BASANT YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE Excise Laws are a legacy of the British Empire. The earliest attempt to control spirit and require payment of duty in British India begins with legislation passed by the Governor General in Council like the Sea Customs Act (1878). The purpose was primarily to levy duty. The earlier attempt to enable prosecutions in Excise matters began with local government legislations. One of the first of such legislations was the Bengal Excise Act V of 1909. Bengal was soon to be partitioned during the time of Baron Hardinge of Penshurst. A new province was carved out known as Bihar and Orissa. Immediately after the creation of Bihar and Orissa revisions were brought into the Bengal Excise Act V. A select committee was constituted to seek reports on the Bihar and Orissa Excise Bill (1915). Suggestions were invited. The representative character of the quarters from which these suggestions were invited itself shows that a semblance of control was being contemplated on the sale and consumption of alcohol. With about fifty years of Crown rule, the Englishman was learning that the "natives" had their own intoxicants and country stills had to be regulated. Thus, opinions were received from ten sources. Eight were from the "natives", one from the Board of Revenue, and the last was an amalgam of all the opinions. The opinions were received from :

(2.) MASS produced spirit and alcohol as available today was not available then. The controls contemplated were basically restrictions on sate and possession. In the style of colonial administration, the first attempt in Excise Laws had an imprint of the laws which were prevalent in England. A reading of the Excise Manual even today shows that the shadow of the Empire runs through the Excise Laws. The amendments to this enactment have been an exercise which can be calied a scissors and paste business.

(3.) THE views in the debate in the Select Committee are on record in the old Excise Manuals printed in the 1920 's. Sale of liquor to the youth, temperance, manners in drinking, precautions and restrictions, sensitivity to the people of the locality, prevention on the spirit of drunkenness were the matter which concerned the Select Committee. "Oriental Country Stills" were to be regulated. A new concept was coming in of consumption of alochol on the premises and sale of alcohol as a "take out" from retail shops. The Excise Manual was also making provisions to cater to the Sahib, for sale even at the railway stations. The rules which were being framed under the new legislation were making reference to "aborigines" and were considering ways and means to control "temptation in the way of aborigines". The Court is sad to note that these expressions still continue, even in 2002, in the Rules framed under the Act in 1915. The Rules still refer to "Local Government", an expression which was abdicated when the Government of India Act (1935) came in. But the restrictions which applied to "aborigines" were not to apply to consumption and sale to the Sahib, for he was governed by Foreign Liquor Licences. By one legislation, the Empire was now dealing with, clearly, two classes of people, the "natives" and the Sahibs, Today the expression "aborigine" cannot be used. Unfortunately, legislation in use in India carries these insulting labels. Appropriately, if the Constitution of India were to take over, the expression would see change by substitution of "Scheduled Tribes" perhaps, but, the context would still be bad, as in a Republic, a class of people are seen to be monitored, as if they had to be kept away from temptation. The usage of expressions like "local government" shows how out of date the Act of 1915. is.Then there are reference to liquor shops being permitted to open from "sunrise". Shops in England, or even Pubs, which dispense or sell alcohol do not transact business from sunrise.