The Supreme Court has expressed its disappointment over the denial of anticipatory bail to a 21-year-old girl by the High Court in a liquor case, while saying refusal in such cases leads to “proliferation” of litigation before the Apex Court.
The High Court must not abdicate its constitutional powers: Supreme Court
“We are clearly of the view that the High Court must not abdicate its constitutional powers and must ensure that the personal liberty of the accused in appropriate cases has to be safeguarded,” said Justice D.Y. Chandrachud.
The Apex Court has noted that the appellant is a 21-year-old girl who was denied anticipatory bail by the High Court, even though when there is an embargo in Section 71(2) of the statute.
High Court should exercise its constitutional powers: SC
The bench, which also comprised Justice Surya Kant, said, “We see no reason why the high court ought not to have exercised its power as a constitutional court to grant anticipatory bail to protect the personal liberty of the accused in a case, such as the present where a 21-year-old girl is sought to be prosecuted following the recovery of liquor bottles from a Scooty, which, though belonging to her, was not being driven by her at the relevant point of time.”
The Court also took note of the fact that, “Many accused will not have the resources or the awareness to pursue their remedies before this court. Unless the High Court exercises its constitutional duty to protect personal liberty, they will continue to languish in jail.”
The case relates one Sweta Kumari who moved the Apex Court after her bail was denied by the Patna High Court, apprehending her arrest in Case No 251 of 2020 registered for offences punishable under Section 30(a) of the Bihar Prohibition and Excise Act 2016. Nine bottles of liquor were recovered from a Scooty belonging to her. The Scooty is alleged to have been ridden by one of the co-accused. A charge-sheet has been submitted.
On April 7, 2022, the Court while issuing notice to the respondent-State, granted an interim stay on her arrest in said case registered at PS Rupaspur, District Patna, Bihar.
The Court also took note of the decision of the Full Bench of the Patna High Court in Ram Vinay Yadav vs The State of Bihar, where it has been held:
“It is not in dispute that Section 76(2) of the Act 2016 clearly bars the application of Section 438 of the Criminal Procedure Code in the offences arising out of Act 2016 but from perusal of sub-section (2) of Section 76 of Act 2016, it would appear that above stated bar is applicable only if an offence under the Act 2016 is made out because in sub-section (2) of Section 76 of the Act 2016 the sentence “on an accusation of having committed an offence under this Act” has been used and, therefore, it is explicit clear that if a person commits an offence punishable under the Act 2016, in that event petition filed under Section 438 of the CrPC cannot be entertained but if a person does not commit any offence punishable under the Act 2016, then in that event, the said person has right to file a petition under Section 438 of the CrPC and the bar imposed under sub-section (2) of Section 76 of the Act 2016 shall not come in his way. Therefore, even if a person has been made accused in a case registered under the provisions of Act 2016 but from bare perusal of the accusation levelled against him does not disclose any offence of the Act 2016, the said person has right to file petition under Section 438 of the CrPC in spite of bar imposed under Section 76(2) of the Act 2016 because if the offence under the provisions of Act 2016 is not made out from the very face of the accusation, the bar imposed under Section 76(2) of the Act 2016 shall not come in picture.”
Following the legal position as stated above, the Apex Court held, “We confirm the ad–interim order by directing that in the event of the arrest of the appellant, she shall be released on bail forthwith subject to such terms and conditions as may be imposed by the trial court.”
The facts of the case
The appellant had been implicated for an offence punishable under section 30(a) of the Bihar Prohibition and Excise (Amendment) Act 2018 which prohibits manufacturing, possession, buying, selling, distribution, collection, storing, bottling, importing, exporting, transporting, removal or cultivation of any intoxicant liquor.
The brother of the appellant had been granted regular bail earlier in the matter, whereas the appellant being the owner of the Scooty was apprehended for the same. On application for anticipatory bail under Section 438 CrPC in the matter, the High Court of Judicature at Patna had rejected her plea stating, “So far as the maintainability of the bail petition is concerned, Section 76 (2) of the Bihar Prohibition and Excise Act, 2016 makes an explicit embargo on entertaining the application under Section 438 of the CrPC. Since the provision of Section 438 of the CrPC is not applicable in respect of offences under the Bihar Prohibition and Excise Act, 2016, as such, this anticipatory bail application is dismissed.”
Case Name- Sweta Kumari Vs State of Bihar.9359_2022_4_23_34959_Order_13-Apr-2022