Intoxication as a Defence in Criminal Law

In India, intoxication is a complete defence only when it was involuntary: the drink or drug was given to the person without his knowledge or against his will, and it left him unable to know the nature of the act or that it was wrong or illegal (section 23 of the Bharatiya Nyaya Sanhita, 2023). If a person got drunk by choice, the law treats him as having the same knowledge he would have had when sober (section 24), though a court may still ask whether he was too intoxicated to form a particular intention. In practice, voluntary drunkenness almost never gets an accused out of a murder charge.

This explainer is for B.A. LL.B. and LL.B. students preparing for criminal law papers, and for any reader who has heard the line "he was drunk, he did not know what he was doing" and wondered whether it works in court. It sets out the statutory text, the leading Supreme Court cases and a simple way to structure an exam answer.

What do the new criminal laws say?

The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023) replaced the Indian Penal Code from 1 July 2024. The intoxication rules sit in Chapter III, General Exceptions, right after the insanity provision in section 22.

• Section 23, BNS (earlier section 85, IPC): "Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will."
• Section 24, BNS (earlier section 86, IPC): where an act is an offence only if done with a particular knowledge or intent, a person who does it while intoxicated "shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated", unless the intoxicant was administered without his knowledge or against his will.

Comparison tables published by government departments mark both sections as carried over from the IPC with no change in substance. So the older case law still applies.

Involuntary and voluntary intoxication: what is the difference?

Think of two students in Nagercoil at a wedding reception.

1. The first student's soft drink is spiked by a friend as a "joke". He becomes disoriented, picks up a stranger's phone believing it is his own, and walks off. If the evidence shows he truly could not understand what he was doing, section 23 can give him a full defence to a theft charge, because the intoxicant was given without his knowledge.
2. The second student drinks heavily by his own choice and then breaks a chair over someone's head. Section 23 does not help him at all. Under section 24, the court assumes he had the knowledge a sober person would have had, for example that a heavy blow to the head is likely to cause death.

Two conditions must both be met for section 23: the intoxication was involuntary, and it caused real incapacity of judgment. Mild intoxication, or being "a bit high", is not enough.

How has the Supreme Court read these sections?

Basdev v. State of PEPSU (1956)

This is the leading case, decided on 17 April 1956 and reported as AIR 1956 SC 488. Basdev, a retired military jamadar, was at a wedding where there had been heavy drinking. He asked a boy of about 15 or 16 to move so he could sit. When the boy did not move, Basdev shot him in the abdomen and the boy died. The question before the Court was whether the offence was murder or only culpable homicide not amounting to murder, given his drunken state.

The Court drew the line that students must remember:

• Knowledge is attributed to the drunk man exactly as if he were sober. The statute says so expressly.
• Intention is different. It is inferred from all the circumstances, and the degree of intoxication is one of them. If a man was not so drunk as to be incapable of forming the intention, the court may presume he intended the natural consequences of his acts.

The Court relied on the House of Lords decision in Director of Public Prosecutions v. Beard [1920] AC 479, which held that drunkenness falling short of a proved incapacity to form intent, and which merely makes a person more easily given to violent passion, does not rebut the presumption of intention. On the facts, Basdev came to the house on his own, chose his own seat, tried to get away after the shooting and, once caught, asked to be forgiven. He could move by himself and talk coherently. That showed he could form an intention. His conviction for murder stood.

Nanhe v. State of Uttar Pradesh (2023)

On 21 November 2023, a bench of Justices Abhay S. Oka and Pankaj Mithal applied the same reasoning. Witnesses said the accused had been drinking, but he walked properly and moved some steps away from a quarrel before coming back and firing the fatal shot. He never claimed he had been drugged without his knowledge. The Court found no evidence that intoxication left him incapable of knowing the nature of his act and upheld the murder conviction, following Basdev.

Who has to prove intoxication?

The accused does. Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 (earlier section 105 of the Indian Evidence Act) says that when a person claims the benefit of a General Exception in the BNS, the burden of proving those circumstances is on him, and the court shall presume they are absent. In real trials this means the defence must bring evidence: who gave the drink, whether the accused knew, medical evidence of his condition and how he behaved before and after the act. Conduct such as running away or hiding a weapon is usually read as a sign that the mind was working.

Where does this stand in 2026?

The text has not changed since 1860 apart from renumbering. Courts continue to cite Basdev, and Nanhe shows the Supreme Court has not softened the approach. The practical position is:

• Involuntary intoxication with proved incapacity: full defence under section 23.
• Voluntary intoxication: no defence on knowledge, and a possible argument on specific intention only if the evidence shows the accused was incapable of forming it.
• Intoxication that leads to a recognised mental illness may raise questions under section 22 (unsound mind), which is a separate exception with its own tests.

If you or a family member is facing a criminal case and cannot afford a lawyer, free legal aid is available through legal services authorities, and students can see how such cases are handled at the college legal aid clinic.

How to write about intoxication in an exam

1. Start with the provisions: quote or paraphrase sections 23 and 24 of the BNS, with sections 85 and 86 of the IPC in brackets.
2. Separate the two situations: involuntary (complete defence) and voluntary (knowledge presumed).
3. Explain the knowledge and intention distinction using Basdev, and mention DPP v. Beard as the English source of the rule.
4. Add the burden of proof under section 108, BSA.
5. Apply the law to the facts in the problem. Look for clues about who supplied the intoxicant and how the accused behaved.
6. Conclude with the likely offence, for example whether it remains murder or falls to culpable homicide not amounting to murder.

Sources

• India Code: The Bharatiya Nyaya Sanhita, 2023: official record of Act 45 of 2023.
• Vidhi Judicial: Section 23, BNS: text of the involuntary intoxication provision.
• Kerala Prisons Department: BNS to IPC comparison: government table mapping sections 22 to 24 BNS to sections 84 to 86 IPC.
• Supreme Court of India: Basdev v. State of PEPSU (1956): full judgment.
• LiveLaw: Nanhe v. State of UP: report of the 2023 Supreme Court ruling on the intoxication defence.
• Vidhi Judicial: Section 108, BSA: burden of proving General Exceptions.