Ganga vs The State Of Madhya Pradesh on 22 April, 2024

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Madhya Pradesh High Court

Ganga vs The State Of Madhya Pradesh on 22 April, 2024

T h is is first application filed under Section 438 Cr.P.C seeking anticipatory bail, as the applicant/accused is apprehending his arrest in connection with FIR/Crime No.36/2024 dated - 23.02.2024 registered at Police Station Ambua, District Alirajpur (M.P.) for the offence punishable under Section 3/7 of the Essential Commodities Act, 1955 alongwith Sections 409, 420 and 406 of IPC.

2. Prosecution story, in brief is that upon receiving complaint against Signature Not Verified Signed by: SHRUTI JHA Signing time: 24-04- 2024 10:13:23 2 illegal storing of wheat at village Semlaya P/S Ambua, Alirajpur under the policy of State Public Distribution System, Junior Supply Officer alongwith his team had gone and searched the place of incident on 23.02.2024. 40 Sacks of wheat of the PDS system was found to have been illegally stored in the house of co- accused persons Smt. Rayali and Smt. Indira. The same was procured to them by brother of Indira co-accused Veerendra. Thereafter on the same day, fair price shop led by women self help group at village Khutaja was searched, where the seller was the present applicant. During search, a total of 46.84 quintal of wheat, 2.28 quintal of salt and 7.35 quintal of Green Gram Beans/Moong were found to be in lesser quantity while 4.91 quintal of rice, 0.04 quintal of sugar was found to be in excess quantity than those mentioned in the stock records. The aforementioned articles were found to be worth of Rs.2,02,010/-. It was found that the present applicant is the seller but actually the co-accused Veerendra runs the aforementioned shop. Thereby, the applicant has contravened provision under Clause 13(2) of Public Distribution System Control Order, 2015, which is punishable u/S 3/7 of Essential Commodities Act, 1955. Act of the applicant is also punishable u/S 406, 409 and 420 of IPC. The matter was reported by Junior Supply Officer against the applicant Ganga Bai and co-accused persons Veerendra, Rayali, Indira and Ram Singh.

3. Learned counsel for the applicant/accused person submits that the applicant has not committed the offence and has falsely been implicated in the case. The applicant is a tribal woman. Due to personal reasons of the applicant, the shop was being managed by co-accused Veerendra. She is ready to cooperate in the investigation and trial. The applicant is a reputed person and has apprehension of her arrest. If she gets arrested, her reputation will be tarnished therefore, it is prayed that the applicant be granted anticipatory bail.

Signature Not Verified Signed by: SHRUTI JHA Signing time: 24-04- 2024 10:13:23 3

4. Learned counsel for the applicant has placed reliance on the case, order dated 23.06.2023 passed in MCRC No.26651/2023 in Gyan Singh V State of Madhya Pradesh and order dated 12.06.2023 passed in MCRC No.23207/2023 in Santoshsingh Rajput V State of Madhya Pradesh, wherein Coordinate Bench of this Court after relying on the case of Santosh Sahare V State of M.P. [MCRC No.2914/2015] granted anticipatory bail to the concerning applicant.

5. On other hand, learned counsel for the State/non-applicant has opposed the prayer of applicant and prayed for rejection of the application.

6. I have heard learned counsel for the parties and perused the records.

7. In the case of Arun Bharti V State of M.P. [MCRC No.20337/2020], Coordinate Bench of this Court has observed as under:-

"In Balwant vs. State of MP, reported in 2001 (3) MPLJ 414, Coordinate Bench of this Court has observed as under :-

"3. The first point which has been raised on behalf of the applicant is that the offence punishable under Section 7 of the Act is bailable. Reliance has been placed on the order dated 15-10-1999 (by Hon'ble Dipak Misra, J.) in M.Cr.C. No. 6111 of 1999, Nemchand Agrawal Vs. The State of M.P., and a reported decision Dinesh Kumar Dubey Vs. State of M.P. [2000(1) MPHT 213] (by Hon'ble R.S. Garg, J.). During the course of hearing two more decisions have been cited, one dated 30-12-99 (by Hon'ble S.S. Saraf, J.) and the other dated 20-11-2000 in M.Cr.C. No. 7681/2000 (by Hon'ble S.C. Pandey, J.). These decisions have also taken the view that offence under under Section 7 of the Act is bailable.

4. Before considering the cases referred to above in default, it is necessary to look at the statutory provisions. Section 10A of the Act inserted by the Amending Act (No. 36 of 1967) provided that every offence punishable under the Act shall be bailable. By the Amending Act (Act No. 30 of 1974), the words "and bailable" were deleted from Section 10A of the Act. The effect of the deletion of these words from Section 10A was that there remained no specific Signature Not Verified Signed by: SHRUTI JHA Signing time: 24-04- 2024 10:13:23 4 provision in the Act on the point whether the offences punishable under it are bailable or non- bailable. This attracted the applicability of Schedule I - Part II "Classification of offences against other laws". A reference to this Schedule shows that if an offence is punishable with imprisonment for three years and upwards that would be "non-bailable'. If the offence is punishable with imprisonment for less than three years or with fine only it would be bailable. According to Section 7(1) of the Act if any person contravenes any order made with reference to clause (h) or clause (i) of sub-section (2) of Section 3, he shall be punishable with imprisonment for a term which may extend to one year and in the case of any other order with imprisonment which may extend to seven years. The contravention of Clause 4 (c) of the Control Order issued under Section 3 of the Act is punishable with imprisonment which may extend to seven years.

5. Then came the Essential Commodities (Special Provisions) Act, 1981 (Act No. 18 of 1981) by which the words "and non-bailable" were added in Section 10A of the Act. This amendment was not a permanent feature of the Act. It was for a specified period and it was extended from time to time. The said amendment ultimately lapsed after the expiry of the period of the Essential Commodities (Amendment) Ordinance, 1998 which was promulgated on 25-4-1998. As the amendment which was incorporated in 1981 has come to an end by efflux of time, the words "and non-bailable" in Section 10A of the Act stand deleted.

Therefore, Section 10A as amended in 1974 will hold the field now. As already discussed, the offences under Section 7(1) (a)(ii) and 7(2) of the Act which are punishable with imprisonment for seven years are non-bailable by virtue of the provisions of Schedule I Part II of the Code.

6. Now the cases relied upon by the learned counsel for the applicant should be considered. In Nemchand Agrawal Vs. State of M.P., the arguments mainly centred round the point whether the amendment which was made in 1981 to Section 10A of the Act and which was extended from time to time still subsists. After tracing the steps taken to renew the life of 1981 Amendment it has been held that it has lapsed. It was not brought to the notice of the Bench that by an amendment made in 1974 the work "bailable" was deleted from Section 10A of the Act and therefore the Schedule I - Part II to the Code should be referred to for determining Signature Not Verified Signed by: SHRUTI JHA Signing time: 24-04- 2024 10:13:23 5 the question whether the offence punishable under the Act is bailable or non-bailable. It was assumed that once it is shown that the amendment made in 1981 ceased to remain in force the offence would become bailable. The question whether the offence in question is bailable or non-bailable was not considered in light of the relevant statutory provision in Schedule I (Part-II) of the Code.

7. In Dinesh Kumar Dubey Vs. State of Madhya Pradesh [2001(1) M.P.H.T. 213] the same point came up for consideration. In that case in Para 4 it has been observed :

"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". But on reference to this Schedule it is clear that the offence punishable with imprisonment for more than three years is non- bailable. In the two other cases reliance was placed on the order in Nemchand Agrawal Vs. State of M.P., M.Cr.C. 6111 of 1999.

8. As demonstrated earlier the statutory legal position, as it exists today, is that the offence under Section 7(1)(a)(ii) of the Act which is punishable with imprisonment for seven years is on-bailable. The question is whether the view taken in the four cases referred to above should be followed by this Bench or there is a scope for clarification without referring the matter to a larger Bench. It is axiomatic that a decision is an authority for the question of law which it decides and not for a question which was not raised or considered. A sub-silentio order or assumption in disregard of a clear and unambiguous statutory provision is not a precedent. If a provision in a statute is construed or interpreted one way or the other that would be a precedent for the future and would be binding on coordinate Benches. But something which has been assumed and not decided cannot be considered as authoritative binding precedent.

9. Where a certain point of law is not brought to the view of the Court in determining a cause, the decision is not a precedent calling for the same decision in a similar case in which the point is brought before the Court. (Law Lexicon by P.R. Aiyar edited by Justice Y.V. Chandrachud, 1997 edition page 1494). In Goodyear India Ltd. Vs. State of Haryana (AIR 1990 SC 781) it has been observed by the Supreme Court that the decision on a question which has not been argued cannot be treated as a precedent. If an ingredient of a section was neither argued nor was considered, the passing reference based on the Signature Not Verified Signed by: SHRUTI JHA Signing time: 24-04- 2024 10:13:23 6 phraseology of the section cannot be said to be the dictum.

10. Failure to consider a statutory provision is one of the clearest cases in which the Court is not bound to follow its own decisions. [Bonalumi Vs. Secretary of State, (1985 1 All ER 797]. In Young Vs. Bristol Aeroplane Co. Ltd. [(1944) 2 All ER 293] it has been observed by Lord Greene, M.R.: "Where the Court has construed a statute or a rule having the force of a statute, its decision stands on the same footing as any other decision on a question of law. But where the Court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the Court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam." It has been held by a Division Bench of this Court in United India Insurance Company Vs. Mahila Ramshree (1996 JLJ

691) that a judgment is per incuriam if the relevant law has not been considered and it has no binding effect.

11. In view of the above discussion it must be held that the cases falling under 7(1)(a)(ii) of the Act being punishable with imprisonment which may extend to seven years read with Schedule I - Part II to the Code are "non- bailable". In the present case the alleged contravention of the Control Order is punishable under 7(1)(a)(ii) of the Act. The applicant who was found selling kerosene in excess of the price fixed under the Control Order does not on the facts and in the circumstances of the present case deserve anticipatory bail. The application for anticipatory bail is rejected."

The aforesaid judgment was passed in the year 2001, thereafter Coordinate Bench of this Court order in the case of Hariom vs. State of MP, reported in [2011(1) M.P.L.J. (Cri.) 267], wherein it is again observed that the offences under aforesaid sections are cognizable and non- bailable. It is true that the order passed by Coordinate Bench of this Court in Balwant (supra) has not been discussed in the case of Hariom (supra).

Thereafter, the Coordinate Bench of this Court in Santosh Sahare vs. State of MP (MCRC No. 2914/2015 decided on 7.5.2015) and Mumtaj Khan (supra) that the offences under Essential Commodities Act are bailable and cognizable but it is relevant to mention here that in Santosh Sahare (supra) the Coordinate Bench of this Court has not considered the earlier Signature Not Verified Signed by: SHRUTI JHA Signing time: 24-04- 2024 10:13:23 7 order passed in Banwant's case (supra). Therefore, the orders passed in the cases of Santosh Sahare and Mumtaj Khan (supra) may not be treated as precedent as earlier orders were not discussed in these two orders, i.e., Santosh Sahare and Mumtaj Khan (supra).

Thereafter, in the year 2016 the Coordinate Bench of this Court passed an order in Kamlesh Dhakad vs. State of MP (MCRC No. 6754/2016 decided on 2.8.2016), wherein the judgments in Dinesh Kumar Dubey and another vs. State of MP, reported in 2000 Legal Eagle (MP) 525, and Hariom vs. State of MP (supra) reported in 2010 Legal Eagle (MP) 134, were considered but again the earlier order passed in the case of Balwant (supra) has not been discussed. Thereafter, the Coordinate Bench of this Court has passed an order on 2.12.2016 in Mayank Jain vs. State of MP (MCRC No.13601/2016 and held that the offences under Essential Commodities Act are cognizable and non- bailable. "

8. In the light of above discussion, it is crystal clear that the order passed in the Balwant's Case (Supra) is a precedent for the present case, wherein it is observed that the offences under Essential Commodities Act which are punishable up to 3 years are bailable as per I Schedule of the CR.P.C and the offences punishable up to 7 years are non-bailable as per the aforementioned schedule. Therefore, the offence involved in the present matter falls under the latter part and is cognizable and non-bailable. Apart from that as per allegation, the applicant has also committed breach of trust. Therefore, in view of this Court, it is not a fit case to grant anticipatory bail to the applicant.

9. The Balwant Singh Case (Supra) has not been considered by Coordinate Benches of this Court in the case laws relied upon by the learned counsel for the applicant. Therefore, they may not be treated as precedents.

10. Accordingly, this Court is of considered view that this is not a fit case to grant anticipatory bail to the applicant. Hence, the application for anticipatory bail is hereby rejected.

Signature Not Verified Signed by: SHRUTI JHA Signing time: 24-04- 2024 10:13:23 8

(PRAKASH CHANDRA GUPTA) JUDGE Shruti Signature Not Verified Signed by: SHRUTI JHA Signing time: 24-04- 2024 10:13:23

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