Madhya Pradesh High Court
Mayank Jain vs The State Of Madhya Pradesh on 2 December, 2016
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M.Cr.C.No.13601/2016
(Mayank Jain vs. The State of M.P.)
02/12/2016
Shri S.S. Rajput, Advocate for the applicant.
Shri Mohd. Irshad, Panel Lawyer for the respondent/ State.
Case diary is perused.
Learned counsel for the rival parties are heard. This is first bail application under Section 438 of Cr.P.C. for grant of anticipatory bail.
Applicant apprehends his arrest in connection with offence punishable u/S. 3/7 of the Essential Commodities Act registered as Crime No.233/2016 by Police Station Kumbhraj, District Guna (M.P.).
Learned Panel Lawyer for the State opposed the application and prayed for its rejection by contending that on the basis of the allegations and the material available on record, no case for grant of anticipatory bail is made out.
Applicant apprehends his arrest in connection with the aforesaid offences where allegation against the applicant u/S.3/7 of the Essential Commodities Act in regard to rice belonging to the Public Distribution Scheme which was seized from vehicle bearing no.MP08-GA-3786. The driver informed that he was asked to deliver the same to the applicant who happens to be dealer .
Offence alleged u/S. 3/7 of the Essential Commodities Act has been held to be non-bailable on account of punishment prescribed being more than three years and by taking into account the Scheduled to be the Code of Criminal Procedure, it has been held so in the decision of Hariom vs. State of MP, reported in [2011(1) M.P.L.J. (Cri.) 267] relevant portions of which are 2 M.Cr.C.No.13601/2016 reproduced below :-
5. On considering the above submissions, I find that, the entire controversy pertains to the amendment in section 3, section 6-A & section 6-C, section 7 and section 10-A of the Act, which are still in the nature of proposed amendments as The Essential Commodities (Amendment) Bill 2000 has yet to take the shape of an amending Act as it has not received the assent from the Parliament of India and the legislative intent has not crystallized into an Act. Then under such circumstances, I find that there is a Division Bench judgment of Bombay High Court Pruthviraj Chandrakant Shinde and others vs. State of Maharashtra and others judgment rendered in Criminal Writ Petition No.302 of 1999 decided on August 26, 1999 (copy of the judgment is available on the record of this file), whereby Their Lordships decided thus:
"(5) However, in the year 1981, Act 18 of 1981 was passed to amend certain provisions of the Act. Under the Act 18 of the 1981, the offences were made non-
bailable by amending section 10-A of the Essential Commodities Act 1955. Act 18 of 1981 was at the first instance, for a period of five years. Then the period was extended up to ten years. Again by effecting amendment, Ordinance No.12 of 1992, the period was extended to 15 years. That means, the amended provisions were to remain in force for a period of 15 years from 1-9-1982, the date on which the Act 18 of 1981 came into force. There is no further amending Act or Ordinance to extent the period of Act 18 of 1981 beyond the first period of 15 years. So, so far as the contention of the learned Counsel for the petitioners, that now the Act 18 of 1981 is not in force and the amendment stands deleted automatically, is quite correct.
3 M.Cr.C.No.13601/2016(6) But merely because the words "and non- bailable" which were inserted in the amending Act 18 of 1981 stand deleted. It will not be correct to say that all the offences under the Essential Commodities Act, 1955 would be bailable. When the special Act is not making any provision in this respect, then the provisions of the Code of Criminal Procedure, 1973, are required to be made applicable and so, the position which was there during the period from 1974 to 1981 is restored and the offences would be bailable or non- bailable as per the quantum of punishment provided under the Act.
(7) It is admitted position that in all these criminal writ petitions, the offences alleged against the present petitioners do not fall under clause ('h') or clause ('i') of sub-section (2) of section 3 of the Act and, therefore, the provisions of section 7(1)(a)(ii) are not applicable where the maximum sentence of imprisonment provided extend to one year only. The offence alleged fall under section 7(1)(a)(ii) and the sentence of imprisonment provided under this clause extends to 7 years and, in such circumstances, considering the provisions under the Code of Criminal Procedure, 1973, especially the First Schedule, Appendix "A", read with section 2(a) of the Code of Criminal Procedure 1973, the offences alleged against the petitioners are non-bailable. The contention of the petitioners, that these offences be treated as bailable cannot be accepted.
(8) In the result, Criminal Writ Petition Nos. 302/1999, 312/1999 and 314/1999 are dismissed in limine, The order of interim relief passed by this court, on 18.08.1999, in Criminal Writ Petition No.302/1999, 4 M.Cr.C.No.13601/2016 is vacated.
7. Consequently, I find that the offence under section 7(1)
(a)(ii) and section 10-A of the Act is cognizable and non- bailable and my view is in consonance with the view of the Division Bench judgment of the Bombay High court and I also place my reliance on the judgment in the matter of Balwant (supra) whereby, the learned Single Judge has already held that judgment in Dinesh Kumar (supra), Nemchand Agrawal (supra) and similar other cases are per incuriam. In view of the above and considering the nature of the offence and that there is no criminal antecedents, therefore material placed on record does not disclose possibility of the applicant fleeing from justice, this court is inclined to extend the benefit of bail to the applicant.
Accordingly, without expressing any opinion on merits of the case, I deem fit appropriate to allow this application under section 438 of Cr.P.C. in the following terms.
It is hereby directed that in the event of arrest, the applicant shall be released on bail on furnishing a personal bond in the sum of Rs.1,00,000/- (Rs. One Lac Only) with two solvent sureties in the like amount to the satisfaction of the Arresting Authority subject to the following conditions :-
1. The applicant will comply with all the terms and conditions of the bond executed by him;
2. The applicant will cooperate in the investigation/trial, as the case may be;
3. The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Police Officer, as the case may be;
4. The applicant shall not commit an offence similar to the offence of which he is accused;5 M.Cr.C.No.13601/2016
5. The applicant will not seek unnecessary adjournments during the trial;
6. The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be,
7. The applicant will mark his attendance once a week before the concerned police station.
A copy of this order be sent to the Court concerned for compliance.
C.c. as per rules.
(Sheel Nagu) Judge sarathe