Note I -(1) Attention is called to Board's Memorandum No. 227-B, dated 12th January, 1910. -
Note I
"Section 9 of the Opium Act, I of 1878, provides for each offence of illegal possession, sale, or transport of opium a penalty of imprisonment for a term which may extend to one year, or fine which may extend to one thousand rupees, or both. It further provides that where a fine is imposed, the convicting Magistrate shall direct the offender to be imprisoned in default of payment of the fine for a term which may extend to six months, and such imprisonment shall be in excess of any other imprisonment to which he may have been sentenced."
(2) In paragraph 12 of their Resolution No. 1095 E., dated the 8th March, 1900, the Government of India observed as follows:-
'In the opinion of the Government of India, opium-smuggling, when detected, can best be dealt with by the imposition of both fine and imprisonment, so as to make both the person caught (who is in important cases generally a mere agent) and his principal share the penalty.'
(3) The selling price of Excise opium varies from Rs. 17 to Rs. 35 a seer in Bengal districts. The price paid by the Opium Department to the cultivator for raw opium is Rs. 6 a seer. In Burma, a seer of smuggled opium is worth about Rs. 100. There is evidently therefore, a large margin of profit to tempt the smuggler.
In Burma, the Government is endeavouring in the face of great difficulties to check excessive indulgence in opium. If smuggling from Bengal is not discouraged by deterrent punishment, this task becomes almost insuperable.
(4) In letter No. 2398-J.D., dated the 16/19th October, 1909, Government in the Judicial Department has issued the following orders on the subject to the Superintendent and Remembrancer of Legal Affairs:-
* * * * * it will be seen that in the cases quoted * * Magistrates ** have been content to impose a moderate fine, whereas in other Courts similar cases has generally been punished with rigorous imprisonment. In view of the high value of opium in Burma, and the prevalence of the offence of smuggling into that country, it is very desirable that when cases are detected deterrent punishment should be inflicted. I am therefore to request that the Public Prosecutor may be instructed to ask any Presidency Magistrate before whom such a case may be heard for permission to address the Court; in the event of the Magistrate convicting an accused, on the question of sentence. Opportunities will thus be obtained to press for deterrent sentences, and the Excise authorities will furnish the Public Prosecutor with a memorandum of information to enable him to convince the Magistrate of the necessity for such sentences. If after these steps have been taken an obviously inadequate sentence is imposed the Excise authorities will be asked to bring the matter to the notice of Government in order that the High Court may be moved for an enhancement of the sentence."
Note. II - (1) In Circular No. 1969-F., dated the 8th March, 1919, Government in the Financial Department issued the following orders about inadequate punishments in excise prosecutions :-
Note. II
"The notice of Government has been drawn to the large number of excise prosecutions in which inadequate punishment have been inflicted by the trying Magistrates.
(2) The explanations furnished by these Magistrates show that the gravity of the offences is often not realized. In some cases where the offence has been committed with a deliberate intention of defrauding Government of its revenue, the Magistrates have awarded light punishments on account of the poverty or the old age of the offenders, while in many other cases they have awarded nominal punishments on the sole ground that the offences committed had not involved any loss of revenue to Government. The Lieutenant-Governor in Council observes that Magistrates commonly fail to appreciate the intention of the legislature in providing a heavy punishment for excise offences. The question of revenue is only one of the considerations which should influence the court and it must be understood that transactions in excisable articles are controlled by Government not merely with a view to protect the revenue but also to promote the well-being of the people.
Offences in respect of cocaine are the most serious on account, not merely of the enormous profit obtained by the offenders, but also the moral and physical degradation which the drug produces in those who use it, and for this reason the legislature has provided a specially heavy scale of punishments for these offences. Next in importance are offences against the opium rules. It is a matter of common experience that the principals as a rule take no active part in the smuggling of cocaine and opium, but remain in the background, and the persons who are arrested and convicted are merely their agents or tools. In order to secure as far as possible the punishment of the principals as well as the agents, the combination of a substantial fine with a sentence of imprisonment is desirable in every important smuggling case, as the fine will probably be paid by the principal who would otherwise escape all punishments. Offences of illicit distillation of country spirit rank next importance to cocaine and opium, and their suppression by the infliction of deterrent punishment is very necessary.
(3) The Lieutenant-Governor in Council desires that in determining the punishment to be inflicted for excise offences, trying Magistrates should bear In mind the distinction between technical offences, such as being in possession of an excessive amount of country spirit on the occasion of some festival, and the serious offences of illicit distillation and sale, where the intention is clearly to practise an illicit and extremely profitable trade. In the case of offences of the former class the plea of first offence, poverty or old age may properly be considered in mitigation of the penalty; but in the latter class of offences the infliction of light punishment on these grounds is merely an incentive to the repetition of the offence, particularly among the poorer classes who can realize what to them is a large profit by such offences as long as they are undetected.
(4) Where the offenders are persons of low caste or aboriginals by whom imprisonment is not considered a disgrace, imprisonment for a very short term is not a deterrent punishment. Nor is a small fine which can be readily paid sufficient. The most effective punishment in such cases is a fine sufficiently heavy to suit the circumstances of the culprit with or without a substantial term of imprisonment according to the gravity of the offence. In all cases imprisonment should be awarded in default of payment of the fine.
(5) The Lieutenant Governor in Council desires that Commissioners and District Officers will give their careful attention to manner in which the officers subordinate to them dispose of excise cases and arrange that this class of prosecution should be made over to magistrates of suitable standing. At the same time officers conducting excise prosecutions should be instructed to press for deterrent sentences in all but purely technical offences. In case an obviously inadequate penalty is found to have been imposed the District Officers should always take notice of the fact and should address Government with a view to moving the High Court to enhance the sentence, if such a course be deemed to be expedient.
Note. II A - (1) In circular no. 1129-48 Excise, dated the 26th January 1923, Government in the Ministry of Education emphasised the orders contained in circular No. 1969-E, dated the 8th March, 1919, and issued the following orders about inadequate punishments in excise prosecutions:-
Note. II A
The notice of Government has again been drawn to the large number of excise prosecutions in which inadequate punishments had been inflicted by trying Magistrates particularly in cases of illicit distillation, an offence which has been spreading rapidly during the current year, especially in the Chota Nagpur Division. As is well known this offence was encouraged by the non-co-operation propaganda of last year, but though the propaganda has decreased the offence is still persisted in, in particular by members of the aboriginal tribes. I am therefore, to invite the attention of all trying Magistrates to the orders contained in Mr. Sifton's letter no. 1969-E, dated the 8th March, 1919, and in particular to paragraphs 3 and 4 of that letter.
(2) The Local Government consider it necessary that the excise authorities shall in all cases of illicit distillation place before the trying courts full information as to the circumstances under which the offence was committed and in particular should inform them whether the offender has any assets and whether the illicit distillation was carried out with a view to sale and if so, what profits have been made by the accused. In all cases in which profit has been made and in which the accused has any assets it is desirable that the trying Magistrate should be moved to impose a substantial fine in addition to a substantive sentence of imprisonment. For such offences substantive sentence of fine only or one week or two weeks imprisonment without fines appears to Government to be inadequate and as a general rule in such cases the imprisonment should not be for less than one month. In many cases inadequate fines are inflicted because the courts take into consideration the poverty or old age of the offender. But though these circumstances may suitably be taken into consideration it should be pointed out to the court that an inadequate fine is useless as a deterrent. In cases in which the accused has been previously convicted the sentence should be considerably enhanced. If any case arises in which in the opinion of the District Officer an inadequate penalty has been imposed he should consider the desirability of reporting the case to the High Court under Section 438, Criminal Procedure Code, with a view to the enhancement of the sentence or of addressing the local Government with a view to the High Court being moved to enhance the sentence.
Note II B. - (1) In circular no. 3553-57-A., 'dated the 19th, April, 1927, Government in the Appointment Department emphasized the orders contained in circulars No. 1969-F. dated the 8th March, 1919, and No, 1129-48 Exc., dated the 26th January, 1923, and issued the following orders about the inadequacy of sentence imposed on conviction of offenders under the Excise and the Opium Acts:
Note II B.
Section 389 • Instructions issued by the Board of Revenue under Bihar and Orissa Excise Act, 1915
389. Register of convictions.
instructions-issued-by-the-board-of-revenue-under-bihar-and-orissa-excise-act-1915-sec-389.json
•
Section 389
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"act_title": "Instructions issued by the Board of Revenue under Bihar and Orissa Excise Act, 1915",
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"section_label": "Section",
"section": {
"number": "389",
"title": "389. Register of convictions.",
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"content": "Note I -(1) Attention is called to Board's Memorandum No. 227-B, dated 12th January, 1910. -\nNote I\n\"Section 9 of the Opium Act, I of 1878, provides for each offence of illegal possession, sale, or transport of opium a penalty of imprisonment for a term which may extend to one year, or fine which may extend to one thousand rupees, or both. It further provides that where a fine is imposed, the convicting Magistrate shall direct the offender to be imprisoned in default of payment of the fine for a term which may extend to six months, and such imprisonment shall be in excess of any other imprisonment to which he may have been sentenced.\"\n(2) In paragraph 12 of their Resolution No. 1095 E., dated the 8th March, 1900, the Government of India observed as follows:-\n'In the opinion of the Government of India, opium-smuggling, when detected, can best be dealt with by the imposition of both fine and imprisonment, so as to make both the person caught (who is in important cases generally a mere agent) and his principal share the penalty.'\n(3) The selling price of Excise opium varies from Rs. 17 to Rs. 35 a seer in Bengal districts. The price paid by the Opium Department to the cultivator for raw opium is Rs. 6 a seer. In Burma, a seer of smuggled opium is worth about Rs. 100. There is evidently therefore, a large margin of profit to tempt the smuggler.\nIn Burma, the Government is endeavouring in the face of great difficulties to check excessive indulgence in opium. If smuggling from Bengal is not discouraged by deterrent punishment, this task becomes almost insuperable.\n(4) In letter No. 2398-J.D., dated the 16/19th October, 1909, Government in the Judicial Department has issued the following orders on the subject to the Superintendent and Remembrancer of Legal Affairs:-\n* * * * * it will be seen that in the cases quoted * * Magistrates ** have been content to impose a moderate fine, whereas in other Courts similar cases has generally been punished with rigorous imprisonment. In view of the high value of opium in Burma, and the prevalence of the offence of smuggling into that country, it is very desirable that when cases are detected deterrent punishment should be inflicted. I am therefore to request that the Public Prosecutor may be instructed to ask any Presidency Magistrate before whom such a case may be heard for permission to address the Court; in the event of the Magistrate convicting an accused, on the question of sentence. Opportunities will thus be obtained to press for deterrent sentences, and the Excise authorities will furnish the Public Prosecutor with a memorandum of information to enable him to convince the Magistrate of the necessity for such sentences. If after these steps have been taken an obviously inadequate sentence is imposed the Excise authorities will be asked to bring the matter to the notice of Government in order that the High Court may be moved for an enhancement of the sentence.\"\nNote. II - (1) In Circular No. 1969-F., dated the 8th March, 1919, Government in the Financial Department issued the following orders about inadequate punishments in excise prosecutions :-\nNote. II\n\"The notice of Government has been drawn to the large number of excise prosecutions in which inadequate punishment have been inflicted by the trying Magistrates.\n(2) The explanations furnished by these Magistrates show that the gravity of the offences is often not realized. In some cases where the offence has been committed with a deliberate intention of defrauding Government of its revenue, the Magistrates have awarded light punishments on account of the poverty or the old age of the offenders, while in many other cases they have awarded nominal punishments on the sole ground that the offences committed had not involved any loss of revenue to Government. The Lieutenant-Governor in Council observes that Magistrates commonly fail to appreciate the intention of the legislature in providing a heavy punishment for excise offences. The question of revenue is only one of the considerations which should influence the court and it must be understood that transactions in excisable articles are controlled by Government not merely with a view to protect the revenue but also to promote the well-being of the people.\nOffences in respect of cocaine are the most serious on account, not merely of the enormous profit obtained by the offenders, but also the moral and physical degradation which the drug produces in those who use it, and for this reason the legislature has provided a specially heavy scale of punishments for these offences. Next in importance are offences against the opium rules. It is a matter of common experience that the principals as a rule take no active part in the smuggling of cocaine and opium, but remain in the background, and the persons who are arrested and convicted are merely their agents or tools. In order to secure as far as possible the punishment of the principals as well as the agents, the combination of a substantial fine with a sentence of imprisonment is desirable in every important smuggling case, as the fine will probably be paid by the principal who would otherwise escape all punishments. Offences of illicit distillation of country spirit rank next importance to cocaine and opium, and their suppression by the infliction of deterrent punishment is very necessary.\n(3) The Lieutenant-Governor in Council desires that in determining the punishment to be inflicted for excise offences, trying Magistrates should bear In mind the distinction between technical offences, such as being in possession of an excessive amount of country spirit on the occasion of some festival, and the serious offences of illicit distillation and sale, where the intention is clearly to practise an illicit and extremely profitable trade. In the case of offences of the former class the plea of first offence, poverty or old age may properly be considered in mitigation of the penalty; but in the latter class of offences the infliction of light punishment on these grounds is merely an incentive to the repetition of the offence, particularly among the poorer classes who can realize what to them is a large profit by such offences as long as they are undetected.\n(4) Where the offenders are persons of low caste or aboriginals by whom imprisonment is not considered a disgrace, imprisonment for a very short term is not a deterrent punishment. Nor is a small fine which can be readily paid sufficient. The most effective punishment in such cases is a fine sufficiently heavy to suit the circumstances of the culprit with or without a substantial term of imprisonment according to the gravity of the offence. In all cases imprisonment should be awarded in default of payment of the fine.\n(5) The Lieutenant Governor in Council desires that Commissioners and District Officers will give their careful attention to manner in which the officers subordinate to them dispose of excise cases and arrange that this class of prosecution should be made over to magistrates of suitable standing. At the same time officers conducting excise prosecutions should be instructed to press for deterrent sentences in all but purely technical offences. In case an obviously inadequate penalty is found to have been imposed the District Officers should always take notice of the fact and should address Government with a view to moving the High Court to enhance the sentence, if such a course be deemed to be expedient.\nNote. II A - (1) In circular no. 1129-48 Excise, dated the 26th January 1923, Government in the Ministry of Education emphasised the orders contained in circular No. 1969-E, dated the 8th March, 1919, and issued the following orders about inadequate punishments in excise prosecutions:-\nNote. II A\nThe notice of Government has again been drawn to the large number of excise prosecutions in which inadequate punishments had been inflicted by trying Magistrates particularly in cases of illicit distillation, an offence which has been spreading rapidly during the current year, especially in the Chota Nagpur Division. As is well known this offence was encouraged by the non-co-operation propaganda of last year, but though the propaganda has decreased the offence is still persisted in, in particular by members of the aboriginal tribes. I am therefore, to invite the attention of all trying Magistrates to the orders contained in Mr. Sifton's letter no. 1969-E, dated the 8th March, 1919, and in particular to paragraphs 3 and 4 of that letter.\n(2) The Local Government consider it necessary that the excise authorities shall in all cases of illicit distillation place before the trying courts full information as to the circumstances under which the offence was committed and in particular should inform them whether the offender has any assets and whether the illicit distillation was carried out with a view to sale and if so, what profits have been made by the accused. In all cases in which profit has been made and in which the accused has any assets it is desirable that the trying Magistrate should be moved to impose a substantial fine in addition to a substantive sentence of imprisonment. For such offences substantive sentence of fine only or one week or two weeks imprisonment without fines appears to Government to be inadequate and as a general rule in such cases the imprisonment should not be for less than one month. In many cases inadequate fines are inflicted because the courts take into consideration the poverty or old age of the offender. But though these circumstances may suitably be taken into consideration it should be pointed out to the court that an inadequate fine is useless as a deterrent. In cases in which the accused has been previously convicted the sentence should be considerably enhanced. If any case arises in which in the opinion of the District Officer an inadequate penalty has been imposed he should consider the desirability of reporting the case to the High Court under Section 438, Criminal Procedure Code, with a view to the enhancement of the sentence or of addressing the local Government with a view to the High Court being moved to enhance the sentence.\nNote II B. - (1) In circular no. 3553-57-A., 'dated the 19th, April, 1927, Government in the Appointment Department emphasized the orders contained in circulars No. 1969-F. dated the 8th March, 1919, and No, 1129-48 Exc., dated the 26th January, 1923, and issued the following orders about the inadequacy of sentence imposed on conviction of offenders under the Excise and the Opium Acts:\nNote II B.",
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