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TMI Blog2015 (3) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... porting 17.28 bulk liters of country made liquor without licence and the applicant is the owner of said motorcycle which was seized in connection with crime in question and notice has been sent for initiating confiscation proceeding of the said vehicle. The applicant is also named in the FIR and investigation is at the initial stage and the applicant is not cooperating with the investigation, and as such, it cannot be held that ingredients of offence under Section 34(1)(a) is completely missing, entitling him to release on anticipatory bail and as such the bar encrafted by section 59A( i) of the Act to entertain application for anticipatory bail is squarely attracted. - Application of anticipatory bail is not entertainable for excise offence in view of Section 59A( i) of the Chhattisgarh Excise Act, 1915. - Decided against appellant. - M. Cr. C. (A) No. 1168 of 2014 - - - Dated:- 6-1-2015 - Shri Justice Sanjay K. Agrawal,JJ. For the Applicant : Shri Awadh Tripathi, Advocate For the Respondent : Shri Neeraj Jain, Govt. Advocate with Shri Anant Bajpai ORDER 1. Apprehending arrest in connection with Crime No.324/2014, registered in Police Station Dongargarh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the possession of co-accused Suraj. That, seized motorcycle is purchased by the present applicant on 24.11.2013 from Yuvraj Motors, Dongargarh, Rajnandgaon. That, the present applicant has been named in the FIR recorded on 01.09.2014 alleging that on noticing the police party, the present applicant ran away from the spot and liquor in question was seized from the possession of co-accused Suraj. That, seized article was found to be liquor on examination. That, steps have been taken for confiscation of seized vehicle. 7. At this stage, it would be proper to notice certain statutory provisions, particularly, Section 34 and 59A( i) of the Act, 1915, which reads as under: 34. Penalty for unlawful manufacture, transport, possession, sale etc. (1) Whoever, in contravention of any provisions of this Act, or of any rule, notification or order make or issued thereunder, or of any condition of a licence permit or pass granted under this Act,4 (a) manufactures, transports, imports, exports, collects or possesses any intoxicant; (b) save in the cases provided for in Section 38, sells any intoxicant; or (c) cultivates bhang; or (d) taps any toddy producing tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which, said provision has been held to be intra vires, and it has been observed as under: 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 there is no guidance in the provision. We shall first take up the issue of lack of guidance. On a perusal of the provisions, it is clear as noon day that the said provision deals with a different spectrum altogether. It deals with the accused who has committed the offence under Section 49A of the Act or Section 34 (a) or 34 (b) of the Act. Each of the provision in our considered opinion has the guidance. Sections 34 (a) and 34 (b) clearly postulate that a person who trades in liquor without licence and found in possession of more than 50 bulk of litres is covered in the net of Section 59. We have referred to the number of decisions to show no one can trade in liquor without licence but the Legislature has not provided that anyone in possession of liquor would not be entitled to the benefit of the provision of Section 438 of the Code, but the rider is there as the quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntouchability 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. Keeping in view the totality of scenario, Their Lordships held that Section 18 of the aforesaid statute is not violative of Article 21 of the Constitution. 10. In the later part of judgment, the MP High Court has further held that it would be open to the accused to show that no offence inviting frown of section 59A- (i) is made out as the basic ingredients are absent, and held as under : .....Similarly, we have no hesitation in holding that it would be open to a accused to show that no offence inviting frown of Section 59A (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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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