Tamil nadu act 009 of 1979 : Tamil Nadu Prohibition (Amendment) Act, 1979

Section 1. Short title

1. Short title.- (1) This Act may be called the Tamil Nadu Prohibition (Amendment) Act, 1979.

(2) This Act, except section 4, shall be deemed to have come into force on the 3rd October, 1978 and section 4 of this Act shall come into force on the date of the publication of this Act in the Tamil Nadu Government Gazette.

Section 2. Amendment of section 3, Tamil Nadu Act X of 1937

2. Amendment of section 3, Tamil Nadu Act X of 1937.- In section 3 of the Tamil Nadu Prohibition Act, 1937 (Tamil Nadu Act X of 1937) (hereinafter referred to as the principal Act), after clause (14), the following clause shall be inserted, namely:-

"(14-A) ‘public servant’ means-

(i) any Police Officer; or

(ii) any Prohibition Officer; or

(iii) any other officer of the State Government authorised by or under this Act to exercise all or any of the powers or perform all or any of the duties under this Act;".

Section 3. Amendment of section 4, Tamil Nadu Act X of 1937

3. Amendment of section 4, Tamil Nadu Act X of 1937.- In section 4 of the principal Act,-

(1) in sub-section (1),-

(a) after clause (j), the following clause shall be nserted, namely:-

"(jj) knowingly expends or applies any money in direct furtherance or support of the commission of any of the acts specified in clauses (a) to (j);";

(b) for the portion beginning with the words "shall be punished" and ending with the words, brackets and letter "or any intoxicating drug falling under clause (a)", the following shall be substituted, namely:-

"shall be punished-

(i) in the case of an offence falling under clause (a), clause (b), clause (f), clause (g), clause (h), clause (i) or clause (jj) or an offence falling under clause (k) in so far as it relates to an act specified in any of the clauses aforesaid, with rigorous imprisonment for a term which may extend to five years and with fine which may extend to seven thousand rupees:

Provided that-

(a) for a first offence, such rigorous imprisonment shall not be-

(A) less than six months in the case of any person other than a public servant; or

(B) less than one year in the case of a public servant

and such fine shall not be less than two thousand rupees;

(b) for a second or subsequent offence, such rigorous imprisonment shall not be-

(A) less than one year in the case of any person other than a public servant; or

(B) less than two years in the case of a public servant

and such fine shall not be less than three thousand rupees;

(ii-a) in the case of an offence falling under clause (j), with rigorous imprisonment for a term which may extend to three years and with fine which may extend to three thousand rupees:

Provided that-

(a) for a first offence, such rigorous imprisonment shall not be-

(A) less than three months in the case of any person other than a public servant; or

(B) less than six months in the case of a public servant

and such fine shall not be less than one thousand rupees;

(b) for a second or subsequent offence, such rigorous imprisonment shall not be-

(A) less than six months in the case of any person other than a public servant; or

(B) less than one year in the case of a public servant

and such fine shall not be less than two thousand rupees;

(ii-b) in any other case with rigorous imprisonment for a term which may extend to three years and with fine which may extend to three thousand rupees;";

(2) after sub-section (1), the following sub-section shall be inserted, namely:-

"(1-A) Where in the case of an offence falling under clause (a), clause (b), clause (h), or clause (i) of sub-section (1), the liquor or any intoxicating drug involved contains any ingredient which is likely to cause death or grievous hurt to the consumer, then the offender, on conviction, shall be punished-

(i) if death has ensued due to its consumption, with rigorous imprisonment for life and with fine which shall not be less than five thousand rupees; and

(ii) in any other case, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to seven thousand rupees:

Provided that such rigorous imprisonment under clause (ii) shall not be-

(A) less than five years in the case of any person other than a public servant; or

(B) less than seven years in the case of a public servant

and such fine shall not be less than five thousand rupees.";

(3) in clause (a) of sub-section (2), for the expression "clauses (a) to (j)", the expression "clauses (a) to (jj)" shall be substituted.

Section 4. Substitution of new section for section 4-A, Tamil Nadu Act X of 1937

4. Substitution of new section for section 4-A, Tamil Nadu Act X of 1937.- For section 4-A of the principal Act, the following section shall be substituted, namely:-

"4-A. Punishment for being found in a state of intoxication.-Whoever is found in a state of intoxication in any public place and whoever, not having been permitted to consume any liquor or intoxicating drug in pursuance of this Act, is found in a state of intoxication in any private place, shall be punished with rigorous imprisonment for a term which may extend to three years and with fine which may extend to three thousand rupees

Provided that-

(a) for a first offence, such rigorous imprisonment shall not be-

(A) less than three months in the case of any person other than a public servant; or

(B) less than six months in the case of a public servant

and such fine shall not be less than one thousand rupees;

(b) for a second or subsequent offence, such a rigorous imprisonment shall not be-

(A) less than six months in the case of any person other than a public servant; or

(B) less than one year in the case of a public servant

and such fine shall not be less than two thousand rupees.",

Section 5. Amendment of section 5, Tamil Nadu Act X of 1937

5. Amendment of section 5, Tamil Nadu Act X of 1937.- In section 5 of the principal Act, for the portion beginning with the words "shall be punished" and ending with the words "for a third and subsequent offences", the following shall be substituted, namely:-

"shall be punished with rigorous imprisonment for a term which may extend to five years and with fine which may extend to seven thousand rupees:

Provided that-

(a) for a first offence, such rigorous imprisonment shall not be-

(A) less than one year in the case of any person other than a public servant; or

(B) less than two years in the case of a public servant

and such fine shall not be less than two thousand rupees;

(b) for a second or subsequent offence, such rigorous imprisonment shall not be-

(A) less than two years in the case of any person other than a public servant; or

(B) less than three years in the case of a public servant

and such fine shall not be less than three thousand rupees."

Section 6. Amendment of sections 6, 8, 10 and 11, Tamil Nadu Act X of 1937

6. Amendment of sections 6, 8, 10 and 11, Tamil Nadu Act X of 1937.- In sections 6, 8, 10 and 11 of the principal Act, for the expression "with imprisonment", the expression "with rigorous imprisonment" shall be substituted.

Section 7. Substitution, of new section for section 7, Tamil Nadu Act X of 1937

7. Substitution, of new section for section 7, Tamil Nadu Act X of 1937.- For section 7 of the principal Act, the following section shall be substituted, namely:-

"7. Punishment for conspiracy.-When two or more persons agree-

(i) to commit or cause to be committed any offence falling under clause (a), clause (b), clause (f), clause (g), clause (h), clause (i) or clause (jj) of sub-section (1) of section 4, or an offence falling under clause (k) of the said sub-section in so far as it relates to an act specified in any of the clauses aforesaid; or

(ii) to commit or cause to be committed any offence falling under section 5; or

(iii) to commit or cause to be committed any other offence falling under any other clause of sub-section (1) of section 4, or to evade or nullify the provisions of this Act, each of such persons shall, notwithstanding that no act except the agreement was done by any of the parties thereto in pursuance thereof, be punished-

(a) in the case of an offence referred to in clause (i), with rigorous imprisonment for a term which may extend to five years and with fine which may extend to seven thousand rupees:

Provided that-

(a) for a first offence, such rigorous imprisonment shall not be-

(A) less than six months in the case of any person other than a public servant; or

(B) less than one year in the case of a public servant

and such fine shall not be less than two thousand rupees;

(b) for a second or subsequent offence, such rigorous imprisonment shall not be-

(A) less than one year in the case of any person other than a public servant; or

(B) less than two years in the case of a public servant

and such fine shall not be less than three thousand rupees;

(b) in the case of an offence referred to in clause (ii), with rigorous imprisonment for a term which may extend to five years and with fine which may extend to seven thousand rupees:

Provided that-

(a) for a first offence, such rigorous imprisonment shall not be-

(A) less than one year in the case of any person other than a public servant; or

(B) less than two years in the case of a public servant

and such fine shall not be less than two thousand rupees;

(b) for a second or subsequent offence, such rigorous imprisonment shall not be-

(A) less than two years in the case of any person other than a public servant; or

(B) less than three years in the case of a public servant

and such fine shall not be less than three thousand rupees;

(c) in the case of an offence referred to in clause (iii), with rigorous imprisonment for a term which may extend to three years and with fine which may extend to three thousand rupees."

Section 8. Amendment of section 14, Tamil Nadu Act X of 1937

8. Amendment of section 14, Tamil Nadu Act X of 1937.- In section 14 of the principal Act,-

(1) in sub-section (1), for the words "may be ordered by the court", the words "shall be ordered by the court" shall be substituted;

(2) for sub-section (2), the following sub-section shall be substituted, namely

"(2) Where, during the trial of a case for an offence against this Act, the court decides that anything is liable to confiscation, the court shall order the confiscation:

Provided that no animal, vessel, cart or other vehicle shall be confiscated under sub-section (1), or sub-section (2), if the court after hearing the owner of such animal, vessel, cart or other vehicle and any person claiming any right thereto, is satisfied that the owner and such person had exercised due care in the prevention of the commission of such an offence.";

(3) in sub-section (3), for the words "may order such confiscation", the words "shall order such confiscation" shall be substituted;

(4) after sub-section (3), the following sub-section shall be added, namely:-

"(4) Notwithstanding anything contained in sub-sections (1) to (3), the Collector or other Prohibition Officer in-charge of the district or any other officer authorised by the State Government in that behalf, shall detain the animal, vessel, cart or other vehicle used in the commission of an offence against this Act till the case is disposed of by the court and notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), no interim order regarding the disposal of such property shall be passed by the court till the case is disposed of".

Section 9. Insertion new section 14-A in Tamil Nadu Act X of 1937

9. Insertion new section 14-A in Tamil Nadu Act X of 1937.- After section 14 of the principal Act, the following section shall be inserted, namely:-

"14-A. Owner of animal, vessel, cart or other vehicle deemed to be guilty in certain cases.-Where any animal, vessel, cart or other vehicle is used in the commission of any offence under this Act and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly unless he satsifies the court that he had exercised due care in the prevention of the commission of such an offence".

Section 10. Substitution of new sections for sections 15-A, 15-B and 15-C, Tamil Nadu Act X of 1937

10. Substitution of new sections for sections 15-A, 15-B and 15-C, Tamil Nadu Act X of 1937.- For sections 15-A, 15-B and 15-C of the principal Act, the following sections shall be substituted, namely:-

"15-A. Summary trial of certain offences.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the State Government may confer on-

(i) any Judicial Magistrate of the first class, or

(ii) any Judicial Magistrate of the second class, or

(iii) any Special Judicial Magistrate appointed under section 13 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974),

power to try summarily in accordance with the provisions contained in sections 262 to 265 of the said Code, all or any of the offences which are punishable under this Act With rigorous imprisonment for a term not exceeding six months, or with fine, or with both, but as a result of such trial no sentence except a sentence of fine shall be imposed.

15-B. Enhanced jurisdiction of Judicial Magistrates, Metropolitan Magistrates and Special Judicial Magistrates.- (1) Notwithstanding anything contained in section 29 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), it shall be lawful for the Magistrates specified in column (1) of the Table below to exercise the powers specified in the corresponding entry in column (2) thereof, in respect of offences punishable under this Act:-

Table I

(2) Notwithstanding anything contained in section 26 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974),-

(a) any offence punishable with rigorous imprisonment for a term not exceeding three years may be tried by a Judicial Magistrate of the second class or a Special Judicial Magistrate appointed under section 13 of the said Code;

(b) any offence punishable with rigorous imprisonment for a term not exceeding five years may be tried by a Judicial Magistrate of the first class or a Metropolitan Magistrate; and

(c) any offence under section 4(1-A) may be tried by a Court of Session.

15-C. Certain offences to be non-bailable.-(1) The offences punishable under this Act with rigorous imprisonment for a term which may extend to three years and upwards shall be non-bailable and the provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), with respect to non-bailable offences, shall apply to those offences.

(2) Nothing contained in sections 27, 28, 29, 32, 38 and 39 shall be construed as enabling a person to be admitted to bail if the offence alleged to have been committed by such person is one referred to in Sub-section (1)".

Section 11. Amendment of section 16, Tamil Nadu Act X of 1937

11. Amendment of section 16, Tamil Nadu Act X of 1937.- For sub-section (2) of section 16 of the principal Act the following sub-section shall be substituted, namely:-

"(2) Whoever commits a breach of any of the conditions subject to which the exemption is notified under sub-section (1), shall be punished with rigorous imprisonment for a term which may extend to three years and with fine which may extend to three thousand rupees:

Provided that-

(a) for a first offence, such rigorous imprisonment shall not be-

(A) less than six months in the case of any person other than a public servant; or

(B) less than one year in the case of a public servant

and such fine shall not be less than one thousand rupees;

(b) for a second or subsequent offence, such rigorous imprisonment shall not be-

(A) less than one year in the case of any person other than a public servant; or

(B) less than two years in the case of a public servant

and such fine shall not be less than two thousand rupees".

Section 12. Amendment of section 17-A, Tamil Nadu Act X of 1937

12. Amendment of section 17-A, Tamil Nadu Act X of 1937.- For sub-section (2) of section 17-A of the principal Act, the following sub-section shall be substituted, namely:-

"(2) Whoever commits a breach of any of the conditions subject to which the exemption is notified under sub-section (1), shall be punished with rigorous imprisonment for a term which may extend to three years and with fine which may extend to three thousand rupees:

Provided that-

(a) for a first offence, such rigorous imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees;

(b) for a second or subsequent offence, such rigorous imprisonment shall not be less than one year and such fine shall not be less than two thousand rupees".

Section 13. Amendment of section 24, Tamil Nadu Act X of 1937

13. Amendment of section 24, Tamil Nadu Act X of 1937.- In section 24 of the principal Act, for the words "be punished with imprisonment which may extend to six months or with fine which may extend to one thousand rupees or both", the following shall be substituted, namely:-

"be punished with rigorous imprisonment for a term which may extend to three years and with fine which may extend to three thousand rupees;

Provided that-

(a) for a first offence, such rigorous imprisonment shall not be-

(A) less than six months in the case of any person other than a public servant; or

(B) less than one year in the case of a public servant

and such fine shall not be lets than one thousand rupees;

(b) for a second or subsequent offence, such rigorous imprisonment shall not be-

(A) less than one year in the case of any person other than a public servant; or

(B) less than two years in the case of a public servant

and such fine shall not be less than two thousand rupees".

Section 14. Amendment of section 32, Tamil Nadu Act X of 1937

14. Amendment of section 32, Tamil Nadu Act X of 1937.- In section 32 of the principal Act,-

(i) in clause (a), the expression "or section 7 or section 24 or any offence punishable with rigorous imprisonment for three years and upwards" shall be added at the end;

(ii) in the second proviso, the words "with a report attested by two or more witnesses specifying the quantity of toddy, wash or sonti soru seized and destroyed and the number of the pots and other receptacles sent" occurring at the end shall be omitted.

Section 15. Insertion of new section 41-B in Tamil Nadu Act X of 1937

15. Insertion of new section 41-B in Tamil Nadu Act X of 1937.- After section 41-A of the principal Act, the following section shall be inserted, namely:-

"41-B. Presumption that the liquor consumed is an illicit variety.-Where in any trial of an offence punishable under section 4(1)(j), it is proved that a person has consumed liquor or any intoxicating drug, it shall be presumed, until the contrary is proved, that such liquor or intoxicating drug is an illicit variety".

Section 16. Amendment of section 52-A, Tamil Nadu Act X of 1937

16. Amendment of section 52-A, Tamil Nadu Act X of 1937.- In section 52-A of the principal Act, in sub-section (1), for the expression" clause (b) or clause (d) or clause (e) or clause (i) of section 4(1)" the expression "clause (a), clause (b), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i) or clause (jj) of section 4(1)" shall be substituted.

Section 17. Amendment of section 52-B, Tamil Nadu Act X of 1937

17. Amendment of section 52-B, Tamil Nadu Act X of 1937.- In section 52-B of the principal Act,-

(1) in sub-section (1),-

(i) for the expression "or the Madras Probation of Offenders Act, 1936 (Madras Act III of 1937)", the expression "or the Probation of Offenders Act, 1958 (Central Act 20 of 1958)" shall be substituted;

(ii) in clause (a), for the expression "sections 4-A, 6, 11 or 24", the expression "section 6" shall be substituted;

(iii) in clause (b), the word "or" occurring at the end shall be omitted;

(iv) in clause (c), the expression "(c) any breach of any of the conditions subject to which the exemption under section 16 or 17-A is notified" shall be omitted;

(2) in sub-section (2), for the expression "Madras Probation of Offenders Act, 1936 (Madras Act III of 1937)", the expression "Probation of Offenders Act, 1958 (Central Act 20 of 1958)" shall be substituted.

Section 18. Insertion of new section 52-BB in Tamil Nadu Act X of 1937

18. Insertion of new section 52-BB in Tamil Nadu Act X of 1937.- After section 52-B of the principal Act, the following section shall be inserted, namely;-

"52-BB. Persons not to be released on probation.-Except as provided in section 52-B, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and the Probation of Offenders Act, 1958 (Central Act 20 of 1958), no person convicted under this Act shall be released on probation or with admonition".

Section 19. Amendment of section 52-D, Tamil Nadu Act X of 1937

19. Amendment of section 52-D, Tamil Nadu Act X of 1937.- In section 52-D of the principal Act, for the expression "122, 126, 126-A, 406-A (b) and (c), 514,514-A, 514-B and 515 of the Code of Criminal Procedure, 1898 (Central Act V of 1898)", the expression "121, 123, 124, 373, 446, 447, 448 and 449 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974)" shall be substituted.

Section 20. Insertion of new section 52-E in Tamil Nadu Act X of 1937

20. Insertion of new section 52-E in Tamil Nadu Act X of 1937.- After section 52-D of the principal Act, the following section shall be inserted, namely:-

"52-E. Removal of persons convicted of certain offences.-(1) When any person having been previously convicted thrice or more-

(i) of an offence falling under clause (a), clause (b), clause (f), clause (g), clause (h), clause (i) or clause (jj) of sub-section (1) of section 4, or an offence falling under clause (k) of the said sub-section in so far as it relates to an act specified in any of the clauses aforesaid; or

(ii) of an offence falling under section 5 or section 7,

is again convicted of the same offence the court may, if it thinks fit, at the time of passing the sentence of rigorous imprisonment on such person, also by order direct such person to remove himself after the expiry of such sentence outside the City of Madras or any district in mofussil or other area specified in such order.

(2) The order under sub-section (1) shall specify the period not exceeding two years during which such order shall remain in force and shall also specify such conditions and restrictions as may be specified in the rules by the State Government.

(3) The court may, at any time, for reasons to be recorded in writing, cancel or modify the order passed under sub-section (1).

(4) If such conviction is set aside on appeal or otherwise, such order shall become void.

(5) An order under this section may also be made by an appellate court or by the High Court when exercising its powers of revision.

(6) If a person to whom a direction is issued under sub-section (1) to remove himself from any area-

(i) fails to remove himself as directed, or

(ii) having so removed himself, except with the permission in writing of the court mentioned in sub-section (1) enters the area within the period specified in the order,

the court may cause him to be arrested and removed in police custody to such place outside the area as the court may, in each case, specify.

(7) Any person who is guilty of the breach of any order passed under sub-section (1) or of any of the conditions or restrictions specified in such order shall be punished with rigorous imprisonment which may extend to three years or with fine, or with both".

Section 21. Amendment of sections 15, 26, 34, 41, 48, 49, 52-A, 52-B and 53, Tamil Nadu Act X of 1937

21. Amendment of sections 15, 26, 34, 41, 48, 49, 52-A, 52-B and 53, Tamil Nadu Act X of 1937.- (1) In sections 15, 26, 34, 41, 48, 49, 52-A, 52-B and 53 of the principal Act, for the expression "Code of Criminal Procedure, 1898", the expression "Code of Criminal Procedure, 1973 (Central Act 2 of 1974)" shall be substituted and the marginal expression "Central Act V of 1898" shall be omitted.

(2) In section 53 of the principal Act, for the expression "Code of Criminal Procedure, 1898" occurring in the margin, the expression "Code of Criminal Procedure, 1973" shall be substituted.

Section 22. Amendment of Schedule II, Tamil Nadu Act X of 1937

22. Amendment of Schedule II, Tamil Nadu Act X of 1937.- In Schedule II to the principal Act, for the expression "under sections 4(1)(b), 4(1)(d), 4(1)(e) and 4(1) or in the two places where they occur, the expression "under sections 4(1)(a), 4(1)(b), 4(1)(d), 4(1)(e), 4(1)(f), 4(1)(g), 4(1)(h), 4(1)(i) and 4(1)(jj)" shall be substituted.

Section 23. Amendment of Central Ordinance XXXVIII of 1944

23. Amendment of Central Ordinance XXXVIII of 1944.- In the Criminal Law Amendment Ordinance, 1944 (Central Ordinance XXXVIII of 1944), in the Schedule, after item 5, the following item shall be added, namely:-

"6.(i) An offence punishable under clause (a), clause (b), clause (f), clause (g), clause (h), clause (i) or clause (jj) of sub-section (1) of section 4 of the Tamil Nadu Prohibition Act, 1937 (Tamil Nadu Act X of 1937), or an offence falling under clause (k) of the said sub-section in so far as it relates to an act specified in any of the clauses aforesaid; or

(ii) an offence falling under section 5 or section 7 of the said Tamil Nadu Prohibition Act, 1937 (Tamil Nadu Act X of 1937), in respect of which a person who has been previously convicted thrice for the same offence is subsequently prosecuted."

Section 24. Repeal and saving

24. Repeal and saving.- (1) The Tamil Nadu Prohibition (Second Amendment) Ordinance, 1978 (Tamil Nadu Ordinance 13 of 1978), is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken (including any penalty, forfeiture or punishment incurred) under the principal Act, as amended by the said Ordinance, shall be deemed to have been done or taken under the principal Act as amended by this Act:

Provided that in respect of offences under section 4-A of the principal Act committed before the date of the publication of this Act in the Tamil Nadu Government Gazette, the punishment shall be as provided in section 4-A of the principal Act as in force immediately before the date of the publication of this Act in the Tamil Nadu Government Gazette.