Heard learned counsel for the petitioner and learned counsel for the State.

2. Apprehending his arrest in connection with Turkauliya (Banjariya) P.S.Case No. 634 of 2016 dated 16.12.2016 registered for the offences under Sections 272, 273, 290 of the Indian Penal Code and 36, 37(b) of the Bihar Prohibition and Excise Act, 2016 (for short ‘the Act’), the petitioner has filed the present application under Section 438 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) for grant of pre-arrest bail.

3. According to the prosecution case, the raiding police party recovered one plastic gallon containing one litre country made wine from near the door of the petitioner where fodder was stored.

4. A preliminary objection has been raised by Mr. Jharkhandi Upadhyay, learned Additional Public Prosecutor appearing for the State that in view of the provisions prescribed under sub-section (2) of Section 76 of ‘the Act’ the instant application under Section 438 of the Cr.P.C. is not maintainable.

5. On the other hand, learned counsel for the petitioner submitted that there would be no application of sub-section (2) of Section 76 of the Act in view of the fact that nothing was recovered from the conscious possession of the petitioner. He submitted that since the petitioner did not commit any offence under the Act, his application for grant of pre-arrest bail is maintainable. He further contended that even otherwise applications under Section 438 of the Cr.P.C. are being entertained as no objection is raised by the Registry in this regard and the cases are being listed as defect free cases and different Benches of the Court are entertaining the applications preferred under Section 438 of the Cr.P.C. and granting bail to the petitioners facing accusation of having committed an offence under ‘the Act’.

6. Several Advocates, who are present in the Court, have supported the contention advanced by the learned counsel for the petitioner. They have stated in one voice that ‘the Act’ is very stringent and there is all likelihood of the same being misused by the erring officials. They have stated that after the enactment of ‘the Act’, more than 25,000 cases have been instituted across the State within a short span of few months. According to them, there are also reports of the Police and Bihar Excise Department Officials abusing the new prohibition law in the State to harass the people and extort money from them. They have stated that some businessmen from Punjab, who were on way to Kolkatta, were stopped at the check-post of National Highway in Kaimur district and the officials planted two bottles of liquor in their car. Since possession of liquor is prohibited in the State of Bihar, the officials demanded Rs.50,000/-. When the businessmen stated that they did not have that much money, the policemen made them to draw money from a nearby ATM. It is stated that one of the businessmen complained to the Superintendent of Police at whose instance an FIR was instituted against the errant officials and altogether three persons including one excise official and two special auxiliary personnel were sent to jail. They have stated that there are several other instances of innocent persons being framed in cases under ‘the Act’.

7. Learned Advocates present in the Court submitted that all offences under „the Act? have been made cognizable and non-bailable and thus the innocent persons become victim either due to hostile approach of the errant officials or because of the faction ridden society in which persons on inimical terms can easily plant few bottles in order to implicate an innocent man and because of the stringent provision if pre-arrest bail is not granted, there is always a threat of such persons being sent to jail.

8. It is unanimously submitted by the learned Advocates appearing in different cases listed before me that the regular bail applications by the courts below are being rejected mechanically in most of the cases taking into consideration the n