Allahabad High Court
Dhruv Kumar Sharma vs State Of U.P And 2 Others on 23 August, 2022
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 18300 of 2021 Applicant :- Dhruv Kumar Sharma Opposite Party :- State Of U.P And 2 Others Counsel for Applicant :- Ankit Agarval Counsel for Opposite Party :- G.A. Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the applicant and learned Additional Government Advocate for the State.
The present anticipatory bail application under Section 438 Cr.P.C. has been filed for grant of anticipatory bail as the accused-applicant is apprehending his arrest in connection with Case Crime No.384 of 2016, under Sections 3/7 of the Essential Commodities Act Police Station- Sayana, District -Bulandshahr.
Learned counsel for applicant has submitted that the applicant has been falsely implicated in this case and he has not committed any offence as alleged by the prosecution. It is submitted that the allegation against the applicant is that plant of bio diesel was found installed in the premises of applicant. It is also submitted that the Supply Inspector also took samples, and on 22.10.2016 the reports have also come on record and as per the forensic science lab reports, in the two samples bio diesel blend were found and so far as the sample no. 3 is concerned petroleum hydro carbon solvent was found and thus it clears shows that no adulteration were found. As no petroleum product was found, therefore, no alleged offence is made out against the applicant.
It is vehemently urged that as per the letters dated 4.12.1982 and 12.10.1983 in the control order of the Uttar Pradesh High Speed Diesel and Light Diesel Oil (Maintenance of Supplies and Distribution) Order, 1981 the powers to enter and search by the supply inspector kept in abeyance. It is also submitted that as far as the Section 7 of the Motor Spirit and High Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 is concerned, the opposite part no. 3 (who is not duly authorized by the State Government or Central Government) had no power to enter and search at the pump of the applicant because of neither they are duly authorized by the State Government or Central Government. The Investigation Officer without collecting cogent and credible evidence submitted charge sheet against the applicant. On the charge sheet the learned Magistrate has taken cognizance against the applicant and issued summons to face the trial. Learned counsel for the applicant submitted that the offence is bailable.
In support of his submission learned counsel for the applicant placed relied upon a judgment of this Court in the case of Smt. Shakila Vs. State of U.P. and Another, Application under Section 482 No. 44486 of 2012 has held as follows:-
"The question that falls for determination in this case is whether special court which ceased to be Special Court under the provisions of Essential Commodities (Special Provisions) Act, 1981 still has jurisdiction to take cognizance of an offence or to remand the accused to the custody who is implicated for the offence under Essential Commodities Act, 1955. Essential Commodities Act, 1955 (hereinafter referred to as "Principal Act") provides for regulation of production, supply and pricing of essential commodities. This Act had been amended from time to time. In spite of extensive amendments made to the Principal Act, some of the existing provisions of that Act have not been adequate and effective for expeditious disposal of the cases as well as ensuring availability of the essential commodities at fair prices and for curbing hoarding and black-marketing of and profiteering in, such commodities. Moreso, there were large number of court cases pending under the Principal Act all over the country. For dealing more effectively with persons indulging in anti-social activities, it was considered necessary to make special provisions by way of amendments to the Principal Act for temporary period of 5 years and viewed with this perception, special provisions were brought by way of amendment to the Principle Act. The Essential Commodities (Special Provisions) Act, 1981 (hereinafter referred to as 'Special Provisions') consequently came into force w.e.f. 1.9.1982 in all the States and Union Territories. This special provision was enforced initially for a period of 5 years and was extended for further period of 5 years i.e. 1987 to 1992 and thereafter from 1992 to 1997. The Special provisions were enforced till 13.8.1997. Thereafter the Essential Commodities (Special Provisions) Ordinance, 1997 (Central Ordinance 21 of 1997) was promulgated. As there was no enactment the Essential Commodities Amendment Ordinance 1998 (Central Amendment Ordinance 13 of 1998) was promulgated by the President. The above Ordinances lapsed since they were not replaced by enactments, as a result of which, Special Courts established under Section 12-A for trial of Essential Commodities Act cases ceased to function. Consequentially position that followed was that cases registered under the Essential Commodities Act were to be tried before the Magistrate having jurisdiction as it was being done prior to the enactment of Essential Commodities (Special Provisions) Act, 1981. In view of above, Special Provisions remained in force till 8.7.1998. In pursuance of the notification of State Government, dated 3.10.1998 High Court issued circular dated 30.3.1999 which is quoted below:
"Essential Commodities (Special Provisions) Act, 1981 and Essential Commodities Ordinance, 1998 have become ineffective from 31.3.1997 and 8.7.1998 C.L. No.5/Admin.A 3 dated: 30 March,1999 I am directed to refer the letter no. Bha.Sa.64/29.7.1998- 102/98, dated 3.10.1998 of Sri Prabhat Chandra Chaturvedi, Secretary Government of U.P. Addressed to all the District Magistrate of the State (copy enclosed), on the above subject, and to say that on consideration of the matter court has been pleased to order that being the provision of Essential Commodities (Special Provisions) Act, 1981, read with Essential Commodities Ordinance 1998 ineffective by virtue of non-extension of power the Section 6 (e) of U.P.General Clause Act, 1904 provides that the cases in which cognizance have been taken shall continue to be tried by the Special Judge.
I am further directed to say that so far as new cases, which have arisen out of essential commodities Act, 1955 after 8.7.1998, cognizance shall be taken as per the provision of said act by Magistrate having jurisdiction of the cases".
On a fair reading of circular issued by this Court, it is borne out that the Essential Commodities (Special Provisions) Act and Ordinance 1998 became ineffective by virtue of non-extension of power. The cases in which the cognizance has already been taken by the Special Judge shall continue to be tried by the Special Judge in view of Section 6 (e) of U.P. General Clauses Act, 1904. It was clarified that in the cases which have arisen from Essential Commodities Act, 1955 after 8.7.1998, cognizance shall be taken as per the provisions of said Act by the Magistrate having jurisdiction of the cases. Resultantly, the above Act and Ordinance lapsed, since they were not replaced by the enactments as a result Special courts established for the trial of the cases of essential commodities ceased to function. Consequently, the position is that cases registered under the Essential Commodities Act are now to be tried before the Magistrate having jurisdiction as it was being done prior to the Essential Commodities (Special Provisions) Act, 1981. It is not disputed that prior to the enforcement of Essential Commodities (Special Provisions) Act, 1981, the cases under the Essential Commodities Act were being tried by the Area Magistrate within their respective territorial jurisdictions. It is discernible from the above facts that during the period Essential Commodities (Special Provisions) Act was in force, special courts constituted for trial of offence under the provisions of Essential Commodities Act had exclusive jurisdiction to try such cases. Special courts had also power to pass order or remand under Section 167 Cr.P.C. and take cognizance of offence but the position has now changed after Essential Commodities (Special Provisions) Act, lapsed by efflux of time. Thereafter the position that used to prevail before the Essential Commodities (Special Provisions) Act, stood restored and Judicial Magistrates who were previously competent to try the essential commodities cases got the jurisdiction to deal with such cases. Since Essential Commodities (Special Provisions) Act, 1981 had lapsed, the power of the learned Magistrate to take cognizance of an offence under the cases of Essential Commodities Act, 1955 stood restored. However, due to non-extension of power, by virtue of Section 6 (e) of U.P. General Clauses Act, 1904 the cases in which cognizance have already been taken before the special provisions became ineffective, shall continue to be tried by the Special Judge concerned."
The Madhya Pradesh High Court in the case of Dinesh Kumr Dubey and Another Vs. State of M.P., M.Cri.C. No. 3530 of 2020, 2001 CriLJ 1306 has held as follows:-
"2. It appears that by the Essential Commodities (Special Provisions) Act, 1981 Section 10A 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 five 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 five years period of 10 years was substituted. Thereafter by Third Amendment, the said period of continuance was made for fifteen years. After expiry of fifteen years no amendment Act was brought into force but certain ordinances were issued. The last of the ordinance was issued in the year 1988, which lost its life and efficacy by lapse of time thereafter no Act or ordinances have been issued to continue the provisions of 1981 Act. Learned counsel for the State was given opportunity to go through the provisions of law and report to the Court as to whether after 1988 any further Act has been brought in existence or any other ordinance was issued to continue the effect of 1981 Act. Learned counsel for the State submits that despite his best efforts he could not find any other Act or ordinance which continues the effect and operation of 1981 Act.
3. If 1981 Act has lost its life then any amendment incorporated by the said Act, which was to remain in force for a period of five, ten or fifteen years would come to an end and additional words, "And non-bailable" shall become non-est and otios. Section 10A 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'."
4. 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 provisions showing the offence to be non-bailable, the offence would continue to be bailable in view of Schedule-II to the Code of the Criminal Procedure, 1973.
5. As the offence is bailable, an application under Section 438, Cr.P.C. would not be maintainable. However, taking into consideration that the police and the administration is not likely to know about these provisions and the interpretation, it is hereby directed that because the offences are bailable, in the event of the arrest of the applicants the officer arresting the applicants shall release them on bail treating the offence to be bailable. In the alternative, the applicants may appear before the Special Court alongwith the copy of this order and furnish bail to the satisfaction of the said Court."
The above legal position is not clear to most of the Investigating Officers and the courts below and therefore, the bail application of the accused persons in such cases are rejected by the Magistrate and the special courts treating the offences to be non-bailable. Hence, it would be appropriate to protect the applicant's interest.
Further submission is that the applicant shall fully cooperate with the investigation, therefore no need of custodial interrogation of the applicant, hence, the applicant may be enlarged on anticipatory bail till conclusion of trial and he is ready to cooperate with the trial. If the applicant is granted anticipatory bail, he will never misuse the same. In support of his submission, learned counsel for the applicants has relied upon the judgement of Hon'ble Apex Court in the case of Aman Preet Singh vs. C.B.I. through Director, AIR 2021 Supreme Court 4154.
Learned Additional Government Advocate has vehemently opposed the prayer for anticipatory bail to the applicant.
I have considered the rival submissions advanced by learned counsel for the parties and perused the entire material available on record.
The Hon'ble Supreme Court in the case of Aman Preet Singh (Supra), the Court has observed as under:
"10. Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.
11. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."
In Aman Preet Singh (supra), the Court has clearly held that if a person, who is an accused in a non-bailable/cognizable offence, was not taken into custody during the period of investigation, in such a case, it is appropriate that he may be released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.
Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties, I am of the opinion that it is a fit case for grant of bail to the applicant.
Accordingly, the anticipatory bail application is hereby allowed.
Let the applicant- Dhruv Kumar Sharma be released on bail by the trial Court till conclusion of trial on furnishing a personal bond and, two sureties each in the like amount to the satisfaction of the trial Court concerned with the following conditions:
(i) The applicant shall file an undertaking to the effect that the applicant shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law;
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through counsel. In case of absence, without sufficient cause, the trial court may proceed against the applicant under Section 229-A of the Indian Penal Code. The applicant shall cooperate in the investigation;
(iii) In case, the applicant misuses the liberty of bail and in order to secure his/her presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against the applicant in accordance with law, under Section 174-A of the Indian Penal Code; and
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of their bail and proceed against them in accordance with law.
Order Date :- 23.8.2022/ Anuj Singh