The court allows bail under Section 34(1)(a) considering trial delays and other mitigating factors despite the stringent provisions of the Excise Act.

1. Heard.

2. Diary of Crime No. 164 of 2000 registered by Excise Department, Distt., Durg, for the offence punishable under S. 34(1)(a) of Excise Act, perused.

3. Learned counsel for the applicant submits that since 20-10-2000, the applicant is in jail and as there is no likelihood of early disposal of the trial at the Magisterial level and as for offence punishable under S.34(1)(a), the maximum awardable sentence is one year R.I. and fine of Rs. 500/- which may extend to Rs. 5000/-, the applicant deserves to be released on bail.

4. On the other hand, learned counsel for the State placing his reliance on the language of S.59 - A of M. P. Excise Act, 1915 submits that more than 50 bulk litres of liquor was recovered from the applicant and as the prosecution is opposing the application for grant of bail, the application cannot be allowed.

5. S.59 - A, has been inserted in the Act by M. P. Act No. 22/2000 with effect from 4-8-2000. S.59 - A provides that certain offences under the Act shall be non - bailable. Clause (2) of S.59 - A provides that where the accused is charged for offence punishable under S.49 - A or a person who does not possess a valid licence under the Act or Rules, but is accused of an offence punishable under S.34(1)(a) or (b) and the quantity of liquor is of more than 50 litres, then the bail shall not be granted unless notice of the application is given to the public prosecutor and he has been given proper opportunity to oppose the application. The provisions further say that if the Court records its satisfaction that the applicant is not guilty and is not likely to commit any offence while on bail, only then, the bail can be granted.

6. The Legislature while introducing S.59 - A in M. P. Excise Act, 1915 , made stringent provisions relating to the offence punishable under S.49 - A and S.34(1)(a) or (b), but did not amend the provisions of S.34 of the Act. S.34(1) provides that any person contravening clause (a) to clause (h) of S.34 - A shall be punishable with imprisonment which may extend to one year and fine which shall not be less than Rs. 500/-, but may extend to Rs.5000/-. This, however, is subject to S.34(2) of the Act. S.34(2) provides that notwithstanding anything contained in sub-section (1), if a person is convicted for an offence covered by Clause (a) or Clause (b) of sub-section (1) and the quantity of liquor exceeds 50 bulk litres, such person shall be punished with imprisonment for a term which shall not be less than one year, but may extend to 3 years and with fine which shall not be less than Rs. 25,000/-, but may extend to Rs. 1,00,000/-. In the present case, the applicant, if ultimately is found guilty, may be punished under S.34(1) read with sub-section (2) because the liquor found from his possession is exceeding 50 bulk litres. True, it is that according to Panchnama, the total recovery is of more than 50 bulk litres, but the fact remains that the applicant at the time of preparation of the seizure memo had clearly informed the Police that the intoxicants belonged to another person who had simply stored the same in his house.

7. In case, where the minimum sentence is one year and if the trial does not show any progress at least in a period of 5 months, the applicant cannot be kept into custody unnecessarily and ad infinitum.

8. Taking into consideration the totality of the circumstances and the defence of the applicant raised at the time of the seizure, I consider present to be a fit case for admitting the applicants to bail.

9. The applicant be immediately released on bail on his furnishing a personal bond in a sum of Rs. 15,000/- with two sureties in the like amount to the satisfaction of the trial Court for