Orissa High Court
Sri Kailash Nahak @ Naik And Ors. vs State Of Orissa on 14 February, 2008
Equivalent citations: 2008CRILJ2909, 2008(I)OLR666
Author: M.M. Das
Bench: M.M. Das
ORDER M.M. Das, J.
1. A common question having been raised in all these bail applications, the same were heard together. Out of the above cases, the BLAPL Nos. 7840, 8580, 8690, 8896, 8974, 8986, 9948, 10559, 10826, 11737 and 12903 of 2007 are applications filed under Section 438, Cr.P.C. and BLAPL Nos. 11222 and 12061 of 2007 are filed under Sections 439, Cr.P.C. In all these cases offence under Section 47 (a) of the Bihar and Orissa Excise Act, 1915 (hereinafter referred to as "the State Act") has been alleged.
2. Mr. S. Pradhan, learned Counsel appearing for the State raised a preliminary objection with regard to grant of bail to the petitioners. He contended that in view of the new Section 85-A introduced into the State Act, which has come into force with effect from 01.06.2006, a bar has been created for granting bail to the accused, who is alleged to have committed an offence under the Act punishable for a term of imprisonment of seven years or more. Such accused can only be granted bail on satisfaction of the proviso to the said Section 85-A.
3. However, in the case of Syama Takri v. State of Orissa , the learned Single Judge of this Court analysing the new Section 85-A of the Act and interpreting the same has held that the bar in granting bail as provided in the said section is primarily to the offence specified in Section 52-A of the Act, which was also introduced by way of amendment into the Act in 2006. It was, therefore, concluded that the proviso to Section 85-A of the Act will not be a bar for release of an accused who is alleged to have committed an offence under Section 47(a) of the Act and in such a case the provision of chapter XXXIII of the Code of Criminal Procedure shall apply.
4. Mr. Pradhan, learned Counsel for the State contended that the aforesaid decision in the case of Syama Takri (supra) has not taken note of the decision of the Supreme Court in the case of Muraleedharan v. State of Kerala . According to Mr. Pradhan in the said case the Supreme Court while interpreting Sections 8(2) & 41-A (as inserted by Act 16 of 1997) of the Kerala Abkari Act (1 of 1977) (hereinafter referred to as 'the Kerala Act') has led down that one of the offences involved for which the legislature has imposed stringent restrictions even in regard to the grant of regular bail is under Section 8(2) of the Act, which is punishable with imprisonment for a term which may extend to ten years and a fine which shall not be less than Rs. 1,00,000/. The Supreme Court further held that if this is the position in regard to an accused even after arrest, it is incomprehensible how the position would be less when he approaches the Court for pre-arrest bail knowing that he would also be implicated as an accused. The Supreme Court expressed reprobation at the supercilious manner in which the Sessions Judge in the said case decided to think that "no material could be collected by the Investigating Agency to connect the petitioner with the crime except the confessional statement of the co-accused" and judicially condemned such a way word thinking. While holding that no Court can afford to presume that the Investigating Agency would fail to trace out more materials to prove the accusation against the accused, the Supreme Court concluded that the word of the Sessions Judge, blessing the appellant with a pre-arrest bail discloses misuse of discretion conferred in him under Section 438, Cr.P.C.
5. Relying upon the aforesaid decision, Mr. Pradhan vehemently argued that Section 8(2) of the Kerala Act is in pari materia with Section 85-A of the State Act, which has been inserted by way of amendment in 2006 and this decision has not been taken note of by the learned Single Judge in the case of Syama Takri (supra). He, therefore, submitted that after introduction of Section 85-A of the Act in 2006, there is a complete bar for granting anticipatory bail to a person accused of commission of offence under Section 47(a) of the State Act and even a regular bail cannot be granted to such accused unless the proviso to Section 85-A of the Act is satisfied.
6. Mr. Pradhan further relying upon the decision in the case of Intelligence Officer, Narcotic C. Bureau v. Sambhu Sonkar and Anr. submitted that the Supreme Court in the said case, prior to amendment of Section 37 of the N.D.P.S. Act interpreting the said section held as follows:
As per the mandate of Section 37 no person accused of an offence punishable for a term of imprisonment for five years or more under the Act can be released on bail unless the conditions mentioned in Sub-clauses (i) and (ii) of Clause (b) are satisfied. The pre-condition for application of Clause (b) cannot be that offence is punishable for a term of imprisonment of five years or more. Plain reading of the above said clause makes it clear that in case where the person is accused of an offence punishable for a term of imprisonment of five years then it cannot be released unless the conditions mentioned therein are satisfied in case of offence punishable under Section 20(b)(i) maximum punishment is for a term of imprisonment of five years and a fine which may extend to Rs. 50,000/. There is no justifiable reason to hold that maximum term of' imprisonment is to be excluded for the purpose of interpretation and Section 37 would not cover in its fold offence punishable under Section 20(b)(i).
7. Mr. Pradhan relying upon the ratio of the above decision submitted that in the present case as it would be seen that the new Section 85-A applies to cases where the offence is punishable with imprisonment for seven years or more, the offence under Section 47(a) of the Act would be included within that fold, as offence under Section 47(a) of the Act is punishable for a term, which may extend to seven years, after amendment of the said Section.
8. Learned Counsel for the respective petitioners in the aforesaid bail applications made their submissions before me contending that even taking into consideration the ratio of the decisions in the cases of Muraleedharan (supra) and Intelligence Officer, Narcotics C. Bureau, (supra) the view expressed by the learned Single Judge in the case of Syama Takri (supra) cannot be held to be contrary to the ratio of the aforesaid decisions of the apex Court.
9. Considering the above submissions of the respective parties, the following questions arise in this case to be answered.
1. Whether the ratio of the decisions in the case of Muraleedharan (supra) and Intelligence Officer, Narcotic C. Bureau (supra) can be made applicable to a case under the Bihar and Orissa Excise Act, 1915 after its amendment and insertion of Section 85-A in 2006?
2. Whether Section 41-A of the Kerala Abkari Act is in pari materia with Section 85-A of Bihar and Orissa Excise Act?
3. Whether Section 37 of the N.D.P.S. Act prior to its amendment which was the subject matter of interpretation in the case of Intelligence Officer, Narcotics C. Bureau, (supra) is in pari materia with the new Section 85-A of the Bihar and Orissa Excise Act?
4. Whether the bar for grant of bail provided under Section 85-A of the Act applies also to an offence under Section 47(a) of the Act over and above Section 52-A of the Act introduced in the Act in 2006?
10. It would be profitable to note that both under the Kerala Act as well as the State Act, the State has absolute right to regulate production, transport, storage, possession and sell of liquor and other intoxicants. Both the Acts are Pre-Constitution Acts. The Kerala Abkari Act was enacted by the Maharaja of Cothin. After the formation of the State of Kerala, the said Act was adopted by the State. Provisions of the said act, having regard to the subject matter dealt with thereby should be read in the context of Articles 47 of the Constitution of India. Dealing in liquor is considered to be 'Res Extra Commercium'. The Act prohibits dealing with the said commodity except by way of a licence on the terms and conditions mentioned therein. Illegal manufacture, possession, transport, export etc. have been brought within the purview of the penal provision contained in Section 55 of the Act. Various new provisions have been introduced by way of amendment carried out in the said Act from time to time to bring within the purview of the Statute the offences which were then unknown. Arjunan v. State of Kerala 2007 (2) KLT 958 (SC).
11. The Bihar and Orissa Excise Act was enacted in the year 1915 having more than one object like the benefit of revenue, improvement of public health and morals by control of the liquor trade etc. The intention of the Legislature while enacting the Excise Act was also to include prohibition as well. It extended to whole of the province of Bihar and Orissa and was made applicable from such date to the areas under the State when notified by the State Government. Both the Acts being pre-Constitution enactments continued to operate by virtue of Articles 372 of the Constitution of India. Article 47 mandates that the State Government shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs, which are injurious to health.
12. With the above history of legislation, the contention of the learned Counsel for the petitioners that the legislative intent in both the Kerala Abkari Act and the Bihar and Orissa Excise Act are different cannot be accepted. In order to apply to the ratio of the decision in the case of Muraleedharan (supra), it is to be examined as to whether, Section 8(2) and Section 41A of the Kerala Abkari Act are in pari materia with Sections 47(a) and 85-A of Bihar and Orissa Excise Act. For convenience, the aforesaid sections are extracted below:
The Kerala Abkari Act 8(1) Prohibition of manufacture, import, export, transport, transit, possession, storage, sales, etc. of arrack:-No person shall manufacture, import, export, without permit transit possess, store, distribute, bottle or sell arrack in any form.
(2) If any person contravenes any provisions of Sub-section (1), he shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than one lakh.
41 A. Offences to be cognizable and non-bailable:-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974),-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for a term of imprisonment of three 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, opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in Clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (Central Act, 2 of 1974) or any other law for the time being in force on granting of bail.
47. Penalty for unlawful import, export, transport, manufacture, possession, sale etc.- If any person, in contravention of this Act, or of any Rule, notification or order made, issued or given, or of any licence, permit or pass granted under this Act-
(a) Imports, exports, transports, manufactures, collects, possesses or sells any intoxicants.
xx xx xx he shall, on conviction
(i) for the offence, other than any offence under Clause (c), 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 which shall not be less than twenty thousand rupees but may extend to fifty thousand rupees.
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 oppose the application for such release, and;
(iii) 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 that he is not likely to commit any offence while on bail.
13. Before examining whether the aforesaid provisions are pari materia provisions, it would be appropriate to interpret the word "pari materia". If there are material and meaningful variations between the two sections, it would be undoubtedly fallacious to say that one is in pari materia with the other. It-is possible for a section or a provision of different statute to be in pari materia but if they are not show, it would be inherently erroneous to infer that they have the same meaning and such presumption would necessarily lead to an erroneous conclusion. In matters of construction similarity is not identity. Therefore, what calls for a pointed notice, is the material provisions made in the aforesaid Sections in both enactments, which are to be examined as to whether one is in pari materia with the other. A reading of both Section 8(2) of Kerala Abkari Act and Section 47(a) of Bihar and Orissa Excise Act disclose that though one is not a ipsissima verba of the other but they are couched in similar language with the same purpose. Section 8(2) provides that if any person contravenes any provision of Sub-clause-1, he shall be punishable with imprisonment for a term which may extend to 10 years and with exports, transports, manufactures, collects, possess or sells any intoxicant shall be punishable with imprisonment for a term, which shall not be less than 3 years but may extend to 7 years and also with fine which shall not be less than twenty thousand rupees but may extend to fifty thousand rupees. On examining the aforesaid sections, it is inevitable to conclude that Section 47(a) of Bihar and Orissa Excise Act is in pari materia with Section 8(2) of the Kerala Abkari Act.
14. Now, coming to Section 41A of the Kerala Abkari Act and the new Section 85-A of the. Bihar and Orissa Excise Act, it would be seen that the aforesaid sections are not in pari materia with each other. The reasons being that Section 41A of the Kerala Abkari Act starts with a non obstante clause whereas Section 85-A of the Bihar and Orissa Excise Act is not couched in such manner. Rather Section 85-A lays down the procedure for releasing an accused on bail and provides that the provisions of Chapter-XXXIII of the Code of Criminal Procedure, 1973 shall apply to bail and bonds and as a proviso to the said section, it gives the riders for granting bail. A non obstante clause gives Section-41 A of the Kerala Abkari Act an overriding effect over the Code of Criminal Procedure as the said section starts with "notwithstanding anything contained in the Code of Criminal Procedure, 1973" whereas in Section 85-A of Bihar and Orissa Excise Act it specifically provides that Chapter-XXXIII of the Code of Criminal Procedure shall apply to bail and bonds subject to the proviso. A proviso is always subservient to the main provision, whereas it is a well-settled principle of interpretation of statutes that a non-obstante clause is meant to give an overriding effect to a provision and it must be so interpreted as to give full meaning to the intention of the Legislature unless there are some exceptional reasons to restrict such an interpretation.
15. With the above distinguishing features in the aforesaid two sections of the two Acts, it would be seen that Section 41A of the Kerala Abkari Act and Section 85-A of Bihar and Orissa Excise Act are not pari materia provisions.
16. In the case of Muraleedharan (supra), the Supreme Court was dealing with a case where the appellant therein was described by the Investigating Agency as one of the king pin in series of grave crimes including the offence under Section 8 of the Kerala Act. It also found that a number of criminal cases were registered sequel to the large scale deaths of persons which was known as the liquor tragedy in Kollar district (Kerala). While interpreting the provisions of Section 41A of the Kerala Act, the Supreme Court held that the said Section 41A is in pari materia with Section 37 of the N.D.P.S. Act and upon observing that it has been repeatedly held, time and again, that no person who is involved in an offence under the N.D.P.S. Act shall be released on bail in contravention of the conditions laid down in the said Section, concluded that when the bar operates for a regular bail, it would be incomprehensible to hold that the same would not apply in case of a pre-arrest bail. What has weighed in the minds of the Hon'ble Judges is the nature of capital tragedy which was caused in the State of Kerala. The judgment is based on the finding that the new Section 41A of the Kerala Act is in pari materia with Section 37 of the N.D.P.S. Act.
17. It is not a sound principle of construction to interpret a provision of enactment following the decision rendered on a similar provision of an enactment, when the two provisions are not in pari materia (See Babu Khan and Ors. v. Nazir Khan and Ors. ). In the aforesaid circumstances, this Court holds that the ratio laid down in the case of Muraleedharan (supra) cannot be applied to the issue involved in the case at hand, i.e., as to whether Section 85-A of the State Act is bar for granting bail for an offence under Section 47(a).
18. Now coming to the case of Intelligence Officer, Narcotics C. Bureau, (supra), it is required to examine as to whether Section 37 of the N.D.P.S. Act which was under consideration of the Supreme Court in the aforesaid decision before its amendment and Section 85-A of the Bihar and Orissa Excise Act are pari materia to each other. Section 37 of the N.D.P.S. Act prior to its amendment was as follows:
37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds of believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in Clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.
19. The Supreme Court in the aforesaid decision while examining as to whether the provisions of Section 37 of the N.D.P.S. Act prior to its amendment was applicable to the offence under Section 20(b)(i) of the said Act held in paragraphs-5 and 6 as follows:
The scheme of Section 37 reveals that the exercise of the power to grant bail by the Special Judge is not only subject to the limitations contained under Sections 439 of the Cr.P.C. but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said Section is in negative in prescribing the enlargement of bail of any person accused of commission of an offence under the Act unless two conditions are satisfied. The first condition is that prosecution must be given an opportunity to oppose the application and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied the ban for granting bail operates. As per the mandate of Section 37 no person accused of an offence punishable for a term of imprisonment of 5 years or more under the Act can be released on bail unless the conditions mentioned in Sub-Clauses (i) and (ii) of Clause (b) are satisfied. Pre-condition for application of Clause (b) would be that offence is punishable for a term of imprisonment of 5 years or more. Plain reading of the above said clause makes it clear that in case where the person is accused of an offence punishable for a terms of imprisonment of 5 years then he cannot be released unless the conditions mentioned therein are satisfied. In case of offence punishable under Section 20(b)(i) maximum punishment is for a term of imprisonment of 5 years and a fine which may extend to Rs.50,000/-. There is no justifiable reason to hold that maximum term of imprisonment is to be excluded for the purpose of interpretation and Section 37 would not cover in its fold offence punishable under Section 20(b)(i).
6. Further, even if we consider the legislative intent in context of other provisions which provide for punishment, it would be clear that Section 37 would cover in its fold the offence punishable under Section 20(b)(i). Provisions empowering the Court to impose punishment can be divided into four parts, namely, (i) less than five years, (ii) up to five years, (iii) more than five years, and (iv) providing death penalty. Sections 26, 27 and 32 provide for imprisonment for a term which may be less than five years. Section 25(a) provides that the imprisonment may extend up to ten years. Other Sections, namely, Sections, 15, 16, 17, 18, 19, 20(b)(i), 21, 22, 23, 24 aid 25 provide that punishment shall not be 'for a term less than ten years'. Except Section 20(b)(i) there is no provision which prescribes that imprisonment may extend to five years. For the offence punishable under said Section, in appropriate cases, Court may impose maximum punishment of five years. Therefore, there is no reason to exclude the said clause from the operation of Section 37.
20. Comparing Section 37 of the N.D.P.S. Act prior to its amendment and Section 85-A as introduced to Bihar and Orissa Excise Act, it would be clear that even prior to its amendment, Section 37 of the N.D.P.S. Act had a non obstante Clause prescribing that notwithstanding contained in the Code of Criminal Procedure, 1973 the bar under the said section will apply to an offence punishable for a term of imprisonment of five years or more under the said Act where as in Section 85-A of Bihar and Orissa Excise Act, as already interpreted restrictions for grant of bail have been given as a proviso to the main section, which substantially provides that Chapter-XXXIII of the Code of Criminal Procedure, 1973 shall apply to bail and bonds.
21. This Court, therefore, concludes that Section 37 of the N.D.P.S. Act prior to its amendment which was under consideration in the case of Intelligence Office, Narcotics C. Bureau, (supra) and the new Section 85-A introduced into the Bihar and Orissa Excise Act are not pari materia provisions.
22. This reasoning is fortified, if the provision of Section 85 of Bihar and Orissa Excise Act is referred to which clearly provides that the provisions of the Code of Criminal Procedure shall apply to arrests, detention in custody, searches, summons warrants of arrest, search warrants, etc.
23. The history, purpose and intention for legislation of the new Section 85-A if analysed, will clearly show that after the hooch tragedy which occurred in various places in the State more specifically in Huma area of Ganjam district during the period from 16th March to 19th March, 2006, the Legislature made amendments to the State Act. In the case of E.K. Chandrasenan v. State of Kerala , Hon'ble Mr. Justice B.L. Hansaria, as he then was, speaking for the Court, expressed his concern about hooch tragedies in the following words:
Hooch tragedies have been taking heavy toll of human lives throughout the length and breadth of the country. This has been so far a sufficiently long period by now; and it could be well said that practically every year the liquor barons, in some part or the other of this vast country - Bihar is a recent example - earn easy money by ruining many houses and making many persons destitute. Many ladies have become widows and many children orphans.
Here is a case in which the festive day of Onam 1982 brought disaster to many families inasmuch as the prosecution case is that 70 persons died after having consumed liquor from the shops and sub-shops which were catered by the firm named "Bee Vee Liquors" and 24 lost eye-sights permanently, not to speak of many others who became prey of lesser injuries. The joyous day of Onam (1st September, 1982) thus became a day of disaster to hundreds of families. The magnitude of the calamity swang police into action who, after close of investigation, charge-sheeted 10 persons for offence punishable under Section 120B, 302, 272 and 328 read with Sections 107 and 109 of the Indian Penal Code as well as some Sections of the Kerala Abkari Act.
xx xx xx If agreed for money makes people so unconscionable, so unconcerned with human happiness and make them behave like devils and to destroy human lives, they have to be dealt with appropriately, sternly and with a steel heart not yielding to any plea of softness on any ground, not relenting to discharge the onerous duty which falls on a Court in such cases. The need to rise to the occasion becomes great and imperative when it is noted that liquor barons have long been playing with destinies of many with impunity for one reason or the other, which has encouraged them to indulge in such an activity without fear of law haunting them. This is abundantly clear from the deaths due to consumption of spurious liquor in different parts of the country. This has become almost a regular feature and hooch tragedy has been taking heavy toll of human lives almost every year in one part or the other of this vast country. To mention about such recent tragedies, it was Gujarat which saw this disaster in 1991 in a big way; it fell on Cuttack in 1992 to see loss of more than 100 lives; and very recently this tragic drama was enacted in Patna, where too about 100 persons became victim.
24. The State of Orissa after such hooch tragedy in the district of Ganjam passed Ordinance No. 1 of 2006 on 1st June, 2006 with a view to curb the unholy as well as inhuman activities of liquor mafias in the State. Pursuant to such Ordinance, the new Sections 22-A, 52-A and 85-A were inserted into the Bihar and Orissa Excise Act and other sections including Section 47 of the said Act were suitably amended enhancing the prescribed punishments. The intention of the Legislature for introducing Section 85-A and Section 52-A to the Act clearly of shows that the said Sections were introduced, for curbing the menance of hooch tragedy in the State. The reason for creating bar with regard to grant of bail as a proviso to the new Section 85-A is, therefore, consignable to the intention of the State Government for curbing repetition of such hooch tragedies in the State.
25. Considering the above facts, more specifically the conclusion that Section 85-A of Bihar and Orissa Excise Act is not in pari materia with Section 37 of the N.D.P.S. Act prior to its amendment. This Court is of the view that even though the punishment prescribed for an offence under Section 47(a) of Bihar and Orissa Excise Act is for a minimum of 3 years which may extend to 7 years and the bar prescribed in the proviso to Section 85-A is with regard to grant of bail for an offence punishable with imprisonment for seven years or more, the said bar in the proviso to Section 85-A cannot be made applicable to an offence under Section 47 (a) of Bihar and Orissa Excise Act and the ratio of the decision in the case of Intelligence Officer, Narcotics C Bureau, (supra) is not also applicable to the facts of the present case.
26. This Court, therefore, while concurring with the views expressed in the case of Shyam Takri (supra) holds that Section 85-A of the State Act was enacted and introduced to the statute keeping in view the new penal provision under Section 52-A of the Act and the same will not be a bar for releasing an accused involved in an offence punishable under Section 47(a) of Bihar and Orissa Excise Act, on bail.
27. In view of the above conclusion, the aforesaid bail applications shall be separately dealt with in the respective cases. The said bail applications shall be listed for orders on 18th February, 2008.