The second view is that the punishment of one who drinks an intoxicant falls under discretionary punishment, which may not be reduced below forty lashes, since this is the lowest number reported concerning it. However, the ruler may increase it if he sees that the public interest requires this. They cite the following evidence:
First: Allah did not mention its prescribed punishment in the Quran.
Second: The Prophet, peace and blessings be upon him, did not specify its prescribed punishment in the sunnah. Rather, he said, “If he drinks, then flog him; then if he drinks, flog him; then if he drinks, flog him” (1), without specifying a number.
Third: When a drinker was brought before the Companions, may Allah be pleased with them, they would rise and strike him with palm branches, sandals, the ends of cloaks, their hands (2), and the like. Had this been a prescribed punishment that could not be exceeded, it would have had to be regulated, rather than allowing everyone who came forward to strike.
Fourth: When the Companions, may Allah be pleased with them, deliberated during the caliphate of Umar, may Allah be pleased with him, after people had become frequent in drinking it, Abd al-Rahman ibn Awf, may Allah be pleased with him, said: “The lightest of the prescribed punishments ...”