Legal Aspects of Intoxication

Aditya Vikram Yadav
Student

Chapter 1
Abstract
Intoxication as defined in S. 86 has remained a convenient defence in numerous murder cases, as it allows for acquittal in case of temporary insanity due to drunkenness. Through this paper we explore the jurisprudential history and the legal aspect of intoxication and find ways to bypass the landmark judgement of Basdev v. State of PEPSU(1956), which established the doctrine of insanity based on previous English judgements. This paper seeks to find ways for the police to establish guilt in such cases.

S. 86
Scope of Section –
The Indian Courts attribute the same knowledge to an inebriated person as they do to when he is sober. If the man has not gone very deep in drinking, the court can gather from the facts his intention, and whether the act was intended. Therefore, in cases where intention is essential, drunkenness is a defence. This section creates an artificial rule for effect of evidence and significance of facts, and the section must be read as it is and construed strictly. No knowledge or intention further of that of a sober man can be established to an intoxicated person. Drunkenness where not available as a defence can be offered as a mitigator of sentence. The section makes clear that intoxication has no effect on a person’s knowledge, and he must be presumed to cause the consequences of his acts. The difference between S. 85 and S. 86 is essentially based on whether the drunkenness is voluntary or involuntary. The absence of qualifying words in S. 86 cannot lead to the inference that even if the insobriety is not such to impair the reasoning of the offender, the requisite intent cannot be presumed. Where the very nature and essence of the crime is made to depend upon the condition ofthe mind at that time, the fact of intoxication is a proper subject of consideration. There is a clear distinction between mala prohibita and mala inse crimes.

Concept of Intoxication “A person who deliberately drinks himself into an intoxicated state in order to carry out a crime will have no defence” * Common Law Doctrine

Intoxication as a Concept
The topic of intoxication generally falls under the category of defences. In certain instances due to circumstances or other reasons that are beyond an individual’s control he indulges in criminal behaviour. This also forms an integral part of the law because as it is imperative to punish the guilty, not even a single innocent man must be convicted. The defences have been specially formulated so that they are able to meet every circumstance. Though a defence does not rescue an individual from liability totally, it does reduce the severity of his punishment for he can be convicted for culpable homicide not amounting to murder rather than murder. Intoxication is one such defense.
History of Interpretation
We start with the Common Law perspective as it forms the outline for the decision given in Basdev. Criminal Law’s conception of mens rea has tended to concentrate on cognition rather than volition. Thus, the law on intoxication is more concerned with whether A’s power to choose has negatived mens rea than with the question whether his power to choose to cause the harm was substantially reduced.
A Common Law doctrine states - “A person who deliberately drinks himself into an intoxicated state in order to carry out a crime will have no defence”
Lord Denning in Attorney General for Northern Ireland v. Gallagher (1963) said –
“If a man, whilst sane and sober, forms an intention to kill and make preparation for it.... and then gets himself drunk so as to give himself Dutch courage to do the killing, and whilst drunk carries out his intention, he cannot rely on this self induced drunkenness to a charge of murder.” This was also propounded in AG for NI v Gallagher.

But where there is no reason to regard it as involuntary, and has then done something which he wouldn’t have done but for the alcohol. English law treads a fine line between maintaining restrictive rules based on considerations of welfare and reflecting the inexorable logic of mens rea. In O’Grady (1987), the defence said that the accused was under a drunken mistaken belief in the need of self defence, the court said that he couldn’t rely on the mistake if it stemmed from intoxication.
When a person is so drunk so as not to know what he is doing when causing harm to others or damage to property, and yet maintain that there are good reasons for criminal culpability. The main function of criminal law in such cases is to exert a general deterrent effect to protect major social and individual interests, and that any legal system which allows intoxication to negate mens rea would present an easy route to impunity. This is where the English system lacks, as the more intoxicated a person is, the less likely he is to be liable for harm caused.
Thus, we can safely say that both the English and Australian systems are thus, unsatisfactory in their own ways, the English because it deems the intoxicated to be reckless even when they are not, and also as it makes it very difficult for the defendant to raise even a reasonable doubt that he was unaware of what he was doing. And all the proof that is required for proof of intent or recklessness is a momentary realisation that property is being damaged or that a person is being assaulted etc The Australian system on the other hand, because it relies on juries to make covert moral assessments and not simply the factual assessment that the law requires – even if they usually produce socially acceptable outcomes. They apply a normative test rather than a purely factual test.
If we elaborate on the case of DPP v. Majewski, we see that the basic rules on intoxication were laid down by the House of Lords in this case in 1977. The judgement laid down that if a defendant could simply claim intoxication as a defence, and be completely exonerated every crook would have a drink before a crime spree, and then, when arrested claim intoxication and be automatically acquitted. Therefore A defendant can only benefit from a defence based on voluntary or involuntary intoxication if the court is convinced that because of being intoxicated the defendant lacked the required mens rea.
They observed that historically the law of England regarded voluntary intoxication as an aggravation rather than a potential excuse and the development of the law had been by way of a partial, but only a partial relaxation of that common law rule where a specific intent was required.
As in the Caldwell case, the House of Lords created a kind of constructive recklessness, and thus solved the problem of the intoxicated offender. But according to Glanville Williams, the courts had a different solution for intention, employing a totally unsound juristic construction which still remains to disfigure the law. They applied ordinary mens rea principles to ascertain intention even when the defendant was drunk. He says that the simple fact of intoxication does not put the defendant in the clear, so we do not need a rule about the degree of intoxication that has to be regarded.
The intoxicated person, who does a criminal act owing to a mistake of fact is the target of three rules of law. Caldwell may make him constructively reckless as to it, the doctrine of Albert v. Lavin, that a mistaken belief as to a matter of defence cannot be considered unless it is reasonable, may make him guilty of negligence even when the crime requires intention. Further complications are by statutory provisions relating to knowledge or belief. Three questions need to be asked in this respect – i) Does the offence include a requirement of knowledge or belief that a fact exists? ii) Does the issue relate to a definitional element or to a matter of defence? iii) Is the offence of specific or basic intent?
The answers to these three questions will satisfactorily explain whether liability arises, and what liability arises if it even does.
Intoxication and Insanity
The two are treated separately because the former is a knowingly self induced condition. Volition enters into it in a way that it does not in insanity. Also, as insanity can be taken up as a defence in cases of intoxication if such a distinction was not made, the number of cases would increase and wrongful acquittals would be done, as the threat of punishment causes a person to moderate his intake of intoxicants and may cause the intoxicated to control himself for fear of prosecution.
Having said this, drunkenness and insanity can occur together, as in the example of delirium tremens, the symptoms of which can be included as insanity.
The question arising here is whether a person has a defence if he voluntarily intoxicates himself with the intention to commit a crime in a state of insanity? This concept is popularly known as ‘Dutch Courage’. The problem was brought to light in the case of A-G for Northern Ireland v. Gallagherwhere the accused wanting to kill his wife bought a knife and a bottle of whisky. He got drunk on the whisky and killed his wife. He took the defence of insanity due to intoxication which had made him incapable of forming necessary intent at the time of the act. The court of criminal appeal in Northern Ireland reversed the accused conviction from murder on the ground that the judge had misdirected the jury in telling them to apply the M’ Naghten rules, to the accused state of mind at the time before he took the alcohol and not at the time of committing the act.
Also, intoxication causes automatism too. Insanity mentioned here doesn’t apply to M’Naghten rules as here insanity relates to a particular criminal act, whereas getting drunk or causing oneself concussion is probably not a criminal act at all and certainly not concerned with the Indian Penal Code.
Specific and Basic Intention
In the 1920s, it was thought that the law on intoxication needs to be based wholly on the mental element of the person. But some judges were of the opinion that the courts were being far too lenient on intoxication, and therefore they made a novel change to the laws, and identified crimes as being of two types, crimes of specific intent and those of basic intent. The old law of intention would then apply to all cases of specific intent, but in crimes of basic intent, the jury will be instructed not to take evidence of voluntary intoxication into account in deciding the issue of intention. The case of Majewski placed the seal of approval upon this development.
Then came the case of DPP v. Majewski which divided crimes into ‘offences of basic intent’ and ‘offences of specific intent’, and allows intoxication as a defence to the latter. Murder and wounding with specific intent is are crimes of specific intent, and there is no great loss of social defence in allowing intoxication to negative the intent required for those crimes when the amplitude of the basic intent offences like manslaughter and unlawful wounding lies beneath them – ensuring A’s conviction. This rule was slightly modified in Caldwell (1982). The IPC stand is almost universal, like in UK, where S. 6(5) of the Public Order Act 1986 states it.
Conclusion
Looking at such a plethora of cases and comments from legal authorities we can easily conclude that the case of Basdev v. State of PEPSU has been backed by common law doctrines and landmark cases, and is based on sound judgement given the specific facts of the facts and the principles of voluntary intoxication laid down in India and England. Also, we see that the bare reading of the IPC on intoxication can be called in accordance with common law as the rules of voluntary intoxication are very similar. Though it can be said that the rules on intoxication have changed in the past century or so, such a change or transition has been more or less unanimous and has been followed around the world.

Analysis and Conclusion
Through the cases analysed and read during the course of the project and through the various commentaries, essays and books on the doctrine of intoxication read by the researcher, a conclusion has been reached on the basic nature of intoxication cases that heavy intoxication so as to totally negate intention, whether basic or specific should be excusable and should be used as a partial or a complete defence as per the facts and circumstances of the given case. Also, we see that the decision in each case should be on the given facts of the case, as intoxication and its degree, just like intention has to be ascertained from the words and actions of the accused and from the surrounding circumstances in the place of the crime.
In the process of research, the researcher also found that a lot of times the defence of intoxication can be taken falsely and that it is not very difficult to prove the lack of intention owing to heavy intoxication or delirium tremens in most cases. Therefore, it is concluded by the researcher that whenever any relaxation has to be given on the basis of intoxication of the accused, it must be proved beyond reasonable doubt by the accused and the circumstances that he/she was intoxicated and the defence of mistake of fact/insanity etc. should be given in this regard.
Also, it was seen that in many cases, even though the High Courts and Supreme Court have been very strict in dealing with the cases of intoxication, and have not given the defence unless it is proved beyond reasonable doubt, the doctrine established in the Basdev case has indirectly or explicitly espoused a defence even for voluntary intoxication, and thus has provided a considerable loophole in the section for intoxication, and the court is bound to be influenced by such false pleas in lower courts if not the higher judiciary, and therefore a more stringent doctrine and narrower scope needs to be envisaged by the judiciary to plug such a loophole which has come about. Also, as cases in lower courts remain unreported by most journals, such cases can never come up for research and analysis in papers such as this, and such gaps are never noticed by anyone except the bar and the bench.

In successive cases after 1956, High Courts and the Supreme Court have reiterated the relevance of the doctrine of insanity, based on voluntary drunkenness. Such a defence often goes in the favour of the accused, as otherwise irrational and illogical acts precede the act of murder, due to drunkenness. This makes it very simple for the defence lawyers to prove the innocence of the accused, based on the fact that the accused was so drunk out of his mind, that he did not retain the mental capacity to know the result of his actions. The many tools available for the police in this regard are – 1. Witness Accounts 2. Nature of drunkenness of accused based on past records. 3. Weapon used during attack 4. Severity of wounds and probability of death 5. Record of past enmity between accused and victim 6. Account of facts relating to accused after the injury was caused

As has been noticed in many cases, including the 2010 case of Dasa Kandha v. State of Orissa is that the job of the prosecution is limited only to establish a doubt as to the insanity of the accused, and the burden of proof lies upon the defence. Therefore it is very important to convey to the bench as evidence that the accused made rational decisions, or had conversations with others establishing his sanity at or near the time of the murder.
The police needs to take in witness accounts related to i) Manner of speech of the accused(slurry, incorrigible, clear) ii) Body language of the accused iii) Level or degree of alcohol consumption. iv) Evidence of alcohol consumption v) History of alcohol consumption and violent behaviour vi) Past criminal record of the accused and the victim. vii) Background of events leading to murder. viii) Nature and degree of weapon used. ix) Nature of injury caused and physical state of accused during the act. x) Previous animosity between the accused and victim xi) Physical act of the accused after the murder (hiding weapons, acknowledging act etc.) xii) Nature of act. (Acts of diabolic and brutal nature cannot be excused)

In a case where such a defence is taken, it is very important to punch holes in the defence argument based on the facts of drunkenness. A number of cases in this respect have been won on these grounds. It remains essential for the prosecution to bypass the doctrine laid down in the Basdev case, the guidelines of which are being used by courts even today.
Thus, the misuse of such a loophole in the provisions of the IPC should be covered by sound investigation and fact finding which leads to inconsistencies related to the level or degree of drunkenness of the accused, and hence allows the court to reject the use of such a defence to the concerned accused, as temporary insanity due to drunkenness is a provision which is to be used sparingly, as the person committing the act has to have no control over his mental faculties. Thus, it is upto investigation agencies and police forces to plug the misuse of such a provision over and above the Basdev case guidelines.

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[ 2 ]. Basdev v. State of PEPSU , 1956 SC 488.
[ 3 ]. 30 Ind Cas 451.
[ 4 ]. AIR 1929 Lah 433.
[ 5 ]. 28 PR 1917.
[ 6 ]. 30 Ind Cas 451.
[ 7 ]. AIR 1954 MAD 23.
[ 8 ]. S. 408, Bishop’s Criminal Law.
[ 9 ]. ‘n Guilty Men’, Alexander Volokh, Pennsylvania Law Review, 146 University of Pennsylvania Law Review 173 (1997).
[ 10 ]. “Defence to criminal charge based on justification”, Abhyuday Bhotika, CNLU, 2009.
[ 11 ]. Crime and Conciousness : Science and Involuntary Acts, Deborah W. Denno, 87 Minnesota Law Review269, 2002.
[ 12 ]. ‘KENNY’S OUTLINE OF CRIMINAL LAW’, Courtney Stanhope Kenny, Cambridge University Press, 1952.
[ 13 ]. [1961] 3 All Er 299
[ 14 ]. Ibid.
[ 15 ]. Principles of Criminal Law – Fifth Edition, Andrew Ashworth, Oxford, p. 211.
[ 16 ]. UK Law Commission Report No. 314 on Intoxication and Criminal Liability, January 2009.
[ 17 ]. Defence to criminal charge based on justification”, Abhyuday Bhotika, CNLU, 2009.
[ 18 ]. Principles of Criminal Law – Fifth Edition, Andrew Ashworth, Oxford, p.211.
[ 19 ]. William Wilson, Criminal law and theory(London:Longman law series,2003)
[ 20 ]. R v Kingston [1994] HL
[ 21 ]. Caldwell, R v (1982) HL
[ 22 ]. UK Law Commission Report No. 314 on Intoxication and Criminal Liability, January 2009.
[ 23 ]. William Wilson, Criminal law and theory(London:Longman law series,2003).
[ 24 ]. Michael J. Allen, Textbook on Criminal Law, (London: Blackstone Press Ltd., 1999, 5th edn.).
[ 25 ]. Advances in Psychiatric Treatment, Journal of Continuing Professional Development, Quazi Haque and John Cummings, 2003.
[ 26 ]. Crime and Conciousness : Science and Involuntary Acts, Deborah W. Denno, 87 Minnesota Law Review269, 2002.
[ 27 ]. A.P. Simester and G.R. Sullivan, Criminal Law: Theory and Doctrine, (Oxford: Hart Publishing, 2000).
[ 28 ]. 1961 All ERR 299.
[ 29 ]. Crime and Conciousness : Science and Involuntary Acts, Deborah W. Denno, 87 Minnesota Law Review269, 2002.
[ 30 ]. The M'Naghten Rules are used to establish insanity as an excuse to potential criminal liability, but the definitional criteria establish insanity in the legal and not the psychological sense.
[ 31 ]. Crime and Conciousness : Science and Involuntary Acts, Deborah W. Denno, 87 Minnesota Law Review269, 2002.
[ 32 ]. K.D.Gaur, Criminal Law: Cases and Materials, (New Delhi: Butterworths, 1999).
[ 33 ]. Crime and Conciousness : Science and Involuntary Acts, Deborah W. Denno, 87 Minnesota Law Review269, 2002.
[ 34 ]. Majewski, DPP v (1977) HL
[ 35 ]. UK Law Commission Report No. 314 on Intoxication and Criminal Liability, January 2009.
[ 36 ]. Advances in Psychiatric Treatment, Journal of Continuing Professional Development, Quazi Haque and John Cummings, 2003.
[ 37 ]. Ibid.
[ 38 ]. Mavari Satyanarayana v. State of AP 1995 (101) CRLJ 0689 AP
[ 39 ]. Sahadevan v. State of Kerala MANU/KE/0321/2010
[ 40 ]. State of Maharashtra v. Ashok Yashwant Atigre (1986) 88 BOMLR 718
[ 41 ]. Shankar Jaiswara v. State of West Bengal 2007CriLJ3271
[ 42 ]. Dasa Kandha v. State of Orissa 42(1976)CLT499
[ 43 ]. Bablu v. State of Rajasthan RLW 2006 (4) Raj 2686