine is imposed, you have the option to plead guilty, if so advised and of no adverse consequences. 

It is matter of procedure followed in criminal courts that the accused need to take bail on the first appearance. This is a matter of routine, but cumbersome, as the accused need to furnish security or surety, and expensive, as this is a source of easy money for the advocate and his clerk. I have serious doubts as to the legitimacy of this procedure. It could be that this is a malpractice without any legal sanctity.

According to my understanding the essence of booking cases depends only on this context:  'behaves in a disorderly manner'

Member has not stated such instance in FIR.

If possible get CCTV footages if available.

Bombay prohitbition act section 85 PENALTY FOR BEING DRUNK AND FOR DISORDERLY BEHAVIOUR;

2[(1) Whoever, in any street or thoroughfare or public place or in any place to which the public have or are permitted to have access, behaves in a disorderly manner under the influence of drink shall, on conviction, be punished,-

(a) for a first offence, with rigorous imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees;

Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such imprisonment shall not be less than three months and fine shall not be less than five hundred rupees; and

(b) for a subsequent offence, with rigorous imprisonment for a term which may extend to one year and also with a fine of one thousand rupees:

Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the Judgment of the Court, such imprisonment shall not be less than six months and fine shall not be less than one thousand rupees.]

3[(2) In prosecution for an offence under sub-section (1), it shall be presumed until the contrary is proved that the person accused of the said offence has drunk liquor or consumed any other intoxicant for the purpose of being intoxicated and not for a medicinal purpose.]

You may first deny the allegations and challenge the case before trial court and try to get acquitted through an expert lawyer.

Originally posted by : Pune Maharashtra
	Police did the check up in hospital and doctor said no consumption of alcohol

INTROSPECT ON THIS:
1. You are NOT eligible /entitled to be punished for the offence for which Police filed matter in the court, more so specifically since the Doctor has certified that "no alcohol in your breath /blood".  Doctor's certificate is legally conclusive & irrefutable, in such matter.

2. Being present in any public accessable place is "No Offence". BUT being under influence of alcohol & conducting improper behavior would be a prosecutable offence.

3. By virtue of above, Alcohol was not detected in your breath /blood, HENCE offence u/s 85 CANNOT be legally enforceable.

4. CONCLUSION:  Obtain "certified copy" of the said Doctor's report, and file "quashing application" in the High Court, wherein you will get 100% success.

Keep Smiling .... Hemant Agarwal
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