Procedure for Trial — Special Courts

The Gujarat Prohibition Act, 1949 does not create a separately constituted "Special Court" with its own presiding officer; instead it engineers a special trial machinery around the ordinary Magistracy — clothing First Class Magistrates with enhanced sentencing power (s.115), prescribing the summary-case procedure (s.116), displacing the bail and cognizance rules of the Code of Criminal Procedure (ss.118–119), and grafting on prohibition-specific presumptions, pardons and venue rules. The result is a fast, deterrent-oriented forum. This note maps that machinery section by section and locates the leading authorities, beginning with State of Bombay v. F.N. Balsara, AIR 1951 SC 318, which upheld the parent statute. Read alongside Offences and Penalties and the Gujarat Prohibition Act hub.

Is there a constituted "Special Court"?

A common examination trap is to assume the Act erects a stand-alone Special Court on the model of the NDPS Act or the POCSO Act. It does not. The bare Act contains no "Special Judge", "Special Court" or "Court of Session" designation provision. What it does instead — under the chapter headed "Powers and Duties of Officers and Procedure" — is convert the ordinary criminal Magistracy into a special trying forum by three devices: (i) enlarging the Magistrate's sentencing competence beyond the Code's normal ceiling (s.115); (ii) commanding a particular mode of trial, namely summary procedure (s.116); and (iii) overriding the Code's default rules on cognizance and bail (ss.118–119). The constitutional foundation for this entire scheme was settled in State of Bombay v. F.N. Balsara, AIR 1951 SC 318, where the Supreme Court, applying the doctrine of pith and substance, upheld the Bombay Prohibition Act, 1949 (the parent of the Gujarat Act) as a valid exercise of the State's power over "intoxicating liquors", striking down only certain over-broad clauses reaching non-beverage and medicinal alcohol. The "special court" of this subject is therefore the Magistrate operating under a special procedural code. For the offences that this forum tries, see Offences and Penalties.

Enhanced sentencing power — Section 115

Section 115(1) opens with a non-obstante clause: notwithstanding s.32 of the Code of Criminal Procedure, 1898 (the provision capping a Magistrate's sentencing power), it is lawful for any Magistrate of the First Class to pass any sentence authorised by the Act in excess of his ordinary powers, provided the fine does not exceed three thousand rupees. This is the structural heart of the "special court" idea — without it, the heavier prohibition sentences would have to travel up to a Sessions Court, defeating the design of swift Magistrate-level disposal. The provision expressly carves out s.65A: a First Class Magistrate may not pass any sentence under s.65A (the spurious-liquor/laththa offence). Section 115(2), inserted by Guj. 29 of 2011, completes the picture by directing that the Code of Criminal Procedure, 1973 shall apply for trials of offences under s.65A — recognising that the gravest offence, carrying death or life imprisonment where death results (s.65A(2)), cannot be tried summarily and must go through the regular sessions process.

The summary trial mandate — Section 116

Section 116 is the operative "procedure" provision: "In all trials for offences under this Act, the Magistrate shall follow the procedure prescribed in the Code of Criminal Procedure for the trial of summary cases in which an appeal lies." Two features deserve emphasis. First, the word "shall" makes summary procedure mandatory, not optional — the Magistrate has no discretion to revert to a warrant trial for ordinary prohibition offences. Second, by anchoring the trial to summary cases "in which an appeal lies", the legislature preserved the convict's appellate remedy despite the abbreviated trial, a deliberate balance between speed and fairness. The summary mode means a condensed record and judgment, but the substantive safeguards of a fair trial — charge, opportunity to cross-examine, and the right of appeal — survive. The s.116 mandate must be read with s.115's enhanced-sentence power: a First Class Magistrate can impose substantial sentences and do so through summary procedure, which is precisely what gives the prohibition forum its deterrent bite. The single, deliberate exception is s.65A, pulled out of summary trial by s.115(2).

Cognizance and bail — Sections 118 and 119

Two short but decisive sections re-tune the Code's defaults. Section 118 provides that, in the absence of any contrary provision in the Act, the provisions of the Code relating to cognizable offences apply to offences under the Act — so prohibition offences are, as a class, treated as cognizable, permitting arrest without warrant and police investigation without a Magistrate's prior order. Section 119 then makes a select group of grave offences non-bailable: offences under ss.65, 65A, 67, 67-1A and 68 (the enumeration was widened to include s.65A by Guj. 29 of 2011). For these, the accused has no right to bail as of course; release rests on judicial discretion under the Code. The cognizable-plus-non-bailable combination — enforcement-friendly investigation coupled with restrained bail — is the procedural signature of the prohibition regime and explains the volume of remand litigation it generates. It is important to note the drafting technique: s.118 does not list which offences are cognizable; it sets cognizability as the default for the whole Act "in the absence of any provision to the contrary", a presumption that survives unless the Act itself says otherwise. Section 119, by contrast, is an enumerated, closed list — only the five offences named are non-bailable, so every other prohibition offence remains bailable as of right under the Code. A precise candidate must keep these two registers apart: a cognizable offence is not automatically non-bailable. The officers who exercise these investigative powers are catalogued in Prohibition Officers and Authorities.

Investigation, arrest and search — Section 117

Section 117 directs that, save as otherwise expressly provided, all investigations, arrests, detentions in custody and searches shall be made in accordance with the Code of Criminal Procedure — importing the Code's investigative architecture wholesale, subject to the Act's special carve-outs in ss.120–130 (entry, seizure, arrest without warrant). Critically, the proviso declares that no search shall be deemed illegal merely because the witnesses were not inhabitants of the locality searched, blunting a frequent defence technicality. Even where a search does breach procedure, the trial is not vitiated: following Pooran Mal v. Director of Inspection, (1974) 1 SCC 345, a Constitution Bench held that evidence obtained through an illegal search or seizure is not, for that reason alone, inadmissible under the Evidence Act — the only question is the weight to be attached to it. The 2017 amendment modernised s.117 by aligning the reference to the Code of Criminal Procedure, 1973. Section 117A supplements this with machinery for maintaining municipal lists of panch witnesses, professionalising the search-witness process.

Statutory presumptions at trial — Sections 103 and 116B

The Act lightens the prosecution's burden through reverse-onus presumptions that operate during the trial — a defining feature of the special procedure. Section 103(1) provides that in any prosecution it shall be presumed, until the contrary is proved, that the accused has committed an offence in respect of any intoxicant, hemp, mhowra flowers, molasses, still or apparatus "for the possession of which he is unable to account satisfactorily" — placing the explanatory burden on the person found in possession. Section 103(2) adds a focused presumption for illicit distillation: where it is proved that the accused was present beside a working still, or was the owner/occupier in care, management or control of the place where the still was used, the burden of proving non-use shifts to him and the court shall, absent such proof, assume the contrary. Section 116B supplies an evidentiary shortcut for possession trials: proof that the accused held a sealed bottle bearing the original label of a known brand of spirits, wine or fermented liquor raises the presumption that he was in possession of liquor, sparing the prosecution proof of contents in the ordinary case. These presumptions are rebuttable, preserving the constitutional minimum of a fair trial.

Proof of consumption — Section 66(2) and medical examination

Trials for consumption under s.66(1)(b) rely on a scientific presumption. Section 66(2) provides that where it is proved that the concentration of alcohol in the accused's blood is not less than 0.05 per cent. weight in volume, the burden shifts to the accused to prove that what he consumed was a permitted medicinal, toilet, antiseptic or flavouring preparation. The presumption arises from the blood-alcohol figure irrespective of visible intoxication, distinguishing the act of "consuming" (s.66) from being "found drunk" in public (s.85). To generate that evidence, s.129A empowers a Prohibition or Police Officer who reasonably believes a person has consumed an intoxicant to produce him before a registered medical practitioner for examination and collection of blood, using reasonable force if resisted, with female accused examined by a female practitioner. The compelled blood test survives the self-incrimination challenge because, under State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 (an eleven-Judge Bench), Article 20(3) bars only testimonial compulsion conveying personal knowledge — not physical evidence such as blood, fingerprints or specimen signatures. Section 129B makes the medical and chemical-examiner certificates admissible, subject to the court summoning the maker on request.

Tender of pardon to accomplices — Section 116A

Where two or more persons are prosecuted together, s.116A allows any First Class Magistrate, at any stage of investigation, inquiry or trial, to tender a pardon to a participant on condition of a full and true disclosure of all facts within his knowledge — the prohibition-statute analogue of the approver provisions of the Code. The Magistrate must record reasons (s.116A(2)); the pardoned person must be examined as a witness both before the Magistrate taking cognizance and in any subsequent trial (s.116A(3)); and the consequences of a pardoned person resisting full disclosure are governed by the imported ss.339 and 339-A of the Code of Criminal Procedure, 1898 (s.116A(4)), with the reference to the Public Prosecutor read to include any officer conducting a prosecution under the Act. This device is significant in clandestine bootlegging and laththa networks, where insider testimony is often the only route to the principal offenders punishable under s.65A. A pardon once accepted converts the accomplice into an approver whose evidence, by the settled rule of the Code, requires corroboration in material particulars before it can ground a conviction — so the section is a tool for unlocking proof, not a guarantee of it. Because the power vests in the Magistrate at "any stage", it can be deployed early in the investigation to break a syndicate before the trial proper begins, which is precisely its enforcement value in organised illicit-liquor cases.

Venue and forensic sampling — Sections 115A and 116C

Two procedural conveniences round out the special machinery. Section 115A (inserted by Guj. 16 of 1964) relaxes the ordinary territorial-jurisdiction rule: an offence of consumption of intoxicant or hemp under s.66(1)(b) may be tried by a Magistrate having jurisdiction either where the offence was committed or at any place in the State where the offender is found — a sensible rule given that consumption is often detected far from where the liquor was taken, and one that defeats jurisdictional objections in transit cases. Section 116C (inserted by Guj. 29 of 2011) imposes a duty on the Prohibition or Police Officer who seizes liquor to forward a sample immediately to the State Forensic Science Laboratory for a detailed analysis report — institutionalising the chain that produces the chemical evidence on which a conviction frequently rests. Read with the offence taxonomy in Manufacture, Sale, Possession and Use of Liquor, these sections show how the procedural and substantive provisions interlock.

Compounding and the bar on probation — Sections 104 and 104A

The Act provides a settlement valve and, simultaneously, a deterrent bar. Section 104 permits the State Government to sanction acceptance of a sum of money by way of composition from a person whose licence, permit, pass or authorisation is liable to cancellation or suspension, or who is reasonably suspected of certain offences (ss.69, 70, 77, 82 or 108); on payment, an accused in custody is released, seized property may be released, and any pending criminal proceeding is deemed to amount to an acquittal, barring further proceedings on the same facts (s.104(2)). The compounding power is, however, confined to the lesser, largely regulatory offences — it does not extend to the grave consumption, sale, manufacture and laththa offences. Cutting the other way, s.104A excludes leniency at sentencing: neither the Bombay Probation of Offenders Act, 1938 (or its successor, the Probation of Offenders Act, 1958), nor s.562 of the Code of Criminal Procedure, 1898 applies to a person convicted under the Act. A convict therefore cannot be released on probation of good conduct — a deliberate hardening of the sentencing regime consistent with the Act's deterrent objective.

Confiscation as part of the trial — Sections 99 to 101

Confiscation in a prohibition case runs on twin tracks. Where a prosecution is on foot, s.99 empowers the trying court, on deciding that anything is liable to confiscation, to order confiscation after hearing any claimant and his evidence — though for articles other than the intoxicant, hemp, mhowra flowers or molasses the court may give the owner an option to pay a fine in lieu, and a conveyance is not to be confiscated if the owner proves due care in preventing the offence. Where the offender is unknown or absconding, s.100 routes confiscation through an administrative inquiry by the Director, Collector or authorised officer, with a one-month minimum waiting period and a right of hearing to any claimant. Section 101 allows speedy sale or destruction of perishable or trifling articles. These provisions illustrate that the "trial" before the prohibition forum is not confined to guilt and sentence — it folds in the in-rem disposal of seized contraband and instrumentalities, completing the special procedural code that distinguishes prohibition adjudication from an ordinary summary trial.