Jagannath vs The State Of Madhya Pradesh on 21 July, 2023

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Madhya Pradesh High Court

Jagannath vs The State Of Madhya Pradesh on 21 July, 2023

2. This is first application filed under Section 438 of Cr.P.C. for grant of anticipatory bail to the applicant, as they are apprehending their arrest in connection with Crime No.74/2023 registered at Police Station

- Bamorkalan, District Shivpuri (M.P.) for offence punishable under Sections 420, 409 of IPC and Section 3/7 of the Essential Commodities Act.

3. Prosecution case, in brief, is that under the orders of the SDO (Revenue), Shivpuri, operation of the fair price shop Mamroni, which was being operated by Prathmik Krishi Sakh Sahkari Sanstha, Jhaloni, was handed over to Prathmik Vanopaj Sanstha Lakhari, however, charge of the entire stock of foodstuffs, as shown in the POS Machine, pertaining to the period during which fair price shop Mamroni was being operated by Prathmik Krishi Sakh Sahkari Sanstha, Jhaloni, was not given to Prathmik Vanopaj Sanstha Lakhari. Foodstuffs worth Rs.6,66,161/- were found to have been misappropriated. Accordingly, the aforesaid crime has been registered against the applicants working as Salesman/Assistant Salesman in the said fair price shop.

4. Learned counsel for the applicant submits that they themselves shown their inability to operate the fair price shop Mamroni and in compliance of the order dated 3/4/2023 of the SDO, handed over the charge of POS machine as well as foodstuffs to new Salseman. He referring the document dated 4/4/2023, whereby charge of the aforesaid shop was handed over to new Salesman, submits that it is specifically mentioned therein that 8 quintal foodstuffs were handed over to new 3 Salesman. After about two months, on 29/5/2023 it was alleged against them that charge of entire stock of foodstuffs was not handed over to new Salesman. It has been nowhere mentioned that in between 3/4/2023 to 29/5/2023 how much foodstuffs have been distributed to the eligible consumers. The whole prosecution case is suspicious. Allegations alleged against the applicants are totally false. Since alleged act is punishable under the Essential Commodities Act, therefore, the provisions of Section 409 of IPC do not attract in the matter. The offence under Section 3/7 of Essential Commodities Act is bailable in nature. Applicants custodial interrogation is not required. Applicant's are the permanent resident of District Shivpuri and there is no likelihood of their absconsion or tampering with the prosecution evidence. They are ready to cooperate in the investigation. In view of the above, the applicants may be enlarged on anticipatory bail. In support of his submissions, learned counsel for the applicants has placed reliance upon the judgment dated 07/05/2015 passed in M.Cr.C No. 2914/2015 (Santosh Sahare Vs. State of M.P.) by the Coordinate Bench of this Court, wherein under similar circumstances it has been 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' 4 "(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 (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 5 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 has opposed the prayer supporting the order impugned.

6. Heard learned counsel for the parties and perused the record.

7. Having considered the rival submissions, material pointed out by the learned counsel for the applicants with regard to the enforcibility of Section 10(A) of the Original Act of 1955 and also considering the over all facts and circumstances of the case, without commenting on the merits of the case, the application is allowed. 7.1 It is directed that in the event of arrest of the applicants, they shall be released on bail upon furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) each with one surety each in the like amount to the satisfaction of the Arresting Officer for their appearance before the Trial Court on all dates and for complying with 6 the conditions enumerated in sub-section (2) of Section 438 of the Code of Criminal Procedure.

Certified copy as per rules.

(SATYENDRA KUMAR SINGH) JUDGE Arun* ARUN KUMAR MISHRA 2023.07.21 18:10:20 +05'30'

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Madhya Pradesh High Court