Definition
A defence under Section 28 BNS under which involuntary intoxication (administered without the person's knowledge or consent) may negate criminal liability if it rendered the person incapable of knowing the nature of the act — voluntary intoxication is generally not a defence.
Section 28 BNS 2023 (formerly Section 85 IPC) creates a very limited intoxication defence. The key distinction: (a) Involuntary intoxication — without the accused's knowledge or against their will — is treated like unsoundness of mind: if it rendered the person incapable of knowing the nature of the act or its wrongfulness, it is a complete defence. (b) Voluntary intoxication — self-induced by the accused's own choice — is generally not a defence. However, even voluntary intoxication may be relevant to specific intent crimes: if the specific mental element required for the offence (e.g., premeditation for murder) could not have been formed due to extreme intoxication, the accused may be convicted of a lesser offence (e.g., culpable homicide not amounting to murder).
Statutory Definition
Section 28, Bharatiya Nyaya Sanhita (BNS), 2023 (formerly 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.'
Etymology & Origin
From Latin 'intoxicare' (to poison, to drug) from 'in' (into) + 'toxicum' (poison, from Greek 'toxikon' — arrow poison). Legal intoxication is a state induced by substance — alcohol, drugs, or other intoxicating agents — that affects cognitive function to the extent that the affected person cannot form or maintain the mental state required for criminal liability.
Full Legal Analysis
Intoxication: A Narrow Defence for Involuntary Drugging
The intoxication defence is deliberately narrow in Indian law. The policy rationale: a person who voluntarily gets drunk takes the risk of what they might do in that state — they cannot later claim the drunkenness as an excuse. Society does not protect people from the foreseeable consequences of their own voluntary choices. Only where intoxication was forced upon the person — where they had no choice — does the law treat it as negating criminal responsibility.
Involuntary vs. Voluntary Intoxication
(a) Involuntary intoxication (Section 28 BNS): If someone slips drugs or poison into another's drink or food without their knowledge, and the drugged person then commits an act in that state, they have a complete defence if they were incapable of knowing the nature or wrongfulness of the act. This is equated with the insanity defence — the person's cognitive capacity was equally destroyed by external interference. (b) Voluntary intoxication: No complete defence under BNS — a person who gets drunk by their own choice is presumed to have foreseen the possible consequences. However, voluntary intoxication may: (i) negate specific intent in crimes requiring a specific mental element (e.g., under Section 86 IPC, now contained in relevant BNS provisions — a drunken person may be incapable of 'intention' but not 'knowledge'); and (ii) be relevant to the degree of culpability in homicide cases (e.g., reducing murder to culpable homicide).
Intoxication Doesn't Negate Knowledge: Section 86 IPC Context
A key principle preserved from Section 86 IPC (similar provision in BNS context): even when intoxicated, a person who commits an act is deemed to have had the same 'knowledge' as they would have had if they were not intoxicated. Drunkenness does not eliminate 'knowledge' — only 'intention' is affected by voluntary intoxication. This distinction between knowledge and intention determines whether a drunk person is charged with the intention-based or knowledge-based form of an offence.
“Voluntary drunkenness is not an excuse — a person who chooses to drink must answer for what they do in that state. But no person should be held accountable for an act committed under the influence of substances administered to them by another. That involuntary loss of control is as complete as insanity — and the law treats it the same way.”
This Term in Indian Statutes
Bharatiya Nyaya Sanhita, 2023, 2023
"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."
Intoxication defence: only involuntary intoxication is a complete defence — voluntary drunkenness is not
