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Chhattisgarh High Court · body

2007 DIGILAW 221 (CHH)

Amar Nath Sahu v. State of Chhattisgarh

2007-03-21

S.K.SINHA

body2007
ORDER Sunil Kumar Sinha, J. 1. This is an application filed under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail to the applicant who is apprehending his arrest in connection with Crime No. 330/2006, registered at Police Station Kota, Distt. Bilaspur, for the offence punishable under Section 3/7 of the Essential Commodities Act. 2. The brief facts are that this applicant is an authorized transporter for transporting food-grains from the godown of Nagrik Aporthi Nigam, Kargi Road, Kota to various Fair Price Shops in the concerned area. On 17-10-2006 certain quantity of rice was loaded in Truck bearing Regn. No. C.G. 10-A/1175 and Metador No. 10-A/6493 for their delivery to the concerned destinations. The allegations are that in Fair Price Shop, Ratkhandi, 20 quintals of rice and in fair price shop Jingerpur, 10 quintals of rice were less delivered by the applicant which is in contravention of the provisions contained in Clauses 5 & 15 of the C.G. Public Distribution System (Control) Order, 2004 and Public Distribution System (Control) Order, 2001 which are punishable under Section 3/7 of the Essential Commodities Act. 3. Learned Counsel for the applicant argues that in fact, the rice in the aforesaid quantity was rightly delivered in the Fair Price Shops on 17-10-2006 and receipts to this effect in the prescribed prolbrma have been received by the transporter. He refers to those receipts which have been filed as Annexures A-l & A-2. He submits that no case of contravention is made out against the applicant, therefore, the applicant may be admitted to anticipatory bail. 4. On the other hand, learned State Counsel opposes the bail application. His main submission is that since the offences punishable under the Essential Commodities Act (hereinafter referred to as the Act) are bailable offences, therefore, this petition filed under Section 438 Cr.PC would not be maintainable. 5. I have heard learned Counsel for the parties at length and have also perused various provisions of the Act. 6. Section 10A of the Act was inserted by the Amendment ActNo.36 of 1967 with effect from 30-12-1967 which provided that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be bailable. By another Amendment Act 30 of 1974, the words "and bailable" were deleted from Section 10A of the Act. By another Amendment Act 30 of 1974, the words "and bailable" were deleted from Section 10A of the Act. As an effect of deletion of the aforesaid words from Section 10A, there remained no specific provision in the Act on the point whether the offence punishable under the Act is bailable or non-bailable. By the Essential Commodities (Special Provisions) Act, 1981, Section 10A of the original Act 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 5 years only from the date of its commencement. Thereafter, by the Essential Commodities (Special Provisions Continuance) Act, 1987, para 2, the preamble of the Essential Commodities (Special Provisions) Act, 1981 was amended and the period of 5 years was substituted by the period of 10 years. Thereafter, by way of 3rd Amendment the said period of continuance was made for 15 years. After expiry of 15 years, no amendment Act was brought into force, however, certain ordinances were issued and the last ordinance which was issued in this regard has lost its tenure and efficacy by lapse of time. Thereafter, no Act or Ordinance has been issued to continue the provisions of 1981 Act. Therefore, after the lapse of period, the position would revert back to the offence being "cognizable" only and no provisions exist in the Act as to whether the offences punishable thereunder are bailable or non-bailable and in that situation, the provisions of Schedule-I, Part-II of the Code of Criminal Procedure would be attracted which deals with the classification of other offences against other laws. Clause 2 of the aforesaid part of Schedule says that if the offence is punishable with imprisonment for 3 years and onwards but not more than 7 years, then the offence shall be non-bailable and if the offence is punishable for less than 3 years or with fine as per Clause 3 it shall be non-cognizable and bailable. 7. Section 7 of the Essential Commodities Act provides for penalties in which Sub-section (1) reads as under: 7. 7. Section 7 of the Essential Commodities Act provides for penalties in which Sub-section (1) reads as under: 7. (1) If any person contravenes any orders made under Section 3 - (a) he shall be punishable,- (i) in the case of an order made with reference to Clause (h) or Clause (i) of Sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and (ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine: Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months: (b) any property in respect of which the order has been contravened shall be forfeited to the Government. (c) Any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the commodity shall, if the Court so orders, be forfeited to the Government. Therefore, it is clear that if there is a provision of punishment for more than 3 years in the Act for a particular offence, then the said offence would be non-bailable and the other offences than that would be bailable. 8. Therefore, in case, the order of which the contravention is alleged is an order made under Section 3 of the Essential Commodities Act, the contravention of it shall be punishable under Section 7(1)(a)(ii) of the Act and in the said situation, the punishment for such contravention may extend to 7 years and shall also liable to fine and in this manner, the offence would be "non-bailable and in such a case, the petition filed under Section 438 Cr. PC would be maintainable. 9. In the present case, certainly the order namely C.G. Public Distribution System (Control) Order, 2004 has been made in exercise of powers conferred under Section 3 of the Act, therefore, the provisions of Section 7(1)(a)(ii) of the Act would be attracted and the petition filed under Section 438 Cr. PC shall be maintainable. The objection raised by State Counsel, in the facts and circumstances of this case, cannot be sustained and the same is over ruled. 10. PC shall be maintainable. The objection raised by State Counsel, in the facts and circumstances of this case, cannot be sustained and the same is over ruled. 10. So far as the merits of the case is concerned, since the applicant has shown the delivery receipts in which there are signatures of more than 3-4 authorities, which shows that the aforesaid rice was delivered to its destinations by Challans vide Exhs. P-1 & P-2, there appears to be aprima facie case in favour of the applicant and I deem it appropriate to admit the applicant to anticipatory bail. 11. His application filed under Section 438 Cr. PC is allowed. It is directed that in the event of arrest of this applicant, he shall be released on bail on his furnishing a personal bond in sum of Rs. 10,000/- with one surety in the like sum to the satisfaction of the Officer arresting him. 12. This order shall remain in force for a period of 60 days from today, during which, the applicant may apply for regular bail before the concerned Court.