Madhya Pradesh High Court
Mahendra Chandra Prajapati @ Mahesh ... vs The State Of Madhya Pradesh on 12 July, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1 MCRC-22805-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 12 th OF JULY, 2024
MISC. CRIMINAL CASE No. 22805 of 2024
MAHENDRA CHANDRA PRAJAPATI @ MAHESH CHANDRA
PRAJAPATI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Pradeep Batra - Advocate for applicant.
Smt. Shanti Tiwari - Panel Lawyer for the State.
ORDER
This is the first application filed by the applicant under Section 438 of the Cr.P.C. seeking anticipatory bail in connection with FIR/Crime No.121/2024 dated 09.04.2024 registered at Police Station, Kotar District Satna for the offences punishable under Sections 3/7 of the Essential Commodities Act, 1955.
2. Learned counsel for the applicant contends that the allegation against the present applicant is as regards supply of Zinc Sulphate which according to prosecution, upon analysis was found to be below standard. It is contended by the learned counsel that according to the prosecution, the sample ought to have met with the requirements of ZN-33 and S-15, whereas the sample was found to be the standard of ZN-0 and S-1.34. It is contended by the counsel that offence under Section 3/7 of the Essential Commodities Act is bailable one, inasmuch as no further amendment in Section 10-A of the Essential Commodities Act, 1955 was made, and in the initial insertion in the amendment, offence is to be bailable for the period 5 years, 10 years and 15 years and Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 7/15/2024 3:11:04 PM 2 MCRC-22805-2024 remained continued. Therefore, this aspect was also taken into consideration by this Court in the order passed in M.Cr.C. No.2914/2015 (Santosh Sahare vs. State of M.P.), dated 07-05-2015.
3. Thus, the learned counsel for the applicant contends that in view of the aforesaid law laid down by this Court, the alleged offence being bailable, the applicant deserves to be enlarged on bail.
4. Learned counsel for the State has opposed the prayer and submitted that the sample was seized on 12-10-2023 and the same was sent for analysis on 15-12-2023. The analysis report was received and the sample was found to be below standard and hence, the offence having been committed under the provisions of Section 3/7 of the Essential Commodities Act, the applicant is not entitled to be enlarged on bail.
5. Having considered the arguments advanced on behalf of the parties, a perusal of the case dairy reflects that the issue, as to whether the offence committed under Section 3/7 of the Essential Commodities Act is bailable or not, came up before this Court for consideration in the case of Santosh Sahare (supra) wherein it is 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. vf/kfu;e dz- 92 lu 1976 }kjk nl o"kksZ ds fy, rRi'pkr~ vf/kfu;e dz- 18 lu~ 1981 }kjk (fn- 1-9-1982 ls) nl ds LFkku ij iUnzg o"kksZ ds fy,] 'kCn " vkSj vtekurh;"
LFkkfir fd; x;s FksA fn- 31-8-1997 dks iUnzg o"kZ iw.kZ gks tkus ds dkj.k /kkjk vius ewy :i esa LFkkfirA "
8. From a bare perusal of aforesaid section it appears that by the Essential Signature Not Verified Commodities (Special Provision) Act-1981 Section 10(A) of the original Signed by: AJAY KUMAR CHATURVEDI Signing time: 7/15/2024 3:11:04 PM 3 MCRC-22805-2024 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 non-bailable. 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."
6. Thus, the aforesaid analysis reveals that this Court while considering the provisions of Section 10-A of the Essential Commodities Act, came to the conclusion that the offence, in fact, was bailable, inasmuch as further amendment of Section 10-A of the Essential Commodities Act was not inserted later on.
7. Thus, considering the aforesaid law laid down by this Court in the case of Santosh Sahare (supra) this Court is of the opinion, that the present applicant deserves to be enlarged on bail. Therefore, without expressing any view on the merits of the case, the application is allowed.
Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 7/15/2024 3:11:04 PM4 MCRC-22805-2024
8. It is directed that in the event of arrest of the applicant by the Police in the aforesaid crime, the applicant shall be released on bail on his furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One Lac only) with one solvent surety in the like amount to the satisfaction of the Arresting officer (Investigating Officer) for his regular appearance before the Police during the investigation or before the Court during the trial.
9. It is directed that the applicant shall abide by the conditions enumerated under Section 438(2) of the Cr.P.C., failing which, this bail order shall automatically stand cancelled without further reference to the Court.
10. Accordingly, this M.Cr.C. stands allowed/disposed of. C.c. as per rules.
(MANINDER S. BHATTI) JUDGE ac Signature Not Verified Signed by: AJAY KUMAR CHATURVEDI Signing time: 7/15/2024 3:11:04 PM