ORDER :- A common question having been raised in all these bail applications, the same were heard together. Out of the above cases, the BLAPL Nos. 7840, 8580, 8690, 8896, 8974, 8986, 9948, 10559, 10826, 11737 and 12903 of 2007 are applications filed under Section 438, Cr. P. C. and BLAPL Nos. 11222 and 12061 of 2007 are filed under Sections 439, Cr. P. C. In all these cases offence under Section 47(a) of the Bihar and Orissa Excise Act, 1915or the State raised a preliminary objection with regard to grant of bail to the petitioners. He contended that in view of the ne (hereinafter referred to as "the State Act ") has been alleged.

2. Mr. S. Pradhan, learned counsel appearing fw Section 85-A introduced into the State Act, which has come into force with effect from 1-6-2006, a bar has been created for granting bail to the accused, who is alleged to have committed an offence under the Act punishable for a term of imprisonment of seven years or more. Such accused can only be granted bail on satisfaction of the proviso to the said Section 85-A.

3. However, in the case of Syama Takri v. State of Orissa, 2007 (1) OLR 184, the learned Single Judge of this Court analyzing the new Section 85-A of the Act and interpreting the same has held that the bar in granting bail as provided in the said section is primarily to the offence specified in Section 52-A of the Act, which was also introduced by way of amendment into the Act in 2006. It was, therefore, concluded that the proviso to Section 85-A of the Act will not be a bar for release of an accused who is alleged to have committed an offence under Section 47(a) of the Act and in such a case the provision of Chapter XXXIII of the Code of Criminal Procedure shall apply.

4. Mr. Pradhan, learned counsel for the State contended that the aforesaid decision in the case of Syama Takri (supra) has not taken note of the decision of the Supreme Court in the case of Muraleedharan v. State of Kerala, AIR 2001 SC 1699 : (2001 Cri LJ 2187). According to Mr. Pradhan in the said case the Supreme Court while interpreting Sections 8(2) and 41-A (as inserted by Act 16 of 1997) of the Kerala Abkari Act (1 of 1077) (hereinafter referred to as 'the Kerala Act ') has laid down that one of the offences involved for which the legislature has imposed stringent restrictions even in regard to the grant of regular bail is under Section 8(2) of the Act, which is punishable with imprisonment for a term which may extend to ten years and a fine which shall not be less than Rs. l,00,000/-. The Supreme Court further held that if this is the position in regard to an accused even after arrest, it is incomprehensible how the position would be less when he approaches the Court for prearrest bail knowing that he would also be implicated as an accused. The Supreme Court expressed reprobation at the supercilious manner in which the Sessions Judge in the said case decided to think that "no material could be collected by the Investigating Agency to connect the petitioner with the crime except the confessional statement of the co-accused " and judicially condemned such a way-word thinking. While holding that no Court can afford to presume that the Investigating Agency would fall to trace out more materials to prove the accusation against the accused, the Supreme Court concluded that the word of the Sessions Judge, blessing the appellant with a pre-arrest bail discloses misuse of discretion conferred in him under Section 438, Cr. P. C.

5. Relying upon the aforesaid decision, Mr. Pradhan vehemently argued that Section 8(2) of the Kerala Act is in pari materia; with Section 85-A of the State Act, which has been inserted by way of amendment in 2006 and this decision has not been taken note of by the learned Single Judge in the case of Syama Takri (supra). He, therefore, submitted that after introduction of Section 85-A of the Act in 2006, there is a complete bar for granting anticipatory bail to a person accused of commission of offence und