KAILASH NAHAK ALIAS NAIK Vs. STATE OF ORISSA

JUDGEMENT

(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 1-6-2006, 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, 2007 (1) OLR 184, the learned Single Judge of this Court analyzing 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.