Bihar Prohibition and Excise (Amendment) Act, 2018

Which sections of the 2016 act does the amendment delete?

The 2018 Amendment deletes five sections from the act. These are: Section 35 – Penalty for committing fraud; Section 38 – Penalty for possession or knowledge of possession of intoxicant; Section 53 – Enhanced punishment after previous conviction; Section 64 – Collective fine; and Section 66 – Externment etc of notorious or habitual offenders.

Section 35 defined the notion of fraud in manufacturing and selling liquor, and laid down a penalty of imprisonment for least ten years and a fine of at least one lakh rupees for the same. Section 38 criminalised unlawful possession of intoxicants, or intoxicants that had been unlawfully purchased, manufactured, or transported. It set a punishment of imprisonment for a minimum of 8 years, and a fine of 10 lakh rupees.

Section 53 laid down that if a person was guilty of committing the same offence for which he had been once convicted, then the punishment for the second offence would be twice the punishment declared for the first offence. Section 64 empowered district collectors to issue collective fines to villages or localities that had been violating the law continually or habitually. Section 66 empowered district collectors to order habitual offenders to leave the district for a specified amount of time. It also empowered them to demand notification of the offenders' movements or to restrict their activities or occupations, or to intern them in the nearest de-addiction centre.

These sections were either in clear violation of fundamental rights guaranteed by the Constitution of India, or laws regarding them has already been laid down in other penal provisions.

In Section 32 of the 2016 act, officials had the authority to presume that possession of any liquor, without a valid explanation, is an offence. Moreover, if an offence is committed inside a house, then officials could presume that all adults occupying the premises would have knowledge of the offence.

However, the 2018 Amendment removes this presumption by amending Section 32. Now, according to Section 32, officials may presume an offence when liquor is found within the premises without justification. However, every adult in the premises would not be automatically held liable.

Who is held liable for unlicensed manufacture, sale, possession of liquor and other intoxicating substances?
The 2016 act laid down that owners of any land or building on which “any liquor or intoxicant or other excisable item is manufactured, sold, bottled, possessed, stored, consumed or any excisable plant is cultivated” would be held liable.

This amendment changes the word “owners” to the word “occupiers”. As defined in the Factories Act, 1948, an occupier is someone who is in control of the premises. Therefore, the occupier of the premises or their agents would be held liable.

Which offences are bailable according to the 2018 Amendment?

The 2016 Act classified all offences as cognizable and non-bailable. However, as per changes brought in by the amendment, an offence committed for the first time under Section 37(1), that is, consumption of liquor in any place or being found drunk in any place is bailable. Further, an offence committed under Section 54, that is, failure by occupier to disclose information about illegal intoxicants on premises is also bailable.

By how much does the amendment lower the penalty for consumption of liquor?

For a first-time offence of consumption of liquor or intoxicant and being found drunk in any place, the amendment lowers the penalty to only a fine of no less than fifty thousand rupees or a three month imprisonment in lieu of it. For subsequent offences, the person shall be punishable with a term of one to five years with a fine extending up to one lakh rupees. In the 2016 act, the penalty laid down was a prison term of five to seven years and a fine of one to ten lakh rupees.

For the offence of causing nuisance or violence while being drunk or facilitating drunkenness, the amendment lays down a penalty of five to ten years of imprisonment and a fine of one to five lakh rupees. The 2016 act had specified a term of ten years to life and a fine of one to ten lakh rupees.

Focus by Manas Pimpalkhare.