Madhya Pradesh High Court
Lakhan Singh Kushwah vs State Of M.P. on 9 December, 1999
Equivalent citations: 2000CRILJ1943
ORDER Maithli Sahran, J.
1. In Misc. Criminal Case No. 3003/99 applicant by Shri Brijesh Sharma, Advocate, in 3072/99 applicant by Shri Pradeep Katare, Advocate and in 2986/99 applicant by Shri Y.K. Pathak Advocate.
2. State by Shri P.S. Chouhan, panel lawyer.
3. These misc. criminal cases are being disposed of by this common order as the point involved is the same in all these three cases.
4. The accused applicant has been arrested for the offences registered under Sections 34 and 49-A of the M.P. Excise Act, 1915 (hereinafter referred to as the 'Act') for keeping in his possession liquor, denatured spirit meant for human consumption. After completing investigation in the case, chargesheet has been filed in the Court of the concerned Magistrate.
5. I heard learned counsel for the petitioner and the learned panel lawyer for the State who has vehemently oppossed this application, mainly on the basis of the provisions engrafted under Section 49-B of the Act. For the sake of convenience it would be proper to reproduce the above provision hereunder :
49-B BAIL NOT TO BE ALLOWED FOR OFFENCES UNDER THIS CHAPTER - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (No. 2 of 1974) or Section 59-
(i) no application for an anticipatory bail shall be entertained by any Court in respect of a person accused of an offence under Section 49-A;
(ii) no application for bail of a person accused of an offence under Section 49-A shall be allowed if opposed by the prosecution :
Provided that no Court or magistrate shall authorise detention of such person in custody during the course of investigation for a period exceeding one hundred and twenty days and on the expiry of such period, in the event of the report or complaint not being filed, the accused shall be released forthwith if he is prepared to and does furnish bail.
5A. Going through the aforesaid provisions of the Act it is but clear that they have overridden the provisions of the Code of Criminal Procedure as this section starts with a non-obstante clause. It is really curious to note the wordings chosen for Section 49-B (ii) which run as under;
No application for bail of a person accused of an offence under Section 49-A shall be allowed if opposed by the prosecution.
It appears, the legislature has intended two types of oppositions from the side of the prosecution, one arbitrary, unjust, unfair and unreasonable and the other one a bona fide and reasonable opposition. If the opposition by prosecution has been only for the sake of opposition, being arbitrary or unjust, then the judicial power in regard to allowing bail has been kept intact, but, if it has been reasonabaly fair and bonafide then, it appears from the language, the bail could not be granted. I am of the view that it is against all cannons of justice, legal or natural. Even in a case of murder bail can be granted, depending of course on the merits of the factual aspects involved in it, but the fact remains that there is no offence where bail can never be granted.
6. That apart, the fundamental right of personal liberty envisaged under Article 21 of the Constitution of India is paramount and forms the basic structure of the Constitution. In any case it cannot be overridden by any statutory law of the country else the latter would be declared ultravires. The circumscribing boundaries in the shape of 'procedure established by law' have been given in the Constitution itself, and it being parent law of the country no other statutory law can override it. Thus, only on this count I am of the opinion that the provisions engrafted under Section 49-B of the Act are positively neither sound nor in consonance with the spirit of our Constitution, and, therefore, they cannot put an embargo on the power of grant of bail under the Act.
So far as the factual aspects of this case are concerned they are not such as to refuse bail to the applicant. Therefore, keeping in mind the facts and circumstances of the case coupled with the role assigned to the applicant, I deem it just and proper to allow this application. Thus, the application is allowed and the applicant is directed to be released on bail on his furnishing a personal bond in a sum of Rs. 30,000/- with two solvent sureties in a sum of Rs. 15,000/each to the satisfaction of the trial Court concerned for his appearance before that Court.
Certified copy, as per Rules.