Section 85 and 86 of IPC enumerates the provision of defence that one could take when he/she does an act contrary to law while being under intoxication. 

The leading case on the defense of drunkenness or being under intoxication is the Director of Public Prosecutions v. Beard." In this case, the defendant, while ravishing a young girl, covered her mouth with his hand to stifle her screaming. In doing so he pressed his thumb on her throat, and as a result, she died of suffocation. The defendant when charged with murder, raised the defense of drunkenness. On appeal by the Director of Public Prosecutions, the House of Lords restored the conviction of Beard for murder.

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Lord Birkenhead L.C., after a comprehensive review of the cases on the defense of drunkenness, laid down three propositions which today form the basis of the law on this subject. They are:

"1. That insanity, whether produced by drunkenness or otherwise, is a defense to the crime charged.

2. That, evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.

3. That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was so affected by drink so that he more readily gave way to some violent passion, does not rebut the pre- sumption that a man intends the natural consequences of his acts. ( [Director of Public Prosecutions v. Beard (1920 A.C. 479 (H.L.).)

Indian law

Section 85

According to section 85, if a person does any act which is wrongful or contrary to law while being intoxicated to such a level that he is unable to judge as to what is wrong or contrary to law, can claim the defence under this section as long such intoxicating article was administered to him without his consent or knowledge. This section focuses clearly on Involuntary Intoxication. If a person voluntarily consumes the intoxicating item, he cannot plead this defence. 

Section 85 states that – 

“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.”

This section can be understood in the following manner- 

Intoxication – A person who is intoxicated possibly loses (partially or completely) certain senses that are necessary for understanding the implications, gravity and consequences of his acts. It is a condition by which a person’s physical and mental capabilities are compromised temporarily similar to an insane person and thus he is not in position to form any mens rea (criminal intent) which is an essential element of a crime. Thus, this exception can be claimed by a person who does any act while being intoxicated, provided, other conditions (mentioned below) are satisfied. 

Level of intoxication- A person pleading this defence should necessarily have been intoxicated to such a level that he is incapable of knowing the nature of the act, or whether or not what he is doing is contrary to law. If he, while committing the act, is aware of the nature and consequence of it, he cannot use this defence of intoxication even if he is intoxicated to some extent. 

Intoxication must be involuntary- This is perhaps the key element of this provision. The person intoxicated must prove that such intoxicating article was administrated to him without his knowledge or will. If this condition would not existed, a person may commit offences under the garb of intoxication. 

Section 86

Section 86 talks about the defence available to an intoxicated person if the act is of such nature that it requires mens rea to amount as an offence. An intoxicated person, practically, may not be even capable of applying his knowledge with regards to his consequences of his actions. However, section 86 clarifies that if a person commits a crime while being intoxicated, such person is assumed to have the knowledge of the nature and consequences of his actions and thus cannot claim any defence unless such intoxicating item is administered to him without his will or knowledge.  

It states – “In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication 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 thing which intoxicated him was administered to him without his knowledge or against his will.

In other words, it can be said that a person who is voluntarily intoxicated shall be assumed to have the knowledge at the time commission of crime if he was not intoxicated.

However, this assumption applies only to knowledge of the person and does not apply to the existence of intention on the part of the intoxicated person. Criminal intention of the accused cannot be presumed but can only be ascertained by the court considering the circumstances and evidence of the case. 

For example, if a person who was intoxicated during the time of the act is accused of stabbing someone, elements like the weapon used by him or how many strikes he made etc is relevant to understand the intention because it becomes relevant. If he has stabbed using a blunt object, it may be inferred that he did not have the intention but if he managed to bring the injured in a secluded place, used the sharpest knife and stabbed multiple times, it may throw light on to intention of actually performing the crime. 

So, it can be concluded that if the intoxication is voluntary, the accused shall be liable for his act anyhow. But if the intoxication is involuntary, court shall presume existence of knowledge for committing the crime. The intention may be understood considering he facts and circumstances of the case.