PRS Legislative Research
The Bihar Prohibition and Excise Bill, 2016 was introduced and debated in the Bihar Legislative Assembly today. The Bill creates a framework for the levy of excise duty and imposes a prohibition on alcohol in Bihar. In this context, we examine key provisions and some issues related to the Bill.
Prohibition on the manufacture, sale, storage and consumption of alcohol was imposed in Bihar earlier in 2016, by amending the Bihar Excise Act, 1915. The Bill replaces the 1915 Act and the Bihar Prohibition Act, 1938. Key features of the Bill include:
Prohibition: The Bill imposes a prohibition on the manufacture, bottling, distribution, transportation, collection, storage, possession, sale and consumption of alcohol or any other intoxicant specified by the state government. However, it also allows the state government to renew existing licenses, or allow any state owned company to undertake any of these activities (such as manufacture, distribution, etc.).Excise revenue: The Bill expects to generate revenue from excise by levying (i) excise duty on import, export, manufacture, etc. of alcohol, (ii) license fee on establishing any manufactory, distillery, brewery, etc., (iii) fee on alcohol transit through Bihar, and (iv) fee on movement of alcohol within Bihar or import and export from Bihar to other states, among others.Excise Intelligence Bureau: The Bill provides for the creation of an Excise Intelligence Bureau, which will be responsible for collecting, maintaining and disseminating information related to excise offences. It will be headed by the Excise Commissioner.Penalties and Offences: The Bill provides penalties for various offences committed under its provisions. These offences include consuming alcohol, possession or having knowledge about possession of alcohol and mixing noxious substances with alcohol. In addition, the Bill provides that if any person is being prosecuted, he shall be presumed to be guilty until his innocence is proven.The Bill also allows a Collector to impose a collective fine on a group of people, or residents of a particular village, if these people are repeat offenders.Process to be followed for offences
The Bill outlines the following process to be followed in case an offence is committed:
If a person is found to have committed any offence under the Bill (such as consumption, storage or possession of alcohol), any authorised person (such as the District Collector, Excise Officer, and Superintendent of Police) may take action against the offender.The Bill allows an authorised person to arrest the offender without a warrant. Alcohol, any material or conveyance mode used for the offence may be confiscated or destroyed by the authorised person. In addition, the premises where alcohol is found, or any place where it is being sold, may be sealed.Under the Bill, the offender will be tried by a Sessions Court, or a special court set up by the state. The offender may appeal against the verdict of the special court in the High Court.Some issues that need to be considered
Family members and occupants as offenders: For illegal manufacture, possession or consumption of alcohol by a person, the Bill holds the following people criminally liable:Family members of the person (in case of illegal possession of alcohol). Family means husband, wife and their dependent children.Owner and occupants of a land or a building, where such illegal acts are taking place.The Bill presumes that the family members, owner and occupants of the building or land ought to have known that an illegal act is taking place. In all such cases, the Bill prescribes a punishment of at least 10 years of imprisonment, and a fine of at least one lakh rupees.
These provisions may violate Article 14 and Article 21 of the Indian Constitution. Article 14 of the Constitution provides that no person will be denied equality before law. This protects individuals from any arbitrary actions of the state.[1] It may be argued that imposing criminal liability on (i) family members and (ii) owner or occupants of the building, for the action of another person is arbitrary in nature.
Article 21 of the Constitution states that no person can be deprived of their life and personal liberty, except according to procedure established by law. Courts have interpreted this to mean that any procedure established by law should be fair and reasonable.[2] It needs to be examined whether presuming that (i) family members of an offender, and (ii) owner or occupant of the building knew about the offence, and making them criminally liable, is reasonable.
Bar on Jurisdiction for confiscated items: The Bill allows for the confiscation of: (i) materials used for manufacturing alcohol, or (ii) conveyance modes if they are used for committing an offence (such as animal carts, vessels). It provides that no court shall have the power to pass an order with regard to the confiscated property. It is unclear what judicial recourse will be available for an aggrieved person.Offences under the Bill: The Bill provides that actions such as manufacturing, possession or consumption of alcohol will attract an imprisonment of at least 10 years with a fine of at least one lakh rupees. One may question if the term of imprisonment is in proportion to the offence committed under the Bill.Note that under the Indian Penal Code, 1860 an imprisonment at least 10 years is attracted in crimes such as use of acid to cause injury, or trafficking of a minor. Other states where a prohibition on alcohol is imposed provide for a lower imprisonment term for such offences. These include Gujarat (at least seven years) and Nagaland (maximum three years).[3]
Note: At the time of publishing this blog, the Bill was being debated in the Legislative Assembly.
[1] E.P. Royappa v State of Tamil Nadu, Supreme Court, Writ Petition No. 284 of 1972, November 23, 1973.
[2] Maneka Gandhi v Union of India, AIR 1978 SC 597.
[3] Gujarat Prohibition Act, 1949, http://www.prohibition-excise.gujarat.gov.in/Upload/06asasas_pne_kaydaao_niyamo_1.pdf.
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Now we should consider the reality if we see the facts of different Years Reported violence against women [1]
2008 195,856
2009 203,804
2010 213,585
2011 213,585
2012 244,270
According to the National Crime Records Bureau of India, reported incidents of crime against women increased 6.4% during 2012, and a crime against a woman is committed every three minutes.[1][2] In 2012, there were 244,270 reported incidents of crime against women, while in 2011, there were 228,650 reported incidents.[1] Of the women living in India, 7.5% live in West Bengal where 12.7% of the total reported crime against women occurs.[1]
Through the facts we see that ever three minutes a women is being assaulted and for protecting them there is a very good law i.e PDVWA ACT, 2005 and even after this it could not stop such assault on women. So the main submission of mine is that if a women cannot complaint against her husband then how one could think that the children whose future lies in his family and eldermen whose caretaker is the family men in patriarchal society could go against him. How one could think that they would go against their bread winner and this mostly happens in the poor family and in middle class family.
Behind this in patriarchal society or in any kind of society one there are social compulsion what the member of their caste would say?, what the neighbour would say e.t.c and due to this they will not complain.
So I wanted to aay that in this society which in reality Patriarchal in nature and where men is bread winner in most of the family and where the concept of house-husband has not emerged then it is impossible for any children or eldermen to go and complaint against him.
So prima facie the children or eldermen has no Mens Rea i.e. Guilty Mind.
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