Project on

“Defence of Intoxication”

SUBMITTED TO: - Associate professor Mohammad Asad Mallik.

FACULTY, Constitutional Law

SUBMITTED BY:- Humanyu Kabeer

ROLL NO – 19

B.A. L.LB. (Self Finance)

SEMESTER IV

BATCH 2017-22

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 Intoxication as a Defence

Introduction

There is general agreement that causing another person's death with deliberate intent is culpable
as one of the most serious offences. This reflects the high value that society puts on each
individual's life and the fact that to kill someone is the most permanent of injuries.

Intoxication is perceived as a state of mind in which a person loses self-control and his ability
to judge. In order for a person escape liability under S. 85 of the IPC on grounds of involuntary
intoxication he must be able to fulfil the following three conditions:

a) The person should be incapable of knowing the nature of the act.

b) The person should be incapable of acting and thinking in a responsible manner and in all
possibility isn’t aware that his act is prohibited by the law.
c) The source of intoxication must have been given forcefully or someone should have induced
the person to consume it.1

Section 85 essentially deals with offences committed under the influence of drugs or alcohol.
Such intoxication should be caused by fraud or coercion and such intoxication should limit his
ability to decide what is right and what is wrong. Section 86 deals with intoxication which is
self- induced. Such intoxication which results in an offence follows the principle that one who
sins when drunk be punished when he is sober.2 For example, if a person who has consumed
too much liquor, takes a knife from his house and goes with the intention to kill a person but
instead kills a person who tried to pacify him, his act would amount to murder once he is sober.
However, in Delirium tremens3, a form of insanity arising out of habitual drinking which makes
a person reach a degree of madness whereby he is incapable of distinguishing between right an

1
Michael J. Allen, Textbook on Criminal Law, (London: Blackstone Press Ltd., 1999, 5th edn.).
2
Qui peccat ebius luat sobrius.
3
Glanville Williams, “Involuntary intoxication ”, (1989) 105 L.Q.R. 387.

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wrong, the disease is perceived as insanity protanto and the person’s case is given the same
treatment as that of a case of involuntary drunkenness.

Intoxication and Intention

In Basdev v. State of Pepsu4 the court said:

“Motive is something which prompts a man to form an intention. Knowledge is an awareness
of the consequences of the act. In many cases intention and knowledge merge into each other
and mean the same thing more or less and intention cam be presumed from knowledge. The
demarcating line between intention and knowledge is no doubt thin but it is not difficult to
perceive that they connote different things.”

a) Intoxication as a denial of mens rea:

The concept of intoxication defense under criminal law is not considered a defense either by
excuse or exculpation. It is more usually considered an aggravating factor that increases the
degree of social disapproval reflected in the sentence imposed by the court.

In the case of A-G for Northern Ireland v. Gallagher5 Lord Denning stated two examples. The
first related to a nurse who got so drunk at a christening ceremony that she put the baby on the
fire thinking it was a log of wood. The second related to an intoxicated person who thought
that his friend lying on the bed was a theatrical dummy and stabbed him to death. According
to Lord Denning there would be a defence to murder in each of these cases. It was stated that
drunkenness makes mistakes much more conceivable.6 In the case of Director of Public
Prosecution v. Beard7 the accused raped and murdered a 13 years old girl and took the plea of
intoxication. It was held that intoxication may only be a basis for defence if the accused was
unable to form mens rea. There have been considerable developments in the field of criminal
law in recent cases such as, Soolkal & another v. The State8, where the court has asked the
accused to show specific evidence that he was intoxicated and lacked mens rea. The court also
stated that the burden of proof in such cases resting on the defendant will not be satisfied only

4
(1974) 3 SCC 490.
5
[1961] 3 All ER 299.
6
Michael J. Allen, Textbook on Criminal Law, (London: Blackstone Press Ltd., 1999, 5th edn.).
7
[1920] 2 All ER 479 (HL).
8
[1999] 1 WLR 2011, PC.

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by offering evidence that the accused had consumed alcohol or by a loss of memory due to
intoxication.

b) Involuntary intoxication is not a defense if mens rea is present:

In R v Kingston9 it was held that involuntary intoxication is no defence to a criminal charge
and is only relevant insofar as it disproves or proves mens rea. An intent produced by the
surreptitious administration of drink or drugs is still a criminal intent. After the judgment of
the case, involuntary intoxication is to be considered as a mitigating factor in sentencing.

The only difficulty arises in the case of the mandatory life sentence for murder where
involuntary intoxication cannot be taken into account at the sentencing stage. It was for this
reason alone that the House had any hesitation in rejecting the creation of a new defence. In
the end Lord Mustill concluded that this was not a sufficient reason to force on the theory and
practice of the criminal law an exception which would otherwise be unjustified.

If a drunk person causes a fatal injury to another he cannot be convicted under s.302 I.P.C as
he did not have the requisite intent to kill but could still be convicted under s. 304 Part II, I.P.C.,
by virtue of imputed knowledge under s. 86 I.P.C..10

Lord Denning has said:

“When people say that a man must be taken to intend the natural consequences of his acts, they
fall into error: there is no ‘must’ about it. It is only ‘may’.

c) The rule laid down in Director of Public Prosecution v. Majewski11:

This is yet another landmark case relating to voluntary intoxication and plea of intoxication as
defence. It was said in this case that evidence of self-induced intoxication negates mens rea if
the offence is of specific intent. In Majewski what the house was dealing with was whether the
house could rely by way of defence on the fact that he had voluntarily taken drink. However
other dictas have suggested that the accused is held liable without the usual mens rea because
he has taken the drink and that in itself is the foundation of liability. Such an approach deems
the defendant’s negligence in becoming voluntarily intoxicated his ‘prior fault’ to be sufficient

9
[1994] 3 All ER 353, HL.
10
Ratanlal and Dhirajlal, The Indian Penal Code, (Nagpur: Wadhwa & co.,13th ed., 2004) pp 124.
11
[1976] 2 All ER 142.

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mens rea for the crime. This is despite the fact that there is no contemporaneity between the
fault in becoming intoxicated and commission of actus reus of the crime. There has been an
alternative view in Majewski which holds that it does not create the rule of substantive law, but
one of evidence. A specific intent offence is one where evidence of voluntary intoxication
negativing mens rea is a defence and designation of crimes as requiring, or not requiring,
specific intent is based on no principle but on policy.12

(c) (i) Law commission’s analysis of Majewski: The Law Commission, having surveyed the
operation on the law on intoxication, considered options for reform of law on the same. The
Law Commission was left with two alternatives.

First that the Majewski distinction should simply be abolished without replacement. The effect
of this would be to return to established principles and to assert that that the defendant should
be acquitted if he lacked the relevant mental element. The other alternative was to go ahead
with the creation of a new offense which the Law commission has preferred to do.

It is submitted that going ahead with the first reform is indicative of the fact that one is diluting
the acknowledged policy that if a defendant causes harm while intoxicated, some criminal
sanction should be imposed, if only for public safety. This might have been a reason for going
for the next option.

The option of creation of a new offense has been recommended before by the Butler Committee
and by a minority of the C.L.R.C. The Law Commission’s preferred option for reform is to
punish those who cause serious harm, while substantially and deliberately intoxicated, even
though the defendant acted in a state of automatism.

Therefore, a possible reason for including automatism could be that if such liability were
excluded, then greater possibility of the defendant being acquitted under the defense of
involuntary intoxication arises.

12
Michael J. Allen, Textbook on Criminal Law, (London: Blackstone Press Ltd., 1999, 5th edn.).

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Thus, Law Commission’s recommendation of the creation of a new offense seems to be a
preferred option as clearly an unqualified abolition of the Majewski rule without replacement
by another offense is not a practicable solution.

d) Forseeability Test:
The presence or absence of liability may be said to rest on a foreseeability test. The fact that
the consumption of alcohol or the ingestion of drugs may cause loss of control is universal
knowledge. Thus, anyone who knowingly consumes such intoxicating substances is, at the very
least, committing a rash and negligent act averse to the possibility of losing control. One
therefore attracts the charge of deliberate intent by consuming substances known to lead to
such consequences. Moreover, loss of control may not be instantaneous and without symptoms.
However, combined with the issue of involuntary consumption, the position becomes quite
contentious. Even states with a strict liability offence excluding drunkenness as a defence
generally require prosecution of the person who laced the drinks without the knowledge of the
person who ultimately consumed it. This general rule may, however, open a Pandora's box with
a convenient justification available even to such offenders who have only marginally exceeded
the prescribed alcohol limit for drivers. In most legal systems, therefore, involuntary loss of
control is restricted to cases where there is no real loss of control and in any case exists with
noticeable symptoms. Thus, for example, many states have prescribed a low threshold for the
blood alcohol level attracting the commission of an offence of driving under the influence of
alcohol so that people may be liable for exceeding the prescribed limit even without the tangible
symptomatic signs. More generally, this defence would be not be available to people
experiencing symptoms of intoxication who continued to consume the laced drink since they
are expected to be aware of the consequences. Equally, they are expected to recognize that they
are affected by an unknown substance and resist from beginning an activity such as driving as
this would fail to attract the defence of involuntary consumption. The basis for law in this area
rests on the principle of the good of the general public as against the rights of an individual
who recklessly exposes the public to danger.13

e) Intoxication and defences:

(i) Statutory defences: In cases where the statute expressly mentions that a particular belief
should be a defence to a charge the Majewski rule does not apply. In English law, the

13
P.S.A. Pillai, Criminal Law, (New Delhi: Butterworths, 2000).

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controversial Jaggard v Dickinson14 held that, for the purposes of the statutory defence of
lawful excuse, a drunken belief will found the defence even though this allows drunkenness to
negate basic intent. This is limited authority and does not affect the generality of the defence.
If the accused in a state of intoxication believes a thing to be his own when it is someone else’s
and destroys it this belief cannot claim a defence as this would be considered an act of
recklessness. However if the accused is under the impression that the thing belongs to a third
person and damages the thing with the consent of the third person he is entitled to a defence[24].

(ii) Common Law defences: The common law goes contrary to statutory defence. Although it
is now settled that when the accused sets up self- defence, he is to be judged on the facts as he
believed them to be, whether reasonably or not and any mistake arising from voluntary
intoxication cannot be relied on as a basis for defence even on charge of murder or other crime
requiring specific intent as in case of O’Grady.15 This was plainly obiter because the appellant
had been acquitted of murder and was appealing against his conviction for manslaughter but in
O’Connor16 the court, inexplicably treated it as binding by quashing the conviction of murder
on another ground. The dictum assumes that if self- defence is a defence to murder it must also
be a defence to manslaughter, but this is not necessarily so because an act done in self-defence
arising from a grossly negligent mistake should be manslaughter by gross negligence.[27]

f) Intoxication induced with the intention of committing crime:

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.
Gallagher17 where 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’ Naughton

14
[1980] 3 All ER 399.
15
1985 QB 995.
16
1991 CLR 135.
17
[1961] 3 All ER 299.

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rules18, to the accused state of mind at the time before he took the alcohol and not at the time
of committing the act.

Intoxication and concurrence

a) Intoxication causes automatism: The accused in a drunken state suffers concussion and
commits an offence in a state of automatism resulting from the concussion. In Stripp19, the
court decided that the accused should be acquitted on grounds of automatism since intoxication
was too remote from the act. The law commission held that the case suggests the possibility
that where there is a course of automatism clearly separable in time or effect from the
intoxication and supported by a foundation of evidence, then a defence of automatism may be
available, but when causal factors are less easily separable it would seem that the presence of
the intoxication will be on policy grounds lead to adoption of Majewski rule to exclude reliance
on automatism.

b) Insanity causes intoxication or automatism: Insanity mentioned here doesn’t apply to

McNaughton 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.20

18
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.
19
(1979) Cr. App R 318.
20
K.D.Gaur, Criminal Law: Cases and Materials, (New Delhi: Butterworths, 1999).

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Conclusion
In different times and in different societies, the response towards public drunkenness has been
on a scale of diametrically opposite attitudes. While certain cultures and societies have
accepted alcohol consumption or drug-taking as a part of their religious or social rites, such
behaviour has attracted an entirely contrary response extending to its denigration as immoral
and sinful. The norms of propriety have therefore always been dynamic and modern law has
therefore appropriately steered clear of reflecting these wavering standards and criminalising
intoxication per se but by adopting the more neutral standards based on whether an act arising
from intoxication was voluntary or involuntary. The viability of any defence of a criminal act
therefore rests on a combination of the voluntary vs. involuntary principle and the universal
knowledge that consumption of intoxicants is likely to induce loss of control. The evolution of
law in this area reflects a careful application of these standards.

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