Dipak Misra, J.
1. Invoking the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India the petitioner has prayed for a declaration that the provisions contained in Section 59-A (i) of the M.P. Excise Act, 1915 (in short 'the Act') brought into existence by M.P. Excise (Amendment) Act, 2000 (Act No. 22/2000) to the extent it prohibits any Court for entertaining the application for grant of anticipatory bail is unconstitutional.
2. The facts as setforth in the petition are that the petitioner who is a graduate belongs to the family of lawyer and he has no criminal record. He has been implicated falsely in Cr. Case No. 405/2000 registered at the Police Station, Gohalpur, Jabalpur. According to the petitioner he is engaged in the business of travel agency and he is the owner of the Geeta Travellers situated at Katni. The authorities of the Police Station, Gohalpur seized a Maruti Van No. MP-20 T OJ 64 i-n an abandoned 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 anticipatory bail could not be granted.
4. It is averred in the petition that the aforesaid provision which postulates that no application for anticipatory bail shall be entertained by any Court in respect of a person accused of an offence punishable under certain provisions of the Act confers unbridled and uncanalized powers with the investigating authorities and, therefore, it suffers from arbitrariness and irrationality. It is urged in the petition that the liberty granted to a person under Article 21 of the Constitution of India is grossly violated and, therefore, the said provision is totally unconstitutional. It is further putforth that the authorities have been given power to detain a person up to unlimited period thereby violating the provisions under the law laid down in the catena of decisions rendered by the Apex Court. It is further putforth that Section 34 declares the crime as non-bailable and Section 59-A (i) puts the restriction on the jurisdiction of the Court to grant anticipatory bail thereby ushering in an incurable inconsistency in the provision which creates an anamalous situation and makes the later provision constitutionally invalid.
5. A counter affidavit has been filed by the respondents contending, inter alia, that the petition is absolutely misconceived inasmuch as nothing has been stated how the provision violates the Article 21 of the Constitution. It has been asseverated that invocation of Section 438 of the Code is not a matter of fundamental right but an essentially statutory right and hence, it can be taken away by amending the statute and such an amendment docs not transgress any of the Constitutional provision. It is asserted that the amendment made by the Legislature is within its legislative competence and the provision has been enacted mainly in respect of those persons who are either involved in illegal and illicit trade and smuggling of liquor or persons selling poisonous liquor which is unfit for human consumption. Emphasis has been laid down on the fact that the people meeting their by consumption of spurious liquor and to curb the same the present provision has been enacted. According to the respondents the State Legislature in its wisdom has excluded the applicability of the provision of grant of anticipatory bail in respect of such serious and heinous crimes which is dangerous to life of common citizens and, therefore, the 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 quintessential essence of Article 21 of the Constitution and, therefore, it is necessitous to declare the same as invalid. It is his further submission that the provision is not a balanced one and totally lilts in favour of the prosecution and in any event this type of provision should be deemed, that it offends the personal liberty of the citizen thereby affecting his fundamental right. The learned Counsel has urged that the law relating to arrest and detention as laid down by the Apex Court in various decisions have not been kept in view while introducing this amendment and, therefore, the provision is sensitively susceptible as it annihiliates the rights of the citizens conferred on him by the compassionate Constitution of India. The learned Counsel has commended us to the decisions rendered in the cases of Jagat Prasad v. State of Uttar Pradesh, (1998) 8 SCC 632 and Shakur Khan Vs. State of M.P., 2000(1) M.P.H.T. 507 == 2000 (2) MPLJ 79.
8. Mr. Jha, learned Senior Counsel appearing for the State, sounding a contra note, has contended that the State Legislature has introduced the amendment keeping in view the danger that has been brought in by the anti-social elements to destroy the social fabric and when the collective good is subserved the said provision should not be declared as ultra vires. It is urged by him that when the guidance and guidelines arc there in the provision and no unfattered power is conferred on the investigating agency it can not be said that the provision is conferring unbridled power in the authorities. The learned State Counsel has submitted that the trade in liquor has a different connotation and anybody dealing with the liquor without licence and violating the provisions of the Act and further transgressing the provision relating to the possession can not claim the benefit of Section 438 of the Code. The learned Senior Counsel has commended us to the decisions rendered in the case of State of M.P. and Anr. v. Ram Krishna Balotiya and Anr., AIR 1995 SC 1198.
9. Before we dwell upon the rivalised contentions raised at the Bar, it is noteworthy to scan the provisions. The M.P. Excise Act, 1915 was amended from time to time to' consolidate the Excise Law in the State of Madhya Pradesh. Chapter II of the Act deals with the establishment and control. Chapter III of the Act is devoted to deal with the import, export and transport. Thus 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 revision before the Court of Session against the order of Appellate Authority. Section 47-D stipulates the bar of jurisdiction of the Court under certain circumstances.
10. It is apposite to mention here that the State Legislature perceiving certain practical difficulties that have been experienced and discrepancies noticed in implementation of the M.P. Excise Act, 1915 amended a part of Section 10, substituted Sections 34 and 46, and introduced certain amendments to Section 47. Quite apart from the above the Legislature inserted new Sections like 47-A, 47-B, 47-C and 47-D. Apart from the said provision Section 59-A (i) was also brought on the statute book by way of amendment.
11. Before we consider the validity of the aforesaid provision we think it seemly to refer to certain decisions relating to trading of liquor. In the case of Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner, Ajmer and Ors., AIR 1954 SC 220, the Constitution Bench held that the Legislature of a State is fully competent to regulate the business of vending intoxicating liquor, to mitigate its evils or to suppress it entirely. It was further held that there is no inherent right in a citizen to sell intoxicating liquors by retail, as it is not a privilege of a citizen.
12. In the case of The State of Orissa and Ors. v. Harinarayan Jaiswal and Ors., AIR 1972 SC 1816, a two Judge Bench expressed the view that the State has the power to prohibit trades which arc illegal or immoral or injurious to the health and welfare of the public and there is no inherent right in a citizen to sell intoxicating liquor by retail.
13. In this context, I may profitably refer to the decision rendered in the case of Amar Chandra Chakraborty v. The Collector of Excise, Govt. the Tripura, Agartala arid Ors., AIR 1972 SC 1863, wherein it has been held as under;- "10, Trade or business in country liquor has from its inherent nature been treated by the State and the society as a special category requiring legislative control which has been in force in the whole of India since several decades. In view of the injurious effect of excessive consumption of liquor on health this trade or business must be treated as a class by itself and it can not be treated on the same basis as other trades while considering Art. 14. This classification is founded on an intelligible differentia having a rational 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 that a wider right to prohibit absolutely would include the narrower right to permit dealings in intoxicants in such terms of general application as the State deems expedient,
16. In the case of State of M.P. and Ors. etc. v. Nandlal Jaiswal and Ors., AIR 1987 SC 251, a two Judge Bench of the Apex Court held that trading in liquor is inherently punitive in nature.
17. In the case of M/s. Khody Distilleries Ltd. v. State of Karnataka, AIR 1996 SC 911, a three Judge Bench of the Apex Court expressed the view that the right to carry on occupation, trade or business docs not extend to trade or business or any activities which are injurious and against the welfare of the general public. It is further held by Their Lordships that a citizen has no fundamental right to do business in intoxicant as liquor.
18. Recently in the case of M/s Ugar Sugar Works Ltd. v. Delhi Administration and Ors., AIR 2001 SC 1447, Their Lordships reiterated the principle that there is no fundamental right to trade in intoxicant like liquor. The State under its regulatory power can prohibit every form of activity in the said sphere.
19. The purpose of referring to the aforesaid decisions is only to highlight that the liquor is a different type of commodity and that has to be kept in the backdrop while dealing with any provision of the Legislation in regard to liquor.
20. Liquor tragedies are rampant. It affects quite a large number of people belonging to poor strata. In this context I may prefer to the decision rendered in the case of Janamohan Das and Ors. v. State of Orissa and Ors., AIR 1993 Orissa 157, wherein B.L. Hansaria, C.J. (as His Lordships then was) expressed as under :- "7th May, 1992 Cuttack was calm when the day dawned. Who had known that a "disaster of unprecedented proportions" was going to strike and disturb placid waters of the Mahanadi and Kathajodi ? But it took place. A man-made tragedy took a great toll (124 deaths, according to the State), and it was our well known hooch tragedy. Not that the people of this State have not known about such tragedies taking place in the past, but then, it was the great dimension of the tragedy which stunned the people, so much so that they almost lost faith in all instrumentalities of the State. People started thinking whether they had been left to the wolves to be killed. The question with which we arc seized is about 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 purpose, can this Court not direct it to discharge its duty ? These are some of the questions with which we are seized in these petitions, whose ramifications arc too wide and too serious to soft-pedal in any way our constitutional obligation."
In the background the Division Bench awarded the compensation to the kith and kin of each of the victims and further issue writ of mandamus to the State Government to appoint a Commission of Inquiry under the Commission of Inquiry Act, 1952.
21. In this backdrop we would reproduce Sections 34 and 59-A (i) of the Act. They read 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,-
(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 tree/or draws toddy therefrom;
(e) constructs, or works any distillery, brewery or wintnery;
(f) uses, keeps or has in his possession any material, still utensil, implement, or apparatus, whatsoever for the purpose of manufacturing any intoxicant other than toddy;
(g) removes any intoxicant from any distillery, brewery, wintnery or warehouse licensed, established or contained under this Act,
(h) bottles any liquor;
shall subject to the provisions of sub-section (2), be punishable for every such offence with imprisonment for a term which not extend to one year and fine which shall not be less than five hundred rupees but which may extend to five thousand rupees:
Provided that when any person is convicted under this Section of any offence for a second or subsequent time he shall be punishable for every such offence with imprisonment for a term which shall not be less than two months but which may extend to twenty four months and with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees.
(2) Notwithstanding anything contained in sub-section (1), if a person is convicted for an offence covered by clause (a) or clause (b) of sub-section (1) and the quantity of the intoxicant being liquor found at the time or in the course of detection of 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 rate has not been paid then notwithstanding anything contained in Section 31 the licence granted to him shall be cancelled in case he is convicted for the offence as aforesaid.
(4) The seizure or confiscation of the intoxicants, articles implements, utensils, materials and conveyance and the cancellation of licence as provided under sub-section (2) above shall be in addition and without prejudice to any other action that may be taken under any provisions of the Act or Rules made thereunder."
49-A. Penalty for import etc. of liquor unfit for human consumption or for altering or attempting to alter denatured spirituous preparation.- (1) Whoever,-
(a) imports, exports, transports, manufactures, collects, possesses, bottles or sells any liquor; or
(b) has in his possession any spirit or denatured spirituous preparation, in respect of which he intentionally or knowingly allows or knowingly suffers any other person to alter or attempt to alter, in either case with the intention specified in clause (b); any spirit into denatured spirit or into a denatured spirituous preparation; or
(d) mixes denatured spirit or such altered denatured spirit or denatured spirituous preparation with potable spirit, and such liquor, denatured spirit, denatured spirituous preparation, spirit or altered denatured spirit as the case may be, is found unfit for human consumption or causes injury to or death of human being-
shall be punishable-
where such liquor, denatured spirit, denatured spirituous preparation, spirit, or altered denatured spirit, as the case may be-
(i) if found unfit for human to imprisonment which shall not
consumption be less than two months
but may to two years and shall
also be liable to fine;
(ii) causes injury to human to imprisonment which shall not
being be less than four
months but may extend to four
years and shall also be
liable to fine;
(iii) causes death of a human to imprisonment which shall not
being- be less than two years
but may extend to ten years and
shall also be liable to
(2) When any person is convicted under this section for a second subsequent offence, shall be punished relation to circumstances-
(a) Under clause (i) of sub- with imprisonment which
section (2) shall not be less than six
months but which may extend to
four years and shall
also be liable to fine;
(b) Under clause (ii) of sub- with imprisonment which shall
section (2) not be less than one year
but may extend to six years,
and shall also be liable
(c) Under clause (iii) of sub- to imprisonment for life or
section (1) 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 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 49-A 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 has been provided. Nobody is expected to carry 50 bulks of liquor for personal consumption. It can not be thought that a person who carries liquor for personal use would carry 50 bulks of litre of liquor. Thus the quantity makes a distinction. Section 49-A deals with different situation altogether. It is concerned with spurious liquor. Any one who deals with spurious liquor in fact deals with poison meant for collective. Both the provisions in our considered view constitute a separate and special class of offence. The liquor tragedy which bring a chill in the spine of the collective can not be ignored. The death of poor people due to this poison can not be totally brushed aside, An individual may claim liberty on the backdrop of the fundamental right, but no one has the right to trade in this manner to affect the interest of the collective. The major chunk of population of the State of M.P. consist of rural tribal and illiterate people. Number of crimes arc committed because of consumption of liquor. The crimes also take place due to quarrel and fight over illicit liquor. Some people try to accumulate money in trading illicit liquor as they do not intend to pay the consideration money as required under the Act. The State exchequer is affected. Quite apart from the above the spurious liquor becomes an apparent poisonous substance. The agony of the situation has been vividly described by Hansaria, C.J. (as His Lordship then was) in the case of Jan Ranjan Das (supra). The background of trade, 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. 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.
23. We may state here that the learned Counsel for the petitioner has pressed into service the decision rendered in the case of Shakur Khan (supra). In the said case the learned Single Judge of this Court has expressed the opinion that Section 59A(i) of the Act is ultra vires. The said decision is a nullity inasmuch as the learned Single Judge could not have dealt with the constitutional validity of the provision as per the M.P. High Court Rules and Orders. The constitutional validity of any enactment is to be dealt with by Division Bench. This Court has already held that if a decision is rendered by a learned Judge who is incompetent to hear the matter in violation of the Rules the said decision is a nullity. Quite apart from the above the analysis of the learned Single Judge is not correct and we have no hesitation in holding that the reasons ascribed by him are unsound and untenable and thus the law laid down therein has to be declared as incorrect and unsound. Other decisions which have been cited by the learned Counsel for the petitioner in our considered view pertain to a different field altogether and not applicable in the real issue in question and we do not think it necessary to deal with the same in detail.
24. Before we part with the case we think it appropriate to state though Section 59-A of the Act provides that the Court shall not grant anticipatory bail to a person accused of offence under Section 49-A of the Act or to accused under Section 34 (a) and (b) of the Act in respect of a person who docs not hold the licence under the Act or Rules or has been found in possession at the time of detection more than 50 bulks of liquor, yet the accused always in a positive manner, before the Competent Court, putforth that there no offence has been made out under Section 49-A or 34 (a) and 34 (b) of the Act. It is worthnoting here that though in the case of Ram Krishna (supra) the Apex Court has held that the Section 18 of the SC & ST (Prevention of Atrocities) Act. 1989, whereby the applicability of the Section 438 of the Code has been taken away, as intra vires, many decisions have been rendered granting anticipatory bail on the foundation that the basic ingredients of the offence is not made out. Similarly, 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 accused can, by clarificatory means with substantial material putforth and bring it to the notice of the Court that the offences which are encapsuled under Section 59-A (i) of the Act are really not in respect of which the accused has been roped in and sought to be arrested are actually not within its ambit or sweep and not covered by it then the eclipse created by the provision gets lifted and the accused can seek the ambit of umbrellas of Section 438 of the Code.
25. The writ petition is accordingly dismissed without any order as to costs.