(1.) This Full Bench has been constituted to dispel the existing confusion relating to entertainment, consideration and disposal of anticipatory bail purported to be under Sec. 438 of the Cr.P.C relating to an offence punishable under Bihar Prohibition and Excise Act, 2016, (amended, effective from 2/10/2016) by the Chief Justice purported to be in accordance with Chapter-II, Rule-11 of the Patna High Court Rules, being master of the roster. Before coming to terms of reference, which this Full Bench has to answer, it looks obligatory to flash the existing controversy in order to appreciate the legality, propriety of the reference.
(2.) Since before existing Excise Act 1915 (Bihar & Orissa Act 11 of 1915) has been redrafted and introduced in the background of Article 47 duly couched by Article 19(1)(g) as well as Article 246 of the Constitution of India proclaiming complete prohibition having nomenclature Bihar Prohibition and Excise Act 2016 which has been subject to challenge under so many writs and vide order dtd. 30/9/2016 passed in connection with C.W.J.C. No.6675/2016 and other allied writs (Confederation of Indian Alcoholic Beverage Companies vs. State of Bihar and Ors. along with others, 2016 4 PLJR 369), the same was declared ultra vires against which, State has preferred SLP before the Apex Court bearing S.L.P. (C) No.29749/2016 and vide order dtd. 7/10/2016 notices have been issued during midst thereof, operation of the order impugned has been stayed. The aforesaid SLP is still pending.
(3.) During the intervening period, again there happens to be an amendment in the Bihar Prohibition and Excise Act, 2016 which has been introduced since 2/10/2016 which has also been challenged under C.W.J.C. No.8640/2016 (Abay Kumar Mishra vs. The State of Bihar & Ors.) C.W.J.C. No.73098/2016 (Dr. Rai Murari vs. The State of Bihar & Ors.) whereupon, the State preferred transfer petition before the Apex Court and during consideration thereof, notices have been issued and further directing to tag with the original SLP(c) Nos.27949-29763/2016 further proceeding has been stayed.
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