Andhra HC (Pre-Telangana)
S.A. Ismail vs The Inspector Of Police, Vigilance ... on 15 May, 1984
ORDER
1. This is an application for the grant of anticipatory bail under Section 438 of Criminal Procedure Code. The petitioner is the Managing Partner of a firm of three brothers of V. Kota Chittoor District, dealing in foodgrains and Kerosene. Foodgrains and kerosene are both essential commodities within the meaning of Essential Commodities Act. The Petitioner is accused in Cr. No. 7/84/VS/CSD/CTR, Tirupati, of having contravened the provisions of that Act. The allegation against the petitioner is that on 5th of March, 1984 he was found smuggling out of the State of Andhra Pradesh into the State of Karnataka 58 bags of rice and 49 bags of broken rice contrary to the provisions of the above Act. A lorry laden with these goods was intercepted and seized on that day along with the goods and the driver and the cleaner of the lorry were caught red handed and arrested. A case under the Essential Commodities Act was registered and instituted by the Police against the petitioner and others for transporting rice and broken rice from the State of Andhra Pradesh into the State of Karnataka without any valid authorisation and in contravantion of the Essential Commodities Act.
2. The petitioner has been apprehending not without reason that he would be arrested in the above crime. He has, therefore, been moving courts for grant of anticipatory bail. He tried thrice but failed. This is his fourth round. In this round of legal battles, an important question has surfaced for consideration of the Court. That question is whether this Court has power under Section 438 of the Criminal Procedure Code to grant a person accused of contravention of the provisions of the Essential Commodities Act, anticipatory bail.
3. Granting of anticipatory bail enables the petitioner to obtain his release almost simultaneously with his arrest. In effect, it acts as a preventive to the arrest of the petitioner. In the above crime, the question, is, whether this court has power under Section 438 of the Criminal Procedure Code to prevent the arrest of the petitioner by granting him anticipatory bail.
4. Granting bail after arrest or conviction is the normal method of criminal law. Section 439 of Cr.P.C. empowers the High Court and the purpose behind granting of such bail is to secure the presence of the accused for standing trial.
5. Section 438 of Cr.P.C. is recently enacted by Parliament empowering the High Court and the Sessions Court to grant anticipatory bail which in effect prevents the accused being arrested and put in jail. Whereas under Section 439 a person who is already arrested and is confined in jail is released, under Section 438 of C.P.C. the person is arrested and released simultaneously. Getting innocent persons arrested on false charges by submitting criminal law (Sic) is neither unknown nor uncommon in those parts of our country and among these sections of our society which are educationally most backward and economically most poor. Parliament found that in these areas, criminal law which is intended for the benefit of all, is being used by the influential and the powerful for the ruin of some. It is in order to suppress that great mischief that section 438 of Cr.P.C. is enacted by the Parliament. The object behind section 438 of Cr.P.C. is to foil and frustrate attempts sometimes made by the powerful and the influential in the society "to implicate their rivals in false cases for the purpose of disgracing them or other purposes by getting them detained in jail for some days (See 41st Report of the Law Commission"). In order to achieve the above purpose, the power to grant anticipatory bail is conferred by Section 438 Cr.P.C. both on the High Court and the Sessions Court. Section 438 of Cr.P.C. provides that "when any person has reason to believe that be may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High court or the court of Sessions for a direction under this Section, and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail".
6. The reason for the use of this wide language is to confer sufficient powers on courts of Sessions and the High Court, to frustrate the attempts of the powerful and the influential to get their innocent opponents disgraced by their being jailed for a while. It is for their safety that Section 438(1) of Cr.P.C. is enacted. It appears to me that such a legal provision might not have been intended by Parliament to have anything to do with those involved in economic offences by contravening the provisions of the Essential Commodities Act. It is most unlikely that those who are accused under the Essential Commodities Act would be the victims of fictitious manipulations of criminal process against which alone the anticipatory bail is prescribed by parliament as an antidote. The persons accused under the Essential Commodities Act generally belong to those classes of society which are rich, influential and powerful. They are more likely to be the authors of manipulations than to be the victims thereof. Further any accusation of violation of the provisions of the above Act cannot normally be made against a person unless he is connected with dealing of essential commodities and unless such an accusation is supported by the material evidence of the seized goods involved in the contravention of the provisions of the Act The act requires the seized goods to be produced before the Collector. These requirements of the statute make the institution of false and fictitious criminal complaints under the Essential Commodities Act almost impossible. These requirements allow no play for the manipulative complaints.
In the above context of the Essential Commodities Act, the remedy of anticipatory bail serves no useful purpose. On the other hand grant of anticipatory bail to those accused of violating the provisions of the Essential Commodities Act can greatly weaken the powers of deterrence of law. Such a remedy can be productive of positively mischievous results and can defeat the very purposes of the Essential Commodities Act. It cannot be denied that there is great need for the State to be armed with adequate and appropriate powers to arrest, to deter and to detain economic offenders. Our society, living in perpetual conditions of multiple scarcities of essential commodities, has an urgent need to protect itself from the onslaughts of economic power of those with authority and opportunity to stock and distribute these essential commodities so vital for the living of the community. Those who have power and the will to blackmarket these essential commodities and adulterate foodstuffs and fertilizers can easily take hostages of the rest of the society. The need is for the law to build countervailing power and not to weaken it. The Essential Commodities Act, is, therefore, enacted by the Parliament conferring drastic powers on the executive.
Considering its drastic nature on the one 1 and and the social need for such a law, the Essential Commodities Act is entrenched in the XXIX schedule to the Constitution. One of such powers is the ower to arrest and detain a dealer in the essential commodities. What the constitution intended to be saved should not be destroyed by lax enforcement Granting of anticipatory bail is antithetical to the purpose of the Essential commodities Act Denying the power to arrest a person accused of violating the (revisions of the Essential Commodities Act and keeping him in jail atleast for a few days by granting him anticipatory bail would be inconsistent with the objects of effectual enforcement of such a stringent enactment as the Essential Commodities Act. By becoming ineffective, the Essential Commodities Act would be inadequate for achieving its own objectives. Such an interpretation which largely frustrates the attaining of statutory goals should be avoided unless the language is intractable. We must note that law is not a mere reflective mirror and that it can be used as a positive special instrument of our Democratic Republic seeking to secure to all its citizens economic justice. Such a law cannot be presumed to be guilty of being willing to strike but afraid to wound the economic offenders. There is, therefore, no reason that I can think of which could have induced the Parliament to prevent the arrest of this class of Offenders by making the mechanism of anticipatory bail applicable and available to those accused of offences under the provisions of the Essential Commodities Act. I am, therefore, of the opinion, that notwithstanding the very wide language used in section 438 of Cr.P.C. considering the mischief against which that section is aimed at, section 438 of Cr.P.C. should be read down so as to exclude its application to economic offences.
7. The above conclusion can be reached through another reason.
In the year 1981, the Essential Commodities Act was drastically amended by the Central Act XVIII of 1981, called the Essential Commodities (Special Provisions) Act. Act XVIII of 1981, as its name indicates, contains special provisions dealing with two specific matters. One is the trial of those accused under the Essential Commodities Act and the other is the granting of bail to such persons. On both these points. Act XVIII of 1981, makes special provisions which are incompatible and inconsistent with the provisions of Cr.P.C. Being a Special Act, its provisions must prevail over the general Act contained in Cr.P.C.
Act XVIII takes away the jurisdiction of the ordinary criminal courts under the Crl.P.C. to try the offenders under the Essential Commodities Act and confers that Jurisdiction on special courts created by reason of Section 12AA enacted by Act XVIII of 1981. The mode of trial provided by Act XVIII of 1981, is summary and is different from the mode of trial provided by the Cr.P.C. The qualifications of the officers presiding over these special Courts are different from the qualifications of the ordinary criminal courts. The general powers of Sessions Court to release the person accused of offence, available under Sections 438 and 439 Cr.P.C. are completely taken away, while the power of the High Court to grant bail is retained only under Section 439 Cr.P.C. as different from Section 438 of Cr.P.C. In their place, greatly limited and severely restricted powers are conferred on Special Courts to grant bail For example, not tampering with the prosecution evidence is no longer a ground for releasing an accused under the Essential Commodities Act on bail. Except for considerations of age, infirmity, sickness and sex of the accused, a Special Court cannot release on bail a person accused of an offence under the Essential Commodities Act on the basis of reasonable ground unless where special reasons exist making it both just and proper to release such accused on bail In enacting the above provisions the Parliament is fully aware of the fact that it is providing for special law which is inconsistent with the general law on the subject contained in the Criminal procedure Code and that it is enacting a measure which is somewhat in terrorem. That is the reason why section 12 AA enacted by Act XVIII of 1981 begins with a non-obstante clause and expressly excludes the application of the Criminal Prodecure Code.
8. From the above, it is clear that Section 12 AA enacts a complete code in the matter of grant of bail to an accused and that a person accused of offence under the Essential Commodities Act can be released only in accordance with the provisions contained in section 12AA enacted by the Act XVIII of 1981 which reads thus :
"12AA. Offences triable by Special Courts - (1) Notwithstanding anything contained in the Code. -
(a) All offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court
(b) where a person accused of or suspected of the commission of an offence under this Act, is forwarded to a Magistrate under sub-section (2) or subsection (2A) of Section 167 of the Code such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate :
Provided that where such a Magistrate considers (i) when such person is forwarded to him as aforesaid; or
(ii) upon or at any time before the expiry of the period of detention of such person authorised by him; that such detention of such person is unnecessary, he may, if he is satisfied that the case foils under the proviso to section 8, order the release of such person on bail and if he is not so satisfied, be shall order such person to be forwarded to the Special Court having jurisdiction;
(c) The Special Court may, subject to the provisions of clause (d) of this sub-Section, exercise, in relation, to the person forwarded to it under clause (b) the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code in relation to an accused person in such case who has been forwarded to him under that section;
(d) save as aforesaid, no person accused of or suspected of the commission of an offence under this Act shall be released on bail by any court other than a Special Court or the High Court;
Provided that a Special Court shall not release any such person on bail -
(i) Without giving the prosecution an opportunity to oppose the application for such release unless the Special Court, for reasons to be recorded in writing is of the opinion that it is not practicable to give such opportunity and;
(ii) where the prosecution opposes the application if the Special Court, is satisfied that there appear reasonable grounds for believing that he has been guilty of the offence concerned;
Provided further that the Special Court may direct that any such person may be released on bail if he is under the age of sixteen years or is a woman or is a sick or infirm person or if the Special Court is satisfied that it is just and proper so to do for any other special reason to be recorded in writing;
(e) a Special Court may, upon a perusal of Police report of the facts constituting the offence under this Act take cognizance of that offence without the accused being committed to it for trial;
(f) all offences under this Act shall be tried in a summary manner and the provisions of Sections 262 to 265 (both inclusive) of the Code shall as far as may be, apply to such trial Provided that in the case of any conviction in a summary trial under this Section, it shall be lawful for the Special Court to pass a sentence of imprisonment not exceeding two years.
(2) When trying an offence under this Act, a special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code, be charged at the same trial Provided further that in the case of any conviction for such other offence in such trial it shall not be lawful for the Special Court to pass a sentence of imprisonment for a term exceeding the terms provided for conviction in a summary trial under such other law.
(3) A Special Court may, with a view to obtaining the evidence of any person suspected to have been directly or indirectly concerned in, or privy to, an offence under this Act, tender a pardon to such person under a condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abetter in the commission thereof and any pardon so tendered shall for the purpose of Section 308 of the Code, be deemed to have been tendered under Section 307 thereof.
(4) Nothing contained in this Section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that Section as if the reference to 'Magistrate' in that section included also a reference to a "special Court" constituted under Section 12AA".
While taking away the powers of the Sessions Court under Sections 438 and 439 of the Criminal Procedure Code, Section 12AA provides for the continuance of the powers of the High Court to release an accused on bail only under Section 439 of Cr.P.C. It follows that the High Court will have no power to deal with the accused under Section 438 of the Cr.P.C. As section 12AA does not provide for the continuance of the powers of the High Court under Section 438 of Cr.P.C. and as the scheme and purpose of Section 12AA is fundamentally different from and is at variance with the scheme of granting anticipatory bail under Section 438 of Cr.P.C., it must be held that this Court has no power or authority or jurisdiction to grant anticipatory bail under Section 438 of Cr.P.C. to an accused under the Essential Commodities Act. For this reason, also, I reject this application.
9. In the result, this petition fails and is dismissed.
10. Petition dismissed.