Orissa High Court
Syama Takri vs State Of Orissa on 19 December, 2006
Equivalent citations: 2007(1)OLR184
Author: Pradip Mohanty
Bench: Pradip Mohanty
ORDER Pradip Mohanty, J.
1. This is an application under Section 439 Cr.P.C. The petitioner has been implicated in 11(a) C.C. No. 255 of 2006 of the Court of S.D.J.M., Koraput for the alleged commission of offence under Section 47(a) of the Bihar & Orissa Excise Act (for short 'the Act'). It is alleged that on 09.07.2006 at 6.00 p.m. the S.I. of Excise, Pottangi along with other staff, while conducting patrol duty, found the petitioner selling I.D. liquor. On being asked, he failed to produce any licence or authority for the same. Therefore, the S.I. of Excise seized the I.D. liquor (10 litres in quantity) contained in a plastic jerry can, prepared seizure list, arrested the accused-petitioner and forwarded him to the Court.
2. Heard learned Counsel for the petitioner and learned Addl. Standing Counsel.
3. Counsel for the petitioner submits that the learned Assistant Sessions Judge, Koraput has illegally rejected the prayer for bail of the petitioner by applying the provisions of the Act as amended by Act 10 of 2006. According to him, there was no material before the Court that the petitioner is likely to commit similar offence during pendency of the present case or tamper with the evidence. Though as per the prosecution case, only 10 litres of I.D. liquor has been seized from the petitioner, there is no evidence that the petitioner was selling the same.
4. Learned Addl. Standing Counsel submits that proviso to Section 85-A of the Act, which has been inserted by way of amendment vide Act 10 of 2006, stands as a bar for release of the petitioner on bail. In support of his contention, he relies on a decision of the apex Court in Bhupinder Singh v. Jarnail Singh .
5. Submissions of the counsel require careful consideration. In order to appreciate the above submissions, it is necessary to refer to Section 85-A, which is quoted hereunder:
85-A. Procedure for releasing on bail:- The provision of Chapter XXXIII of the Code of Criminal Procedure, 1973, shall apply to bail and bonds:
Provided that no person accused of an offence punishable for a term of imprisonment of seven years or more under this Act shall be released on bail or on his own bond unless-
(i) the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, oppose the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and he is not likely to commit any offence while on bail.
The aforesaid proviso says that no person accused of an offence punishable for a term of imprisonment of seven years or more under the Act shall be released on bail unless the State counsel is given an opportunity to oppose the application and the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and he is not likely to commit any offence while on bail. The bar provided in Section 85-A is only applicable in respect of the offences where the sentence is seven years or more. Section 47 of the Act prescribes that a person shall, on conviction for the offence under Clause (a) thereof, be punishable with imprisonment for a term, which shall not be less than three years but may extend to seven years and also with fine. In other words, for commission of the offence under Section 47(a), the minimum sentence is three years and maximum sentence is up to seven years.
6. The amending Act, i.e., Act 10 of 2006, came into force with effect from 01.06.2006. By the said amending Act, Section 52-A has been inserted, so also Section 85-A. So far as Section 47 is concerned there has been some enhancement in the matter of punishment, as would appear from Clause (i) thereof From the tenor of amendment introduced, it would be manifestly clear that the bar in granting bail, as provided in Section 85-A of the Act, is primarily relatabie to the offence specified in Section 52-A of the Act. Section 52-A provides penalty for mixing noxious substance with liquor, which is hazardous to human life. To curb such heinous offences. Section 85-A has been inserted. Therefore, the proviso to Section 85-A of the Act will not be a bar for release of a person accused of an offence punishable under Section 47(a) and in such a case the provision of Chapter XXXIII of the Code of Criminal Procedure, 1973 shall apply.
7. The decision of the apex Court in Bhupinder Singh (supra), as relied upon by the learned Addl. Standing Counsel, is relatabie to the period of limitation for submission of challan and, therefore, is not applicable to the facts of the present case.
8. Coming to the facts of the case, the quantity of the liquor allegedly seized from the possession of the petitioner is 10 litres only. The petitioner is in custody since 10.07.2006. No material is placed before this Court that the petitioner has any criminal antecedent.
9. Considering all the aforesaid circumstances, this Court directs that the petitioner be released on bail on furnishing bond of Rs. 20,000/- with two sureties each for the like amount to the satisfaction of the S.D.J.M., Koraput.
10. The bail application is accordingly disposed of.
11. Urgent certified copy of the order be granted as per rules.