Madhya Pradesh High Court
Radheshyam vs The State Of Madhya Pradesh on 19 September, 2023
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 19 th OF SEPTEMBER, 2023
MISC. CRIMINAL CASE No. 34978 of 2023
BETWEEN:-
RADHESHYAM S/O SAMANDAR SINGH TANWAR, AGED
ABOUT 19 YEARS, OCCUPATION: LABOR R/O GRAM
BANKPURA TEHSIL RAJGARH DISTT. RAJGARH
(MADHYA PRADESH)
.....PETITIONER
(SHRI RAVINDRA SINGH PARMAR - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION KALIPEETH DIST.
RAJGARH (MADHYA PRADESH)
.....RESPONDENT
(MS.GEETANJALI CHAURASIA - PUBLIC PROSECUTOR)
This application coming on for orders this day, the court passed the
following:
ORDER
This is fourth application filed under section 439 of the Cr.P.C in crime no.76/2022 under section 420, 409 of IPC and 3/7 of Essential Commodities Act registered at police station Kalipith Distict Rajgarh.
2. The earlier bail application was dismissed as withdrawn.
3. As per the prosecution case, on 14.03.2023 Ashok Kumar Satyarthi District Supply Officer posted at District Collector Office, Rajgarh presented an order dated 14.03.2023 of SDO Revenue District Rajgarh to register the offences against the accused persons wherein Government Public Supply Shop situated at Sawasada Code No.3203037 govern by Marketing Society Khujner Signature Not Verified Signed by: SOURABH YADAV Signing time: 20-09-2023 17:45:43 2 runs by the Sales Man and Assistant Salesman found in indulging in irregular distribution and black marketing. They by using them of consumers in PSO machine, removing food for black marketing. As per the stock wheat, salt, Bajra and Kerosene stock was not properly tallied. On the basis of such report, the police station Kalipith registered the aforesaid offences.
4. Learned counsel for the applicant submits that the applicant is in jail since 26.12.2022. The investigation has been completed and the charge sheet has been filed. It is further argued that the statement of the consumers have been recorded and they have not supported the prosecution case. He further submits that so far the offence under section 3/7 of the Essential Commodities Act is concerned, the co-ordinate bench of this Court at Gwalior in M.Cr.C No.34139/2023 relying on the previous order dated 07.05.2015 passed in M.Cr.C No.2914/2015 (Santosh Sahare Vs. State of MP) under the similar situation held as under :-
"5. Learned Panel Lawyer for the State opposes the aforesaid submission on the ground that there is prima-facie evidence available against the applicant and prays for dismissing the same.
6. Firstly, I would like to reproduce the relevant provision of Act of 1955 to clear the position as to whether offence under section 3/7 of Essential Commodities Act, 1955 is bailable or non-bailable.
7. Section 10(A) of the Act of 1955 reads as under:-
"Offence to be cognizable and bailable notwithstanding anything contained in the Code of Criminal Procedure,1973 every offence punishable under the Act shall be 'cognizable' "(xxx)2.
(xxx)2 - vf/kfu;e dz- 92 lu 1976 }kjk nl o"kksZa ds fy, rRi'pkr~ vf/kfu;e dz- 18 lu~ 1981 }kjk ¼fn- 1-9-1982 ls½ nl ds LFkku ij iUnzg o"kksZa ds fy,] 'kCn ^^vkSj vtekurh;^^ LFkkfir fd;s x, Fks A fn-31-8-1997 dks iUnzg o"kZ iw.kZ gks tkus ds dkj.k /kkjk vius ewy :i esa LFkkfirA^^
8. From the bare perusal of aforesaid section it appears that by the Essential Commodities (Special Provision) Act-1981 Section 10(A) of the original Act of 1955 was amended and after the word 'cognizable', the words 'and non-bailable' were introduced. The said Act of 1981 was to remain in force for a period of 5 years only from the date of commencement of 1981 Act. Thereafter by the Essential Commodities (Special Provisions) Continuance Act, 1987 para-2 of the preamble of 1981 to the Essential Commodities Signature Not Verified Signed by: SOURABH YADAV Signing time: 20-09-2023 17:45:43 3 (Special Provisions) Act,1981 was amended and in place of 5 years, period of 10 years was substituted. Thereafter by Third Amendment, the said period of continuance was made to 15 years. After expiry of 15 years no amendment Act was brought into force but certain ordinance were issued. The last ordinance was issued in the year 1988, which lost its life and efficacy by lapse of time. Thereafter no Act or ordinance has been issued to continue the Provisions of 1981 Act.
9. When 1981 Act has lost its life, then any amendment incorporated by the said Act which was to remain in force for a period of 5,10 or 15 years would come to an end and additional words 'and non-bailable' shall become 'non-est' and 'otiose' Section 10(A) without the said amendment shall now be read as "notwithstanding anything contained in the Code of Criminal Procedure- 1973, every offence punishable under the Act shall be cognizable"
10. In view of the above legal provisions, the offence is not nonbailable. Cognizance of such an offence can be taken but in the absence of any other provision showing the offence to be nonbailable, The offence would continue to be bailable in view of schedule II of the Code of Criminal Procedure,1973.
11. Therefore, as the offence is bailable, an application under section 438 of Cr.P.C. would not be maintainable. However, keeping in view the relevant provision as well as the possibility of the non- wareness of the relevant provisions of Act of 1955 and amended Act,1981 and the interpretation, it would be appropriate to direct the Arresting Officer/Authority that in the event of arrest of applicant, the officer arresting the applicant shall release the applicant Santosh Sahare on bail treating the offence to be bailable. In the alternative, the applicant may also appear before the Special Court along with the copy of this order and furnish bail to the satisfaction of the said Court.
12. The petition is disposed of accordingly."
5. Learned counsel for the respondent/state opposed the prayer. However, fairly submits that the concerned Junior Supply Officer could not be examined by the prosecution so far.
6. The applicant is in jail since 26.12.2022 and considering enforcibility of section 10(A) of the Original Act of 1955, it is directed that the applicant Radheshyam be released on bail upon his furnishing personal bond in the sum of Rs.1,00,000/- (Rupees One Lac only) with a solvent surety in the like amount to the satisfaction of the concerned Court for his appearance before the Trial Court on all such dates as may be fixed in this behalf by the Trial Court during the pendency of trial. It is further directed that applicant shall comply with the Signature Not Verified Signed by: SOURABH YADAV Signing time: 20-09-2023 17:45:43 4 provisions of Section 437 (3) of Cr.P.C.
7. This application is allowed and stands disposed of (VIJAY KUMAR SHUKLA) JUDGE Sourabh Signature Not Verified Signed by: SOURABH YADAV Signing time: 20-09-2023 17:45:43