JUDGMENT : ( 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. 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 construction. " "lord Reid said (at pp. 789, 790): "in my view side notes cannot be used as an aid to construction. They are mere catchwords and I have never heard of it being supposed in recent times that an amendment to alter a side note could be proposed in either House of Parliament. Side notes in the original Bill are inserted by the draftsman. During the passage of the Bill through its various stages amendments to it or other reasons may make it desirable to alter a side note. In that event i have reason to believe that alteration is made by the appropriate officer of the House-no doubt in consultation with the draftsman. So side notes cannot be said to be enacted in the same sense as the long title or any part of the body of the Act. " "sometimes a marginal note will in any case be inaccurate", and it will then be "on its own merits of no assistance whatever. " "the modern cases, however, are clear that marginal notes can afford no legitimate aid to construction"-As per Craies on Statute Law (VIth Edn.) at p. 196. " Patanjali Sastri J. (as he then was) has observed in I. T. Commr. v. Ahmedbhai Umarbhai and Co. , AIR 1950 SC 134 , that marginal notes in an Indian statute, as in an Act of Parliament, cannot be referred to for the purpose of construing the statute. Nor can the title of a Chapter be legitimately used to restrict the plain terms of an enactment. Thus, it will be seen that the Marginal Note to section 49-B of the act is of no avail for the construction of this section. ( 5. ) ANY statutory provision curtailing the liberty of a citizen is to be strictly construed. Thus, when bail is refused a man is deprived of his personal liberty, which is too precious in value, has been recognised in our constitutional system by Articles 19, 21 and 22 of the Constitution of india. The question, which the learned Sessions Judge has posed in his order has to be answered in the light of the Constitutional guarantees, which a citizen enjoys and is entitled to enjoy. The question, which the learned Sessions Judge has posed in his order has to be answered in the light of the Constitutional guarantees, which a citizen enjoys and is entitled to enjoy. Refusal of bail in cases covered by section 49a of the Act is based on sub-clause (ii) of section 49-B, which reads thus : " (ii) No application for bail of a person accused of an offence under section 49-A shall be allowed if opposed by the prosecution. " The significance and sweep of Article 21 of the Constitution of India is deep and wide enough to cover the question of bail. It is necessary to refer the law as propounded by the Supreme Court in this behalf right from the case of A. K. Gopalan v. State of Madras AIR 1950 SC 27 . to the case of Maneka Gandhi v. Union of India, AIR 1978 SC 597 . ( 6. ) SINCE the decision of the Supreme Court in A. K. Gopaians case (svpra), the Article had received a somewhat narrow literal interpretation. There the Court held that the impugned preventive detention law was not violative of Article 21 and would not be unconstitutional when it satisfied the requirements of Article 22. According to the view taken by the Supreme court in that case, the right to personal liberty guaranteed by Article 21 was not violated if the deprivation of personal liberty was permissible by "procedure established by law" and it was immaterial and of no consequence whether that law was just or unjust, fair or unfair, reasonable or unreasonable. This interpretation of Article 21 continued to hold ground till it was reviewed and radically altered by the Supreme Court in its decision in the Maneka Gandhis case (supra ). In this case the Supreme Court while distinguishing A. K. Gopaians case (supra), has taken the view that the sweep of Article 21 is much wider than was supposed to be earlier. According to the new dispensation, the right to personal liberty guaranteed by Article 21 can only be abridged by a law which satisfied the test of reasonableness. In this case the Supreme Court while distinguishing A. K. Gopaians case (supra), has taken the view that the sweep of Article 21 is much wider than was supposed to be earlier. According to the new dispensation, the right to personal liberty guaranteed by Article 21 can only be abridged by a law which satisfied the test of reasonableness. In the words of Justice V. R. Krishna Aiyer: "the significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even handed and geared to the goals of community good and state necessity G. Narasitnhulu v. Public prosecutor, AIR 1978 SC 429 . The procedure contemplated by Article 21 must be right and just and fair, and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied. Procedure in Article 21 means fair procedure, not formal procedure; and the law referred to in that Article is reasonable law, not any enacted legislation. In view of the wider interpretation of Article 21, as expounded by the Supreme Court in the Maneka Gandhis case (supra), it has now become imperative to examine and test the provisions of section 49b (ii) of the Act. To what extent can they stand the test of reasonableness ? Are they all "right and just and fair" ? Such questions would be raised time and again in the coming years and would call upon the law-Courts, lawyers and legislators to provide viable solutions to the problems indicated therein. ( 7. ) THIS Court is not embarking on the constitutional ambit and validity of this Section [s. 49b (ii)] but on its plain meaning, as it stands, whether bail can be refused on mere opposition by the prosecution, and whether such a construction is permissible in face of decision in Maneka gandhis case (supra), which lays down: "if a law depriving a person of personal liberty and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred in a given situation ex-hypothesis it must also be liable to be tested with reference to Article 14. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise it should be no procedure at all and the requirement of Article 21 would not be satisfied. " "although there are no positive words in the Statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the Legislature. The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The inquiry must, always be : does fairness in action demand that an opportunity to be heard should be given to the person affected?" ( 8. ) THE plain reading of section 49b of the Act would indicate that the Legislature intended non-entertainment of applications for anticipatory bail, as provided by section 49a (1) of the Act. But so far as bail applications within the ambit of anticipatory bail applications are concerned, it is obvious from the section itself that it was not so intended. The proviso appended to the section also indicates the legislative intent, conferring powers of granting bail in case the period of one hundred and twenty days has expired after arrest of the applicant. So it is safe to infer that the power to release on bail is definitely conferred on the Courts, but section 49b. subclause (ii) provides that if opposed by the prosecution, no application for bail of a person accused of an offence under section 49a of the Act, shall be allowed. This application envisages two stages in the proviso of bail: (a) moving of an application and its notice to the prosecution, (b) opposition by the prosecution. Can it be conceived that the legislature intended such opposition by the prosecution, which is arbitrary, unjust, unfair and unreasonable and such an intendment of the Legislature stands the test of Maneka Gandhis ease (supra ). Can it be conceived that the legislature intended such opposition by the prosecution, which is arbitrary, unjust, unfair and unreasonable and such an intendment of the Legislature stands the test of Maneka Gandhis ease (supra ). But, even if the answer being in the negative, the matter does not rest here and the omission will be supplied by reading that the opposition by the prosecution is to be on just, fair and reasonable grounds. The answer again is to be found in the case of Maneka Gandhi (supra) itself, already reproduced above in para 7. ( 9. ) THE question in case of bail is needless to say is of far more importance than the question of the right to go abroad and, therefore, the principles laid down in Maneka Gandhis case (supra) would supply the meaning in the enactment and applies with greater force in the present case. Even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles, J. , in Cooper v. Wandsworth board of Works, (1863) 14 cb (ns) 180. : "a long course of decisions, beginning with Dr. Bentleys case (1723) 1 Str. 557 and ending with some very recent case, establish that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the Legislature". The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice are manifested, namely, Memo Judex in Sua Causa and audi alteram partem. In the present case we are concerned only with the latter part. On these principles it is open to the Court to question the opposition offered by the prosecution whether the opposition offered by the prosecution is just, fair and reasonable. Even where there is no provision for bail, the supreme Court has upheld the right of a citizen being enlarge on bail even in cases of Preventive Detention pending in habeas corpus petitions. (See State of Bihar v. Ram Balak Singh, AIR 1966 s c 1441.) In a later case of State of U. P. v. Jairarri, AIR 1982 SC 912. (See State of Bihar v. Ram Balak Singh, AIR 1966 s c 1441.) In a later case of State of U. P. v. Jairarri, AIR 1982 SC 912. , although the Supreme Court cancelled the bail granted in a case under Prevention of Black marketing and Maintenance of Supplies of essentia! Commodities Act, the judgment, if read as a whole, does not indicate that such a bail cannot be granted. Cancellation by the Supreme court was based on grounds of propriety rather than denial of right. ( 10. ) IT is, there, held that the lower Courts have jurisdiction to go into the justness, fairness and reasonableness of the opposition advanced by the prosecution while opposing bail petitions moved under section 49b of the Act on behalf of a person arrested under section 49 A of the Act, of course, in such matters the justifiability of the opposition to grant bail, is subject to tests as indicated above and it is the Judge who in his judicial discretion would grant or refuse the bail. Judicial discretion in the Words of Cardozo: "the Judge, even when he is free, is still not wholly free. He is, to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life. " Jurisprudence of bail has shown new dimensions and can be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice, as propounded by Krishna Iyer, J. in the case of State of Rajasthan v. Balchand, AIR 1977 sc 2447 . The Supreme Court has granted anticipatory bail under section 438, Criminal Procedure Code even in face of Rule 184 of the Defence and Internal Security of India Rules, 1971, in the case of Balchand v. State of M. P. AIR 1977 s c 366. ( 11. ) THE law of Bails, which constitutes an important branch of the procedural law, is not a static one; and in a welfare State, it cannot indeed be so. ( 11. ) THE law of Bails, which constitutes an important branch of the procedural law, is not a static one; and in a welfare State, it cannot indeed be so. It has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the mis-adventurers or a person alleged to have committed a crime; and on the other, the fundamental canon of Criminal Jurisprudence, viz. , the presumption of innocence of an accused till he is found guilty. These are indeed conflicting equities highlighting the law of bails but the shield in no case should be allowed to be the sword. The observations aptly made that "in a barbaric society you can hardly ask for bail; in a civilised society you can hardly refuse it" are more than an epigram, subject only to the tests or considerations laid down from time to time, by the inprimatur of judicial decisions. ( 12. ) HAVING held that the lower Court could have granted bail but the learned Sessions Judge has refused the same on mere opposition by the prosecution, remanding the case to the learned Sessions Judge in such circumstances would further delay the matter. The learned Panel Lawyer appearing for the State has tried to support the order by referring to section 49b (ii) of the Act and, there being no other ground urged so as to disentitle the applicant from being released on bail, it is ordered that the applicant be released on bail on his furnishing a personal bond in a sum of rs. 1,000 and surety in the like amount to the satisfaction of the Judicial magistrate, 1st Class, Burwaha. Copy of this order also to be sent to the sessions Judge, West Nimar, Mandleshwar. Order accordingly.