[Act No. 03 of 2022] [01st April,
2022] An Act To Amend The Bihar Prohibition
And Excise Act, 2016 (Bihar Act 20, 2016) Be it enacted by the Legislature of the
State of Bihar in the Seventy-Third year of the Republic of India as follows:- (1)
This
Act may be called the Bihar Prohibition and Excise (Amendment) Act, 2022. (2)
It
shall extend to the whole State of Bihar. (3)
It
shall come into force at once and the provision of this Amendment Act shall
apply to all pending cases. A new sub-section (26A) after
sub-section (26) of section- 2 of Bihar Prohibition and Excise Act, 2016 shall
be inserted as under:- "(26A)
"exhibit" means any document, record, object, photograph, animation
or any other item having evidentiary value, which is required to be formally
produced in a court of law, and includes such electronic images like
videography, drone images etc of such document, record, object, photograph,
animation or item." In the sub-section (69) of section-2 of
Bihar Prohibition and Excise Act, 2016, the words "or unfermented"
shall be deleted. Section-37 (Penalty for consumption of
liquor) of Bihar Prohibition and Excise Act, 2016, as further amended by Act, 8
of 2018, shall be substituted by the following:- 37. Penalty for
consumption of liquor.- "(1) Whoever, in contravention of this Act or the
rules, notification or order made there under consumes liquor or intoxicant at
any place or is found drunk or found under influence of any intoxicant, within
any premises or outside, shall be arrested immediately and produced before the
nearest Executive Magistrate. He shall however be released if he pays a penalty
as may be notified by the State Government. Failure to pay such penalty shall
invite a simple imprisonment of one month. Any intoxicant found in his
possession shall be seized and destroyed as per section-57. Provided that, in case of repeat
offenders, the State Government may, by notification, prescribe additional
penalty or imprisonment or both. [Explanation 1:- It shall not be a
right of the accused to be released upon payment of the required penalty. The
Executive Magistrate, based upon a report by a police officer or an excise
officer, may, for reasons to be recorded in writing, still refuse to release
the accused on payment of penalty and commit him to such custody as he deems
fit.] [Explanation 2:- Such release shall not
affect the outcome of the trial, if any, before the Special Court.] (2) All offences under this section shall be
disposed of through the procedure of summary trial by an Executive Magistrate
who shall exercise the powers of judicial Magistrate second class for the
purpose of this section. The State Government shall appoint such Executive
Magistrate in consultation with the High Court. (3) The enquiry of cases under this section shall
be conducted by an excise officer or a police officer not below the rank of
Assistant Sub-Inspector. (4) Any person accused of committing offence under
this section also commits an offence punishable under any other Act, then he
shall also face the consequences as mentioned under that Act." Sub-Section (2) of Section-39 (Penalty
for consumption of liquor in chemist's shop) of Bihar Prohibition and Excise
Act, 2016 shall be deleted. section-55 (Non compounding of
offences) of Bihar Prohibition and Excise Act, 2016 shall be deleted. Section-56 (Things liable for
confiscation) of Bihar Prohibition and Excise Act, 2016, as further amended by
Act, 8 of 2018, shall be substituted by the following:- 56. Confiscation of
Seized Items.- "(1) Notwithstanding anything contained in
section-57B, whenever an offence punishable under this Act, is committed, the
Collector or an officer authorized by him may confiscate such items based on
the report of the investigating officer. (2) Such items may include - (i)
any
premises or part thereof; (ii)
any
animal, vehicle, vessel or conveyance; (iii)
any
liquor or intoxicant; (iv)
any
other item having bearing with the case; Provided, where things as mentioned in
section-57 are to be destroyed, then the Collector or an officer authorized by
him need not confiscate the same before their destruction. (3) The State Government may issue necessary
direction, guidelines, regulations and instructions with respect to the mode
and manner of search, seizure, destruction and confiscation. Section-57 (Power of Collector, etc.,
to order sale or destruction of articles before confiscation) of Bihar
Prohibition and Excise Act, 2016 shall be substituted by the following:- 57. Certain things
liable to be destroyed- "The Collector or an officer
authorized by him, may, in the manner provided under section-57A, destroy
certain items that have been seized by any excise officer or police officer, if
in his opinion, these items are liable to be misused or endangering public
safety or occupying public space. These items are:- (a)
any
intoxicant or liquor; (b)
any
material, utensil, implement, apparatus, package or covering etc containing
such intoxicant or liquor; (c)
any
other item of trifling value or liable for speedy or natural decay." A new section -57A shall be inserted
after section -57 of Bihar Prohibition and Excise Act, 2016 as under:- 57A. Destruction of seized
Items, particularly Intoxicants.- "(1) Notwithstanding anything contained in section
-451 of the Code of Criminal Procedure 1973 (Act 2 of 1974), the Collector or
an officer authorized by him shall have the power to order destruction of
seized items, particularly intoxicants, if, in his opinion, the seized items or
intoxicants are liable to be misused or are occupying public places endangering
public safety. (2) The Collector or the officer authorized by him
may order the destruction even in cases where the confiscation proceeding under
section -58 or the trial by the Special Court has not concluded. Such
destruction shall be ordered on the basis of the report of the Investigation
Officer who shall, while asking for the destruction of the seized intoxicants,
include the result of the chemical examination. (3) The Collector or the officer authorized by him
shall cause the destruction to be done after having obtained the chemical
examination report. (4) The Collector or the officer authorized by him
shall also ensure that such destruction is carried in the presence of an
Executive Magistrate and the process is duly recorded using latest electronic
technology like mobile phones or videography. Any other things like utensils,
empty bottles, pouches, packages etc may also be destroyed. The entire
proceeding of such destruction shall be safely kept till the disposal of the
case. (5) Upon such destruction, the Collector or the
officer authorized by him shall submit a report to the concerned special court.
The said report shall be treated as exhibit, be admissible as a public document
under section -74 of the Indian Evidence Act 1872 (Act 1 of 1872) and shall
constitute the evidence for the purpose of the trial." A new Section-57B of Bihar Prohibition
and Excise Act, 2016 shall be inserted after section-57A of Bihar Prohibition
and Excise Act, 2016 as under:- 57B. Things or
premises liable to be released upon penalty.- "(1) Any animal, vehicle, vessel or other conveyance
used for committing any offence punishable under this Act that has been seized
by any police Officer or Excise Officer may be released by the Collector upon
payment of such penalty as may be notified by the State Government. (2) Any premises or part thereof used for
committing any offence punishable under this Act that has been seized by any
police Officer or Excise Officer may be released by the Collector upon payment
of such penalty as may be notified by the State Government. (3) If the person concerned does not pay the
penalty, then the Collector shall proceed to confiscate the said animal,
vehicle, vessel or other conveyance and premises as per section -58. [Explanation 1:- It shall not be a
right of the accused to get his conveyance, item or premises released upon
payment of the required penalty. The Collector, based upon a report by a police
officer or an excise officer, may, for reasons to be recorded in writing, still
refuse to release the said conveyance, item or premises and proceed ahead with
confiscation and auction/destruction.] [Explanation 2:- The Collector shall,
from the date of this Amendment coming into force, close the on-going
confiscation proceedings if the person concerned pays the penalty as notified
and release such vehicle, conveyance or premises.] [Explanation 3:- Such release shall not
affect the outcome of trial, if any, before the Special Court.] " Section- 62 (Premises liable to be
sealed), of Bihar Prohibition and Excise Act, 2016, as further amended by Act,
8 of 2018, shall be substituted by the following:- 62. Premises liable
to be sealed.- "If it comes to the notice of any
excise officer or any police officer, not below the rank of Assistant Sub-
Inspector, that any liquor or intoxicant has been found at a particular
premises or a part thereof or that particular premises or a part thereof has
been used for committing any offence under this Act, he may immediately seal
the said premises or a part thereof and send a report to the Collector for the
confiscation of the same. Provided that if the said premises are temporary
structures which cannot be effectively sealed, then the excise officer or the police
officer, with the order of the Collector, may demolish such temporary
structures." The section-67 (Extension of period of
order), section-68 (Permission to return temporarily), section-69 (Nature of
Evidence), section-70 (Immediate Arrest), section-71 (Penalty for
non-compliance of order under section-66) and section-72 (Powers in relation to
absconding person) of Bihar Prohibition and Excise Act, 2016 shall be deleted. A new section-75A shall be inserted
after section-75 of Bihar Prohibition and Excise Act, 2016 as under:- 75A. Reports to be
Public Documents.- "Any report under this Act,
whether filed in physical form or through electronic online mechanism,
particularly those related to chemical examination, shall be treated as a
public document under section-74 of Indian Evidence Act 1872 (Act 1 of
1872)." Section-80 (Production of Persons
arrested) of Bihar Prohibition and Excise Act, 2016 shall be substituted by the
following:- 80. Production of
Persons arrested.- "(1) Any person arrested under this Act shall be
produced before the Special Court or the nearest Judicial Magistrate within 24
hours either in person or through the medium of electronic video linkage. [Explanation:- If any question arises
whether an accused person was produced in person or through the medium of
electronic video linkage before the court, the production of the accused person
may be proved by his signature on the order authorizing his detention or by video
recording of the proceeding, as the case may be.] (2) While seeking the custody of the arrested
persons, it shall not be necessary to produce before the Magistrate all the
items or intoxicants seized. The concerned Excise officer or police officer may
bring the electronic evidence of such seizures." Section-81 (Duty of police to accept
seized articles and arrested persons) of Bihar Prohibition and Excise Act, 2016
shall be substituted by the following:- 81. Custody of Arrested Persons, Seized Articles
and Chemical Examination- "(1) Till such time as the Special Court or the
Judicial Magistrate commits the arrested person(s) to judicial custody or the
police custody, the arrested person shall be kept in the safe custody by the
concerned excise officer or the police officer. (2) In case of seized articles including
intoxicants, the concerned excise officer or the police officer shall draw a
seizure list. The said seizure list shall be treated as an exhibit, be
admissible as a public document under section-74 of the Indian Evidence Act
1872 (Act 1 of 1872) and shall constitute the evidence for the purpose of
trial. Immediately thereafter, the officer concerned shall make an application
before the Collector for destruction or confiscation, as the case may be and
shall keep the seized articles in safe custody till the orders of the
Collector. (3) While seeking the destruction of intoxicants
etc, the concerned police or excise officer shall get the chemical examination
done. Apart from the Special Court, any nearest Judicial Magistrate or
Executive Magistrate shall be competent to give the permission for such
chemical examination." A new section-81A shall be inserted
after section -81 of Bihar Prohibition and Excise Act, 2016 as under:- 81A. Seized Article
when may be destroyed on site- "Where it is not possible to
secure the safe custody of the seized articles or intoxicants due to challenges
of terrain and transportation or where such seized articles or intoxicants
cannot be effectively secured at the site of their seizure, the concerned
police officer or excise officer may, without the orders of the Special Court
or the Collector, destroy all the quantity at the site itself, while retaining
a small sample. Provided that the officer destroying
seized articles shall retain electronic evidence like videography or drone
images of such destruction and submit a report to the Collector and the Special
Court with full justification. The said report shall be treated as an exhibit,
be admissible as a public document under section-74 of the Indian Evidence Act
1872 (Act 1 of 1872) and shall constitute the evidence for the purpose of the
trial." Section-83 (Trial by the Court) of
Bihar Prohibition and Excise Act, 2016 shall be substituted by the following:- 83. Special Court(s)- "(1) Notwithstanding anything contained in
section-76 of this Act, all offences punishable under this Act, except the
offences under section-37, shall be tried by Special Court(s) which may be
presided by Sessions Judge, Additional Sessions Judge, Assistant Sessions Judge
or Judicial Magistrate. [Explanation- All existing cases in the
Special Courts, where the offence is reported under section-37 only and no
other section of this Act or any other Act, shall be transferred from the Special
Courts to the Court of the District Magistrate in a manner prescribed by the
State Government. Where persons arrested under such cases are still in jail,
they shall be released if they have completed the period of imprisonment as
mentioned in section-37.] (2) These Judges shall be appointed by the State
Government in consultation with the Chief Justice of the High Court. (3) There shall be at least one Special Court in
each district. (4) Notwithstanding anything contained in this Act
or the Code of Criminal Procedure 1973 (Act 2 of 1974), the State Government
may, if consider necessary in the public interest and depending upon the
workload of existing Special Courts, appoint or nominate in every district of
the State, more Special Court(s) in consultation with the Chief Justice of the
High Court. (5) The State Government may also, in consultation
with the Chief Justice of the High Court, appoint retired Judges, who have been
Additional Sessions Judge, to preside over the Special Courts. (6) The High Court shall also have the power to
designate existing Additional Sessions Judges, Assistant Sessions Judges or
Judicial Magistrates to be the Special Courts. (7) As soon as Special Court falls vacant on
account of transfer or leave or for any other reason, the District and Sessions
Judge shall immediately request the High Court for filling up the said vacancy
and shall make interim arrangement till such time." Section-84 (Special Courts) of Bihar
Prohibition and Excise Act, 2016 shall be substituted by the following:- 84. Trial by Special
Courts.- "(1) All Special Courts shall be exclusive and shall
only try offences under this Act. (2) The trial under this Act of any offence by the
Special Court shall have precedence over the trial of any other case against
the accused in any other Court (not being a Special Court) and shall be
concluded in preference to the trial of such other case. (3) All trials and proceedings under the Bihar
Excise Act, 1915 (Bihar & Orissa Act II of 1915), pending in any other
Court, before the commencement of this Act, shall stand transferred to the
Special Courts. (4) Special Court shall complete the trial, as far
as possible, within a period of one year from the date of submission of the
chargesheet." Sub-section (3) of Section-91
(Procedure for launching Prosecution) of Bihar Prohibition and Excise Act, 2016
shall be substituted by the following:- "(3) In cases where offences are punishable with
death or imprisonment for a term not less than 10 years, he shall, after the
investigation, file a report within 90 days from the date of the registration
of the case. In all other cases, he shall file the report within 60 days from
the date of the registration of the case."BIHAR PROHIBITION AND EXCISE (AMENDMENT)
ACT, 2022
PREAMBLE