Excise Act, 1958 (1901 A.d

(1) This Act may be cited as the Jammu and Kashmir Excise Act, 1958. (2) It extends to the whole of the territories of the State. (3) It shall come into force in any local area within the said territories to such extent and from such date as the Government by notification shall direct.

From the date on which this Act comes into force in any local area, the enactments, rules and regulations governing the Excise revenue at present in force shall be repealed: Provided that all licences granted under any of the said enactments, rules and regulations in force on the date on which this Act comes into force in any local area, shall continue in force for the periods for which the same have been respectively granted, subject to the provisions of the enactments, rules and regulations under which such licences were granted: Provided further that the said repeal shall not affect any act done or any offence committed, or any proceeding commenced, or any claim which has arisen, or any penalty which has been incurred before this Act comes into force.

In this Act, unless there be something repugnant in the subject or context, -- (1) "Excise revenue" means revenue derived or derivable from any duty, fee, tax, fine or confiscation imposed or ordered or the penalty imposed consequent upon breach of any agreement, under the provisions of this Act or of any other law for the time being in force relating to liquor or intoxicating drugs. (2) (a) "Commissioner" means any person appointed by the Government to exercise the functions of Commissioner under this Act; (b) "Deputy Commissioner" means any person appointed by the Government to exercise the functions of the Deputy Commissioner under this Act in any province; (c) "Excise and Taxation Officer" means any Officer or person appointed, or invested with powers, under this Act. (2-a) "Denatured/Methylated Spirit" means spirit effectually and permanently rendered unfit for human consumption. (3) "Liquor" means intoxicating liquor and includes spirits of wine, methylated spirits, spirits, wine, beer and all liquids consisting of or containing alcohol; also any substance which the Government may by notification in the Government Gazette declare to be liquor for purposes of this Act. (5) Beer includes ale, stout, porter, cider and all other fermented liquors usually made from malt. (8) "Opium" means-- (i) the capsules of the poppy (papaver somniferum L), whether in their original from or cut, crushed or powdered and whether or not juice has been extracted there from; (ii) the spontaneously coagulated juice of such capsules which has not been submitted to any manipulations other than those necessary for packing and transport; and (iii) any mixture, with or without neutral materials, of any of the above forms of opium but does not include any preparation containing not more than 0.2% of morphine or a manufactured drug as defined in section 2 of the Dangerous Drugs Act, 1930 (Central Act 2 of 1930). (9) "Intoxicating drug" includes opium, charas, ganja, bhang and every other preparation and admixture of the same and every intoxicating drink or substance prepared from any part of the hemp plant, from the grain or from other material, not included in the term "Liquor". (10) "Sale or selling" includes any transfer otherwise than by way of gift. (10-a) Liquor and intoxicating drugs other than prepared opium and dangerous drugs shall be deemed to be sold "by retail" when sold in quantities not exceeding the quantity (if any) fixed in respect of the same by rules made under this Act as the largest which may be possessed by one person, at one time, without a licence, permit or pass; and "by wholesale" when sold in quantities larger than the above. (11) "Import" means to bring into the State territory from any other part of India. (12) "Export" means to take out of the State territory to any other part of India. (13) "Transport" means to move from one place to another within the State territory. (14) "Manufacture" includes every process, whether natural or artificial by which any fermented, spirituous or intoxicating liquor, or intoxicating drug is produced or prepared, and also re-distillation and every process for the rectification of liquor. (15) "Rectification" includes every process whereby spirits are purified or are coloured or flavoured by mixing any material therewith. (17) "Imprisonment" includes both simple and rigorous. (18) "Molasses" means the heavy dark coloured viscous liquid produced in the final stage of manufacture of gur or sugar containing, in solution or suspension sugars which can be fermented, and includes the solid form of such liquid and also any products formed by the addition to such liquid or solid of any ingredient which does not substantially alter the character of such liquid or solid and from which the wash is prepared but does not include any article which the State Government may, by notification in the Government Gazette, declare not to be molasses for the purpose of this Act.

The Government may by notification in the Government Gazette declare what, to be "country liquor" and "foreign liquor".

(1) The Government may appoint such officers as it thinks fit to be Commissioner, Deputy Commissioners, and Excise and Taxation Officers; and the officers so appointed shall exercise such powers as may be conferred and perform such duties as may be required by or under this Act. (2) Notwithstanding anything contained in sub-section (1) the Government may appoint any person as Joint Commissioner Enforcement to exercise powers under the provisions of the Act as it may, by notification, in the Government Gazette specify and also appoint such other persons to assist him as it deems fit.

(1) The Government may delegate any of the powers conferred by section 4 to any of the officers named therein, and may further empower them to appoint such other servants as are necessary for the carrying out of this Act. (2) Every person appointed in exercise of such delegated power may be suspended or dismissed by the officer who appointed him.

(1) Subject to the control of the Government and unless the Government by notification otherwise directs the general superintendence and administration of all matters, relating to Excise shall vest in the Commissioner. (2) Subject to the general superintendence and control of the Commissioner and unless the Government by notification otherwise directs, the Deputy Commissioner shall control all Excise and Taxation Officers in his division.

An appeal shall lie from an order passed by-- (i) an Excise and Taxation Officer to the Deputy Commissioner; (ii) a Deputy Commissioner in exercise of his original jurisdiction to the Commissioner: Provided that the appeal is preferred within sixty days from the date of order.

(1) The Commissioner may, suo moto, at anytime or on an application made to him in this behalf, call for the record of any proceedings which are pending before, or have been disposed of by any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of such proceedings or of any order made therein and may pass such orders in relation thereto as he may deem fit: Provided that the application shall be made within a period of ninety days of the date of taking of the proceeding or of passing of the order, as the case may be. (2) The authority passing an order may review such order or that of its predecessor whether suo moto or at the instance of the aggrieved party: Provided that an order passed in review shall not be subject to further review by the same authority: Provided further that a review petition submitted by an aggrieved party will be admissible only if-- (a) there are some new facts or circumstances warranting reconsideration of the order; or (b) there has been a mistake or error apparent on the face of the record; or (c) for any other sufficient reasons. (3) Applications for review may before submission of appeal be preferred to the authority which passed the original order by a person who on account of some mistake or error apparent on the face of record or for any other sufficient reason desires to obtain review of the order passed against him. (4) The period of limitation for any application for review shall be thirty days. (5) No order shall be made under this section which adversely affects the rights of any person upon whom an obligation is imposed by or under this Act, without giving such person a reasonable opportunity of being heard.

No liquor or intoxicating drugs shall be imported into the Jammu and Kashmir State except:-- (a) after payment of any duty to which it may be liable under this Act, or execution of a bond for such payment, and (b) in compliance with such conditions as the Government may impose.

No liquor or intoxicating drug shall be exported unless it has been lawfully imported or manufactured in the State, and its export is permitted by competent authority on payment of the fee or duty, if any, to which it is liable under any law for the time being in force.

The Government may from time to time, by notification in the Government Gazette, prohibit the transport of liquor or intoxicating drugs from any local area into any other local area.

No liquor or intoxicating drug exceeding such quantity as the Government may from time to time prescribe by notification, either generally for the whole State or for any local area, shall be transported, except it be accompanied by a permit issued under the provisions of the next following section: Provided that in case of foreign liquor transported for bona fide private consumption or for sale at any place at which the sale of such liquor is duly licensed or permitted under the provisions of this Act, such permits shall be dispensed with, unless the Government shall by notification otherwise direct with respect to any local area.

Permits for the transport of liquor or intoxicating drugs may be issued by the Commissioner or by any person duly empowered in that behalf by him. General and special permits.--Such permits shall be either general for definite periods and kinds of liquor or intoxicating drugs, or special for specified occasions and particular consignments only.

Each permit shall specify:-- (a) the name of the person authorised to transport liquor or intoxicating drugs, (b) the period for which the permits is to be in force, (c) the quantity and description of liquor or intoxicating drugs for which it is granted, (d) any other particulars which the Government may prescribe. General permits shall be granted only to persons licensed under this Act and shall cover any quantity of liquor or intoxicating drugs transported at any one time within the quantity specified in the permit. Permits shall extend to and include servants and other persons employed by the grantees and acting in their behalf.

No liquor, or intoxicating drug shall be manufactured; no hemp or coca or poppy plant shall be cultivated; nor shall the spontaneous growth of the hemp plant be collected; no distillery, or brewery, or other place for the manufacture of liquor of any kind shall be constructed or worked; and no person shall use, keep or have in his possession any material, still, utensil implement or apparatus whatsoever for the purpose of manufacturing any liquor, or intoxicating drug, except under the authority and subject to the terms and conditions of a licence granted by the Commissioner in that behalf: Provided that the Government may, by notification, direct that in any local area it shall not be necessary to take out a licence for the manufacture of liquor for bona fide home consumption or for the growth of the poppy or hemp plant or the manufacture of opium for sale to vendors licensed for the sale, manufacture or export of intoxicating drugs: Provided also that it shall be competent to the Government at anytime to restrict or prohibit the manufacture, possession or sale of any kind of liquor or intoxicating drugs in any local area of the territories of the State.

(1) No person shall export, import, transport, sell or possess any quantity of molasses without a licence in accordance with sub-section (2) of this section. (2) The State Government may, by order, authorise Excise Commissioner or any other officer subordinate to him to grant licence(s) for the export, import, transportation, sale or possession of molasses.

No person shall possess any quantity of liquor or of any intoxicating drug in excess of such quantity (if any) as the Government may from time to time prescribe by notification unless he is licensed by the Commissioner to collect, cultivate, manufacture or sell the same or holds a pass from the Commissioner in that behalf.

No person shall have in his possession:-- (a) any unused and printed label, cork, capsule or seal, duly approved by the Commissioner under this Act or under any rule or order made thereunder for use by a person licensed to establish or work in a distillery or brewery; or (b) any other label, cork, capsule, or seal which is an imitation of such unused and printed label, cork, capsule or seal as specified in clause (a): Provided that nothing herein shall apply to:-- (i) a person licensed to establish or work in a distillery or brewery or who is incharge of the Jammu and Kashmir Excise Department Ware-house at Jammu or Srinagar; or (ii) a person who, in the execution of an order received from a person specified in sub-clause (i), manufactures or prints such labels, corks, capsules or seals.

(1) The Commissioner may, with the previous approval of the Government,-- (a) establish or license the establishment and running of a warehouse wherein intoxicants may be deposited and kept without payment of duty; (b) discontinue any warehouse so established or licensed; (c) establish or license the establishment of a distillery or a brewery for manufacture of liquor or beer, as the case may be; and (d) discontinue any distillery or brewery so established or licensed. (2) No intoxicant shall be removed from any distillery or brewery or warehouse established or licensed under this Act unless the duty, if any, payable under this Act has been paid in respect thereof.

No liquor or intoxicating drug shall be sold without a licence from the Commissioner: Provided that,-- (a) a person licensed under section 11 of this Act to cultivate the hemp plant may sell without a licence those portions of the plant from which any intoxicating drug can be manufactured to any person who deals in the same and is licensed under this Act or to any officer whom the Commissioner may appoint in this behalf; (b) nothing in this section shall apply to the sale of any foreign liquor lawfully procured by any person for his private use and sold by him or on his behalf or on behalf of his representatives-in-interest upon his quitting a station or after his demise.

(1) Notwithstanding anything to the contrary contained in any other law, rule, order, agreement or any other instrument or any order, judgment or decree of any Court the Government shall regulate the sale of country liquor in the State by auctioning or operating departmental vends the country liquor shops on such conditions and for such period as it may deem fit: Provided that the departmental shops existing for the sale of country liquor at the time of first auction shall continue to run at such places and for such period as may be specified by the Government by a special or general order. (2) Any agreement or instrument executed, any letter of intent or order issued by the Government relating to manufacturing, bottling or sale of country liquor before the commencement of the Jammu and Kashmir Excise (Amendment) Ordinance, 1985 (II of 1985) shall be and shall always be deemed to have been without effect.

It shall be lawful for the Government to grant to any person or persons, on such conditions and for such period as may seem fit, the exclusive or other privilege-- (1) of manufacturing or supplying by wholesale, or (2) of selling by retail, or (3) of manufacturing or supplying by wholesale and selling by retail, any country liquor or intoxicating drug within any local area. No grantee of any privilege under this section shall exercise the same until he has received a licence in that behalf form the Commissioner.

A duty shall, if the Government so direct, be levied on all liquor and intoxicating drugs manufactured in the territories of the State or imported into or exported from the State of such amount as the Government may from time to time prescribe: Provided that it shall be lawful for the Government to exempt any liquor or intoxicating drug from any duty to which the same may be liable under any of the provisions of this Act.

No liquor, whether manufactured in the State or imported, shall be purchased, stored or sold in the State unless the label of such brand is approved by the Commissioner subject to such conditions as may be laid down by him and on payment of such fee as the Government may, by notification in the Government Gazette, specify from time to time.

Such duty may be levied in one or more of the following ways:-- (a) by duty of excise to be charged, in the case of spirits or beer, either on the quantity produced in the distillery or brewery or passed out of the distillery, brewery or warehouse or imported into or exported from the State, as the case may be; (b) in the case of intoxicating drugs, by a duty to be rateably charged on the quantity produced or manufactured or passed out of the ware-house or on the acreage cultivated; (c) by payment of a sum in consideration of the grant of any exclusive or other privilege-- (1) of manufacturing or supplying by wholesale, or (2) of selling by retail, or (3) of manufacturing or supplying by wholesale, and selling by retail any country liquor or intoxicating drug in any local area and for any specified period of time, (d) by fees on licences for manufacture or sale; (e) by transport duties assessed in such manner as the Government may direct; (f) by duty on bottling of liquor.

All or any of the duties leviable under this Act in any local area may, with the sanction of the Government, be framed subject to such payment and on such other conditions as the Government shall prescribe. Farmers of duties under this section shall take out licences as such from the Commissioner.

In the absence of any contract or condition to the contrary, any grantee of any exclusive or other privilege may let or assign the whole or any portion of the privilege or form. But no such lessee or assignee shall exercise any rights as such unless and until the grantee or farmer, as the case may be, shall have applied to the Commissioner for a licence to be given to such lessee or assignee, and such lessee or assignee shall have received the same.

(1) Every licence or permit granted under this Act shall be granted-- (a) on payment of such fees (if any), (b) for such period, (c) subject to such restrictions and on such conditions, and (d) shall be in such form and contain such particulars, as the Government may direct, either generally or in any particular instance, in this behalf. (2) The Government may, by order, delegate all or any of its powers under sub-section (1) to the Commissioner subject to such conditions, if any, as be specified in the order.

Every person taking out a licence under this Act may be required to execute a counterpart agreement in conformity with the tenor of his licence and to give such security for the performance of his agreement as the Commissioner may require.

The Commissioner may cancel or suspend any licence or permit granted under this Act-- (a) if any fee or duty payable by the holder thereof be 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, of any 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 any other law for the time being in force relating to the Excise revenue, or of any cognizable or non-bailable offence; or (d) where a licence or permit has been granted on the application of the holder of an exclusive or other privilege, or of a farmer of duties under this Act, on the requisition in writing of such person; or (e) if the conditions of the licence or permit provide for such concealment or suspension at will; or (f) if the holder of the licence or permit resorts to illegal transportation of liquor from the distillery.

Every person who manufactures liquor or sells country liquor under a licence granted under this Act shall be bound-- (a) to supply himself with such of the prescribed instruments for testing the strength of such liquor as the Commissioner may direct and to keep the same in good condition, and (b) on the requisition of any officer of the Excise Department duly empowered in that behalf, at any time to measure out or to test the strength of any such liquor in his possession in such manner as the said officer may require.

All duties, taxes, fines and fees payable to the State direct under any of the foregoing provisions of this Act or of any licence or permit issued under it, and all amounts due to the State by any grantee of a privilege, or by any farmer under this Act, or by any person on account of any contract relating to the Excise revenue, may be recovered from the person primarily liable to pay the same or from his surety (if any), as if they were arrears of land revenue, and, in case of default made by a grantee of a privilege or by a farmer, the Commissioner with the approval of the Government may take the grant or farm under management at the risk of the defaulter, or may declare the grant or farm forfeited re-sell it at the risk and loss of the defaulter. When a grant or farm is under management under this section, the Commissioner may recover any monies due to the defaulter by any lessee or assignee as if they were arrears of land revenue.

Notwithstanding anything contained in this Act, if any tax or other amount due under this Act is not paid by the licensee or other person, from whom it is due within the time specified for the payment therefor or within a period of three months from the date of demand whichever is earlier, the licensee or other person from whom the tax or other amount is due shall be liable to pay in addition to the tax or amount due, a sum equal to 2% of such tax or amount for each month or part thereof after the period specified for its payment.

Any amount of duty, tax, fine or fee paid by any person which was not payable under this Act shall be refunded to such person along with interest for the period of default at the rate of 2% per month: Provided that if such amount has been recovered by the said person from any other person then such other person only shall be entitled to refund: Provided further that if any amount has been refunded to a person who is not entitled to it, it shall be recovered from him as arrears of land revenue.

The Government may from time to time frame rules-- (a) for determining the number of licences of each description to be granted in any district or place; (b) for regulating the number, size and description of stills, utensils, implements and apparatus to be used in any distillery; (c) prescribing the instruments to be used in the testing of liquor and the tables of corrections according to temperature to be used therewith; (cc) prescribing of procedure for regulating the vending of country liquor through auction; (d) prescribing the measures to be used for the sale of country liquor; (dd) prescribing the type and description of bottling liquor and regulating other conditions relating thereto; (e) fixing for any local area the maximum or minimum price above or below which any liquor or opium shall not be sold; (f) for the warehousing of liquor and intoxicating drugs and for the removal of the same from any warehouse in which they are deposited for deposit in any other warehouse or for local consumption or for export; (g) for the inspection and supervision of stills, distilleries, private warehouses and breweries; (h) for the management of any public distillery or public warehouse established under section 13; (i) for placing the growth of the poppy or hemp plant and the preparation of intoxicating drugs and the storage, import, export, possession or transport of liquor or intoxicating drugs under such supervision and control as may be deemed necessary for the purpose of this Act; (j) prohibiting the use of any article which the Government shall deem to be noxious or otherwise objectionable in the manufacture of liquor or any intoxicating drugs; (k) for the grant of batta to witnesses summoned before Magistrate or Deputy Commissioner under this Act; (l) regulating the powers of the officers of the Excise Department to summon witnesses; (ll) prescribing and limiting the powers and duties of Excise and Taxation Officers and regulating the delegation of duties to and by such Officers; (m) for the disposal of the articles confiscated and of the proceeds thereof; (n) for the grant of rewards to Excise and Taxation Officers and other persons who have assisted in the detection or conviction of offences against this Act; (o) generally to carry out the provisions of this Act or of any other law for the time being in force and relating to the Excise revenue.

If any Magistrate or Deputy Commissioner upon information given by an officer of the Excise Department or by a Police Officer or other person, and after such inquiry as he thinks necessary, has reason to believe that an offence under this Act has been committed and that the issue of a warrant is necessary to assist in its detection, he may issue a warrant for the search for any liquor, or intoxicating drug, materials, still, utensil, implement or apparatus in respect of which the alleged offence has been committed.

When any Revenue Officer not below the rank of a Naib-Tehsildar or a Police Officer not below the rank of Sub-Inspector or any officer of the Excise Department not below the rank of Inspector in any locality to which this Act applies has reasons to believe that an offence under this Act has been committed, and that if steps are taken to obtain a search warrant under the last preceding section, it is likely to go undetected, he may, after recording his reasons and the grounds of his belief, at any time by day or night, enter and search any place and may seize anything found therein which he has reason to believe to be liable to confiscation under this Act and may detain and search and, if he thinks proper arrest any person found in such place whom he has reason to believe to be guilty of any offence under this Act.

Any officer of the Excise Department not below the rank of Inspector or any other officer as may be empowered by the Government may enter and inspect at any time by day or by night, any place in which any licensed manufacturer carries on the manufacture of any liquor or intoxicating drugs or stores any liquor or intoxicating drug; and may enter and inspect, at any time during which the same may be open, any place in which any liquor or intoxicating drug is kept for sale by any licensed person, and may examine, test, measure or weigh any materials, stills, utensils, implements, apparatus, liquor or intoxicating drug found in such place.

If any officer empowered to make any entry under the provisions of the last two preceding sections cannot otherwise make such entry, it shall be lawful for him to break open any outer or inner door or window and to remove any other obstacle to his entry in to any such place.

(1) Any Excise and Taxation Officer, any Police Officer not below the rank of Head Constable and any other person or class of persons duly empowered by the Government in this behalf may arrest without warrant any person found committing an offence punished under section 48, section 50 or section 50-A and may seize and detain any liquor, drug or other article which he has reason to believe to be liable to confiscation under this Act or any other such law and may detain and search any person upon whom, and any vessel, raft, boat, vehicle, animal, package, receptacle or covering in or upon which, he may have reasonable cause to suspect any such liquor or drug or other such article to be or to be concealed. (2) Any person other than an Excise and Taxation Officer lawfully arresting a person shall immediately take him along with liquor, drug, or other article so seized or detained before the nearest Inspector Excise and Taxation who shall at once take charge of the accused and the articles so seized or detained. The time taken in bringing the accused to the Inspector Excise and Taxation, shall not be included in the period of twenty-four hours prescribed by section 37. The Inspector Excise and Taxation on taking charge of the accused shall hold such enquiry as he may think necessary: Provided that the Deputy Commissioner may of his own motion or on the application of the accused transfer the case for enquiry to any other officer not below the rank of an Inspector under him and such officer shall be deemed to have arrested the accused and shall proceed in the aforesaid manner. (3) (i) Every Excise and Taxation Officer making an enquiry as aforesaid shall day by day enter his proceedings in the enquiry in a diary, setting forth the time at which the information reached him, the time at which he began and closed his enquiry, the place or places visited by him and a statement of the circumstances ascertained through his enquiry. (ii) Any criminal Court may send for such diaries of a case during the course of an enquiry or trial in such Court, and may use such diaries, not as evidence in the Court but to aid in such enquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court, but if they are used by the Excise Officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such Excise Officer, the provisions of the Evidence Act, contained in section 161, or section 145, as the case may be, shall apply. (4) The Government may by a general or special notification invest any police officer in-charge of a police station or attached to it, not below the rank of a sub-inspector with powers exercisable by an Excise Inspector under the Excise Act.

Any person who may be accused or reasonably suspected of committing an offence under this Act, and who on demand of Excise and Taxation Officer or of any other person duly empowered, refuses to give his name or residence, or who gives a name or residence which such officer or person has reason to believe to be false, may be arrested by such officer or person in order that his name and residence may be ascertained.

All searches under the provisions of this Act shall be made in accordance with the Criminal Procedure Code, 1989: Provided that, for the purposes of conducting searches under this Act for the words, "inhabitants of the locality in which the place to be searched is situate" occurring in section 103 of the said Code the words "respectable persons" shall be deemed to have been substituted.

All officers of the Police and Revenue Departments and all village headmen and Choukidars shall be legally bound to assist any Excise and Taxation Officer in carrying out the provisions of this Act.

Every officer employed by the State other than an Excise and Taxation Officer, shall be bound to give immediate information to an Excise and Taxation Officer, and every Excise and Taxation Officer shall be bound to give immediate information either to his immediate official superior or to a Deputy Commissioner of all breaches of any of the provisions of this Act which may come to his knowledge; and all such officers shall be bound to take all reasonable measure in their power to prevent the commission of any such breaches which they may know or have reason to believe or about or likely to be committed.

All Zamindars, proprietors, tenants, under-tenants and cultivators who own or hold land on which there shall be manufacture of liquor, growth of the poppy or hemp plant or manufacture of intoxicating drugs not licensed under this Act or in accordance with its conditions shall in the absence of reasonable excuse, be bound to give notice of the same to a Magistrate or to an Excise and Taxation Officer immediately the same shall have come to their knowledge.

(1) Where any Excise and Taxation Officer has reason to believe that poppy or hemp plant is unlawfully grown or cultivated, he or any other officer authorised by the Government in this behalf, shall seize, confiscate and destroy such plant in the presence of a Judicial Magistrate or an Executive Magistrate. (2) Any action taken under sub-section (1) shall not protect the person, cultivating or growing poppy or hemp plant, from being prosecuted under the provisions of this Act.

An Excise and Taxation Officer arresting a person under this Act, or who has taken charge of the accused under sub-section (2) of section 30, shall without unnecessary delay and subject to the provisions hereinafter contained as to bail, take the person arrested before a Judicial Magistrate having jurisdiction to try the case.

An Excise and Taxation Officer arresting a person under this Act, or who has taken charge of the accused under sub-section (2) of section 30, shall not detain him in custody for a longer period than under all the circumstances of the case is reasonable and subject to the provisions of section 30 such period shall not in the absence of a special order of a Magistrate passed under section 40 exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.

Notwithstanding anything contained in the Code of Criminal Procedure, 1989-- (i) the offences specified in clauses (b), (d) and (e) of section 48 and sub-section (1) of section (50) shall be non-bailable, and (ii) the offences specified in sections 48, 49, 50, 50-A, 50-B and 55 and sub-section (1) of section 56 shall be triable summarily.

The provisions contained in Chapter XXX of the Code of Criminal Procedure, 1989, regarding bail so far as they are applicable, shall apply mutatis mutandis in respect of persons arrested or detained or brought before a Court under the provisions of this Act, subject to the modification that for the expression "officer in-charge of a Police Station" wherever occurring the expression "an Excise and Taxation Officer not below the rank of an Inspector" shall be deemed to have been substituted.

(1) Whenever any person is arrested under this Act and detained in custody and it appears that an enquiry into the offence of which such person is accused cannot be completed within the period of twenty four hours prescribed by section 37, the Deputy Commissioner or the officer making the enquiry, as prescribed in sub-section (2) of section 30, shall forward to the nearest Magistrate a report setting forth the circumstances in which the accused was arrested together with the information which is yet to be elicited and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under sub-section (1) may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days on the whole. If he has not jurisdiction to try the case and considers further detention un-necessary he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that no Magistrate other than a Magistrate of the first class shall authorise detention in any custody other than a judicial lock-up. (3) A Magistrate authorising under this section detention in any custody other than a judicial lock-up shall record his reasons for so doing.

(1) A Deputy Commissioner on such enquiry as he thinks fit and after recording his reasons in writing may arrest or order in writing the arrest of a person whom he has reason to believe to have committed an offence under this Act and shall release him on bail unless he is accused of an offence under clauses (b), (d) and (e) of section 48 or sub-section (1) of section (50). (2) If the person arrested is unable to furnish bail or if a person has been arrested on an accusation of an offence under clauses (b), (d) and (e) of section 48 or sub-section (1) of Section 50, the person arrested shall be dealt with as provided heretofore with respect to persons arrested under section 30.

An Excise and Taxation Officer empowered to hold an enquiry into an offence under this Act, may by order in writing require the attendance before himself of any person, who appears to be acquainted with the circumstances of the case or to produce any documents relevant thereto and such person shall attend or produce as so required; provided that a person who from sickness or other infirmity may be unable to attend or who is a pardhanashin lady or is otherwise exempted from appearance in Court shall not be bound to attend at any place other than the residence of such person.

(1) An Excise and Taxation Officer holding any enquiry under this Act may examine orally any person supposed to be acquainted with the facts and the circumstances of the case. (2) Such person shall answer all questions relating to such case put to him by such officer other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) Such answers shall be reduced into writing and shall after being read over to the person making the same be signed by such officer.

If on enquiry under this Act it appears to the officer holding the enquiry, that there is not sufficient evidence or reasonable ground to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond with or without sureties as such officer may direct, to appear if and when so required, before a Magistrate having jurisdiction to try the case.

(1) (a) If upon an enquiry under this Act it appears to the Deputy Commissioner or the officer holding the enquiry that there is sufficient evidence, such officer shall forward the accused under custody to a judicial Magistrate competent to try the case or if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Judicial Magistrate on a day fixed and for his attendance from day to day before such Judicial Magistrate until otherwise directed and shall also forward to such Judicial Magistrate a report setting forth the names of the parties, the nature of the information, the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond and if so with or without sureties. (b) Such Judicial Magistrate shall take on such report cognizance of the offence charged. (c) The accused on his application shall be entitled at his own cost to a copy of such report before the commencement of the trial. (2) Nothing herein contained shall have the effect of debarring of Judicial Magistrate from taking cognizance otherwise than on such a report i.e. in accordance with the provisions of section 190, Criminal Procedure Code: Provided that such Judicial Magistrate shall not take cognizance of an offence under the Excise Act, 1958, on complaints made by private individuals. (3) When such Officer as aforesaid forwards an accused person to a Judicial Magistrate or takes security for his appearance before such Judicial Magistrate under this section, he shall send to such Judicial Magistrate any articles seized which it may be necessary to produce before him and shall require the complaint (if any) and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as he may think necessary, to execute bond to appear before the Judicial Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused. (4) If the Court of the Chief Judicial Magistrate is mentioned in the bond, such Court shall be deemed to include any Court to which such Judicial Magistrate may refer the case for trial; provided reasonable notice of such reference is given to such persons. (5) The day fixed for the appearance of such persons shall be the day when an accused person is to appear, if security for his appearance has been taken or the day on which he may be expected to arrive at the Court of the Judicial Magistrate if he is to be forwarded in custody.

All liquor or other contraband articles seized under this Act shall be produced before the nearest Magistrate without any delay who shall seal those articles making an inventory thereof. Where, however, this cannot be done without unreasonable inconvenience, delay or expense, the officer making enquiry on the spot or seizing the goods shall seal all such articles in the presence of at least two respectable witnesses. The articles so seized shall remain in the custody of the officer seizing them pending orders of a Magistrate.

It shall be lawful for the Deputy Commissioners of the District to which this Act applies, by notice in writing to the licensee, to require that any shop in which liquor or any intoxicating drug is sold, shall be closed, at such time or for such period as he may think necessary for the preservation of the public peace.

Whoever, in contravention of this Act or of any rule or order prescribed or notified thereunder or of any licence or permit granted thereunder:-- (a) imports, exports, transports or possesses liquor or any intoxicating drug, or, molasses, or (b) manufactures liquor or any intoxicating drug, or (c) cultivates the poppy or hemp (Cannabis sativa or Indica) or coco plant or collects the spontaneous growth of the hemp plant, or (d) constructs or works any distillery or brewery or other place for the manufacture of liquor, or (e) uses, keeps or has in his possession any materials, still, utensil, implement or apparatus whatsoever, for the purpose of manufacturing liquor or any intoxicating drug, or (f) sells or offers to sell any liquor or intoxicating drug, shall on conviction before a Judicial Magistrate, be punished with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees: Provided that if the offence relate to possession of, -- (i) a working still for the manufacture of liquor or any intoxicating drug, such imprisonment shall not be less than six months and such fine shall not be less than five thousand rupees; (ii) lahan, such imprisonment shall not be less than six months and such fine shall not be less than three thousand rupees; (iii) country liquor, manufactured otherwise than in distilleries or warehouses established or licensed under this Act, in a quantity not exceeding ten bottles, each bottle containing 750 millilitres, such fine shall not be less than one thousand rupees and in a quantity exceeding ten bottles of the aforesaid capacity, such imprisonment shall not be less than six months and such fine shall not be less than four thousand rupees; (iv) foreign liquor other than the liquor-- (a) manufactured in licensed distilleries or breweries in India, or (b) imported into India on which customs duty is leviable under the Indian Tariff Act, 1934 or the Customs Act, 1962, such imprisonment shall not be less than three months and such fine shall not be less than two thousand rupees.

Whoever renders or attempts to render fit for human consumption any denatured/methylated spirit, whether manufactured in India or not, or has in his possession any spirit rendered fit for human consumption in respect of which he knows or has reason to believe that any such attempt has been made, shall be punishable with imprisonment for a term which may extend to two years but shall not be less than one year and with fine which may extend to seven thousand rupees but shall not be less than three thousand rupees.

Whoever in contravention of the provisions of section 12-A of this Act has in his possession any printed label, cork, capsule or seal or an imitation thereof, shall be punished with imprisonment for a term which may extend to one year but shall not be less than three months and with fine which may extend to three thousand rupees but shall not be less than one thousand rupees.

Whoever, being the holder of a license or permit granted under this Act,-- (a) fails to produce such licence or permit on the demand of any Excise and Taxation Officer or of any other officer duly empowered to make such demand, or (b) does any act in breach of the conditions of his licence or permit not otherwise provided for by this Act, or (c) wilfully commits any contravention not otherwise provided for by this Act, or any rule or order prescribed or notified under this Act, or (e) permits persons of notoriously bad character to meet or remain in any such place, (f) imports, exports, transports, possesses and manufactures any liquor without affixing the approved labels, shall on conviction before Judicial Magistrate be punished for each such offence, with fine which may extend to ten thousand rupees but not less than five thousand rupees or with imprisonment which may extend to six months but not less than two months or with both.

(1) Whoever, without lawful authority, is found to be in possession of any quantity of liquor or any intoxicating drug which has been imported and/or transported and/or manufactured without authorisation and/or without the payment of prescribed duty therefor, shall on conviction before a Judicial Magistrate be punished with imprisonment for a term which may extend to seven years but shall not be less than three years and with fine which may extend to ten times the duty involved but shall not be less than five times the said duty. (2) If any person is found in possession, in any Tehsil, town or city in which a licensee cannot sell to any person any liquor for consumption outside the premises of his place of business except in standard sealed bottles, of any liquor which has been unlawfully manufactured, it shall be presumed that such person knew that it had been so manufactured.

Any person found drinking or attempting to drink liquor in any public place or places of worship or in any place which is used for the purpose of transacting any business other than a premises covered by a licence shall be punished with imprisonment which may extend to six months or with fine which may extend to three thousand rupees but not be less than one thousand rupees or with both.

If any licensed vendor or any person in his employ or acting on his behalf -- (a) sells or delivers any liquor or intoxicating drug to any person apparently under the age of twenty-one years; or (b) employees or permits to be employed on any part of his licensed premises any man under the age of twenty-one years, or any woman; or (c) sells any intoxicant to a person who is drunk or intoxicated; or (d) permits drunkenness, intoxication, disorderly conduct or gaming on the licensed premises of such licensed vendor; or (e) permits any person whom he knows or has reason to believe to have been convicted of any non-bailable offence under this Act to frequent his licensed premises whether for the purposes of crime or not, he shall, in addition to any other penalty to which he may be liable, be punishable with a fine which may extend to two thousand rupees but shall not be less than one thousand rupees. When any licensed vendor or any person in his employ or acting on his behalf is charged with permitting drunkenness or intoxication on the licensed premises of such vendor, and it is proved that any person was drunk or intoxicated on such premises, it shall lie on the person charged to prove that the licensed vendor or the person employed by him or acting on his behalf took all reasonable steps for preventing drunkenness or intoxication on such premises.

The Commissioner may order destruction of liquor or beer rendered unfit for human consumption because of its having got sedimented or for any other reason. The destruction of such stocks shall be done in such manner and subject to such conditions as may be prescribed.

Any Excise and Taxation Officer or other person who, without reasonable ground of suspicion, enters or searches or causes to be searched, any closed place, or vexatiously and unnecessarily seizes the property of any person on the pretence of seizing or searching for anything liable to confiscation under this Act, or vexatiously and unnecessarily detains, searches, or arrests any person, or in any other way vexatiously exceeds his lawful powers, shall, on conviction before a Judicial Magistrate of the first class, be punished for each such offence with fine which may extend to five hundred rupees, or with imprisonment for a term which may extend to six months, or with both.

Any officer or person exercising powers under this Act, who vexatiously and unnecessarily delays forwarding to a Deputy Commissioner any person arrested or any articles seized under this Act shall, on conviction before a Judicial Magistrate of the first class, be punished with fine which may extend to one hundred rupees.

Any officer or person who unlawfully releases or abets the escape of any person arrested under this Act, or receives or retains any liquor or intoxicating drug in respect of which an offence has been committed, knowing or having reason to believe that such offence has been committed or acts in any manner inconsistent with his duty for the purpose of enabling any person to do anything whereby any of the provisions of this Act may be evaded or broken or the Excise revenue may be defrauded, shall, on conviction before a Judicial Magistrate of the first class for every such offence be punished with fine which may extend to five thousand rupees or with imprisonment for a term which may extend to one year, or with both.

Any Excise and Taxation Officer who shall offer any unwarrantable violence to any person in his custody shall, on conviction before a Judicial Magistrate of the first class, be punished with fine which may extend to one hundred rupees, or with imprisonment which may extend to one month, or with both.

Whoever knowing or having reason to believe that an offence has been committed under this Act, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to a fourth part of the longest period of imprisonment provided for the offence, or with fine, or both. Note: A fine imposed under this section may extend to the full amount for the original offence.

(1) Whoever is guilty of any act or intentional omission in contravention of any of the provisions of this Act, or of any rule or order made under this Act and not otherwise provided for in this Act, shall, on conviction before a Judicial Magistrate of the first class, be punished for each such wilful act or omission with fine which may extend to five thousand rupees. (2) Whoever having been previously convicted of an offence under this Act is again convicted of an offence punishable under this Act shall be liable for every such subsequent offence to punishment not exceeding double the punishment provided therefor by this Act.

Whoever attempts to commit or abets any offence punishable under this Act, shall be liable to punishment provided for the offence.

(1) Whenever any person is convicted of an offence punishable under section 48 or 50 of this Act and the Court convicting him is of the opinion that it is necessary to require such person to execute a bond for abstaining from the commission of offences punishable under these sections, the Court may, at the time of passing sentence on such person, order him to execute a bond for a sum proportionate to his means, with or without sureties, for abstaining from the commission of such offences during such period not exceeding two years, as it thinks fit to fix. (2) The bond shall be in the form contained in Schedule II of the Code of Criminal Procedure, 1989. The provisions of the said Code shall, in so far as they are applicable, apply to all matters connected with such bond as if it were a bond to keep the peace ordered to be executed under section 106 of the said Code. (3) If the conviction is set aside on appeal, or in revision, the bond so executed shall become void. (4) An order under this section may also be made by an appellate Court or by the High Court when exercising its powers of revision.

In prosecutions under section 48, it shall be presumed, until the contrary is proved, that the accused person has committed an offence under that section in respect of any liquor or intoxicating drug, or any still, utensil, implement, or apparatus whatsoever for the manufacture of liquor, or any intoxicating drug, or any such materials as are ordinarily used in the manufacture of liquor, or any intoxicating drug, for the possession of which he is unable to account satisfactorily; and the holder of a licence or permit under this Act shall be punishable, as well as the actual offender, for any offence committed by any person in his employ and acting on his behalf under any of the previous sections of this Act as if he had himself committed the same, unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence: Provided that no person, other than the actual offender, shall be punished with imprisonment except in default of payment of fine.

In any case in which an offence has been committed under this Act, the liquor, drug, materials, still, utensil, implement or apparatus in respect of which an offence has been committed shall be liable to confiscation. Any liquor, or intoxicating drug lawfully imported, exported, transported, manufactured, had in possession or sold along with, or in addition to, the liquor including molasses or intoxicating drug liable to confiscation under this section, and the receptacles, packages and coverings in which any such liquor, or intoxicating drug, materials, still, utensil, implement or apparatus as aforesaid is or are found, and the other contents, if any, of the receptacles or packages in which the same is or are found, and the animals, carts, boats or other conveyances used in carrying the same, shall likewise be liable to confiscation.

Whenever confiscation is authorised by this Act, the Deputy Commissioner or Magistrate ordering it may give the owner of the thing liable to be confiscated an option to pay in lieu of the confiscation such fine as such officer thinks fit. When an offence under 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 Commissioner or by any other officer authorised by him in that behalf who may order such confiscation: Provided that no such order shall be made until the expiration of one month 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 produce in support of their claims.

(1) A Deputy Commissioner may accept from any person whose licence or permit is liable to be cancelled or suspended under section 22 or who is reasonably suspected of having committed an offence under section 49 or section 50-A or section 56, a sum of money not exceeding fifteen thousand rupees but not less than five thousand rupees, in lieu of such concealment or suspension, or by way of compensation for the offence which may have been committed as the case may be; and in all cases whatsoever in which any property has been seized as liable to confiscation under this Act may release the same on payment of the value thereof as estimated by him: Provided that in respect of offence committed under section 11-A, the Deputy Commissioner may accept a sum of money not exceeding fifteen thousand rupees but not less than five thousand rupees by way of composition of the offence which may have been committed: Provided further that in respect of an offence under clause (f) of section 49 the Deputy Commissioner may accept a sum not exceeding fifteen thousand rupees but not less than ten thousand rupees by way of composition of the offence. (2) On the payment of such sum of money, or such value, or both, as the case may be, the accused person, if in custody, shall be discharged, the property seized shall be released and no further proceedings shall be taken against such person or property.

(1) The provisions of the Criminal Procedure Code relating to execution so far as the same are applicable, and sections 54, 55 and 56 of Ranbir Penal Code shall apply to all offences committed and to all persons punished under the provisions of this Act. (2) (a) Notwithstanding anything contained in the Code of Criminal Procedure, 1989 all processes, summonses, warrants issued in cases under this Act may be executed by any Excise and Taxation Officer. (b) A warrant directed to any Excise and Taxation Officer may also be executed by any such officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.

All rules made and notifications issued under this Act shall be published in the Jammu and Kashmir Government Gazette and shall thereupon have the force of law and be read as part of this Act, and may, in like manner, be varied, suspended or annulled.

(a) Nothing in the foregoing provisions of this Act applies to the manufacture, possession, sale or supply by medical practitioners, chemists, druggists, apothecaries or keepers of dispensaries of any medicated article for bona fide medicinal purposes, or to the possession by the public of such articles lawfully supplied by them; but (b) it shall be lawful for the Government at any time by notification to prohibit the import, export, transport, manufacture, possession, sale or supply whether for medicinal purposes or otherwise of any liquor or intoxicating drug otherwise than in accordance with such rules and conditions (if any) as may be prescribed by the Government in that behalf; (c) it shall be lawful for the Government at any time by notification to exempt subject to such conditions, if any, as the Government may impose, any specified article or class of articles or any specified person or class of persons from the operation of all or any of the provisions of this Act or of rules made or prohibitions notified thereunder and in like manner to cancel such exemption; (d) it shall also be lawful for the Government to authorise the Commissioner to permit subject to such restrictions and conditions as the said Commissioner may in each case or class of cases prescribe, the possession by medical practitioners of liquor or opium and hemp drugs and the preparation by them of medicines containing the same for use in their practice.

No action shall lie be against the Government or against any Excise and Taxation Officer for damages in any Civil Court for any act bona fide done or ordered to be done in pursuance of this Act or of any law for the time being in force relating to the Excise revenue and prosecutions of any Excise and Taxation Officer and all actions which may be lawfully brought against the Jammu and Kashmir Government or against any Excise and Taxation Officer in respect of anything done or alleged to have been done in pursuance of this Act, shall be instituted within six months from the date of the act complained of and one month after notice has been given in writing to the Government or to the officer against whom the suit is to be brought. In such actions for damages, it shall be lawful for the Court if tender of sufficient amount had been made before the action was brought, in awarding the amount so tendered, to refuse costs to the plaintiff and direct him to pay the costs of the defendant.

An Act to consolidate and amend the Excise Law of the Jammu and Kashmir State. Whereas it is expedient to consolidate and amend the law relating to the import, export, transport, manufacture, sale and possession of intoxicating liquor and intoxicating drugs in the Jammu and Kashmir State; it is enacted as follows.