The Bihar Prohibition Act, 1938

[289 APPENDIX 11 THE BIHAR PROHIBITION ACT, 1938. (Bihar Act VI of 1938). [The assent of the Governor to this Act was published in the Bihar Gazette of the th September, 1938]. An Act to introduce and extend the prohibition of the manufacture, sale and consumption of liquors,

1[tari and intoxicating drugs in the Province of Bihar.

(1) This Act may be called the Bihar Prohibition Act, 1938. (2) It extends to the whole of the province of Bihar. (3) This section and sections 3 and 9 shall come into force in the whole of the Province of Bihar at once. (4) The remaining provisions of this Act, or any of them, shall come into force in any local area in the Province of Bihar on such date as the Governor may, by notification, and different dates, may be appointed for different provisions.

From the date on which any of the provision of this Act mentioned in the first column of the Schedule came into force in any local area, the enactments mentioned opposite such provision in the second column of the Schedule shall cease to be in force in such area to the extent specified in the third Column of the Schedule. Provided that the Governor may, by notification, declare that any of the provisions of this Act mentioned in the first column of the Schedule shall cease to be in force in any local area on such date as may be specified in the notification and thereupon the portions mentioned in the third column of the Schedule of the enactments mentioned opposite any such provision in the second column of the Schedule with any subsequent statutory modifications thereof shall revive and came into force in such area on and with effect from such date.

In this Act. Unless there is something repugnant in the subject or context,- (1) Bottle – “Bottle’ means to transfer liquor from a cask or other vessel to a bottle, jar, flask or pot or similar receptacle for the purpose of sale, whether any process of manufacture be employed or not, and includes rebottling; (2) Buy or Buying – “Buy” or “Buying” includes any receipt including gift; (3) Collector – ‘Collector” means a Collector of land-revenue or a Deputy Commissioner or any person appointed under sub-section (1) of section 5 to exercise all or any of the powers or to perform all or any of the duties of a Collector under this Act; (4) Cultivation – “Cultivation” includes the tending or protecting of a plant during growth and does no necessarily imply raising it from seed; (5) Export – “Export” means – (a) to take out of any local area in which this Act is in force to any other local area in the province of Bihar in which this Act is not in force, or (b) to take out of the Province of Bihar; (6) Import – “Import”’ means- (a) to bring into any local area in which this Act is in force from any other local area in the Province of Bihar in which this Act is not in force, or (b) to bring into the Province of Bihar; (7) Institution – “ Institution” includes clubs, restaurants, hotels and shops where liquor, intoxicating drug or article containing liquor or drug is sold under license; (8) Intoxicating drug. – “Intoxicating drug” means – (i) the leaves small, stalks and flowering of fruiting tops of the Indian hemp plant (Cannabis sativa L.) including all forms known as bhang. siddhi or ganga; (ii) charas, that is, therein obtained from the Indian hemp plant, which has not been submitted to any manipulations other than those necessary for packing and transport; (iii) any mixture, with or without neutral materials, of any of the above forms of intoxicating drug, or any drink prepared there from; and (iv) any other intoxicating or narcotic substance which the Governor may, by notification declare to be an intoxicating drug, such substance not being opium, coca leaf, or a manufactured drug, as defined in section 2 of the Dangerous Drugs Act, 1930 (II of 1930); (9) Liquor- “Liquor” includes spirit of wine, mentholated spirits, spirits, wine, beer and all liquids consisting of or containing alcohol but does not include tari or talras; (10) Local body- “Local body” means a District or Local Board constituted under the Bihar and Orissa Local Self Government Act, 1885 (Ben. Act III of 1885) or a District Committee constituted under the Cess Act, 1880,(Ben. Act IV of 1880), or a Municipality or Notified Area Committee constituted or appointed under the Bihar and Orissa Municipal Act, 1922, (B & O. Act, VI of 1922) or the Jharia Mines Board of Health; (11) Manufacture- “Manufacture” includes every process, whether natural or artificial, by which any fermented spirituous, or intoxicating liquor or intoxicating drug is produced, prepared or blended, and also re-distillation and every process for the rectification of liquor; (12) Officer in charge of a police station- “Officer in charge of a police station” has the same meaning as in the Code of Criminal Procedure, 1898, (V of 1898) and includes any person invested with the powers of an officer in charge of a police- station under section 38; (13) Place- “Place” includes also a house, shed, enclosure, building, shop, tent and vessel; (14) Police-Station- “Police-station” has the same meaning as in the code of Criminal procedure, 1898 (V of 1898); (15) Prohibition authority-“Prohibition authority” means the Prohibition Commissioner, a collector, a Prohibition Superintendent or a Prohibition Officer; (16) Prohibition Commissioner-“Prohibition Commissioner” means the officer appointed to be the Prohibition Commissioner under sub-section (1) of section 5; (17) Prohibition Officer-“Prohibition Officer” means a person appointed to be a Prohibition Officer under sub-section (1) of section 5; (18) Prohibition Superintendent-“Prohibition Superintendent” means a person appointed to be a Prohibition Superintendent under sub-section (1) of section 5; (19) Rectification-“Rectification’ includes every process whereby spirit are purified or are colored or flavored by mixing any material therewith; (20) Sale or Selling- “Sale” or “Selling” includes any transfer including gift; (21) Spirits – “Spirits” means any liquor containing alcohol and obtained by distillation (whether it is denatured or not); Explanation – ‘Denatured” means subjected to a process prescribed by the Governor by notification for the purpose of rendering unfit for human consumption; (22) Talras - “Talras” means juice drawn from a palmyara or date plam tree into and kept in receptacles in the prescribed manner so as to prevent any fermentation of the juice; (23) Tari – “Tari” means juice drawn from a palmyara or date plam tree; and (24) Transport – “Transport” means to move from one place to another within any local area to which this Act applies.

(1) There shall be the following classes of prohibition authorities for the purpose of this Act, namely :- (a) the Prohibition Commissioner ; (b) the Collector ; (c) Prohibition Superintendent, who may be either honorary or stipendiary; and (d) Prohibition Officers, who may be either honorary or stipendiary. (2) (i) the Collector or other Prohibition authority in charge of a district may constitute prohibition committees for any portion or portions thereof. (ii) Such Prohibition committees shall – (a) exercise and perform the prescribed powers and duties, and (b) generally assist the Collector or other Prohibition authority in charge of the district, as the case may be, in carrying out the objects of this Act.

(1) The authorities specified in sub-section (1) of section 4 shall be appointed by the Governor and shall exercise and perform in the prescribed areas the prescribed powers and duties, and their conditions of powers and duties, and their conditions of service (in the case of authorities other than honorary authorities) and their relation to each other shall be such as may be prescribed. (2) The Provincial Government may, at any time, by notification withdraw from any of the said authorities any or all of the powers referred to in sub-section (1).

In the exercise of the powers and the discharge of the duties conferred and imposed on a Prohibition authority under sub-section (1) of section 5, such prohibition authority shall be guided by such orders and instruction as he may from time to time receive from the Provincial Government.

An order passed by a Prohibition authority, other than the Prohibition Commissioner, under any of the provisions of this Act may be revised by the prescribed authority in the prescribed manner.

Whoever – (a) Manufactures liquor; or (b) constructs or works any distillery or brewery; shall be punishable with imprisonment of either description which may extend to one year, or with fine which may extend to two thousand rupees, or with both.

Whoever (a) Import, Exports, transports or possesses liquor; (b) Bottles of any liquor for sale; (c) Sell or buys liquor; (d) Consumes liquor; or (e) Uses, keeps or has in his possession any materials, still, utensils, implement or apparatus whatsoever for the manufacture of any liquor; shall be punishable with imprisonment of either description which may extend to six month, or with fine which may extend to one thousand rupees, or with both.

(1) Whoever – (a) imports, exports, transports or processes any intoxicating drug; (b) except in accordance with rules made by the Provincial Government in this behalf, cultivates the hemp plant or extracts any portion of such plant from which any intoxicating drug can be manufactured; (c) uses, keeps or has in his possession any materials, still, utensils, implement or apparatus whatsoever for the manufacture of any intoxicating drug. (d) sells or buys any intoxicating drug; or (e) consumes any intoxicating drug; Shall be punishable with imprisonment of either description which may extend to six months or with fine which may extend to one thousand rupees, or with both. (2) Whoever manufactures any intoxicating drugs shall be punishable with imprisonment of either description which may extend to one year, or with fine which may extend to two thousand rupees, or with both.

Whoever – (a) imports, exports, transports or possesses talras, (b) bottles talras for sale, (c) sells or buys talras, or (d) consumes talras except at a place specified in a permit granted for the sale of talras under clause (b) of sub-section (1) of section 31;

Whoever- (a) imports, exports, transports or possesses tari; (b) bottles tari for sale; (c) sells or buys tari; or (d) consumes tari;

Whoever- (a) taps any tari-producing tree or permits to be tapped any tari producing tree belonging to him or in his possession; or (b) draws tari from any tree or permits tari to be drawn from any tree Belonging to him or his possession; Shall be punishable with imprisonment of either description which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Nothing contained in sections 8,9,10,11,12 or 13 shall apply to any act, done under and in accordance with the provisions of this Act, or the terms of any rule, notification or order, license or permit issued. there under.

It may be presumed until the contrary is proved, that a person accused of any offence under clause (e) of section 9, or clause (c) of sub-section (1) section 10 has committed such offence in respect of any stills, utensils. Implement or apparatus whatsoever for the manufacture of liquor or any intoxicating drug or any such materials as are ordinarily used for the manufacture of liquor or any intoxicating drug for the possession of which he is unable to account satisfactorily.

When the provision of sections 8,9,10,11 or 12 are brought into force in any area, the Provincial Government may issue a permit to any person who was lawfully in possession on the day before such section was so brought into force of any article, the possession or sale of which is prohibited by the said section, to possess and sell such articles within such period and subject to such condition as may be specified in the permit.

Provincial Government may issue a permit to any person to manufacture liquor in any distillery and to sell or export any liquor so manufactured to such persons or to such areas and subject to such condition as may be specified in the permit.

Whoever renders or attempts to render fit for human consumption any sprit, whether manufactured in India or not, which has been denatured, or has, in his possession, any spirit in respect of which he knows or has reason to believe that any such attempt has been made, shall be punishable with imprisonment of either description which may extend to six months, or with fine which may extend to one thousand rupees, or with both. For the purposes of this section, it shall be presumed, until the contrary is proved, that any sprit which is proved on chemical analysis to contains any quantity of any of the prescribed denaturants is or contains or has been derived from denatured spirit.

Whoever prints or publishes in any newspaper, book, leaflet, booklet or any other single or periodical publication or otherwise displays or distributes any advertisement or other matter commending, soliciting the use of, or offering any liquor, tari or intoxicating drug other than liquor, tari or drugs exempted under section 28 shall be punished with fine which may extend to one thousand rupees: Provided that this section shall not apply to – (a) catalogues or price lists which may be generally or specially approved by the Prohibition Commissioner; (b) any advertisement printed and published in a newspaper before the first day of November, 1938; (c) any bona fide scientific opinion expressed on the medicinal value of tari or any specified liquor or drug.

Any officer or person exercising powers under this Act, who – (a) without reasonable ground of suspicion, searches or causes to be searched any place, or (b) vexatiously and unnecessarily seized the property of any person on the pretence of seizing or searching for anything liable to confiscation under this Act, or (c) vexatiously and unnecessarily detains, searches or arrests any person, or (d) in any other way maliciously exceeds or abuses his lawful powers, shall be punishable with imprisonment of either description which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

Any officer or person exercising powers under this Act, who vexatiously and unnecessarily delays forwarding to the officer in charge of the nearest police station as required by section 39 any person arrested or any article seized under this Act, shall be punishable with imprisonment of either description which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

Any officer or person exercising powers under this Act, who – (a) unlawfully releases any person arrested under this Act, or (b) abets the escape of any person arrested under this Act, or (c) abets the commission of any offence against this Act, and Any other officer of the Crown or of a local body who abets the commission of any offence against this Act, shall be punishable with imprisonment of either description which may extend to six months, or with time which may extend to five hundred rupees, or with both.

Whoever is guilty of any willful Act, or intentional commission in contravention of the provisions of this Act, or of any rule, notification or order made or any permit or license issued there under and not otherwise provided for in this Act, shall be punishable with fine which may extend to two hundred rupees.

Where any offence against this Act, is committed in any area in which it is in force, whoever commits, or attempts to commit, or abets the commission of, any of the Acts, making up the offence shall be liable to be punished therefore, whether such commission, attempt or abetment takes place within or outside such area.

When an offence has been committed against this Act, the liquor, tari, talras, intoxicating drug, materials, still, utensils, implement, or apparatus in respect of or by means of which the offence was committed shall be liable to confiscation along with the receptacles, packages, covering, animals, vessels, carts or other vehicles used to hold or carry the same: Provided that no animal, vessel, cart or other vehicle as aforesaid shall be liable to confiscation unless the owner thereof is proved to have been implicated in the commission of the offence.

(1) When the offender is convicted or when the person charged with an offence against this Act, is acquitted, but the Court decides that anything is liable to confiscation such confiscation may be ordered by the Court. (2) When an offence against this Act, has been committed but the offender is not known or cannot be found, or when anything liable to confiscation under this Act, and not in the possession of any person cannot be satisfactorily accounted for, the case shall be inquired into and determined by the Magistrate or Prohibition authority, and the Magistrate or such Prohibition authority may order such confiscation: Provided that no such order shall be made until the expiration of three months from the date of seizing the things intended to be confiscated or without hearing the persons, if any, claiming any right thereto, and evidence, if any, which they may produce in support of their claims.

All offences under this Act, shall be cognizable, and subject to the provisions of this Act, the provisions of the Code of Criminal Procedure, 1898 (V of 1898), with respect to cognizable offences shall apply to them.

(1) The Governor may, by notification and subject to such conditions as may be specified in such notification, exempt tari or any specified liquor or intoxicating drug or article containing such liquor or drug from the observance of all or any of the provisions of this Act, on the ground that such liquor, drug or article is required for a medicinal, scientific, industrial or such like purpose. (2) When issuing a notification under sub-section (1), the Governor shall have power to provide that a breach of any of the conditions subject to which the exemption is granted shall be punishable with imprisonment of either description which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Until the Governor by notification otherwise directs, the provisions of this Act, shall not apply - (a) to liquor or intoxicating drugs in the possession of bonafide travelers coming from an area in which this Act, is not in force and going to an area in which this Act, is not in force while such travelers are passing through any area in which this Act, is in force, if such liquor or intoxicating drugs are intended for the personal use of such travelers; Provided that a person shall not be deemed to be a traveler for the purposes of this clause if he remains in an area in which this Act is in force for a period exceeding forty-eight hours exclusive of the time taken in travelling through such area; and (b) to lawful consignments of liquor or intoxicating drugs carried by a railway administration or by any steamer, ferry or other means of transport through or into any area in which this Act, is in force.

The Provincial Government or, subject to the control of the Provincial Government, the Collector may issue licenses to any person or in respect of any institution, whether under the management of Government or not, for the manufacture, export, import, transport, sale or possession of any liquor, intoxicating drug or article containing such liquor or drug, on the ground that such liquor, drug or article is required by such person or in respect of such institution for a bonafide medicinal, scientific, industrial or such like purpose: Provided that when any liquor, intoxicating drug or article containing such liquor or drug has been obtained by any person for a bonafide medicinal purpose from any person or institution licensed to sell the same under this section, it shall not be necessary for such person to obtain a license for the possession of the same.

(1) Subject to the control of the Provincial Government, the Collector or any officer empowered by him may grant – (a) license for the tapping of any Palmyra or date palm tree for juice intended be used as talras or for the manufacture of gur; or (b) Permits for the possession, transport or sale of talras. (2) When a permit is granted under clause (b) of sub-section (1) for the sale of talras, any person may consume talras sold in accordance with such permit at the place specified in such permit.

The Provincial Government or any officer empowered by them in this behalf may grant- (a) permits authorizing any person to consume and possess for personal consumption any liquor or intoxicating drug; (b) licences to any institution to possess liquor and issue it to such of its members as hold permits under clause (a); and (c) licences to any person in charge of restaurants attached to a railway train, steamer or ferry to possess liquor and serve it to bonafide passenger travelling by such train, steamer or ferry.

The Provincial Government may, by notification, declare that liquor or intoxication drug required by persons other than Musalmans for bonafide religious purposes to be specified in such notification shall be exempt from all or any of the provisions of this Act, subject to such conditions and restrictions as may be specified in such notification.

The privisions of this Act, shall not apply to the brewing, possession or use of wine by Roman Catholics and members of the Church of England for the purposes of mass and Holy Communication in such quantity, to such an extent and under such condition as may be prescribed by the Provincial Government.

Every licence or permit granted under section 30, 31 or 32 shall- (1) be granted on payment of such fees, if any, for such period, and subject to such restriction and limitations and on such conditions. (2) be in such form and contain such particulars, as the Provincial Government may direct either generally or in any particular case.

(1) The Collector may cancel or suspend any licence or permit granted under sections 30, 31 or 32- (a) If any fee payable by the holder thereof is not duly paid; or (b) In the event of any breach by the holder of such licence or permit or by his servants or by any one acting with his express or implied permission on his behalf, or any one of the terms or conditions of such licence or permit; or (c) If the holder thereof is convicted of any offence against this Act, or of any cognizable and non-boilable offence; or (d) If the conditions of such licence or permit provide for its cancellation or suspension at will; or (e) If the purpose for which the license or permit is granted ceases to exist. (2) The Provincial Government may cancel or suspend any such license or permit without assigning any reasons.

In the event of any breach by the holder of any licence or permit granted under sections 30, 31 or 32 or by his servants or by any one acting with his express or implied permission on his behalf, of any or the terms or conditions of such licence or permit, such holder shall, in addition to the cancellation or suspension of the licence or permit granted to him, be punishable with imprisonment of either description which may extend to six months, or with fine which may extend to one thousand rupees, or with both, unless he shall establish that all due and reasonable precautions were exercised by him to prevent any such breach. Any person who commits any such breach shall, whether he acts, with/without the permission of the holder of the licence or permit, be liable to the same punishment.

The Provincial Government may, by notification, invest any of the Prohibition authorities specified in section 4 with all or any of the powers or duties conferred or imposed by the code of Criminal Procedure, 1898 (V of 1898), on the officer in charge of a police-station in respect of investigations, arrests, searches, seizures and detention in custody for offences under this Act, and may, in such notification, specify the area within which such authority shall exercise such power: Provided that such power shall not be conferred on any officer whose rank is lower than that of sub-inspector.

(1) Any officer or person authorized by the Provincial Government in this behalf may- (a) arrest without warrant any person committing within his view an offence punishable under sections 8,9,10,11,12 or 13; (b) seize and detain any tari, liquor, intoxicating drug or other article which he has reason to believe to be liable to confiscation under this Act; and shall when he so seizes such article, give to the person from whom such article is seized a receipt for the same; Provided that if the officer or person making the arrest under this section is not empowered to admit to bail, such officer or person may, if he is satisfied as to the identity of the person arrested, release him on his executing a bond in an amount not exceeding Rs. 200 for his appearance before a Police officer or Magistrate having jurisdiction to inquire into the case or forthwith forward him to the nearest Police-station. (2) Any person authorized by the Provincial Government under this section, who seized or detains any article under clause (b) of sub-section (1) shall forward such article without unnecessary delay to the officer in charge of the nearest police-station.

Every officer of the Crown and every officer or servant of a local body shall be legally bound to assist any Prohibition authority or Police Officer in Carrying out the provisions of this Act.

Every village chaukidar and dafadar shall be bound to give immediate information at the nearest police station or to a Prohibition authority of any breach of any of the provisions of this Act which may come to his knowledge; and all such officers and servants shall be bound to take all reasonable measures in their power to prevent the commission of any such branches which they may know or have reason to believe are about or likely to be committed.

Every person who occupies any land or building or who is a landlord of an estate, residing in the village, on or in which there shall be any tapping for tari or manufacture of any liquor or intoxicating drug not authorized by a permit or license issued under this Act, shall, in the absence of reasonable excuse, be bound to give notice of the same to a magistrate or to a Prohibition authority or to an officer of the Police as soon as such tapping or manufacture shall have come to his knowledge.

A Police Officer or any Prohibition authority vested with the powers of an officer in charge of a police-station shall, instead of summoning to appear before him any person who, from sickness or other infirmity, may be unable so to do or whom, by reason of rank or sex, it may not be proper to summon, proceed to the residence of such person and thereto require him to answer such questions as he may consider necessary with respect to such inquiry; and such person shall be bound so to answer accordingly.

(1) The provincial Government may make rules for the purpose of carrying into effect the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing provision, the Provincial Government may make rules- (a) For the issue and cancellation of licences and permits and the enforcement of the conditions thereof and the fees to be paid for such licences and permits; (b) prescribing the powers to be exercised and the duties to be performed by paid and honorary prohibition authorities in furtherance of the objects of this Act, the area in which such powers and duties shall be exercised and performed, the conditions of service of such authorities and their relation with each other; (c) determining the local jurisdiction of Police Officers and Prohibition authorities in regard to inquiries and the exercise of preventive and investigating powers; (d) authorizing any officer or person to exercise any power or perform duty under this Act; (e) prescribing the powers and duties of prohibition committees and the members thereof and intervals at which the members of such committees shall make their reports; (f) regulating the delegation by the Prohibition Commissioner or by Collectors or other District Officers of any powers conferred on them by or under this Act; (g) prescribing the manner in which receptacles, into which talras may be drawn or kept, shall be treated so as to prevent fermentation; (h) regulating the cultivation of the hemp plant, the collection of those portions of such plant from which intoxicating drugs can be manufactured and the manufacture of such drugs there from; (i) declaring how denatured spirit shall be manufactured and what substances shall be deemed to be denaturants; (j) declaring by what authorities orders passed by any prohibition authority other than the Prohibition Commissioner may, be revised and prescribing the time and manner of presenting applications for revision under section 7, and the procedure for dealing therewith; (k) for the grant of travelling and other allowances to witnesses, and of compensation for loss of time to persons who are arrested and released on the ground that they have been improperly arrested and to persons charged before a Magistrate with offences under this Act and acquitted; (l) for the disposal of articles confiscated and of the proceeds thereof; and (m) prescribing the quantity and the extent to which and the conditions under which wine may be brewed, possessed or used for the purposes of section 34.

All rules made under this Act shall be published in the Bihar Gazette and, upon such publication, shall have effect as if enacted under this Act.

No action shall lie against the Crown or against any Prohibition authority or Prohibition Committee, or against any Police or other Officer, for damages in any Civil Court for act in good faith done or ordered to be done in pursuance of this Act.

(See Section 2) Provision of this Enactment repealed. Extent of repeal. 1. Subs. by Bihar Act 6 of 1939. Act brought into force. [304 Excise Laws of Bihar 1 2 3 Section 8 ... The Bihar and Orissa Excise Act So far as they relate 1915 and all enactments, other to liquor. than the Dangerous Drugs Act, 1930 amending the Bihar and Orissa Excise Act, 1915. Section 9 ... The Bihar and Orissa Excise Act, So far as they relate 1915, and all enactments, other to liquor. than the Dangerous Drugs Act, 1930, amending the Bihar and Orissa Excise Act, 1915. Section 10 ... The Bihar and Orissa Excise Act, so far as they relate to 1915, and all enactments amending intoxicating drugs. the said Act. Section 11... The Bihar and Orissa Excise Act, So far as they relate 1915, and all enactments amending to tari. the said Act. Section 12... The Bihar and Orissa Excise Act, So far as they relate 1915, and all enactments amending to tari. the said Act.