LexThe ASSAM OPIUM PROHIBITION ACT, 1947
Assam · state statute
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ASSAM ACT XXITI OF .194~
t THE ASSAM OPIUM PROHIBITION ACT, 194:1
[Published in the Assam Gazette of the 24th December, .1947]
An Act to prohibit consumption (except for medicinal purposes) and
smuggling of opium in the Province of Assam
Preamble.-Whereas it is ,expedient to prohibit consumption (except for
medicinal purposes) and smuggling of opium in the Province of Assam; and whereas
it is necessary to enlist non-official support to exercise an effective control over :the
smuggling .of opium to achieve the aforesaid object ;
It is hereby enacted as follows :-
CHAPTER I
Preliminary
1. Short title, extent and commencement.-(1) This Act may be called the
Assam Opium (Prohibition) Act, 1947.
(2) It extends to the whole of Assam .
(3) It shall come into force on such ttdate as the *[State] Government may,
by notification in the .official Gazette, appoint.
2. Definitions.-In this Act, unless there is anything repugnant in the subject
or context,
(a) "buy", with all its grammatical variations, means any receipt for price
paid in cash or kind, and also any receipt by gift, loan or otherwise ;
(b) "Commissioner" means the person appointed under section 30 ;
(c) "excise opium" means opium issued from a Government Treasury in
the **[State] ;
(d) "export" means to take out of the **[State] otherwise than across
customs frontiers ; -
(e) "import" means to bring into the **[State] otherwise than across cus·
toms frontiers ;
(f) "opium" means and includes opium as defined in section 3 of 'the_
Opium Act, 1878 (Act I of 1878), and in clause (a) of section 2 of
the Assam Opium Smoking Act, 1927 (Assam Act III of 1927), and
also any other substance or preparation containing morphine in any
proportion whatsoever ; -
(g) "prescribed" means prescribed by rules framed under this Act ;
(h) "!'!ohibition officer" means a person appointed under secti_ofl :n ;
(i) "**[State]" means the **[State] of Assam :
(j) "section" means a section of this Act ;
(k) "sell", with all its grammatical variations, means any _transfer, includ
ing a gift or a loan or otherwise ;
tFor statement of objects and reasons see Assam Gazette, 1947, Part V.
page 22.
ttFirst A'pl'il 1948, see Notification No.MEX.167/47/174, dated 21st February
1948. Extended to Abor Hills- Notification No.EX/SFT/135/48a-Ad.,
dated 27th September 1949 and to Khasi States including Adminis
tered Areas by Notification No.SK/101/49/5, dated .12th October 194!t.
*Substituted by A.O., 1950 for "Provincial".
**Substituted by A.O., .1950 for "Province".
[Price annas 3 or 4d. ]
2
(1) " smuggler" means a person who brings any opium into the **[State]
other wise than across customs frontiers in contravention of the. pro
visions of this Act, or of any other law ; and
(m) "tran sport" means to take from one place to another within the
**[S!ate].
CHAPTER II
Prohibition
3. Prohibition.-No person shall-
for-
(a) impo rt, export, transport or possess opium ;
(b) sell or buy opium ;
(c) consume opium;
(d) use or keep any material, utensil, implement or apparat us :whatsoever
(i) the manufacture of any opium smoking preparation or any drink
conta ining opium,
(ii) smoking opium,
(iii) weighing opium, or
(iv) pres erving opium.
CHAPTER III
Exemptions
4. Exemptions.-(!) The provisions of this Act shall not apply to a ny shop
or place licen sed for the sale of opium {or medicinal purposes, or to any person
who buys opium from any place or shop as aforesaid under a- prescriptio n from
a Registered Medical Practitioner, or to any hospital or dispensary, or to t he
import, export , transport, possession, sale or purchase of excise opium.
(2) The provisions of this Act shall not apply to any Registered Medical
Practitioner who acquires, possesses, prescribes or dispenses opium in any form
in due fulfilment of his medical duties.
CHAPTER IV
Offences and Penalties
5. Punishment for contravention .-Whoever, in contravention of the provi·
iions of this Act or t he Rules made thereunder-
for-
(a) impor ts, exports, transports or possesses opium, or
(b) sells or buys opium, or
(c) con sumes opium, or
(d) uses or keeps any material, utensil, implement or apparat us :wh a~s oever
(i) the manufacture of any opium smoking preparations or any drink
containing opium,
(ii) smoking opium, shall be punished with imprisonment of either des
crip tion for a term which may extend to six years, and with fine
which may extend to five thousand rupees,
·**Subs ntu1ed by the ,A.O., .1_950 fo.r "Province".
•
t[ (iii) weighing opium, or
(iv) preserving opium],
U[ Provided that an accused, who is found on evidence to be a smuggler
of opium or a seller of opium, shall not receive a sentence of less than two years'
rigorous imprisonment and fine. ]
6. Punishment for allowing premises to be used for the commission of Bil
offence.-Whoever, being the owner or occupier or having the use of any house.
room, enclosure, space, vessel, vehicle or place, knowingly permits it to be used
for the commission, by any other person, of an offence punishable under this
Act or the rules made thereunder, shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine which may
extend to two thousand rupees, or with both.
7. Enhanced punishment for certain offences after previous conviction.
Whenever any person, having been convicted of an offence under clause (a) or
clause {b) of section 5, is again convicted of an offence under either of the afore
said clauses, the imprisonment with which he shall be punished shall be rigorous
imprisonment for a term which may extend to ten years t:l:[and fine].
tt[ Provided that an accused who is found on evidence to be a smuggler of
opium or a seller of opium shall not receive a sentence of less than three years'
rigorous imprisonment and fine. ]
8. Security for abstaining from commission of oft'ences.-(1) Whenever any
person is convicted of an offence punishable under section 5 or under section 6,
and the Court convicting him is of opinion that it is necessary to require such
person to execute a bond for abstaining from the commission of such offence, the
Court, may, at the time of passing sentenl.'.e on such person, order him to execute
a bond for a sum proportionate to his means, with or without sureties, for ab
staining from the commission of such offence during such period, not exceeding
three years, as it thinks fit to fix .
(2) The bond shall be in the prescribed form, and the provisions of the Code
of Criminal Procedure, 1898 (Act V of 1898), shall, in so far as they are appli
cable, 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 that Code.
(3) If the conviction is set aside on appeal or otherwise, the bond executed
shall become void.
(4) Any order under this section may also be made by an Appellate Court.
or by the High Court when exercising its powers of revision.
9. Attempts.-Whoever attempts to commit an offence punishable under
section 5, or to cause such an offence to be committed, and in such attempt does
aey act towards the commission of the offence or towards the causing of its
commission, shall be punished with the punishment provided for the offence.
10. Abetments.-Whoever abets an offence punishable under section 5 or
section 6 shall, whether such offence be or be not committed in consequence of
such abetment, be punished with the punishment provided for the offence.
tt[Whoever, knowing or having reason to believe that an offence has been
committed under this Act, causes any evidence of the commission of that offence
to disappear or gives any information respecting the offence with the intention
of screening the offender from punishment under the Act, or with that intention
gives any information respecting the offence which he knows or believes to be
false, shall be punished with the punishment provided for the offence. ]
tinserted by the Assam Opium Prohibition (Third Amendment) Act, 1951
(Act X of 1951).
Uinserted by the Assam Opium Prohibition (Second Amendment) Act. 1949
(Act I of 1949).
4.
CHAPTER V
S£.C1¢ty frQm l!_abitual offenders to desist from committing offences
:u.: Security for desisting from committing offences.-(1) Whenever a District
Magistrate or a Subdivisional Magistrate of the first class specially empowered
by the [State] Government in this behalf receives information that any person
within -the limits of his jurisdiction habitually :-
. (a) commits offences under section 5 or section 6, or
·. - (h) protects or harbours smugglers, receivers or sellers of opiµm, or
opium -eaters, such Magistrate may, in manner hereinafter provided, require such
person to show cause why he should not be ordered to execute a bond, with
Slli'eties, to desist from committing any offence mentioned in this sub-section for
suah period, not exceeding three years, as the Magistrate thinks fit to fix.
· (2) Order to be made.-When a Magistrate acting under sub-section (1)
deems _it necessary to reguire any person to show cause under it, he shall make
an order in writing, setting forth the substance of the information received, the
amount of the bond to be executed, the term for which it is to be in force, and
the nqmber, character and class of sureties required .
(3) Procedure in respect of persons present in Court-If the person, in -res
p~t of whom such order is made, is present in Court, it shall be read over to hii:p.
ot, if :lie so desires, the substance thereof shall be explained to him.
_ .(4) Procedure in respect of persons not present in Court.-If such is not
present in Court, the Magistrate shall issue a summons requiring him to appear,
or, when such person is in custody, a warrant directing the officer in whose custo
dy he is, to bring him before the Court ;
·:... Provided that whenever it appears to such Magistrate, upon a report or
upon other information (the substance whereof to be recorded), that there is
reason to apprehend that any person against whom proceedings under this
seetio)l have been initiated is likely to abscond and his presence before the
Magistrate cannot -be secured unless a warrant of arrest be issued against such
person, the Magistrate may issue a warrant of arrest accordingly .
. : · (5) Processes how served.-Every summons or warrant issued under sub
section ( 4) shall be accompanied by a copy of the order mafle under sub
s~tian. (2), and such copy shall be delivered by the officer serving or executipg
such summons or warrant to the person against whom the order is made.
_ (6) Inquiry as to truth of infonnation.-(i) When-an order under sub-section (2)
has been read and explained to a person present in Court under sub-section (3)
or where any person appears or is brought before a Magistrate in compliance
with, or in ..execution of, a summon or warrant issued under sub-section (4),
the. Magistrate shall proceed to inquire into the truth of the information upon
which action has been taken and to take such evjdence as may appear
necessary.
(ii) Such inquiry· shall be made as nearly as may be practicable according
to_ the procedure prescribed for the trial of warrant cases in the Criminal Proce
dw::e Code, 1898, (Act V of 1898), except that no charge need be framed .
.(iiir If the Magistrate considers that immediate measures are necessary
for ,the prevention of the commission of any offence under this Act, pending the
conclusion of the inquiry under clause (i), he may, for reasons to be recorded,
direct the person in respect of whom the order under sub-section (2) has been -
m1i9e, to execute a bond with sureties to desist from committing any offence
mentioned in sub-section (1) until the conclusion of the inquiry and may detain
h~ , in Cllstody until such bond is executed, or, in default of execution, until the
inquiry is co~duded.
(7) Evidence of general repute.-Fo~ the purposes of this _section, [and
section 16]1 the fact that a person is a habitual offender within the meaning of
sub-section (1) may be proved by evidence of general repute or otherwise.
(8) Joinder of inquiries.-When two or more persons are alleged to have
been associated together in the matter under inquiry, they may be dealt with
in the same or separate proceedings as the Magistrate shall think just.
(9) Order to give security.- If upon such inquiry, the Magistrate is satisfied
that it is necessary that the person, in respect of whom the inquiry is made,
should execute a bond with sureties to desist from committing the offences
specified, the Magistrate shall make an order accordingly ;
Provided-
Firstly, that no person shall be ordered to give surety of a nature different
from or for an amount larger than or for a period longer than that specified in
the order made under sub-section (2) ;
Secondly, that the amount of such bond shall be fixed with due regard to
the circumstances of the case ; and
Thirdly, that when the person in respect of whom the inquiry is made is a
minor, the bond shall be executed only by his surety.
(10) Discharge of person proceeded against.-If upon such inquiry the
Magistrate is not satisfied that it is necessary that the person in respect of whom
the inquiry is made should execute a bond, the Magistrate shall make an entry
on the record to that effect, and if such person is in custody only for the purposes
of the inquiry shall release him, or, if such person is not in custody, shall dis
charge him.
12. Proceedings subsequent to the order to furnish security.-(1) If any per
son in respect of whom an order requiring security is made under sub-section (9)
of section 11 is, at the time when such order is made, sentenced to or undergoing
a sentence of imprisonment, the period for which security is required shall
commence on the expiration of such sentence.
(2) In all other cases, such period shall commence on the date of such
order, unless the Magistrate, for sufficient reason, fixes a later date.
13. Contents of the bond.-The bond to be executed by such person shall
bind him to desist from committing any of the acts mentioned in sub-section (1)
of section 11, and shall be in the prescribed form.
14. Power to reject security.-A Magistrate may refuse to accept any securi
ty offered or may reject any security previously accepted by him or by his
predecessor under this Chapter on the ground that such surety i~ an unfit person
for the purposes of the bond :
Provided that before so refusing to accept or rejecting any such surety, he
shall afford the person bound down and the surety an opportunity to show cause
against the proposed order, and either himself hold an inquiry into the fitness of
the surety or cause such inquiry to be held and report to be made thereon by a
Magistrate subordinate to him.
15. Imprisonment in default of security.-(1) If any person ordered to give
security under sub-section (9) of section 11 does not give such security on or
before the date of the commencement of the period for which such security is to
be given, or if the security of any person previously accepted is rejected under
the provisions of section 14, he shall be committed to prison, or, if he is already
in prison, be detained in prison until the date of expiry of such period or any
earlier date on which he gives security as ordered .
(2) If the security is tendered to the officer-in-charge of the Jail, he shall
forthwith refer the matter to the Magistrate who made the order and shall await the
orders of such Magistrate.
----------- ----1 Inserted by the Assam Opium Prohibition (Amendment) Act, 1952, S.2.
6
(3) Im'prisonment for failure to furnish security under this Chapter sliaU be
rigoreus.
CHAPTER VI
Extemment of Habitual Smugglers
16. Externment of habitual smugglers.-Whenever a District Magistrate or a
Subdivisional Magistrate or a Magistrate of the first class specially empowered
by the [State]* Government in this behalf receives information that any person
within the limits of his jurisdiction is by habit a smuggler of opium [or a seller or
stockist of opium]t such Magistrate may, in the manner hereinafter provided,
require such person to show cause why he should not be externed from the
[State]** or from any part thereof for such period as the Magistrate may deem
fit.
17. Procedure of extemment.-(1) The provisions in Chapter V of this Act
shall, in so far as they are applicable, apply to all proceedings under section 16,
and if upon such inquiry the Magistrate is satisfied that it is necessary to extern the
person in respect of whom the inquiry is made, he shall make an order accor
dingly.
(2) The Magistrate making the order under sub-section (1) shall direct the
person concerned to leave the Province within such time, by such route or routes
and for such period as may be stated in the order.
(3) Any person against whom an order has been made under sub-section (1)
may appeal to the Court of Session, whose decision shall be final. -~
18. Punishment for non-compliance.-When any person, against whom an
order has been made or confirmed in appeal, as the case may be, under sec-
tion 17-
(a) fails to comply with such order within the time specified therein, or
(b) after complying with the said order returns to or remains in the area
from which he was externed before the expiry of the period stated in
the order,
he shall be punished with rigorous imprisonment for a term which
may extend to ten years, and with fine which extend to five thousand
rupees.
CHAPTER VII
Procedure
19. Power to issue warrants.-(1) A District Magistrate or a Subdivisional
Magistrate or a Magistrate of the first class, or an officer of the Excise Depart
ment not below the rank of a Superintendent specially empowered by the [State]*
Government in this behalf, may issue a warrant for the arrest of any person
whom he has reason to believe to have comn1itted an offence punishable under
this Act or the rules thereunder, or for the search, whether by day or by night,
of any building, vessel or place in which he has reason to believe any opium,
material, utensil, implement or apparatus, in respect of which an offence punish
able under this Act has been committed, is kept or concealed.
(2) The officers to whom a search warrant under sub-section (1) is addressed
shall have all the powers of an officer under section 20.
*Substituted by A.O., 1950 for "Provincial" .
, **Substituted by A.O., 1950 for "Province".
-~~~~~~~-----------
t Inserted by the Assam Opium Prohibition (Second Amendment) Act,
1949 (Act I of 1949).
io. '-Power of entry, search, seizure and arrest without warrant._:_(1) Any
officer of the Department of Excise not below the rank of J amadar, any police
officer not below the rank of Assistant Sub-Inspector, any officer of the Depart
ment of Revenue not below the rank of Sub-Deputy Collector, and any Prohibi
tion officer authorised in this behalf by tile [State]* Government, who has reason
to believe, from personal knowledge or from information received from any per
son and taken down in writing and attested by the informant, that any opium,
material, utensil, implement or apparatus in respect of which an offence punish"
able under this Act or the rules thereunder has been committed is kept or con
cealed in any building, vessel, or enclosed place, may, between sunrise and
sunset,-
(a) enter into any such building, vessel or place;
(b) in case of resistance, break open any door ahd remove any other obst
acle to such entry ;
(c) seize such opium, material, utensil, implement or apparatus,- and any
other article liable to confiscation under section 29, and any document or other
article which may furnish evidence of the commission of the offence ; and
(d) detain, search and arrest any person whom he has reason to believe
to have committed an offence against this Act relating to such opium, material,
utensil, implement or apparatus :
Provided that if such officer has reason to believe that a search warrant
cannot be obtained without affording opportunity for the concealment of evidence
or facility for the escape of an offender, he may, after recording the ground of his
belief, enter and search such building, vessel or enclosed place at any time between
sunset and surise.
(2) Where an officer takes down any information in writing under sub
section (1), or records grounds for his belief under the proviso thereto, he shall
forthwith send a copy thereof to his immediate official superior.
21. Power of seizure and arrest in pubiic places.-Any officer of any of the
Departments referred to in section 20 or any Prohibition officer may-
(a) seize, in any public place or in transit, any opium, material, utensil,
implement or apparatus in respect of which he has reason to believe an offence
punishable under this Act or the rules thereunder has been committed, and,
along with it, any other articles liable to confiscation under section 29, and any
document or other article which may furnish evidence of the commission of the
offence ; and
(b) detain, search and arrest any person whom he has reason to believe
to have committed an offence against this Act relating to such opium, material,
utensil, implement or apparatus.
22. Mode of executing warrants and of making searches and arrests.--:-The
provisions of the Code of Criminal Procedure, 1898, Act V of 1898, shall, in so
far as they are applicable, apply to the execution of warrants and making of
searches and arrests under this Act.
23. Obligation to assist.-(1)_ Any person shall, upon notice being given or
request made, be legally bound to assist an officer acting under this Chapter in
carrying out the provisions of this Act.
(2) Any person contravening the provisions of sub-section (1) s~all be
punished with simple imprisonment for a term which may extend to six months, .
or with fine which may extend to five hundred rupees, or with both.
24. Report of arrest and seizure.-Any officer making an arrest or seizure ·
under this Act shall, within 24 hours after such seizure and arrest, make a full
report of all the particulars of such arrest or seizure to his immediate official
superior.
*Substituted by the A.O., J950 f_or "Provincial".
I
25. Disposal of persons arrested and articles seized.-(1) Every person arres
ted and article seized under a warrant issued under section 19 shall be produced
within 24 hours of such arrest and seizure, exclusive of the time for actual transit,
before the authority by whom the warrant was issued.
(2) Every person arrested and article seized under section 20 or 21 shall be
produced within 24 hours of such arrest and seizure, exclusive of the time for
actual transit, before the officer-in-charge of the nearest Police Station or the
nearest officer of the Excise Department empowered under section 26.
(3) The officer to whom any person or article is forwarded under this
section shall, with all convenient despatch, take such measures· as may be necessary
for the disposal, according to law, of such person or article.
26. Power to invest Excise officers.-The [State]* Government may invest
any officer of the Excise Department, not below the rank of Sub-Inspector, with
the powers of an officer-in-charge of a Police Station for the investigation of
offences un4er this Act.
27. Jurisdiction to try _offences.-Notwithstanding anything contained in the
Code of Criminal Procedure, 1898 (Act V of 1898), the [State]* Government
may invest any District Magistrate, Subdivisional Magistrate or Magistrate of the
first class with power to try as a Magistrate all, or any specified, offences arising
in his jurisdiction under section 5, [section 6,]t section 7, section 9, section 10 or
section 18, and every Court of a Magistrate so empowered may pass any sentence
authorised by the aforesaid sections respectively.
28. Presumptions.-(1) In trials under clauses (a) to (c) of section 5, it shall
be presumed, unless and until the contrary is proved, that the accused has com•
mitted the offence with which he is charged in respect of the opium for the
possession of which he fails to account satisfactorily.
(2) In- trials under clause (d) of section 5, it shall be presumed, unless and
until the contrary is proved, that the accused has committed the offence with ·
which he is charged in respect of the material, utensil, implement or apparatus
for the possession of which he cannot account satisfactorily:
29. Things liable to confiscation.-When, in the opinion of the Court, an
offence has been committed against this Act, the opium, material, utensil, imple
ment or apparatus in respect of, or by means of, which the offence was commit
ted shall be confiscated (whether or not any person has been put on trial or
convicted) along with all receptacles, packages, vessels, converings, animals,
carts or other vehicles used or employed to contain or carry the same, unless,
for sufficient reasons to be recorded in writing, ·the Court directs otherwise;
Provided that any person having a lawful claim to any such commodity,
article, animal, or other thing mentioned above, may file, before the Court, a
claim in respect thereof within 30 days of such order of confiscation, and if the
claim is made out to the satisfaction of the Court, the order of confiscation shall
oe ~ncelled and the opium or other thing shall be returned to . such claimant.
CHAPTER VIIl
Prohibition Authorities
30. Prohibition Contntissioner.-For the purposes of this Chapter, the
*!State] Government may, by notification in the official Gazette, appoint any
non-official person to be the Prohibition Commissioner.
*Substituted by the A.O., 1950 for "Provincial".
ilnserted by ~he Assam Opium Prohibition (Amendment) Act (Ac! V
of 1948}.
..