THE BOMBAY OPIUM SMOKING ACT, 1936

BOMBAY ACT No. XX OF 1936

[ December,1936]

Adapted and modified by the Adaptation of Indian Laws Order in Council.

An Act 4[to prohibit the smoking of opium] and to prevent the assembling of person for the purpose of such smoking in the [State of Bombay.]

WHEREAS it is expedient 6 prohibit the smoking of opium] and to prevent the assembling of persons for such smoking in 7[the State of Bombay] in the manner hereinafter appearing 8[* * * * *]; It is hereby enacted as follows:

2. This Act has been repealed and re-enacted and the Amendments made by section 9 and Schedule E of the said Act were continued in force by Born. 52 of 1947, S.2.

3. This indicates the date of commencement of Act.

4. These words were substituted for the words, “to provide for the control of the practice of opium smoking” by Born. XIX of 1959, S.3.

5. These words were substituted for the words “Presidency of Bombay”, ibid.

6. These words were substituted for the words, “To control the practice of opium smoking” ibid., S. 4.

7. These words were substituted for the words “Presidency of Bombay,” ibid.

8. The portion beginning with the words “And whereas the previous sanction” and ending with the words “to the passing of this Act “was deleted, ibid.

CHAPTER I-PRELIMINARY

SECTION 01: SHORT TITLE 1[AND EXTENT]

(1) This Act may be called the Bombay Opium Smoking Act, 1936.

2[(2) It extends to the whole of the State of Bombay.]

* * * *

SECTION 02: DEFINITIONS

In this Act, unless there is anything repugnant in the subject or context

4[(1) “Collector” includes any person appointed by the State Government to exercise all or any of the powers, or to perform or discharge all or any of the duties or functions, of a Collector under this Act;

1. These words were substituted for the words, “extent and commencement”, by Bombay XIX of 1959, S. 5.

2. This sub-section was substituted, ibid., S. 5.

3. Sub-section (3) was deleted, abid.

4. Clauses (I) and (2) were substituted, ibid., S. 6.

1[(2) “Commissioner” means the Commissioner of Prohibition and Excise appointed under the Bombay Prohibition Act, 1949, and includes any officer on whom the State Government may confer all or any of the powers, duties and functions of the Commissioner under this Act;]],

(3) “Duly empowered” means duly empowered by the 2[State Government] by a general or special order;

(4) “Instrument of smoking” means any article used for the purpose of smoking opium

4[(5) “opium” means—,

(a) the capsules of the poppy (Papaver Somni ferum L) whether in their original form or cut, crushed or powdered, and whether or not the juice has been extracted therefrom

(b) the spontaneously coagulated juice of such capsules which has not been submitted to any manipulations other than those necessary for packing and transport ; and

(c) any mixture, with or without neutral materials, of any of the above forms of opium and includes prepared opium , but does not include any preparation (other than prepared opium) containing not more than 02 per cent of morphine,]

(6) “Place” includes a house, building, shop, hut, tent, boat or vessel and any part thereof, and

1. Clause (2) was substituted by Mah. 52 of 1973, a. 3, Sch.

2 The words Provincial Government” were substituted for the words Local Government” by the Adaptation of Indian Laws Order in Council.

3. This word was substituted for the word “ Provincial by the Adaptation of Laws Order, 1950.

4. Clause (5) was substituted by Bom.19 of 1959, a. 6.

1[(7) “prepared opium” means any product of opium obtained by any operations designed to transform opium into an extract suitable for smoking; and includes chandul, madat, opium dross or scrapings from the opium pipe or other residue remaining after opium is smoked, and every other preparation or admixture of opium which may be used for smoking.]:

CHAPTER IA-ESTABLISHMENT

SECTION 02A: [COMMISSIONER AND HIS POWERS

The 3[Commissioner] shall be subject to the control of the State Government and shall subject to such general or special orders as the State Government may from time to time give or issue, exercise such powers and perform such duties and discharge such functions as are conferred or imposed upon him, by or under the provisions of this Act, and he shall superintend the administration and carry out generally the provisions of this Act.

SECTION 02B: POWERS OF COLLECTOR

(1) A Collector shall, within the limits of his jurisdiction, exercise such powers and perform such duties and discharge such functions as are conferred or imposed upon him by or under the provisions of this Act.

(2) The State Government may, by notification in the Official Gazette, appoint any person other than the Collector to exercise in any district or place, all or any of the powers and to perform or discharge all or any of the duties and functions as are assigned by or under this Act to a Collector, subject to such control, if any in addition to that of the 3[Commissioner and of the State Government, as the State Government may from time to time direct.

SECTION 02C: CONTROL OF 3[COMMISSIONER] OVER OFFICERS EMPOWERED UNDER ACT

In the exercise of their powers and the performance or discharge of their duties and functions under the provisions of this Act, or the rules or order made thereunder, all officers (including Collectors) empowered under this Act shall subject to the general or special orders of the State Government, be subordinate to and under the control of, the 1[commisssioner and shall be bound to follow such orders as he may, from time to time, give or issue.]

1. This sub-clause was substituted, by Born. 19 of 1959, S. 6.

2. Chapter IA containing sections 2A, 2B and 2C was inserted, ibid., S. 7.

3. This word was substituted for the word “Director” by Mah. 52 of 1973, s. 3, Sch.

CHAPTER II-PROHIBITIONS

SECTION 03: PROHIBITION OF OPIUM SMOKING, ETC

Subject to the provisions of this section, no person shall

(a) Smoke opium, or

(b) Possess, for the purpose of smoking opium, any instrument of smoking, or

(e) keep any apparatus or instrument for the purpose of preparing opium for smoking:

Provided that the aforesaid provisions shall not apply to a person who before the commencement of the Bombay Opium Smoking (Extension and Amendment) Act, 1959, was duly permitted to possess opium (other than prepared opium) for the purpose of smoking by or under the provisions of any law in force in any part of the State of Bombay so long as such permission has not expired, is not withdrawn or is otherwise in force.]

1. This word was substituted for the word “Director” by Mah. 52 of 1973, S. 3, sch.

2. This heading was substituted for the heading “Prohibition and Control”, by Bom. XIX of 1959, s. 8.

3 This section was substituted, ibid

SECTION 04: OPIUM SMOKING ASSEMBLY

An assembly of two or more persons is designated an opium smoking assembly, when the common object of the persons composing that assembly is to smoke opium or to prepare opium for smoking purposes.

Explanation 1 —An Assembly which was not an opium smoking assembly when it 1[assembled may subsequently become such assembly.

Explanation 2 —A man and his wife 2[shall be deemed not to be an opium smoking assembly] within the meaning of this section even if their common object be to smoke opium or to prepare opium for smoking purposes.

SECTION 05: MEMBER OF OPIUM SMOKING ASSEMBLY

Whoever, being aware of facts which render an assembly an opium smoking assembly intentionally joins that assembly, or continues therein, is said to be a member of that assembly.

SECTION 06: PRESUMPTION RAISED BY PRESENCE OF OPIUM AND ANY INSTRUMENT OF SMOKING

The presence of any opium 3[* *] and of any instrument of smoking or of any apparatus used in the preparation of opium in any place where two or more persons are assembled shall be held sufficient to raise a presumption that each member of such assembly is present at such place for the purpose of smoking opium or of preparing opium for smoking purposes.

CHAPTER III-OFFENCES AND PENALTIES

SECTION 06A: PENALTY FOR SMOKING OPIUM AND FOR POSSESSING INSTRUMENT OF SMOKING, ETC

Whoever in contravention of the provisions of section 3, —

(a) Smokes opium, or

(b) possesses, for the purpose of smoking opium, any instrument of smoking, or

(c) keeps any apparatus or instrument for the purpose of preparing opium for smoking, shall, on conviction, be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.]

1. This word was substituted for the words “was assembled”, by Born. XIX of 1959, S. 9.

2. These words were substituted for the words “ shall not be deemed to be an opium smoking assembly” ibid.

3. The words “or prepared opium” were deleted, ibid., S. 10.

4. Section 6A was inserted, ibid., S. 11.

SECTION 07: PENALTY FOR BEING MEMBER OF OPIUM SMOKING ASSEMBLY

Whoever is a member of an opium smoking assembly shall, on conviction, be 1[punished   with imprisonment of either description for a term which may extend to 2[three months] or with fin which may extend to 3[Rs 500], or with both.

SECTION 08: PENALTY FOR OPENING, KEEPING OR HAVING CHARGE OF PLACE OF ASSEMBLY

(1) Any person who—

(a) opens, keeps or uses any place for the purpose of an opium smoking assembly or in any way assists in conducting the business of any place used or kept for the purpose afore said, or

(b) being the owner, occupier or having the use or care or management or control of any place knowingly permits it to be opened, kept or used for the purpose of an opium smoking assembly,

5[shall on conviction, be punished—

(i) for a first offence, with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees

(ii) for a second and subsequent offence, with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees

1. This word was substituted for the word “punishable” by Bom. 19 of 1959, S. 12.

2. These words were substituted for the words “one month”, ibid.

3  These figures were substituted for the figures ‘100 ibid

4. This section was substituted for the original by Bom. 43 of 1949, S. 2.

5. This portion was substituted for the portion beginning with the words “shall, on Conviction” and ending with words “or with both” by Bom 19 of 1959 S 13

Provided that, in the absence of special and adequate reasons to the contrary, which reasons shall be mentioned in the judgment of the Court, such punishment, —

(a) for the first offence, shall not be less than imprisonment for six months and fine of five hundred rupees;

(b) for a second offence, shall not be less than imprisonment for nine months and fine of one thousand rupees;

(c) for a third and subsequent offence, shall not be less than imprisonment for one year and fine of one thousand rupees.]

(2) It shall be presumed, until the contrary, is proved, that a person accused of an offence under clause (b) of sub-section (1) has committed such offence if the offence committed by the person opening, keeping or using the place referred to in the said clause (b) is proved to have been committed in the place in the immediate possession of such accused person.]

SECTION 09: PENALTY WHEN OWNER 1[OCCUPIER ETC.] FAILS TO GIVE NOTICE OF USE OF PLACE FOR SUCH ASSEMBLY

Whoever being the 2[owner or occupier or having the use or care or management or control of any place] and knowing or having reason to believe that such place, whether in his actual occupation or otherwise, is being or is about to be used for the purpose of an opium smoking assembly, fails, either himself or through his agent or servant, to give the earliest possible notice of such knowledge or belief to the Collector or the officer in charge of the nearest police station or to an officer empowered under this Act to investigate offence punishable under this Act, shall, on conviction, be punishable with fine which may extend to Rs.500.

SECTION 09A: PENALTY FOR ATTEMPT OR ABETMENT

Whoever attempts to commit or abets the commission of an offence under this Act shall, on conviction, be punished for such attempt or abetment with the same punishment as is provided for the principal offence.]

1. These words were inserted by Bom. 19 of 1959, S. 4.

2. These words were substituted for the words “owner of any place”, ibid., S. 14.

3. This section was inserted ibid., S. 15.

SECTION 10: PENALTY FOR SUBSEQUENT OFFENCES

Whoever, having been convicted of an offence 1[under section 6A, 7, 8 or .9 is again convicted of an offence under section 6A, 7 or 9] shall, on conviction, be liable for any such subsequent offence to an enhanced punishment not exceeding double the punishment which might be imposed on a first conviction for such offence.

SECTION 11: SECURITY FOR ABSTAINING FROM OFFENCES

2[(1) Whenever any person is convicted of an offence punishable under this Act, the court convicting such person, may, at the time of passing sentence on such person, order him to execute a bond for a sum proportionate to his means, with or without sureties, for abstaining from the commission of offences punishable under the provisions of this Act during such period, not exceeding three years, as it may direct.

(2) The bond shall be in such form as may be provided under the provisions of the Code of Criminal Procedure, 1898; and the provisions of the said Code shall, in so far as they are applicable, apply to all matters connected with such bond, as if it were a bond to keep the peace ordered to be executed under section 106 of the said Code.]

(3) If the conviction is set aside on appeal or otherwise, the bond so executed shall become void.

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

CHAPTER IV-PROCEDURE

SECTION 12: POWER TO ISSUE WARRANTS

3[(1) The 4[commissioner], Collector or 5[any officer duly empowered] or a Magistrate authorized under section 24 to take cognizance of offences under this Act may issue a warrant for the arrest of any person whom he has reason to believe, to have committed an offence under this Act, or for the search, whether by day or by night, of any place in which he has reason to believe that an offence under this Act has been, or is being or is likely to be committed, or in which opium, an instrument of smoking or an apparatus used in the preparation of opium is kept or concealed.

1[(2) All warrants issued under sub-section (1) shall be executed in accordance with the provisions of the Code of Criminal Procedure, 1898, by a Police Officer or an officer of the Prohibition and Excise Department duly empowered in this behalf, or if the officer issuing the warrant deems fit, by any other person.]

1. These words were substituted for the words and figures “under section 7, section 8 or section 9, is again convicted of an offence under any of the said sections” by Bom. 19 of S.16.

2. Sub-sections (1) and (2) were substituted, ibid., S. 17.

3. Section 12 was re-numbered as sub-section (1) of that section, ibid., S. 18.

4. This word was substituted for the word “Director” by Mah. of 1973, S. 3. Sch.

5. These words were substituted for the words “any officer of the Excise Department empowered” by Bom. 43 or 1949, S. 3.

SECTION 13: POWER OF ENTRY, SEARCH AND ARREST BY CERTAIN OFFICER

The 1[commissioner] or Collector or any officer duly empowered, who has reason to believe that an offence under Chapter III has been or is being or is likely to be, committed in any place, may —

(a) enter such place 2[at any time] by day or by night with any person whose assistance he may consider necessary.

3[(aa) in case of resistance, break open any lock or any door and remove any obstacle to his entry into any such place.]

(b)search any such place in which he has reason any opium, or instrument of smoking, or any in the preparation of opium, is kept or concealed

(c) detain and search, and, if he thinks proper, arrest any person found in such place or whom he has reason to believe to have committed an offence punishable under Chapter III, and

(d) seize all opium and instruments of smoking and any apparatus used in the preparation of opium which may be found in such place or on or about such person 1[and also any document or other article which he has reason to believe may furnish evidence of the commission of an offence under this Act].

1. This word was substituted for the word “Director” by Mah. of 1973, S. 3. Sch

2. These words were inserted by Born. 19 of 1959, S. 19 (b).

3. Clause (aa) was inserted, ibid., S. 19 (c).

SECTION 13A: POWER OF SEIZURE AND ARREST IN OPEN PLACES

The 3[commissioner Collector or any officer duly empowered in this behalf may—

(a) seize in any open place, or in transit, any opium, or instrument of smoking, or any apparatus used in the preparation of opium for smoking purposes, which he has reason to believe to be liable to confiscation under this Act and also any document or other article which he has reason to believe may furnish evidence of the commission of an offence under this Act;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has in his possession any opium or instrument of smoking or any apparatus used in the preparation of opium for smoking purposes, arrest him.

SECTION 13B: ARREST OF OFFENDERS AND SEIZURE OF CONTRABAND ARTICLES

(1) Any officer duly empowered in this behalf may

(a) arrest without a warrant any person whom he has reason to believe to be guilty of an offence under this Act;

(b) seize and detain any opium, or instrument of smoking, or any apparatus used in the preparation of opium for smoking purposes which he has reason to believe to be liable to confiscation under this Act and seize any document or other articles which he has reason to believe may furnish evidence of the commission of an offence under this Act relating to such opium, instrument or apparatus

(2) Any officer who arrests any person under the provisions of this Act or seizes and detains any article or seizes any document or other article shall forward such person or article or document, as the case may be, without unnecessary delay to an officer empowered under sub-section (1) of section 18, or to the officer in charge of the nearest police station].

1.these words were added by Bom.19 of 1959, s.19(d)

2.sections 13A and 13B were inserted, ibid, s.20

3.This word was substituted for the word "Director" by Mah.52 of 1973, S.3 Sch

SECTION 14: ARREST OF PERSONS OBSTRUCTING OFFICERS IN EXECUTION OF DUTIES UNDER THE ACT

The 1[Commissioner], Collector or any officer duly empowered may arrest, without an order from a magistrate and without warrant, any person who obstructs him in the execution of his duty under this Act, or who has escaped or attempts to escape from custody in which he has been or is lawfully detained under this Act.

SECTION 15: MODE OF MAKING SEARCHES AND ARRESTS

Deleted by Born. 19 of 1959, S. 22.

SECTION 16: DISPOSAL OF PERSONS ARRESTED AND OF ARTICLES SEIZED

Every person arrested and all articles seized under a warrant issued under section 12 shall be forwarded without delay to the authority by which the warrant was issued; and every person arrested and thing seized under section 13 or 13A shall be sent without delay to the officer empowered under section 18 or to the officer-in-charge of the nearest police station and a full report of all the particulars of such arrest or seizure made by the person making the arrest or seizure to his immediate official superior.]

(2) The authority or officer to whom any person or article is forwarded under this section shall, with all convenient dispatch, take such measures as may be necessary for the disposal, according to law, of such person or article.

SECTION 17: REFUSAL TO GIVE NAME AND RESIDENCE

(1) When any person who, 4[in the presence of the 1[commissioner]

collector or any officer not below such rank] as the 1[2[State] Government] may by general or special order, specify in this behalf, has committed or has been accused of committing an offence under this Act, refuses on demand of such officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name and residence may be ascertained.

(2)When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate, if so required:

Provided that if such person is not resident in India the bond shall be secured by a surety or sureties residing in India.

(3) Should the true name and residence of such person not be ascertained within 24 hours from the time of arrest and should he fail to execute the bond or if he is so to furnish sufficient sureties, he shall be forthwith rewarded to the nearest magistrate having jurisdiction.

1. This word was substituted for the word “Director” by Mah. 52 of 1973, S. 3, Sch.

2. Section 15 was deleted, ibid., S. 22.

3. Sub-section (1) was substituted by Born. 19 of 1959, S. 23.

4. These words were substituted for the words “in the presence of any officer of such rank” ibid., S. 24(a).

SECTION 18: CERTAIN OFFICERS EMPOWERED TO INVESTIGATE OFFENCES UNDER ACT

(1) The 2[Commissioner]Collector and any officer duly empowered in this behalf shall, within the area for which they are appointed, have power to investigate all offences punishable under this Act.

(2) Any officer empowered under sub-section (1) shall in the conduct of such investigation exercise the powers conferred by the Code of Criminal Procedure, 1898, upon an Officer in charge of police station for the investigation of cognizable offences.

(3) Any officer to whom such officer is subordinate may, during the course of the investigation, take over the investigation himself or direct any other officer duly empowered to conduct the same. The officer in conducting the investigation shall have the same powers under sub-sections (1) and (2) as if he were the officer appointed for the area or for the purpose of investigating the said offence.

(4)If the officer conducting the investigation is of opinion that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate or that the person arrested may be discharged with a warning, such officer shall release him on his executing a bond, with or without sureties, to appear, if and when so required before a Magistrate empowered to take cognizance of the offence and shall make a full report of the case to his official superior and be guided by the order which he shall receive on such report.

(5) the powers of an officer empowered under this section shall be subject to such other modifications or restrictions as the State Government may deem fit

1. Sections 18 and 19 were substituted by ‘3cm. 9 of 1959, S. 25,

2- This word was substituted for the word ‘Director’ by Mah. 52 of 1973, S. 3, Sch.

SECTION 19: CERTAIN OFFENCES UNDER ACT TO BE NON-BAILABLE AND OTHERS TO BE BAILABLE

(1) All offences punishable under this Act other than an offence punishable under section 8 shall be bailable.

(2) Offences under section 8 shall be non-bailable.

(3) Any officer authorised under section 18 to investigate an offence punishable under this Act shall have power to grant bail in accordance with the provisions of the Code of Criminal Procedure, 1898, to any person arrested without warrant for an offence punishable under this Act.

(4) When any person has been arrested under section 14 any officer empowered to investigate offences under this Act shall have power to grant bail in accordance with the provisions of the Code of Criminal Procedure, 1898].

SECTION 20: ARTICLES SEIZED DURING INVESTIGATION

When anything has been seized by any officer exercising powers under section 18 or has been sent to him in accordance with the provisions of this Act) such officer, after such inquiry as may be necessary

(a) if it appears that such thing is required as evidence in the case of any person arrested, shall forward the thing to the magistrate to whom such person is forwarded or before whom bail has been taken for his appearance

(b) if it appears that such thing is liable to confiscation but is not required as evidence as aforesaid, shall send the thing with a report of the particulars of the seizure to his superior officer, if any

(c) if no offence appears to have been committed, shall return the thing to the person from whose possession it was taken and shall report to his superior officer, if any, accordingly.

SECTION 21: OFFICERS AND PERSONS REQUIRED TO ASSIST IN DETECTION OF OFFENCES UNDER THE ACT

Every village officer or servant useful to Government and every officer of any Department of the State Government and any officer or servant of the local authority and the Sarpanch of a village panchayat constituted under the Bombay Village Panchayats Act, 1933, or under any other law in force in the State of Bombay relating to village panchayats and every officer of the Departments of Central Excise and Customs with the consent of the Central Government and such other Department of the Central Government as the State Government with the like consent notifies in the Official Gazette] and all persons in the employment of the Bombay Port Trust shall he bound

(a) to give immediate information to any of the officers mentioned in section 12 or section l3 or section 18 of the commission of any offence and of the intention or preparation to commit any offence under this Act which may come to their knowledge

(b) to take all reasonable means in their power to prevent the commission of any such offence which they may know or have reason to believe is about to he committed ; and

(c) assist such officer in carrying out the provisions of this Act.

SECTION 22: PENALTY FOR NEGLECTING TO ASSIST OFFICERS ACTING UNDER THE ACT

Any officer or person mentioned in the preceding section who without lawful excuse neglects or refuses to give information or to take preventive measures or to give assistance to any of the officers mentioned in section 12 or section 13 or section 18 in the manner required by the preceding section shall, on conviction, he punishable with fine which may extend to Rs. 500.

SECTION 23: PENALTY FOR VEXATIOUS SEARCH OR ARREST

Any officer empowered under this Act who—

(a) without reasonable ground of suspicion enters or searches, or causes to he searched any place, or

(b) vexatiously and unnecessarily seizes the property of any person on the pretext of seizing or searching for anything liable to confiscation under this Act, or

(c). vexatiously and unnecessarily detains, searches or arrests any person 1[or

(d) in any other way maliciously exceeds or abuses his lawful powers shall on conviction, be punishable with fine which may extend to Rs. 500.

SECTION 24: JURISDICTION

No Magistrate other than a Presidency Magistrate or a Magistrate of the First Class, or a Magistrate of the Second Class duly empowered in this behalf, shall take cognizance of any offence under this Act.

SECTION 25: COGNIZANCE OF OFFENCES

No Magistrate shall take cognizance of any offence punishable under this Act, —

(a) except on the complaint or report of the Commissioner or a Collector or any other officer duly empowered under section 12 or a police officer, or

(b) except upon his own knowledge or suspicion.

SECTION 25A: PROCEDURE TO BE FOLLOWED BY MAGISTRATES

In all trials for offences under this Act, the Magistrates shall follow the procedure prescribed in the Code of Criminal Procedure, 1898, for the trial of summary cases in which an appeal lies.

SECTION 25B: TENDER OF PARDON TO ACCUSED PERSON TURNING APPROVER

Whenever two or more persons are prosecuted for an offence under this Act, the District Magistrate, a Sub-Divisional Magistrate, or any Magistrate of the first class, may, for reasons to he recorded by him, tender to any accused person a pardon on condition of his making a full and true disclosure of all the facts connected with the offence.

SECTION 25C: INVESTIGATION, ARRESTS, SEARCHES, ETC., HOW TO BE MADE

Save as otherwise expressly provided in this Act, all investigations, arrests, detentions in custody and searches shall be made in accordance with the provisions of the Code of Criminal Procedure, 1898

Provided that no search shall be deemed to be illegal by reason only of the fact that witnesses for the search were not inhabitants of the locality in which the place searched is situated.

1 the word or and clause (ii) were inserted by Bom 10 of 1959 s.28

2 section 25A it 25D were inserted ibid. 29.

SECTION 25D: PROVISIONS OF CRIMINAL PROCEDURE CODE WITH RESPECT TO COGNIZABLE OFFENCES TO APPLY TO OFFENCES UNDER ACT

In the absence of any provision to the contrary in this Act, the provisions of the Code of Criminal Procedure, 1898, with respect to cognizable offences shall apply to offences under this Act].

SECTION 26: THINGS LIABLE TO CONFISCATION

(1) Whenever any offence punishable under this Act has been committed, any opium, instrument of smoking or apparatus used in the preparation of opium for smoking purposes, —

(i) found in any place or with the persons forming an opium smoking assembly or

(ii) in respect of which the offence has been committed or which has been used in the commission of the offence shall be liable to confiscation.

(2) Any receptacle, package or covering in which any of the articles liable to confiscation under sub-section (1) is found and the other contents of such receptacle, package or covering and the animals, carts, vessels or other conveyances used in carrying any such articles shall likewise be liable to confiscation by the order of the Court].

SECTION 27: PROCEDURE IN MAKING CONFISCATION

(1) In the trial of offences under this Act, whether the accused is convicted or acquitted, the court shall decide whether any article seized under this Act is liable to confiscation under the preceding section and if it decides that the article is so liable, it may order its confiscation accordingly.

(2) When any article seized under this Act appears liable to confiscation under the preceding section but the person who committed the offence in connection therewith is not known or cannot be found, the Collector or other officer duly empowered in this behalf may inquire into and decide such liability and may order confiscation accordingly

Provided that no order of confiscation of an article shall be made until the expiry of one month from the date of seizure or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in support of his claim

Provided further that if any such article, other than opium, is liable to speedy and natural, decay, or if the Collector or other officer is of opinion that its sale would be for the benefit of its owner, he may at any time direct it to be sold and the provisions of this sub-section shall, as nearly as may be practicable, apply to the net proceeds of the sale.

(3) Any person not convicted who claims any right to property which has been confiscated under this section may appeal to the Court of Session against the order of confiscation.

I. This Section was substituted, for the original by Born. 19 of 1959, s. 30.

SECTION 27A: PAYMENT OF REWARDS FROM FINE

The Court trying any case for an offence under this Act may direct any portion, not exceeding one-fourth, of any fine which may belowed thereunder to be sent, in Greater Bombay to the Commissioner of Police, and elsewhere to the District Superintendent of Police, for distribution as reward in such manner as he may think proper, among the persons, not being Police Officers, who may have given assistance in the detection or investigation of the offence].

CHAFFER V-MISCELLANEOUS

SECTION 28: DELEGATION OF POWERS

The powers conferred on the 2[Commissioner or Collector under this Act may, subject to the general or special orders of 3[the 4[State Government], be delegated by the 1 or Collector, as the case may be, in whole or in part to any subordinate officer.

1. This section was inserted, by Born. 19 of 1959, S. 3!,

2. This word was substituted for the word “Director’ by Mal 52 of 1973, S. 3. &IL

3. These words “the Provincial Government were substituted (or the word ‘Government’ by the Adaptation of Indian laws Order Council.

4. This word was substituted for the word “Provincial” by the Adaptation of Laws Order,

1950.

SECTION 29: POWER TO MAKE RULES

( The 2[state 3[Government] may make rules for the purpose of carrying into effect the provisions of this Act.

(2) in particular and without prejudice to the generality of the foregoing provisions, such rules may he made for all or any of the following purposes

(a) regulating the disposal of things confiscated,

(b)[***********]

(c) providing for any other matter for which there is no provision or there is insufficient provision in this Act and for which provision is, in the opinion of the 2[State 3[Government], necessary for giving effect to the provisions of this Act.

(3) Rules made under this section shall b subject to the condition of previous publication in the 5[Official Gazette].          -

6[(4) All rules made under this section shall be laid for not less than 30 days before each House of the State Legislature as soon as may be after they are made, and shall be subject to such modifications as the State Legislature may make during the session in which they are so laid or the session immediately following.]

SECTION 30: PROTECTION OF PERSONS ACTING IN GOOD FAITH AND LIMITATION OF SUITS OR PROSECUTIONS

(1) No suit, prosecution or other legal proceeding shall lie against the Government or against any officer or person empowered to exercise powers or to perform or discharge duties or functions under this Act, for anything which is in good faith done or purporting to he done under this Act or the rules made thereunder.

(2) No suit shall be instituted against the Government and no prosecution or suit shall lie against any officer or person in respect of anything done or alleged to have been done in pursuance of this Act, unless such suit or prosecution has been instituted within three months of the date of the act complained

1. This word was substituted for the word ‘Director’ by Ma 52 of 1973. 5. 2 &h.

2, 11w words “Provincial Government” were substituted For he words “local Government” by the Adaptation of Indian laws Order in Council.

3. fills word was substituted for the word Provincial by the Adaptation of laws Order,

1950.

4. Clause (h) was deleted by Born. 9 of 1959, S. 33 (a).

5. These words “Official Gazette were substituted For the words “Bombay Government Gazette” by he Adaptation of India laws Order in Council.

6. This sub-section was substituted For the original by Born. 19 of 1959 S. 33(b).

7. Sections 30 to 33 were substituted by Horn. 19 of 1959, 8. 34.

SECTION 31: SANCTION FOR PROSECUTION OF PERSONS ACTING UNDER ACT

Subject to the provisions of section 197 of the Code of Criminal Procedure, 189S, no Court shall take cognizance of an offence committed or alleged to have been committed by any Police or other officer or any person empowered to exercise powers or to perform or discharge duties or functions under this Act, in regard to anything done under this Act until the sanction of the Collector having jurisdiction has been obtained.  -

SECTION 32: OFFICERS AND PERSONS ACTING UNDER ACT TO BE PUBLIC SERVANTS

All officers and persons empowered to exercise any powers or to perform or discharge any duties or functions under this Act shall he deemed to he public servants within the meaning of section 21 of the Indian Penal Code.

SECTION 33: REPEALS AND SAYINGS

On and from the commencement of this Act in that part of the State of Bombay to which it is extended by the Bombay Opium Smoking (Extension and Amendment) ct, 1959, the Central Provinces and Berar Opium Smoking Act, 1929 and the United Provinces Opium Smoking Act, 1934 as extended to the Kutch area of the State of Bombay shall stand repealed

Provided that such repeal shall not affect —

(a) the previous operation of an law so repealed or anything duly done or suffered thereunder,

(h) any right, privilege, obligation or liability already acquired, accrued or incurred under any law so repealed,

(c) any penalty, forfeiture or punishment, incurred in respect of any offence committed against any law so repealed, or

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Bombay Opium Smoking (Extension and Amendment) Act, 1959, had not been passed

Provided further that, but subject to the preceding proviso, anything done or any action taken (including any appointment, notification, order or rule made, or issued or register prepared) under any law so repealed shall, in so far as it is not inconsistent with the provisions of this Act, he deemed to have been done, taken, made, issued or prepared under the provisions of this Act unless and until it is superseded by anything done or action taken under this Act.]

THE BOMBAY OPIUM SMOKING CONFISCATED ARTICLES (DISPOSAL) RULES, 1959

G.N R.D No. OPM. 1159/36934(c), dated Ist April, 1959

(B. G., Pt. IV-B, p. 554)

In exercise of the powers conferred by section 29 of the Bombay Opium Smoking Act, 1936 (Bona. XX of 1936), and in supersession of Government Notification, Revenue Department, No. 4414/24, dated the 1st October, 1938, the Government of Bombay hereby makes the following rules, namely :

1. Short title :-These rules may be called the Bombay Opium Smoking Confiscated Articles (Disposal) Rules, 1959.

2. Confiscated articles to be disposed of under orders of Collector:-All things confiscated under the Bombay Opium Smoking Act. 1936 shall be made over to the Collector for disposal, or shall be disposed of under the orders of the Collector, according to the following rules.

3. Disposal or confiscated opium - (1) All confiscated opium other than prepared opium shall be sent to the Officer-in-charge of the Bombay State Hemp Drugs and Opium Packing and Supply Depot at Ahmedabad. The Officer-in-charge of the depot at Ahmedabad shall send the opium collected by him if it is five seers or more to the Opium Factory at Ghazipur only twice a year that is on Ist June and Ist December under intimation to the Director and Superintendent of Prohibition and Excise, Ahmedabad Division.

(2) All confiscated prepared opium shall be destroyed.

4. Disposal of other Articles :-All confiscated articles (other than opium and prepared opium) shall be put to auction and sold to the highest bidder, but if there is no bid they shall be destroyed :

Provided that instruments of smoking shall be broken up or otherwise rendered unfit for smoking before being put up for sale.

5. Destruction of Articles to be in the presence of responsible officer:-Whenever any confiscated article has to be destroyed in conformity with these rules it shall be destroyed in the presence of the Magistrate ordering the confiscation or in the presence of the Superintendent of Prohibition and Excise or the District Inspector of Prohibition and Excise or any other Prohibition and Excise Officer he may depute for the purpose.

6. Disposal to be deferred till period of appeal has expired except in certain cases :- The sale or other disposal of confiscated articles shall be deferred till the period of appeal against the order of confiscation has expired or, if an appeal is made against such order till the appeal be finally disposed of

Provided that

(a) in the case of any confiscated animal, the sale shall not be so deferred unless the owner thereof deposits with the Collector such sum as that Officer deems to be sufficient for the keeping of such animal till the end of the period required for preferring an appeal or till the disposal of such appeal, as the case may be

(b) if the thing confiscated be liable to speedy and natural decay, or if the disposal thereof would be for the benefit of the owner it may be sold immediately ; provided that if the sale of such thing is not advantageous to the owner, the Collector may direct it to be destroyed.

7. Procedure to be adopted if order of confiscation be reversed : -If an order, of confiscation of any opium or Mier thing be reversed on appeal, such opium or thing, or the sale proceeds thereof and the balance of the amount, if any, deposited for keeping or safe custody thereof, after deduction (if the expenditure incurred in its maintenance, shall be returned to the owner thereof or his duly authorised agent. If no one appears within two months from the date of order on appeal, to claim such opium or thing or the sale proceeds thereof, the same shall be handed over to the police for disposal in accordance with the provisions of the relevant Police Act or other law in force in the area.

8. Disposal of unclaimed confiscated articles :-Any article liable to confiscation seized in a case where an offence has been committed under the Act and the offender is not known or cannot be found shall, when forwarded to the Collector, be dealt with under these rules.