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This article was first published 12 years ago  » News » Be afraid, be very afraid of the Bombay Prohibition Act

Be afraid, be very afraid of the Bombay Prohibition Act

By Sunil Phatarphekar
Last updated on: June 26, 2012 14:35 IST
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With the almost universal breach of the alcohol licensing conditions, once the powers-that-be decide to crack the whip, every restaurant will run into problems. Huge problems, says Sunil Phatarphekar

I can bet that all Bombaywallahs' emotions must be rather stimulated in the last couple of weeks. The goings-on with the right honourable Assistant Commissioner of Police Vasant Dhoble, the `who knows if it was a rave' at Juhu and the persecution of Priti Chandriani for selling liquor chocolates clearly show that we live in exciting times. Are we heading into a downward spiral of Talibanisation, is this `crackdown' justified or should the `archaic' law be changed, are just some of the questions all of us are asking.

I thought I should investigate. I am a  lawyer, and can still read a legal book and make some sense of it. So, off I went to the law book-seller to buy a copy of the Bombay Prohibition Act 1949 which I then spent some time reading, digesting and putting down in hopefully a logical, easily understandable form.

Before I get into analysing the Act, I must make my position clear.

First, the Act is extremely harsh, stringent and straight-forward in its rigidity and control.

Second, the law is the law and it should be fairly implemented across the board.

Third, is it `archaic' or `Taliban' like? I am not so sure if either term could be applied. On the one hand we support something like a ban on smoking, but by the same token a crackdown on drinking with or without a permit seems unacceptable. We want chewing tobacco and the various Pan Parags or gutkhas banned. So in our minds, banning certain things is not `Talibanisation' but regulating drinking is? Passing a legislation banning smoking is not regarded as archaic for reasons I cannot understand. Health of the consumer is of no relevance as there are plenty of things that should be banned on grounds of health -- anything that contains trans fats, for example. So using words like `archaic' or `Taliban' to condemn the Act sounds like faulty logic to me.

Fourth, I believe there should be a legal age for drinking. This could be done by removing the detailed legislation we have today and replacing it with a simpler set of laws. One where shops selling alcohol are regulated and consumption or purchase is only on basis of an ID showing you are over a base age.

As an overview, to put it simply and succinctly, the law has an overarching principle that only those with permits can manufacture, trade in as vendors, buy, possess and consume alcohol. This is not wholly different in Western Europe, the United States of America and most non-Muslim countries. Even there, the manufacture of alcohol is heavily regulated and taxed. Restaurants or shops selling alcohol have to be licensed. Serving alcohol to an under-aged person invites severe penalties.

The key differences are: (i) the concept of a `permit room'; (ii) the fact that despite your age, you have to have a permit to consume alcohol; (iii) a vendor has to maintain elaborate registers; and (iv) you as an individual cannot possess more than 12 units of alcohol.

Let's now deal with our Act which applies to the whole of Maharashtra. It's much simpler to analyse our Act having regard to the differences I have set out in the preceding paragraph. Any establishment serving hard alcohol has to have a segregated area which is known as the `permit room'. Of course, the whole restaurant may be a `permit room' too. Alcohol can only be served in this area. Only a permit-holder can enter this area. Non-permit holders cannot be present here even if they are not drinking.

This is of course absolutely never followed. You can walk into any restaurant serving alcohol and you will find no divide, no permit room. This means that children and non-permit holders can all sit together. The restaurant will serve alcohol to any patron [not a child] throughout the restaurant area. With this almost universal breach of the licensing conditions, once the powers-that-be decide to crack the whip, every restaurant will run into problems. Huge problems. The permit room concept needs to go.

The second big problem area is the requirement that an individual has to have a permit. It follows that if you have a permit you can enter a permit room and drink. You can also buy alcohol from a vendor. With a permit you can store and transport alcohol. More on that later. To get a permit you have to be 25 or more. You need a certification from a doctor that you need to consume liquor for the preservation of your health and then you apply for a permit with a fee, address proof, age proof and a photograph. You get a yearly permit for just Rs 100 and a lifetime permit for a bargain of Rs 1,000. Once you have this, you can drink.

Besides a regular permit, there are several types of permits on offer. A temporary permit which lasts up to 24 months; an emergency permit where you require to show dire emergency to consume alcohol; a special permit available to diplomats; a visitors permit for guys who don't live in Maharashtra but are only visiting; an interim permit which lasts for a day and a tourists permit which is available to non-Indians.  

As a permit-holder [a regular permit], you can at any time only posses 12 units of alcohol [sub Rule (6) of Rule 70D of the Bombay Foreign Liquor Rules 1953]. One unit is 750 ml of hard liquor or 1500 ml of wine or 2600 ml of beer. Anything more than 12 units will invite prosecution. Before reading further, please take stock of the booze at home!!

If you want to buy some alcohol, you need to go to a liquor vendor and give him your permit. Be aware that you can only buy enough to make up the 12 units you are entitled to. You cannot have more than 12.

Alas, there can be no wine connoisseurs in Maharashtra with a large cellar containing several hundred bottles of wine, even though Maharashtra promotes the growing of grapes and manufacture of wine!

When you go to a shop to buy your permitted quota of alcohol, the vendor is supposed to enter your permit details in his register before he hands over your liquor. The same is true when you consume alcohol in a restaurant -- a permit number must be entered against your purchase. Of course, no one follows any of this. Not only can you buy as many units as you like, but to make matters worse, you don't really even need a permit.

All vendors and restaurants have literally hundreds of permit numbers that they fill into the registers every time they sell you the booze. What this means is two things. First, if you are foolish or naive enough to give a vendor or restaurant your number, he will add your permit to his database and use the number for his sales. Thus, you will find that you have bought not 12 but hundreds of units, clearly breaching the law.

On the flip side is the fact that there are literally hundreds of permit-holders who are buying booze far far in excess of their allowance. Imagine what would happen if Dhoble puts two and two together, off to jail my friend and no defence!

As a permit-holder you can offer any part of the liquor possessed by you to any other permit-holder. You could also transport your permitted quota at will. If your permit is suspended or revoked for any reason, you have to return the alcohol. You cannot continue to hold it. You will get your money back after expenses are deducted.

As a permit-holder you have great immunity. You can buy, transport and consume the alcohol without much risk. I suggest you get yourself and your spouse a lifetime permit as soon as possible. If you have more than 12 bottles of booze, drink the excess quickly before Dhoble turns up. It's not that difficult getting a permit, get one soon, and get a lifetime permit.

Priti Chandriani is in a pickle, if you ask me. For those of you who don't know what happened to her do read this (external link). The complaint against her was clearly motivated, which has been confirmed by the police who say they were acting on a 'tip-off'. Priti had some 20 units of alcohol at home. More than the 12 units allowed. [I like the way I have morphed into units instead of bottles] To make matters worse she had no liquor permit. She lived with her parents. They had no permits either. Big problem, if you ask me. To compound the problem, she was making liquor chocolates. She claims they were for her personal consumption.

During my research for this article, I read The Special Permits And License Rules, 1952. Rule 6 which was introduced in April 1974, clearly states that any person desiring to manufacture liquor chocolates and desiring to sell them to permit-holders shall have to apply for a licence to do so. Therefore, the law clearly contemplated in 1974 (surely not as far back in time to qualify as archaic), states that liquor chocolate manufacturers needed to be licensed. I do hope she is able to demonstrate that she does not sell the chocolates. If she did sell them she would really be in trouble, holding booze without a permit and selling chocolates without one too!! Not a happy position.

The Special Permits And License Rules, 1952, provide that liquor chocolates can be sold to only permit-holders. On one level, this is logical, though not entirely sensible. Today imported liquor chocolates are openly and legitimately sold in upmarket stores. There is not a single restriction of anyone purchasing them. So obviously this rule too is only breached and never followed, till poor Priti got into a pickle. 

This takes me to my question. You cannot consume alcohol without a permit, this much is clear. For the moment, leave alone the fact that none of these regulations are complied with. Assume you do not have a permit and you are in a restaurant and you order a Risotto or Beef Bourguignon, both of which have wine as an essential ingredient or a Steak Diane which has Brandy or a Christmas Cake which has Rum and Brandy or anything with a Red wine or White Wine sauce, could you be in breach of the Bombay Prohibition Act, 1949? What happens if your underage son or daughter eats any of these dishes? Big big trouble if Dhoble is around.

Is this really what is intended by the Bombay Prohibition Act, 1949? Do we really need it with such a great degree of useless compliance requirements? I really think not. I think that manufacture and sale of alcohol should be regulated, but more sensibly. The requirements to have permits for individuals should be done away with. Let there be a general law that persons below a benchmark age should not be served alcohol. Let's do away with stuff like licensing of liquor chocolates and believing that 'liquor-laden' food can get you intoxicated. Let's just grow up a bit.

As I have said earlier, the complete flouting of the law by all concerned, whether it is vendors, restaurateurs and us punters is now the norm. To reverse this situation and make everyone comply is a huge task and one which our enforcement authorities cannot possibly undertake. After all these years of slippage, it's probably best to change the law on the lines I suggested.

Have Dhoble and the Excise authorities who arrested Priti done any wrong or acted beyond the law? Reading reports, I do not think so. I just think that this ad hoc application of the law has caused, and will continue to cause, huge unhappiness as feelings of vindictiveness, high-handedness and what appears to be a class war takes centrestage. Also it's just so unfair to single out one or two when wholesale breach is the order of the day. 

The writer is a lawyer, passionate cook, blogger and permit-holder

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Sunil Phatarphekar