State Legislative Brief
BIHAR
The Bihar Prohibition and Excise (Amendment) Bill, 2022
Key Features
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Key Issues and Analysis
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The Bill seeks to amend the Bihar Prohibition and Excise Act, 2016. The Act enforces the complete prohibition of liquor and intoxicants in Bihar. The Bill seeks to expedite trials under the Act, and shift focus from persons consuming alcohol to illegal suppliers and traders of liquor. This analysis has been written based on the copy of the Bill circulated in advance to the Members of the Bihar Legislative Assembly. |
PART A: HIGHLIGHTS OF THE BILL
Context
The Directive Principles of State Policy under the Constitution provide that the state shall endeavour to prohibit the consumption (except for medicinal purposes) of intoxicating drinks and drugs which are injurious to health.[1] Further, the production, possession, transport, and sale or purchase of liquor fall under the State List of the Constitution.[2] Presently, four states (Gujarat, Bihar, Nagaland, and Mizoram) have laws which completely prohibit the sale of alcohol.[3],[4],[5],[6] Table 3 in the Annexure compares key penal provisions under these laws.
The Bihar Prohibition and Excise Act, 2016 was enacted to enforce a complete prohibition of liquor in Bihar.3 Under the Act, manufacturing, bottling, distribution, transportation, collection, storage, possession, purchase, sale, or consumption of any intoxicant or liquor is prohibited. From 2018 to 2020, over 45,000 FIRs were registered under the Act every year (Table 1 in Annexure). Further, during this period, the number of cases pending trial before courts almost quadrupled. More than 40,000 people were arrested under the Act each year from 2018 to 2020 (Table 2 in Annexure). The Act was amended in 2018 to make certain penalties less stringent.
In February 2022, the Supreme Court observed that trial courts in Bihar and the Patna High Court are being crowded by bail applications in matters under the Bihar Prohibition and Excise Act, 2016.[7] It highlighted that at one stage, 16 judges of Patna High Court were listening to bail matters, of which a large part consisted of prosecutions under the 2016 Act. It inquired from the Bihar government if any assessment was done regarding the court infrastructure and manpower required to deal with the volume of cases that may arise under the Act. In March 2022, the Bihar government informed the Court that it is proposing certain amendments to the Act to make it more efficacious and address the concerns raised relating to its implementation.[8]
The Bihar Prohibition and Excise (Amendment) Bill, 2022 seeks to amend the 2016 Act. As per the Statement of Objects and Reasons, the Bill is being brought to expedite trial in the courts and to focus on punishing illegal suppliers and traders of liquor, instead of persons consuming it.
Key Features
PART B: KEY ISSUES AND ANALYSIS
Penalty for consumption of liquor
Under the Act, offences involving the consumption of liquor may be punished with: (i) a fine (ranging from Rs 50,000 to five lakh rupees), or (ii) imprisonment (ranging from three months to ten years). The Bill provides that persons consuming liquor, or found drunk or under the influence of intoxicants, will be arrested and produced before the nearest Executive Magistrate. The Magistrate will conduct a summary trial of these offences. First-time offenders will be released if they pay the fine prescribed by the state government, otherwise, they will be imprisoned for one month. In case of repeat offenders, the state government may prescribe additional fines or imprisonment, or both. We discuss certain issues related to these provisions below.
Empowering Executive Magistrates to conduct summary trials may violate separation of powers
The Bill provides that all offences relating to the consumption of liquor will be subject to summary trial by an Executive Magistrate. In this role, the Executive Magistrate will exercise the powers of a Judicial Magistrate of the second class. Conferring power on a member of the executive (the Executive Magistrate) to exercise judicial powers, as under the Bill, may violate the principle of separation of powers. Note that under the 2016 Act, all offences are tried by a Sessions Court or a Special Court.
The constitutional doctrine of separation of powers implies that the three organs of government (the legislature, the judiciary, and the executive) perform separate functions and act as separate entities. In particular, the Directive Principles of State Policy exhort the state to take steps to separate the judiciary from the executive in the public services of the state.[9] Vesting core judicial functions in Executive Magistrates may raise concerns about the separation of powers between the executive and the judiciary. The Code of Criminal Procedure, 1973 provides that under any law, the following division of functions should apply in the case of judicial and executive magistrates:
Conducting a trial is a judicial process, requiring an appreciation of evidence, and arriving at a decision of guilt or innocence. It may be argued that conducting a summary trial, thus, requires judicial training and competence. Executive Magistrates, who are trained to be administrators, may not possess such competence.
The Bonded Labour System (Abolition) Act, 1976 passed by Parliament contained a provision empowering state governments to confer power on Executive Magistrates to try offences.[11] In 2014, this provision was struck down by the Madras High Court.[12] A review petition filed by the central government was dismissed by the High Court in 2018.[13] The Court noted that justice and fair trial cannot be ensured by Executive Magistrates, who perform various other functions, and may not be legally qualified or trained. The Court, thus, held that the provision of the 1976 Act goes against the policy of separation of the judiciary from the executive contained in the Constitution.
Prescribing punishment through subordinate legislation may amount to excessive delegation
As per the Bill, for the offences related to consumption of liquor, the state government is empowered to notify the fine for first-time offenders. In the case of repeat offenders, the state government may prescribe additional fines and/or imprisonment. No limits (upper or lower) are prescribed under the Bill for the penalties that may be notified by the state government. The question is whether prescribing punishment under subordinate legislation amounts to an excessive delegation of legislative powers. The Supreme Court has held that in the absence of standards, criteria or principles on the contents of subordinate legislation, the powers given to the executive may go beyond the permissible limits of valid delegation.[14] It may be argued that the punishment for a specified offence (in this case, consumption of liquor) should be specified in the parent law, and not be delegated to subordinate legislation.
Annexure
Table 1 : FIRs registered, police and court disposal of cases under the 2016 Act (2018-2020)
Year |
FIRs registered |
Police disposal of cases |
Court disposal of cases |
||||
For investigation* |
Disposed of |
Pending investigation at year-end |
For trial* |
Disposed of |
Pending trial at year-end |
||
2018 |
45,742 |
45,800 |
32,839 |
12,961 |
32,051 |
998 |
31,053 |
2019 |
49,182 |
62,143 |
49,163 |
12,980 |
78,196 |
374 |
77,822 |
2020 |
45,235 |
58,215 |
38,047 |
20,168 |
1,14,372 |
321 |
1,14,051 |
Sources: Crime in Bihar (2018-2020), State Crime Records Bureau, Bihar; PRS.
Table 2: Status of persons arrested under the 2016 Act (2018-2020)
Year |
Persons arrested |
Persons chargesheeted |
Persons convicted |
Persons acquitted |
Persons discharged |
||
Male |
Female |
Total |
|||||
2018 |
39,775 |
753 |
40,528 |
39,167 |
399 |
651 |
0 |
2019 |
47,982 |
1,625 |
49,607 |
53,668 |
486 |
92 |
8 |
2020 |
40,911 |
2,191 |
43,102 |
44,322 |
94 |
260 |
0 |
Sources: Crime in Bihar (2018-2020), State Crime Records Bureau, Bihar; PRS.
Table 3: Comparison of penalties for key offences under alcohol prohibition laws of various states
Bihar* |
Gujarat |
Mizoram+ |
Nagaland |
|
Year of Enactment |
2016 |
1949 |
2019 |
1990 |
Last amended in |
2020 |
2017 |
- |
- |
Unlawful import, export, transport, manufacture, possession, sale, and purchase |
||||
Imprisonment |
First offence: 5 years-Life Repeat offence: 10 years-Life |
Up to 10 years |
Up to 5 years |
Up to 3 years |
Fine |
First offence: Rs 1-10 lakh Repeat offence: Rs 5-10lakh |
Up to Rs 5 lakh |
Up to Rs 1 lakh |
No upper limit mentioned |
Consumption of liquor |
||||
Imprisonment |
First offence: 1 month$ Repeat offence: As prescribed |
First offence: Up to 6 months Repeat offence: 6 months-2 years |
Up to 6 months |
Up to 6 months# |
Fine |
First/ repeat: As prescribed |
First offence: Up to Rs 1,000 Repeat offence: Up to Rs 2,000 |
Up to Rs 5,000 |
Up to Rs 2,000# |
Rendering denatured spirit fit for human consumption |
||||
Imprisonment |
10 years-Life |
Up to 3 years |
- |
Up to 1 year |
Fine |
Rs 1-10 lakh |
Up to Rs 1 lakh |
- |
Up to Rs 1,000 |
Dealing in spurious liquor |
||||
Imprisonment |
10 years-Life |
7-10 years |
- |
- |
Fine |
Rs 1-10 lakh |
No upper limit mentioned |
- |
- |
Chemists, druggists or apothecaries allowing their premises to be used for consumption of liquor/ intoxicants |
||||
Imprisonment |
8-10 years |
Up to 6 months |
- |
Up to 6 months |
Fine |
Rs 1-10 lakh |
Up to Rs 1,000 |
- |
Up to Rs 1,000 |
Unlawful advertisement |
||||
Imprisonment |
3-5 years |
Up to 6 months |
Up to 6 months |
Up to 6 months |
Fine |
Up to Rs 10 lakh |
Up to Rs 500 |
Up to Rs 10,000 |
Up to Rs 500 |
Note: Only penalties for specific offences are mentioned. *After incorporating the changes under the Bihar Prohibition and Excise (Amendment) Bill, 2022. +The Act applies to the whole of Mizoram, except three Autonomous District Councils (Chakma, Lai, and Mara) constituted under the Sixth Schedule to the Constitution. $In case of failure to pay fine. #In Nagaland, the offence is consumption of liquor in a public place in contravention of a permit granted under the Act. ‘As prescribed’ means as prescribed by the state government.
Sources: The Bihar Prohibition and Excise Act, 2016 (as amended by the 2022 Bill); The Gujarat Prohibition Act, 1949; The Mizoram Liquor (Prohibition) Act, 2019; The Nagaland Liquor Total Prohibition Act, 1989; PRS.
[1]. Article 47, The Constitution of India.
[2]. Entry 8, List II (State List), Schedule VII, The Constitution of India.
[3]. The Gujarat Prohibition Act, 1949 (modified up to January 15, 2015); The Gujarat Prohibition (Amendment) Act, 2017.
[7]. Sudhir Kumar vs. State of Bihar, Supreme Court of India, SLP (Crl.) No. 2482 of 2022, Order dated February 23, 2022.
[8]. Sudhir Kumar vs. State of Bihar, Supreme Court of India, SLP (Crl.) No. 1821 of 2022, Order dated March 8, 2022.
[9]. Article 50, The Constitution of India.
[10]. Section 3(4), The Code of Criminal Procedure, 1973.
[11]. Section 21, The Bonded Labour System (Abolition) Act, 1976.
[12]. Government Order (D) No. 44, Adi Dravidar and Tribal Welfare Department, Government of Tamil Nadu, February 23, 2015.
[13]. Union of India vs. Gajendran, Madras High Court, Review Petition No. 698 of 2017, July 30, 2018.
[14]. Hamdard Dawakhana and Anr. vs. Union of India and Ors., Supreme Court of India, AIR 1960 SC 554.
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