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Petitioner seeks for a declaration that Section 145(a) of the Railways Act, 1989, is unconstitutional as it is enacted in violation of Articles 14, 19 and 21 of the Constitution of India. Petitioner also seeks for a direction to read down the aforesaid provision to apply only to a situation where a person, ‘in a state of intoxication’, commits any nuisance or acts mentioned in clause (b) or (c) of Section 145 of the Act and a complaint is made by a co-passenger to take action under the provision. The grievance of the petitioner is based on the absence of any definition for the term “state of intoxication” in the aforenoted provision.
Petitioner is the Managing Director of a Tour and Travel company, formed for promoting tourism. According to the petitioner, since he has to attend several meetings and conferences, he may have to occasionally indulge in consuming alcohol in small quantities and may have to travel by train to reach home, thereafter. While so, it came to his knowledge from the media that the Southern Railways had launched a drive to check drunken passengers within the railway premises and on trains and to book them for offences. It was also learnt that the Railway Protection Force personnel had been provided with breath analysers and that they have been asked to strengthen their vigil against inebriated passengers.
The aforesaid news stirred the righteous indignation of the petitioner, resulting in this writ petition, challenging the provisions of Section 145(a) of the Railways Act 1989, (for short, ‘the Act’). Petitioner alleges that the term “in a state of intoxication” is not defined and, therefore, a person, even if found in the railway premises after having consumed alcohol, cannot be removed or be compelled to discontinue his travel. According to the petitioner, such arbitrary action on the part of the Railway Protection Force would result in discontinuance of the travel plans of various passengers and even affect their free movement.
A counter affidavit has been filed on behalf of respondents 2 to 6 stating that the petitioner has no locus standi and further that, the provision has been enacted to maintain law and order and to eliminate untoward incidents and crimes within the premises of the railway administration by persons who are found in a state of intoxication. Respondents have stated that instances of lady passengers being attacked and subjected to serious assaults, including rape, have occurred and, therefore, in order to ensure the safety and security of passengers, and to strengthen law and order within the railway premises, including trains, such powers are required to be exercised. The respondents also pleaded that investigations into untoward incidents of drunken persons falling down from trains and the commission of crimes by other persons have all revealed that the majority of them were found to be in a state of intoxication and it is in such circumstances that the railway administration decided to intensify the enforcement of the impugned provision. The Railways have further asserted in their counter affidavit that a person who is incapable of looking after himself in a state of intoxication would be subjected to a breath analyser test to ascertain whether he is drunk and, if he is found positive, he would be apprehended for being prima facie in a state of intoxication under Section 145(a) of the Act. It is also pleaded that to assess the level of intoxication, he would thereafter be subjected to a medical examination by a competent doctor and only subsequently would proceedings be initiated for an offence under the Act. According to the respondents, these provisions are intended for public good and not to harass any passenger, and the special power is intended in the interest of passengers.
An additional counter affidavit has also been filed pointing out that, pursuant to the order of the Division Bench of this Court dated 04.04.2023, the Railway Board had issued a Security Circular No.2/2023 dated 14.09.2023, giving guidelines through directions to the Railway Protection Force, as to the mode in which Section 145(a) has to be implemented.
Sri. Arun Raj S., the learned counsel for the petitioner, submitted that Section 145(a) is unconstitutional since an uncontrolled and unbridled power has been conferred upon the Railway Protection Force to remove any person from its premises or from the trains on identifying him as being “in a state of intoxication” without any specific parameters. Relying upon the judgment in Kanaka Durga Wines and Others v. Government of A.P. and Others [1995 SCC OnLine AP 159], the learned counsel submitted that the expression “state of intoxication”, being a term of ambiguous import, if the Railway servant is conferred with the power of removing any person from its premises, it would confer absolute powers, thereby intruding into the right to personal liberty of every individual. Hence, the provision ought to be declared unconstitutional.
Sri. T.C. Krishna, the learned Standing Counsel for the Railways, submitted that the entire challenge in this writ petition is only an academic exercise as the petitioner has no locus standi even to file this writ petition as he has not been personally subjected to any proceedings. It is further submitted that the railway premises and the trains are all specific areas where the comfort and convenience of other passengers will also have to be ensured by the Railway Protection Force so as to prevent unwanted elements from interfering with the comfort of other passengers. It was also submitted that only if a person is found to be in a state of intoxication, which is initially identified through the breath analyser, will he be removed from the premises and be subjected to a medical test and, if found positive, would any criminal proceedings be initiated. The learned counsel submitted that unless such powers are vested with the Railway Protection Force, it would cause serious prejudice not only to the comfort of other passengers but also create a law and order situation inside the train and within the railway premises.
Sri. Unni Sebastian Kappen, the learned Government Pleader, also submitted that in order to ensure the safety of passengers, especially women and children, such powers are necessary to be conferred upon the Railway Protection Force. It was also submitted that, unlike areas such as roads or other places, a train, being a specialised mode of travel in a public vehicle, the provision cannot be said to be arbitrary or unreasonable.
On a consideration of the above contentions, the following question arises for determination:
Whether Section 145(a) confers arbitrary and unreasonable power upon the Railway Protection Force?
It is necessary to extract Section 145(a) of the Railways Act which reads as below:
“145. Drunkenness or nuisance.—
If any person in any railway carriage or upon any part of a railway— (a) is in a state of intoxication; or (b) commits any nuisance or act of indecency or uses abusive or obscene language; or (c) wilfully or without excuse interferes with any amenity provided by the railway administration so as to affect the comfortable travel of any passenger,he may be removed from the railway by any railway servant and shall, in addition to the forfeiture of his pass or ticket, be punishable with imprisonment which may extend to six months and with fine which may extend to five hundred rupees; Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such punishment shall not be less than—
(a)a fine of one hundred rupees in the case of conviction for the first offence; and
(b)imprisonment of one month and a fine of two hundred and fifty rupees, in the case of conviction for second or subsequent offence.”
Though the contention of the petitioner that the degree of intoxication can vary considerably and, in the absence of a proper definition, the provision confers arbitrary power seems impressive at first blush, on a careful reading of the provision, it is evident that the power is conferred on a railway servant to remove a person from the railway carriage or any part of the railway premises if the person is in a state of intoxication. The initial appreciation of the ‘state of intoxication’ only results in removal of the person, which may have to be followed by a prosecution to end in conviction. At the stage of initial removal, a railway servant may be able to analyse the person only by using a breath analyser and not by conducting a blood test. At the stage of removal from a railway carriage or from the premises, if a blood test is stipulated, the same would lead to an anomalous situation where such a test would have to be carried out within the railway carriage or inside the premises itself, even before the person is removed. Such a process is practically impossible to comply with, as the analysis of the blood may take a few hours.
Apart from the above, in the Security Circular No.02/2023 dated 14.09.2023 issued by the Ministry of Railways, it is evident that, before invoking Section 145(a), proper identification and assessment of persons suspected to be in a state of intoxication have to be based on physical observation of their appearance and behaviour, which discloses reasons to believe that the person is in a state of intoxication, and a prima facie assessment is to be made. Various methods of identification have also been specified therein as indicative signs. The circular lays down following methods as identifying factors of intoxication:
Appearance Behaviour 1 Bloodshot, glassy, or watery eyes 23 Unable to sit straight 2 17ushed face 24 Swaying, staggering, or stumbling 3 Droopy eyelids 25 Careless with money 4 Blank stare or dazed look 26 Restless 5 Twitching or body tremors 27 Depressed or sullen 6 Disheveled clothing 28 Crying or moody 29 Extreme or sudden change in behavior Speech 30 Overly animated or entertaining 7 Thick, slurred speech 31 Crude, inappropriate speech or gestures 8 Loud, noisy speech 32 Drowsiness or falling asleep 9 Speaking loudly, then quickly 33 Lack of focus and eye contact 10 Rambling train of thought 34 Difficulty standing up 11 Unusually fast or slow talking 35 Unusual walk 12 Slow response to question or 36 Can't find mouth with glass comments 13 Repetitive statements 37 Falling down or falling off of chair 14 Bravado boasting 38 Clumsy 15 Making irrational statements 39 Difficulty in remembering/recall 40 Disorientated Attitude 41 Agitated, anxious 16 Annoying other co 42 Grinding teeth passengers/railway users/employees 17 Argumentative 43 Vomiting 18 Aggressive or belligerent 19 Obnoxious or causing nuisance Other 20 Inappropriate sexual advances 44 Odor of alcohol, marijuana or chemicals 21 Over friendly to other guests or 45 Excessive perspiration Employees 22 Boisterous 46 Repeated trips to rest room or outside area
Note: These are only indicative signs. If a person shows just a few of these signs it does not necessarily mean that the person is in a state of intoxication. But, where the combinations of these signs make it apparent or there is a visible change in his/her behavior he/she may be considered for examination on other parameters to establish that the person is in a state of intoxication.
Above all, if a person is found taking any drug (defined under NDPS Act) or liquor (Alcohol based) in train or in passenger area he may be considered for invoking Section 145(a) of the Railways Act.
Besides, the above following actions in this regard are also suggested in better interest of Public and Passengers.
(i) Verbal Intervention:
Initially, attempt should be made to communicate with the intoxicated passenger calmly and politely reminding him about the rules and regulations regarding behavior on trains and railway premises. The passengers should be informed of the potential risks associated with his behavior and requested for his cooperation in maintaining a safe and peaceful environment.
(ii) Assistance and Guidance:
If the intoxicated passenger is cooperative, he should be provided with assistance and help for contacting relatives or friends, or arranging for medical help if necessary. He should be encouraged to consume water or non-alcoholic beverages to help in sobering up.
(iii) Escalation and Action:
In cases where an intoxicated passenger becomes unruly, aggressive, or poses a threat to the safety of others, any railway servant should take necessary steps to remove the passenger from the train or railway premises and hand over the intoxicated passenger to the authorities concerned with all relevant documents i.e., complaint, arrest memo (if arrested), seizure (if any) etc. for taking legal actions as the case may be.
(iv) Sensitivity and Professionalism:
While dealing with intoxicated passengers, a high level of professionalism and empathy should be maintained and RPF personnel should refrain from using excessive force unless absolutely necessary for restraining or arresting an unruly passenger by following established protocols to ensure the safety of all parties involved.”
If any of the above visible signs are existent on a person, he will be considered for examination on other parameters to establish that the person is in a state of intoxication. Therefore, sufficient procedure has been laid down to avoid any arbitrariness, while identifying a person as intoxicated.
In this context, it needs to be mentioned that the grievance of the petitioner is that the manner in which the provision could be implemented is arbitrary. It is a settled principle of law that the manner of implementing a provision cannot render the provision itself unconstitutional and, in appropriate cases, as and when instances of arbitrary exercise of power arise, the aggrieved will always have a remedy before a court of law.
A provision in the nature of Section 145(a) of the Act is a recognition of the requirement of ensuring public order and safety and the comfort of other passengers inside a railway carriage and also premises of the railway. In the absence of such a provision in the statute, it would render a chaotic atmosphere inside the railway station and within the railway carriage. In such circumstances it cannot be held that the provision is arbitrary or unconstitutional. The procedural safeguard against intrusion into the personal liberty of an individual is only an apprehension of the petitioner. In fact, the petitioner has not even been subjected to any such arbitrary exercise of power and nor has any instances even been narrated.
In view of the above, I find no merit in this writ petition, and it is dismissed.
APPENDIX OF WP(C) NO. 6451 OF 2012
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE NEWS PAPER REPORTS
EXHIBIT P2 TRUE COPY OF THE PRINT OUT OF THE JUDGMENT DATED 21-04-1995 OF THE FULL BENCH OF HIGH COURT OF ANDHRA PRADESH
RESPONDENT EXHIBITS
EXHIBIT R2A TRUE COPY OF SECURITY CIRCULAR NO. 02/2023 DATED 14.9.2023 ISSUED BY THE RAILWAY BOARD