Vinod vs The State Of Madhya Pradesh on 4 August, 2023

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Madhya Pradesh High Court

Vinod vs The State Of Madhya Pradesh on 4 August, 2023

2. This is first application filed under Section 439 of Cr.P.C. for grant of bail to the applicant, as he has been arrested on 14/7/2023 in 2 connection with Crime No.166/2023 registered at Police Station - Bagchini, District Morena (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 on 26/4/2023 a Government fair price shop Chena, Code No.0204004 (Prathmik Krishi Sakh Sahkari Sanstha Maryadit Chena), District Morena was inspected by the Junior Supply Officer, Joura, District Morena and on physical verification, it was found that the Manager/Salesman of the said shop used to obtain the thumb impressions of the consumers on the POS machine without distributing the foodstuffs them; yellow board, price-stock list and Nigrani Samiti's board were not displayed in the prescribed format; entries were not made in the POS machine as regards receipt of foodstuffs; they were not taking interest in resolving the complaints received in CM Helpline; and, misappropriated the foodstuffs worth Rs.7,29,298/-. Accordingly, the aforesaid crime has been registered against the applicant, who is working as Salesman in the said fair price shop, alongwith co-accused Rambabu Sharma, who is working as Manager of the said fair price shop.

4. Learned counsel for the applicant submits that the applicant was working as a Salesman in the said fair price shop and was not authorized to make entries in the books as regards the foodstuffs. Applicant has not committed any offence nor he was the part of any conspiracy in the alleged misappropriation. He further submits that applicant was not aware about the acts of the co-accused. He was not involved in the crime and has only been implicated because he is the Salesman of the fair price shop. The offence under Section 3/7 of Essential Commodities Act is bailable in nature. Prosecution case is 3 based on documentary evidenced. Applicant's custodial interrogation is no more required. Applicant is the permanent resident of District Morena and there is no likelihood of his absconsion or tampering with the prosecution evidence. He is ready to cooperate in the investigation. In view of the above, the applicant may be enlarged on bail. In support of his submissions, learned counsel for the applicant 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' "(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 4 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 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 5 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. Having considered the rival submissions, material pointed out by the learned counsel for the applicant 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. 6.1 It is directed that the applicant 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 provisions of Section 437 (3) of Cr.P.C. 6.2 This application is allowed and stands disposed of.

Certified copy as per rules.

(SATYENDRA KUMAR SINGH) JUDGE Arun* ARUN KUMAR MISHRA 2023.08.04 16:50:16 +05'30'

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Madhya Pradesh High Court