1. Petitioner is the accused in a crime involving abkari offence punishable under sections 55(a) of the Abkari Act. He has filed the above application seeking his release on bail under section 439 of the Code of Criminal Procedure, for short the Code.

2. Petitioner was found transporting,and, in possession of, 825 litres of spirit in a lorry, without authority or licence, at about 3.30 p.m on 6.5.2013 by an excise party. On his arrest and production before the magistrate he was remanded to judicial custody the same day, which still continues. His application for bail had been turned down by learned Sessions Judge vide Annexure A1 order dated 26.7.2013 holding that the embargo under section 41A of the Abkari Act disentitle him to be released on bail.

3. I heard learned counsel for petitioner and also learned Public Prosecutor.

4. Apart from the contentions canvassed to challenge the implication of petitioner in the crime, learned counsel mainly stressed upon the entitlement of petitioner to have default bail under section 167(2) of the Code stating that report has not been laid completing investigation even after his detention continuing for sixty days. Petitioner had moved an application after the expiry of sixty days of detention before the magistrate seeking default bail, but, it was turned down, and, then, he approached the Sessions Judge for bail, which too was declined vide Annexure A1 order, is the submission of counsel. Copy of his application dated 17.7.2013 moved before the magistrate seeking default bail was handed over to me for perusal. Learned Public Prosecutor has not disputed the factual aspects involved over the arrest and detention of petitioner and continuance of his detention exceeding the period of sixty days with the investigation of crime remaining to be completed.

5. The question arising for consideration is whether Section 41A of the Abkari Act with interdictions placed over entitlement of an accused involved in abkari offence to be released on bail override his statutory conferment to have default bail on expiry of the period of detention specified in relation to the offence under section 167(2) of the Code.

6. Section 41A of the Abkari Act reads thus:-

41A. Offences to be cognizable and non-bailable--

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central, Act 2 of 1974)-

(a) every offence punishable under this Act shall be congnizable;

(b) no person accused of an offence punishable for a term of imprisonment of three years or more under this Act shall be released on bail or on his own bond unless-

(i) the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, has been given an opportunity to oppose the application for such release, and,

(ii) where the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section(1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), or any other law for the time being in force granting of bail.

Section 41A of Abkari Act commences with a non obstante clause that notwithstanding the provisions covered by the Code release of any person suspected of committing an abkari offence under the Act shall be subject to the riders imposed under that section. That section mandates providing of opportunity to the publicprosecutor/ Asst.Public Prosecutor to raise his objections to the application for bail of a suspect/accused of an abkari offence. The court should also be satisfied there is reason to presume the innocence of accused and that he is not likely to commit any offence while on bail, to order his release.

7. Section 167 of the Code deals with procedure when investigation