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TMI Blog2003 (9) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... andoned condition and from the said van the police seized 25 boxes of English Wine and registered the aforesaid crime under Section 34 of the Act. The investigating agency arrested Churaman, Santosh and the owner of the van but later on all were released on bail. In the said case the petitioner has no concern and connection and at the time of seizure of the van he was at Katni. The people who have a hostile disposition towards him implicated him in the crime in question to tarnish his image in the society. 3. According to the writ petition when he came to know about the institution of the crime and that the police is bent upon to arrest him he moved an application for grant of anticipatory bail under Section 438 of the Code of Criminal Procedure (for short 'the Code') before the learned Sessions Judge, Jabalpur who rejected the same. Thereafter he filed an application before this Court forming the subject matter of M.Cr.C. No. 7598/2000 which came before the learned Single Judge but on the ground that after enforcement of the M.P. Excise (Amendment) Act, 2000 whereby Section 59-A (i) has been introduced and on the teeth of the said provision the application for anticipator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said provision can not be regarded without purpose but on the contrary it eradicates the malady of the social milieu. Reference has been made to Article 47 of the Constitution to highlight that it is obligatory on the part of the State to enrich the standard of living of its people and to do such work which improve the better -health and the present provision has been made keeping in view the constitutional mandate. It is the case of the respondents the said provision has inherent guidance in it, and if a laudable purpose is perceived it can not be said that the said provision is arbitrary and unreasonable inviting the frown of Article 14 of the Constitution. 6. We have heard Mr. Puneet Chaturvedi and Mr. Parag Chaturvedi, learned Counsel for the petitioner and Mr. R.S. Jha, learned Deputy Advocate General for the respondents. 7. It is submitted by Mr. Puneet Chaturvedi that the provision is ultra vires the Constitution as unbridled power has been conferred on the investigating agency to implicate and rope in any one so that the person would never get the benefit of the anticipatory bail. The learned Counsel has emphatically urged that such a provision runs counter to the quint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s provisions occurring in the said Chapters provide for power to prohibit import, export or transport. There is restriction on import, export and transport. They also provide for passes for such activities. Chapter IV of the Act deals with the manufacture, possession and sale. Emphasis is laid on the licence required for manufacture, establishment of distilleries and warehouses. Licence for sale of intoxicants and power to grant of lease of right to manufacture and such other ancillary factors are also dealt with therein. Chapter V deals with the duty and fees. Chapter VII provides for offences and penalties. Section 34 which occurs in Chapter VII deals with penalty for unlawful manufacture, transport, possession, sale etc. Sections 35,36,37,38,39,40,41 and 42 deal with various facets of commission of crime and imposition of punishment. Section 43 postulates presumption as to commission of offences in certain cases. Section 47 deals with the order of confiscation. Section 47-A deals with the confiscation of seized intoxicants, articles, implements, utensils, materials, conveyance etc. Section 47-B provides an appeal against the order of confiscation. Section 47-C deals with the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al relation to the object to be achieved by the control imposed on the trade or business in country liquor. Article 14, it may be pointed out, only forbids class legislation but reasonable classification does not come within the prohibition. Nothing convincing was urged at the bar to attract the prohibition embodied in Art. 14." 14. In the case of Nashirwar etc. v. State of Madhya Pradesh, AIR 1975 SC 360, Their Lordships opined that the State has the exclusive right or privilege in manufacturing and selling of liquor and a citizen has no fundamental right to do business in liquor. In the said case Their Lordships further ruled that there is the police power of State to enforce public morality to prohibit the trades in noxious or dangerous goods. 15. In the case of Har Shandar and Ors. etc. v. The Deputy Excise and Taxation Commissioner and Ors., AIR 1975 SC 1121, the Constitution Bench reiterated the principles that there is no fundamental right to do trade or business in intoxicant and the State has the authority to prohibit every form of activity in relation to intoxicant including manufacture, storage, export, import, sale and possession. Their Lordships further held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the responsibility of the State to find out why spurious liquor took the toll of 124 lives', and what steps are required to be taken to stop recurrence of such a heinous crime. At the root of which lies the naked greed for money and nothing else. Ours is a "socialist democratic republic" and its people have been promised by the Constitution a right to live and not to be killed except in accordance with the procedure established by law. Do the instrumentalities of the State owe no obligation to enforce Article 21 of the Constitution ? But then, how can they do so unless they know what they are required to do in this regard ? And, how would they know about it unless they out who arc the evil-doers and how they conjointly act to fulfil their evil designs ? To inform the mind of the Government in this regard, should it not try to find out all the relevant facts to enable it to trailer its laws, to gear up its machinery, to plug the loop- holes and take other required steps ? Why should the Government led shy to know full facts necessary for the aforesaid purpose ? And if it feels shy, does not discharge its legal obligations, remains inactive to serve and alien purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence exceeds fifty bulk litre, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than twenty five thousand rupees but may extend to one lac rupees: Provided that when any person is convicted under this Section for an offence for second or subsequent time, he shall be punishable for every such offence with imprisonment for a term which shall not be less than two years but which may extend to five years and with fine which shall not be less than fitly thousand rupees but may extend to two lac rupees. (3) When an offence covered by clause (a) or clause (b) of sub-section (1) is committed and the quantity of liquor found at the lime or in the course of detection of such offence exceeds fifty bulk litres, all intoxicants, articles, implements, utensils, materials conveyance etc. in respect of or by means of which the offence is committed, shall be liable to be seized and confiscated. If such an offence is committed by or on behalf of a person who holds a licence under the Act for manufacturing or stocking or storing liquor for sale on which duty at the prescribed r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt which shall with imprisonment which shall with imprisonment which shall with imprisonment which shall to fine; c Under clause (iii) of sub- section (1) to imprisonment for life or imprisonment which shall not be less than five years but extend to ten years and shall also be liable to fine. **** **** **** **** Section 59-A. Certain offence under the Act to be mm- bailable.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (No. 2 of 1974) or Section 59 of the Act,- (i) no application for an anticipatory bail shall be entertained by any Court in respect of a person accused of an offence punishable under Section 49-A or in respect of a person not being a person holding a licence under the Act, or rules made thereunder who is accused of an offence covered by clause (a) or clause (b) of sub-section (1) of Section 34 with quantity of liquor found at the time or in the course of detection of such offence exceeding fifty bulk litres." 22. Submission of Mr. Chaturvedi is that there is no reason to ostracise the applicability of Section 438 of the Code by operation of law. The main crux of the argument is that the liberty of a person is affected and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... social milieu, the conduct of the people, the loss of revenue, the attitude of these traders can never be ignored or marginalized. In this context we may refer with profit to the decision rendered in the case of Kartar Singh v. State of Punjab, (1994) 2 JT SC 423, wherein the Apex Court was dealing with the applicability of the Section 438 of the Code in respect of Terrorist Activities and Disruptive (Prevention) Act, 1987 and in the said case Their Lordships came to hold that Article 21 of the Constitution was not applicable to the offences under the said Act. In the case of Ram Krishna (supra) while dislodging the decision of this Court the Apex Court held that Section 18 of the SC & ST (Prevention of Atrocities) Act, 1989, wherein Section 18 debars the applicability of Section 438 of the Code the Apex Court held that looking to the historical background relating to the untouchability which lead to the commission of such offences against the SC and ST there is justification of apprehension that if the benefit of anticipatory bail is made available to the person who has allegedly committed the offence there is possibility of terrorising of the victim and affect the system. Keepin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly, we have no hesitation in holding that it would be open to a accused to show that no offence inviting frown of Section 59-A (i) of the Act is made out as the basic ingredients are absent. It needs no emphasis that it would be dependent of the fact of each case. We may hasten to state here that merely because Section 438 is not applicable to certain categories of offences, the Court is not bereft of power only because in the FIR the said offences are mentioned. It can not be stated with certitude that if the accused can putforth a case or make out of a case, though the offences which have been mentioned under Section 59-A (i) of the Act do find mention in the FIR, but essentially and factually the case docs not fall under the said provision, irrefragably the Court can entertain the application for grant of anticipatory bail because it is not the nomenclature which should govern the scenario but the real essence. We may repeat at the cost of repetition that our observations do not clothe the Court with the power to grant anticipatory bail under Section of the Code and transgress the enacted provision inasmuch as we have held it to be intra vires but we only say that if the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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