39. Penalty for unlawful production, manufacture, possession, import, export, transport, sale etc.-

(1) Whoever, in contravention of any provisions of this Act, or of the rules made thereunder or notification issued, or any order made, or of any license, permit or pass granted under this Act-

(a) produces, manufactures, possesses, imports, exports or transports any liquor, or

(b) constructs or works any distillery or brewery or winery or warehouse, or

(c) uses, keeps or has in his possession any material, still, utensil, implement or apparatus whatsoever, for the purpose of manufacturing or producing any liquor,

shall be punishable for every such offence with imprisonment for a term which may extend to three years and with fine which may extend to two lakh rupees but shall not be less than five thousand rupees:

Provided that in the case of an offence relating to the possession of-

(i) a working still for manufacture of any liquor, the imprisonment shall not be less than three years and the fine shall not be less than one lakh rupees;

(ii) lahan, the imprisonment shall not be less than one year and the fine shall not be less than fifty thousand rupees;

(iii) country liquor manufactured otherwise than in a licensed distillery or warehouse in Himachal Pradesh-

(a) in a quantity not exceeding seven-and-a-half litres, the imprisonment shall not be less than six months and the fine shall not be less than five thousand rupees; and

(b) in a quantity exceeding seven-and-a-half litres, the imprisonment shall not be less than one year and the fine shall not be less than ten thousand rupees;

(iv) foreign liquor other than,- 

(a) manufactured in a licensed distillery or brewery or winery or warehouse in India; or

(b) imported into India on which custom duty is leviable under the Customs Tariff Act, 1975 or the Customs Act, 1962,

the imprisonment shall not be less than one year and the fine shall not be less than twenty thousand rupees:

Provided further that in the case of an offence relating to import, export or transport of―

(i) country liquor exceeding forty-five litres; or

(ii) foreign liquor exceeding forty-five litres; or

(iii) other spirits exceeding five litres, such imprisonment shall not be less than three years and the fine shall not be less than one lakh rupees.

(2) Whoever, in contravention of any provisions of this Act or the rules made thereunder or notification issued, or any order made, or of any licence, permit or pass granted under this Act-

(i) possesses any unused and printed label, cork, capsule, or seal, or an imitation thereof; or

(ii) sells any liquor; or

(iii) bottles any liquor; or

(iv) removes any liquor from any distillery, brewery, winery or warehouse or other place of storage established or licensed under this Act; or

(v) adulterates any liquor by adding any substance with an intention to vary the prescribed strength or quality of such liquor, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.

40. Penalty for rendering or attempting to render denatured spirit fit for human consumption.-

Whoever renders or attempts to render fit for human consumptions any denatured spirit or knowingly possesses any spirit so rendered or attempted to be rendered, fit for human consumption, shall be punishable with imprisonment which shall not be less than six months but which may extend to five years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.

41. Penalty for mixing noxious substance with liquor.-

Whoever mixes or permits to be mixed with any liquor sold or manufactured or possessed by him any noxious drugs or any foreign ingredient likely to causedisability or grievous hurt or death to human beings, shall on conviction be punishable,-

(a) if as a result of such an act, death is caused to any person, with punishment which may extend to death and with fine which may extend to ten lakh rupees;

(b) if as a result of such an act, grievous hurt is caused to any person, with imprisonment which shall not be less than six years but which may extend to life term and with fine which may extend to five lakh rupees;

(c) if as a result of such an act, any other consequential injury is caused to any person, with imprisonment for a term which may extend to one year and with fine which may extend to two lakh fifty thousand rupees; and

(d) if as a result of such an act, no injury is caused to any person, with imprisonment which may extend to six months and with fine which may extend to one lakh rupees.

Explanation.-

For the purpose of this section the expression “grievous hurt” shall have the same meaning as defined in section 320 of the Indian Penal Code, 1860.

42. Payment of compensation.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 and without prejudice to any other punishment, the court when passing judgment in a case under section 41, may, if it is satisfied that death or injury has been caused to any person due to consumption of such liquor, order the person found guilty to pay, by way of compensation, an amount-

(a) not less than three lakh rupees to the legal representatives of each of the deceased, or

(b) not less than two lakh rupees to the person to whom grievous hurt has been caused, or

(c) not less than twenty thousand rupees to the person for any other consequential injury.

(2) Any person aggrieved by an order passed under sub-section (1) may, within ninety days from the date of order, prefer appeal in the High Court:

Provided that no appeal shall be entertained unless the amount of compensation ordered to be paid under sub-section (1) is deposited in the court:

Provided further that the High Court may entertain appeal after expiry of the said period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

43. Penalty for certain acts by licensee or his servant.-

Whoever, being the holder of a licence, permit or pass granted under this Act or being in the employ of such holder or acting on his behalf-

(a) allows disorderly conduct or gaming or prostitution on the licenced premises; or

(b) failswillfully to produce such license, permit or pass on demand of any Excise Officers; or

(c) in any case not provided for in section 39, wilfully contravenes any rules made under sections 80 or 81; or

(d) wilfully does or omits to do anything in breach of any of the conditions of the license, permit or pass not otherwise provided for in this Act; or

(e) reduces the strength of any liquor below the prescribed limit; shall be punishable with fine which may extend to fifty thousand rupees but shall not be less than five thousand rupees.

44. Penalty for fraud by licensed manufacturer or vendor or his servant.-

If any licensed manufacturer or licensed vendor or any person in his employ or acting on his behalf-

(a) sells, or keeps, or exposes for sale as foreign liquor any liquor which he knows or has reason to believe to have been manufactured from rectified spirit or country liquor; or

(b) marks any bottle, case, package or other receptacle containing liquor so manufactured from rectified spirit or country liquor, or other receptacle containing such liquor with the intention of causing it to be believed that such bottle, case, package, or other receptacle contains foreign liquor, he shall be punishable with imprisonment for a term which may extend to one year and with fine which may extend to two thousand rupees.

45. Penalty for consumption of liquor in chemist’s shop.-

(1) If any chemist, druggist, apothecary or keeper of a dispensary, allows any liquor which has not been bonafide medicated for medicinal purposes to be consumed on his business premises by any person, he shall be punishable with imprisonment for a term which may extend to one year and with fine which shall not be less than two thousand rupees and which may extend to ten thousand rupees.

(2) If a person consumes any such liquor on such premises he shall be punishable with fine which may extend to two thousand rupees.

46. Penalty for consumption of liquor in public places.-

Whoever in contravention of any of the provisions of this Act or of any rule, notification or order made thereunder,-

(a) consumes liquor in any unlicensed public place, or  

(b) after consuming liquor at any place creates nuisance in a public place, shall be punishable -

(i) in the case of an offence falling under clause (a), with fine which shall not be less than one thousand rupees and which may extend to five thousand rupees ; and

(ii) in the case of offence falling under clause (b), with imprisonment for a term which may extend to three months and fine which shall not be less than two thousand rupees and which may extend to ten thousand rupees.

47. Penalty for offences not otherwise provided for.-

Whoever is guilty of any act or intentional omission in contravention of any of the provisions of this Act, or of any rule, notification or order made, issued or given thereunder, and not otherwise provided for in this Act, shall be punishable for every such act or omission with a fine which may extend to one thousand rupees.

48. Manufacture, sale or possession by one person on account of another.-

(1) When any liquor has been manufactured or sold or is possessed by any person on account of any other person and such other person knows or has reason to believe that such manufacture or sale was, or that such possession is, on his account, the article shall for the purpose of this Act be deemed to have been manufactured or sold by or deemed to be in the possession of such other person.

(2) Nothing in sub-section (1) shall absolve any person who manufactures, sells or possesses any liquor on account of another person from liability to any punishment under this Act for the unlawful manufacture, sale or possession of such article.

49. Enhanced punishment for certain offences after previous conviction.-

Whoever having been convicted, of an offence under section 39 of this Act, is subsequently convicted of a similar offence under the said section, shall be punishable for every such subsequent offence with double the sentence of imprisonment and fine awarded on previous conviction:

Provided that the enhanced punishment shall not exceed the imprisonment of five years and a fine of three lakhs rupees:

Provided further that the enhanced punishment in any case shall not affect the minimum sentences provided for the offences specified in the first or the second proviso of sub-section (1) of section 39 of this Act.

50. Attempt to commit or abet offences punishable.-

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

51. Procedure relating to arrests, searches etc.-

Save as otherwise expressly provided in this Act, the provisions of the Code of Criminal Procedure, 1973, relating to arrests, detentions in custody, searches, summons, warrants of arrest, search-warrants, production of persons arrested and investigation of offences etc. shall be applicable to all action taken in relation there to under this Act: Provided that any offence under this Act may be investigated by an officer empowered under section 9 without the order of a Judicial Magistrate: Provided further that whenever an Excise Officer makes any arrest, seizure or search, he shall, within twenty-four hours thereafter, make a full report of all the particulars of the arrest, seizure or search to his immediate official superior, and shall, unless bail is accepted under this section, take or send the person arrested, or the article seized, with convenient dispatch to a Judicial Magistrate for trial or adjudication. 52. Report by investigating officer for institution of proceedings.- (1) Subject to the other provisions of this Act, if on an investigation by an Excise Officer, empowered under section 9 of this Act, it appears that there is sufficient evidence to justify the prosecution of the accused, the investigating officer, unless he submits the report for orders of the Collector under section 66, shall submit a report, which shall for the purposes of section 190 of the Code of Criminal Procedure, 1973 be deemed to be a police report, to a Judicial Magistrate having jurisdiction to enquire into or try the case and empowered to take cognizance of offences on police report. (2) If the Excise Officer is satisfied on completion of investigation that there does not exist sufficient evidence to justify the prosecution of the accused, he shall submit a report to the Collector concerned, who may pass such order as may deem fit. 53. Offences to be bailable etc.- All offences punishable under this Act shall be bailable within the meaning of Code of Criminal Procedure, 1973: Provided that the offences punishable under the first proviso and second proviso of sub-section (1) of section 39, and sections 40 and 41 of this Act shall be non-bailable. 54. Security for appearance in case of arrest without warrant.- (1) The State Government may empower any Excise Officer to grant bail, notwithstanding that such officer is not empowered under section 9. (2) When a person is arrested under this Act, otherwise than on warrant, by a person or officer who is not empowered to grant bail, he shall be produced before- (a) the nearest Excise Officer empowered by the State Government to grant bail, or (b) the nearest officer-in-charge of a police station, whoever is nearer. (3) Whenever any person arrested under this Act, otherwise than on a warrant, is prepared to give bail, and is arrested by, or produced in accordance THE HIMACHAL PRADESH EXCISE ACT, 2011 25 with sub-section (2) before an officer empowered to grant bail, he shall be released upon bail, or, at the discretion of the officer releasing him, on his own bond. (4) The provision of Chapter XXXIII of the Code of Criminal Procedure, 1973 shall apply, so far as may be, in every case in which bail is accepted or a bond taken under this section. 55. Cognizance of offences.- (1) No Judicial Magistrate shall take cognizance of any offence punishable,- (a) under sections 39, 40 or 41, except on the complaint or report of an Excise Officer; or (b) under sections 26, 43, 44, 45, 46, 47 or 59, except on the complaint of the Collector or an Excise Officer authorized by him in that behalf. (2) Except as otherwise provided elsewhere in this Act, no court shall take cognizance of an offence under sub-section (1), after the expiry of the period of limitation specified in sub-section(3). (3) The period of limitation for the offences shall be- (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; and (c) three years, if the offence is punishable with imprisonment for a term exceeding one year. (4) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. 56. Presumption as to commission of offence in certain cases.- (1) Whenever any person is found in possession of- (a) any still, utensil, implement or apparatus whatsoever or any part or parts thereof, as are ordinarily used for the manufacture of any liquor, or (b) any materials which has undergone any process towards the manufacture of liquor or from which liquor has been manufactured, it shall be presumed, until the contrary is proved, that his possession was in contravention of the provisions of this Act. (2) It shall be presumed without further evidence, until the contrary is proved, that the accused person has committed an offence under section 40 in respect of any denatured spirit which has been or attempted to be rendered fit for human consumption. 26 THE HIMACHAL PRADESH EXCISE ACT, 2011 57. Liability of employer for offence committed by the employee or agent.- The holder of a license, permit or pass under this Act as well as the actual offender, shall be liable to punishment for any offence punishable under sections 26, 39, 40, 43 or 44 committed by any person in his employ or acting on his behalf as if he had himself committed the same, unless he establishes that all due and reasonable precautions were exercised by him to prevent the commission of such offence. 58. Relevancy of statements under certain circumstances.- A statement made and signed by a person before any officer empowered under section 9 for the investigation of offences, during the course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable; or (b)` when the person who made the statement is examined as a witness in the case before the court and the court is of the opinion that having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. 59. Penalty for any excise officer making vexatious search, seizure, detention or arrest.- Any excise officer who vexatiously and without specific information or reasonable ground for suspicion,- (a) enters or searches or causes to be entered or searched any closed place under colour of exercising any power conferred by this Act, or (b) seizes the moveable property of any person on the pretext of seizing or searching for any article liable to confiscation under this Act, or (c) searches, detains or arrests any person, or (d) in any other way exceeds his lawful powers under this Act, shall, on conviction, be punishable with fine which may extend to ten thousand rupees.