The recent spree of raids at various bars in the city by Additional Commissioner of Police (ACP), Vasant Dhoble, has caused a lot of outrage amongst the party lovers. At the same time, it has left many perplexed as far as rules of partying are concerned.
Advocate Subhash Jha explained, “It all depends on what cops think is decent or indecent. For them, a couple holding hands or dancing may be indecent, though it may be innocuous for the ‘offenders’ themselves.” A police officer who did not wish to be named said, “What you do not realise is that most of the police force is drawn from interior areas. Many of us had never been exposed to city life. It is a huge culture shock for someone who come from rural areas.”
According to the Prevention of Immoral Trafficking Act (PITA), to be able to search a place without a warrant, what the police need is ‘reasonable suspicion’ that the place is being used for carrying out an offence. The Act provides that two local persons, one of whom is a woman, should be present when such a search is being conducted. Interestingly, the Act also provides that cops conducting the raid are not liable in civil or criminal proceedings against them, for any actions they do lawfully while conducting the search.
But once a place is ‘raided’, how do the police distinguish between who’s a prostitute and who isn’t? Noted criminal lawyer Rizwan Merchant, said, “There is no benchmark or yardstick prescribed by the Immoral Trafficking (Prevention) Act, 1956 by which the police can distinguish between prostitutes and regular patrons. It’s a grey area in the law. It all hinges on what explanation convinces the police after an establishment is raided. And going by Vasant Dhoble’s yardstick, every lounge and pub is a pick up joint, and every woman present in such a place is a prostitute.”
Guilty by association?
According to Merchant, it all depends on the company one is caught in. “If you are sitting with women who are unknown to you, and you cannot provide an adequate explanation when asked what you are doing in their company, you could be in trouble,” said Merchant.
Jha from Law Global, a well-known law firm added, “While it is true that under the pretext of such ‘parties’ rackets do exist, we cannot let cops loose on citizens indiscriminately. This precedent creates a situation in which anyone could be picked up depending on the exigencies of the circumstances they are caught in.” The Act states that any person produced before a Magistrate in connection with violations of PITA, must be examined by a doctor for evidence of Sexually Transmitted Disease (STD) or sexual abuse. This provision would apply to persons caught in raids as well. In other words, a woman who may well have nothing to do with prostitution, but inadvertently caught at a restaurant by the police and booked under the Act would need to undergo the requisite tests. “In my opinion, the High Court was mistaken in not exercising its writ jurisdiction in light of the gross violation of human rights which this case presents. It should have gone deeper into the matter to prevent such a thing from recurring,” said Jha.
The High Court had recently said that it would be premature to intervene as the matter was pending before the Magistrate. Jha contended that the writ court ought to have intervened. “Should we allow our liberty be taken away like this by the police? What of the women’s honour, self esteem and trauma which has been affected by police heavy-handedness?” he asked.
Licences and the liability of patrons
What can patrons of eateries and pubs that stay open late do to protect themselves? According to lawyers, there is an onus on patrons to ensure the place they are frequenting has steered clear of the law.“Patrons need to be more alert. After all, each restaurant is required to display its licences in a visible place,” said advocate Ishwariprasad Bagaria. Merchant added, "Each licences issued to a restaurant contains certain terms and conditions. Suppose an establishment is not permitted to be open beyond a certain time, the presence of a patron in that place beyond that time amounts to a breach of those terms and conditions." Such a person can be fined under the Bombay Police Act.
Anyone who imports, exports, transports, sells or buys any alcohol without the licences and permits required under this Act faces imprisonment up to five years and a fine of Rs 50,000. Similar penalties exist for manufacturing alcohol or opening a 'drinking house'. The Act was last amended 15 years ago.
Now, consider this for a state that boasts of a Napa Valley of its own, and plans to promote wine tourism. Section 73 of the Act also prohibits advertisement of alcoholic beverages, with a punishment of six months imprisonment or a Rs 5,000 fine for every breach. Permits are required for everything from 'special functions' to selling wine wholesale, apart from those required for eateries serving alcohol or liquor shops.
Tipple only at 25
The Bombay Prohibition Act, 1949, also says a liquor permit is necessary in Maharashtra for purchase, possession, transport, and consumption of liquor. Any person above the age of 25 years is eligible for obtaining a permit. Even with a permit, the state government recently limited the amount of liquor a person can possess and transport at a time to two units per person per week, down from 12 units. One unit equals 750 ml. In case of wine, a unit is 1,500 ml, and for beers and mild liquors it is equivalent to 2,600 ml. The government via gazette notifications regularly revises many other rules related to alcohol regulation. Under the Act, liquor permits can be obtained from any excise office.
An application form—available for free — needs to be filled out and submitted. It must have two stamp-sized photographs, an ID proof (like a driving licence or passport) and address proof (like an electricity bill or bank statement). The form also asks for details like one's name, age, date of birth, occupation and address. A Rs 5 stamp, available at any court, needs to be glued to the document The fees are Rs 5 a day for foreign liquor, Rs 2 a day for country liquor, Rs 100 for a year and Rs 1,000 for a lifetime permit.
Definitions as per PITA and The Prohibition Act
>> "public place" means any place intended for use by, or accessible to, the public and includes any public conveyance.
>> "brothel" includes any house, room, conveyance or place, or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes;
>> "protective home" means an institution, by whatever name called (being an institution established or licenced as such under Section 21), in which persons who are in need of care and protection, may be kept under this Act and where appropriate technically qualified persons, equipment and other facilities have been provided but does not include—
(i) a shelter where undertrials may be kept in pursuance of this Act, or
(ii) a corrective institution;
>> "corrective institution" means an institution, by whatever name called (being an institution established or licenced as such under Section 21), in which persons, who are in need of correction, may be detained under this Act, and includes a shelter where under trials may be kept in pursuance of this Act;
>> "liquor" includes all liquids containing alcohol