( 1. ) THIS is an application under section 439 of the Code of criminal Procedure, praying for release of the applicant Sheikh Salim on bail, as the same stands rejected by the learned Sessions Judge, West Nimar, mandleshwar, on the ground that there is a prima facie case under section 49-A of the Madhya Pradesh Excise Act, 1915, as has been added and amended by the Madhya Pradesh Act No. 39 of 1982 (hereinafter referred to as the Act ).

( 2. ) SHRI Pathan, learned counsel appearing for the applicant, assails the order on the ground that it runs counter to our very concept of individual liberty; while Shri S. M. Jain, learned Panel lawyer, appearing for the state supports the order passed by the learned Sessions Judge as being perfectly in consonance with section 49-B of the Act. Section 49-B of the amended Act reads as under :

"49-B.-Bail not to be allowed for offences under this Chapter.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (No. 2 of 1974) or section 59 - (i) no application for an anticipatory bail shall be entertained by any Court in respect of a person accused. of an offence under section 49a; (ii) no application for bail of a person accused of an offence under section 49a shall be allowed if opposed by the prosecution : provided that no Court or Magistrate shall authorise detention of such person in custody during the course of investigation for a period exceeding one hundred and twenty days and on the expiry of such period, in the event of the report or complaint not being filed, the accused shall be released forthwith if he is prepared to and does furnish bail. "

( 3. ) SINCE the question is of frequent occurrence before the Courts and a confusion appears to be prevailing, as is obvious from the order of the learned Sessions Judge, whether bail can or cannot be granted in face of opposition by the prosecution. The learned Sessions Judge has observed:

"the provision to refuse bail simply because prosecution opposes it, is most unsavoury. It appears to transfer the jurisdiction of grant of bail from the hands of Court to that of prosecution. It appears difficult to accept that the Legislature intended to say that. But the language is plain and compels me to reject the petition as it is opposed by the prosecution and is not governed by any of the exceptions like minority, old age etc;"

It is desirable, therefore, to examine the pros and cons of the matter in all its facets so as to remove the confusion that prevails.

( 4. ) BY section 9 of the Amending Act No. 39 of 1982, a new chapter VII-A has been added to Chapter VII, as it existed in the old Act and captioned as "offences and Penalties". Sections 34, 35 and 36 were already there. However, in order to meet a new menace created by illicit liquor sale and its consumption endangering human life, a new chapter VII-A, under the caption penalty for offence against Life, has been added, incorporating section 49-A and section 49-B therein. So far as the question of bail is concerned, it is section 49-B, which requires consideration. To begin with, let us consider the Marginal Note to section 49b, although it reads "bail not to be allowed for offences under this chapter", the concurrent view about such Marginal Notes is that the marginal Note still not regarded as a guide to construction, but exceptions have been accepted from time to time. Maxwell, the celebrated author on the Interpretation of Statutes, in its 1969 Edition, at pages 9 and 10 states :

"the notes often found printed at the side of sections in an Act, which purport to summarise the effect of the sections, have sometimes been used as an aid to construction. But the wright of the authorities is to the effect that they are not parts of the statute and so should not be considered, for they are "inserted not by Parliament nor under the authority of Parliament, but by irresponsible persons. "

"lord Reid said (at pp. 789, 790): "in my view side notes cannot be used as an aid to c