Madhya Pradesh High Court
Anuj Sharma vs The State Of Madhya Pradesh on 12 January, 2023
Author: Atul Sreedharan
Bench: Atul Sreedharan
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE ATUL SREEDHARAN MISC. CRIMINAL CASE No. 62152 of 2022 BETWEEN:- ANUJ SHARMA S/O SHRI MUNNALAL SHARMA, AGED ABOUT 30 YEARS, OCCUPATION: SALESMAN GRAM PARA POST PARA TEHSIL ATER PRESENTLY AT RIDOLI PAWALE TEHSIL ATER DISTRICT BHIND (MADHYA PRADESH) weve APPELLANT (BY SHRI SANJAY BAHIRANI - ADVOCATE) AND THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER THROUGH POLICE STATION PAWAI oe RESPONDENTS (BY SHRI NAVAL GUPTA ~ PUBLIC PROSECUTOR) This application coming on for hearing this dav, the court passed the following: JUDGEMENT
The applicant is apprehending his arrest m the aforementioned case. The police registered offences under Sections 3 and 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the "EC Act') agamst the applicant herein. Extensive arguments have been forwarded by the Ld. Counsel for the applicant necessitating their consideration in an equivalent TERATHECY,
2. od The argument put forth by the Ld. Counsel for the applicant is twotold. Firstly, the police ought to have issued a notice to the applicant under section 41-~A of the CrP.C and set him at liberty as the oflence is punishable with a maximum sentence of only one year (as the offences that the applicant would be guilty of even if the case is uncontested, would be one under Section 3 (2) Ch) (i) of the EC Act). Secondly, he states that in the light of Section 10-A of the Essential Commodities Act, all the offences under the Special Act are bailable in nature. He has relied upon a judgment of the Guwahati High Court which was relied upon by this Court in a similar case, in order to impress upon this Court that the applicant cannot be arrested at all in this case.
Learned counsel for the State, on the other hand, has submitted that the applicant who is the Manager of a Fair Price Shop, which was subjected to a surprise inspection by the authorities revealed that 40 quintals of rice was excess in stock and 17 quintals of wheat were showing below the quantum of stock which should have been held by the applicant. The evidence of this was as per the record of stock m the POS machine.
Before proceeding further, it would be essential to ascertain prima facie, as to which provision of Section 3 of the EC Act would of the applicant fall within. The Ld. Counsel for the applicant states that section 3 (2)(h) which provides for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters and Section 3 (2)Q) which provides "for requiring persons engaged in the production, supply or distribution of or trade and commerce in, any essential commodity to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto, as may be specified in the order" are the provisions that would be applicable on the applicant.
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a) From the allegations levelled against the applicant by the leaned counsel for the State, Clause (h) and (4) of sub-Section 2 of Section 3 prima facie is not applicable. On the contrary, Clause (e) of Sub-Section 2 of Section 3 which provides for "prohibiting the withholding from sale of any essential commodity ordinarily kept for sale" and Clause ({) of the same sub-section which provides "for requiring any person holding in stock, or engaged in the production, or in the business of buyimg or selling, of any essential commodity, - (a) to sell the whole or specified part of the quantity held in stock or produced or received by him, or (b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received or Agent of such Government or to a corporation owned or controlled by such Government or to such other person or class of persons and in such circumstances as may be specified in the order.
Explanation. ]-............ and Explanation.2-.........." 18 applicable.
Examining the provisions of Clause (e) and (f) of sub-Section 2 of Section 3 of the Essential Commodities Act, tt appears that the said provisions would be prima facie applicable in the case of the applicant herein.
Coming to the argument of the applicant that all offences under the Essential Commodities Act are bailable, he has firstly referred to the provision of Section 10A. Section LOA which reads as "offences to be cognizable.- Netwithstanding anything contained in [the Code of Criminal Procedure, 1973 (2 of 1974)| every offence punishable under this Act shall be cognizable". It is his case that before 1974, in the title itself, it was clearly included that the offences were cognizable and bailable.
However the phrase "and bailable" was omitted by Act 30 of 1974.
Thereafter, the title was restricted and only provided that the offences would be cognizable. Thereafter, he has drawn the attention of this Court to Section 7 of the Essential Commodity Act with specific reference to sub- refers to Clause (h) and Clause (i) of sub-Section 2 of Section 3 of the Essential Commodities Act, the term of maximum imprisonment is only one year and therefore, as per schedule (1) of the Cr P.C which provided for classification of offences against other laws, the offence would be batlable in nature.
In support of his contention, learned counsel for the applicant has referred to the judgment passed by the Coordinate Bench of this Court in MCh. No.26957/2020 (Rakesh Kumar Vs. State of M.P.) dated 05.09.2020, where the learned Co-ordinate Bench, referring to extensively to the judgment of the Hon'ble High Court of Guwahati im the case of Shri offences under Section 3 and 7 of the Essential Commodities Act is actually bailable in nature. Though, only a part of the judgment in Jayant Kumar Das (supra) has been extracted and reproduced by this Court in Rakesh Kumar's case, it appears that the same was passed im a reference on that point of law as is reflected m paragraph 40 of the said judgment on page- 10 of Rakesh Kumar's order, The full text of the padgement has not been placed before this Court by the Ld. Counsel for the applicant.
The said yudgment of the Hon'ble Guwahati High Court also took into consideration, the order passed by this Court in Santosh Sahare Vs. State of M.P. 2015 (3) MPJR 15. Between the two, though the judgment passed by the Hon'ble Guwahati High Court would have much persuasive value, more relevant for this Court would be the order passed by the Coordinate Bench of this Court in Santesh Sahare (supra). Upon perusing the said UN order, it appears that the applicant therem was charged under Section 3 and 7 of the Essential Commodities Act. However, the factual reproduction does not disclose whether the applicant in that case had violated an order under Section 3 (2)\() and (h) or whether the violation was of other provisions of Section 3 sub-Section(2) of the Essential Commodities Act.
10. Having heard the learned counsel for the parties and perused the statute, this Court finds that Section LOA of the Essential Commodities Act was initially inserted in the year 1967. Originally, the title of the said section read "ollences to be cognizable and bailable" and the same was also provided in the body of the said section when it was inserted originally in the year 1967. However subsequently, in the year 1974, by Act 30, the vcnilatre consciously omitted the phrase "and bailable" this may have been on account of the situation of rampant black marketing prevailing at that time due to which the legislature felt that bail should not be a matter of right for offences under the Essential Commodities Act and thus, consciously omitted the phrase "and batlable". Thereafter, in the year 1981 after the word "cognizable" the words "and non-bailable™ were inserted by the Amendmg Act which was again amended by Act 34 of 1993 whereby, the amendment brought about in 1981 making the offence non-bailable would cease to have an effect after the expiry of the 15 years. Thus, as on date Section 10-A only provides that offence are to be cognizable.
11. The contention of the learned counsel for the applicant that the offences are all bailable in the light of Section LOA, with the greatest deference to him, cannot be acceded to. If it was the legislative intent to make all offenses bailable under the Essential Commodities Act, nothing prevented the Legislature which had earlier mserted the phrase "and non-bailable" which stood automatically deleted after a passage of 15 years, to specifically insert in Section LOA that the offences were to be cognizable and bailable.
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13. 14, Non-inclusion of the term bailable cannot be looked upon as a mere incident of casus omissus, an inadvertent omission on the part of draftsman to include the said phrase in Section 1OQA, but rather it was a conscious stand of the legislature that all offences under the Essential Commodities Act should not understood as bailable offences.
This Court gets support from Section 7 (1)(a)(i) of the EC Act for this view where penalty provided for the contravention of any Order made under Section 3 is punishable with a minimum sentence of three months and a maximum sentence of seven years, with the exception of orders under clause Ch) and (1) of sub-section 2 of Section 3 which shall only incur an imprisonment which may extend to one year.
Therefore, when Section LOA is read with the penalties which are provided in section 7, it becomes clear as to why the legislature did not insert the term "bailable" in Section 10A as it required the Courts to assess whether the act of the accused violated Section 3(2)(h)Q), mm which case as per Schedule II of the Cr.P.C. same would be bailable. However, if the violation of the Order under the Essential Commodities Act was for any other clause of Section 3(2), the same under Schedule HU of the Cr.P.C would be a non-
bailable offences.
Thus, it would be the facts of an mdividual case which would disclose whether the offence alleged against accused under the Essential Commodities Act is bailable or non-bailable. In this regard, this Court gets further support from the yadgment of Coordinate Bench m Santosh Sahare case where, the Coordinate Bench, in para 10 has held, with specific reference to Schedule -l of Cr.PC that the case before it only disclosed bailable offence.
Thus, while deciding an application for anticipatory bail for an offence
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18. under the EC Act, it is necessary to ascertain whether the offence charged against the applicant is batlable or non-bailable as provided u/s. 7 of the EC Act and then proceed accordingly. It is only where the offence alleged against the applicant punishable with imprisonment up to seven years, that the Court can consider an application u/s. 438 CrP.C as the said offence would be non-bailable in the light of the second schedule to the CrP, and where the offence is only punishable with a sentence of less than three years, the same would be a bailable offence under the second schedule to the Cr.P.C due to which an application for anticipatory bail cannot be considered.
Under the circumstances, this Court holds the blanket proposition that all offences under the Essential Commodities Act are bailable, as unsustainable. Only the offer arising from violation of clause (h)()) of sub-section 2 of Section 3 which provides for maximum sentence of one year under Section 7 of the EC Act are bailable. Also any other offence under the Essential Commodities Act which may provide for maximum sentence which is less than 3 years shall also be bailable. All other offences which provide maximum sentence of more than 3 years are non-bailable.
As regards, the contention of learned counsel with specific reference to the judgments of Supreme Court in Arnesh Kumar Vs. State of Bihar and another, (2014) 8 SCC 273 and Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. 2022 Live Law (SC) 577, the power of the police to arrest for offences which are punishable less than 7 years of imprisonment is not affected.
Judgments of Supreme Court in Arnesh Kumar (supra) and Satender Kumar Antil (supra) do not lay down as a mandate that in every case which is not punishable with sentence of more than 7 years, the applicant 19, Anil/Rashid RASHID KHAN 2023.01.17 14:59:15 +05'30' shall not be arrested and he shall only be issued notice under Section 41-A. The proper interpretation of those judgments would be that there are fetters on the police where it decides to arrest a person for an offence which is expedient in the interest of justice to arrest him rather than giving notice under Section 41-A of Cr.P.C. Anything to the contrary may result in an absurd situation. For example, punishment for an offence of theft under Section 379 [PC ts only 3 years, it would be unrealistic to expect that police to not arrest a person who is constantly committing offences of Section 379 and let him off only with a notice under Section 41-A because the offence is punishable only with maximum sentence of 3 years. That would literally However, the requirement upon the police in the light of aforementioned judgments is whether it considers it expedient in the interest of Justice to arrest a person, whose act is punishable with a maximum sentence of less than 7 years where it would have to give reasons as to why i considers such an arrest necessary. The reasons may range from the person trying to influence witnesses or a realistic opinion that the person may evade process of justice or that he may, if net arrested, commit the similar or other offences looking to his previous record. That ts the only requirement of the aforesaid judgments passed by the Supreme Court.
Under the circumstances, in the specitic facts and circumstances of the case which have already been stated hereinabove, the application is dismissed.
(ATUL SREEDHARAN) JUDGE