The main legal point established in the judgment is the interpretation of statutory provisions to determine the applicability of bail provisions under the Prohibition Act, emphasizing the legislative intent and specific provisions of the Acts.

Rajendra Menon, J.

This is a reference made by a learned Single Bench of this Court on 10.08.2017 and the question referred to us for consideration reads as under:

“Whether against any order, granting or refusing bail, by the Special Court constituted under “the Act”, in respect of an offence under “the Act”, an application under Section 439 and 440 of “the Code”, or an appeal under Section 89 of “the Act” would be maintainable before this Court?”

2. Before adverting to consider the aforesaid question, it would be appropriate to take note of certain statutory provisions as are contained in the Code of Criminal Procedure, (hereinafter referred to as “the Code”), the Bihar Prohibition and Excise Act, 2016 (hereinafter referred to as “the Prohibition Act”) and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “SC & ST Act”).

3. As far as the Code of Criminal Procedure is concerned, Section 439 of the Code contemplates a provision granting special powers to the High Court or the Court of Sessions regarding grant of a bail to a person.

4. The Bihar Prohibition and Excise Act, 2016 was brought into force with effect from 2nd of October, 2016 for the purpose of enforcing, implementing and promoting complete prohibition with respect to use, manufacture, sale etc. of liquor and intoxicants in the territory of the State of Bihar and for matters connected thereto. The said Prohibition Act consists of about 11 chapters dealing with various issues. As far as the provisions relevant for deciding the issue in question is concerned, we may refer to Section 30 in Chapter-VI which pertains to penalty for unlawful import, export, transport, manufacture, possession, sale of intoxicant liquor. Thereafter, Section 73 onwards under Chapter VIII deals with detection, investigation and trial of offences. Section 76 of the Prohibition Act provides that offences under the Act shall be cognizable and non-bailable and sub-section (1) of Section 76 contemplates that all offences under this Act shall be cognizable and non-bailable and the provisions of Code of Criminal Procedure, 1973 (Act 2 of 1974) shall apply. Thereafter, sub-section (2) of Section 76 starts with a non-obstante clause and contemplates that nothing in Section 360 of the Code and Section 438 of the Code and the Probation of Offenders Act shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under the Prohibition Act. Section 83 contemplates and prescribes that notwithstanding anything contained in sub-section (1) of Section 76 of the Prohibition Act, all offences punishable under the Act shall be tried by the Court of Sessions. Under Section 84, Special Courts have been constituted. Section 85 provides the procedure and power of the Special Judge and under Section 89, a provision for appeal is made which contemplates that any person aggrieved by any order of the Special Court may within forty five days from the date of order, prefer an appeal in the High Court. Thereafter, we may take note of the provisions of sub-section (2) of Section 85 which contemplates that save as provided in sub-section (1) of Section 85, the provisions of the Code shall apply so far as they are not inconsistent with the provisions of the Prohibition Act. Similarly, Section 90 of the Prohibition Act contemplates that save as otherwise expressly provided under the Prohibition Act, the provisions of the Code relating to arrest, detention, search, summons etc. would apply.

5. Section 14-A of the SC & ST Act provides for an appeal and under sub-section (2) it is specifically mentioned that notwithstanding anything contained in sub-section (3) of Section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail.

6. It is in the backdrop of the aforesaid statutory provisions, that, we are required to consid