( 1. ) INVOKING the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India the petitioner has prayed for a declaration that the provisions contained in Section 59-A (i) of the M. P. Excise Act, 1915 (in short the Act) brought into existence by M. P. Excise (Amendment) Act, 2000 (Act No. 22/2000) to the extent it prohibits any Court for entertaining the application for grant of anticipatory bail is unconstitutional.

( 2. ) THE facts as setforth in the petition are that the petitioner who is a graduate belongs to the family of lawyer and he has no criminal record. He has been implicated falsely in Cr. Case No. 405/2000 registered at the Police Station, Gohalpur, Jabalpur. According to the petitioner he is engaged in the business of travel agency and he is the owner of the Geeta Travellers situated at Katni. The authorities of the Police Station, Gohalpur seized a Maruti Van No. MP-20 T OJ 64 i-n an abandoned condition and from the said van the police seized 25 boxes of English Wine and registered the aforesaid crime under Section 34 of the Act. The investigating agency arrested Churaman, Santosh and the owner of the van but later on all were released on bail. In the said case the petitioner has no concern and connection and at the time of seizure of the van he was at Katni. The people who have a hostile disposition towards him implicated him in the crime in question to tarnish his image in the society.

( 3. ) ACCORDING to the writ petition when he came to know about the institution of the crime and that the police is bent upon to arrest him he moved an application for grant of anticipatory bail under Section 438 of the Code of Criminal Procedure (for short the Code) before the learned Sessions Judge, Jabalpur who rejected the same. Thereafter he filed an application before this Court forming the subject matter of M. Cr. C. No. 7598/2000 which came before the learned Single Judge but on the ground that after enforcement of the M. P. Excise (Amendment) Act, 2000 whereby Section 59-A (i) has been introduced and on the teeth of the said provision the application for anticipatory bail could not be granted.

( 4. ) IT is averred in the petition that the aforesaid provision which postulates that no application for anticipatory bail shall be entertained by any Court in respect of a person accused of an offence punishable under certain provisions of the Act confers unbridled and uncanalized powers with the investigating authorities and, therefore, it suffers from arbitrariness and irrationality. It is urged in the petition that the liberty granted to a person under Article 21 of the Constitution of India is grossly violated and, therefore, the said provision is totally unconstitutional. It is further putforth that the authorities have been given power to detain a person up to unlimited period thereby violating the provisions under the law laid down in the catena of decisions rendered by the Apex Court. It is further putforth that Section 34 declares the crime as non-bailable and Section 59-A (i) puts the restriction on the jurisdiction of the Court to grant anticipatory bail thereby ushering in an incurable inconsistency in the provision which creates an anamalous situation and makes the later provision constitutionally invalid.

( 5. ) A counter affidavit has been filed by the respondents contending, inter alia, that the petition is absolutely misconceived inasmuch as nothing has been stated how the provision violates the Article 21 of the Constitution. It has been asseverated that invocation of Section 438 of the Code is not a matter of fundamental right but an essentially statutory right and hence, it can be taken away by amending the statute and such an amendment docs not transgress any of the Constitutional provision. It is asserted that the amendment made by the Legislature is within its legislative competence and the provision has been enacted mainly in respect of those persons who are either in