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Madhya Pradesh High Court · body

2010 DIGILAW 89 (MP)

HARIOM v. STATE OF M. P.

2010-01-21

S.K.WAGHMARE

body2010
Judgment S.R.Waghmare, J. ( 1. ) By this application filed under Section 438 of the Cr.P.C, the applicant Hariom s/o Radheshyamji Gupta has moved the application for grant of anticipatory bail being implicated in crime No. 357/2009 registered by police station Garoth, District Mandsaur for offence under Section 3/7 of the Essential Commodities Act, 1955 ( hereinafter referred as to "the Act"). ( 2. ) Counsel for the applicant has vehemently argued that the lower Court had erred in rejecting the bail application for grant of anticipatory bail to the present applicant since he was basically a businessman, a registered dealer and involved in the sale of fertilizers. Even if the prosecution allegations are considered, Counsel has stated that the present applicant being the proprietor of Annapurna Trading Company, Boliya; the offence was registered for selling the fertilizer for urea at higher rate than was permitted, according to the provisions of law. Counsel had averred that even if there was violation under Section 3 / 7 of the Act itself as alleged, this Court had considered whether the offence was bailable and the Court had held that the application for offence under Section 438 of the Cr.P.C. was maintainable since the amendment by the Act of 1988 had lost its life and efficacy by lapse of time and the police and the administration were not likely to know about the provisions and the interpretation and hence, allowed the anticipatory application in the matter of Dinesh Kumar Dubey and another vs. State ofM.P. and others {2001 Cri.L.J.1306}. Counsel has prayed for grant of anticipatory bail. He has also relied on Uday Bhan Singh vs. State of M.P. {2006(1) EFR119}. ( 3. ) Counsel for the respondent State, on the other hand, has opposed the submissions of the Counsel for the applicant and stated that the amendment was valid only for a period of 15 years after the Third Amendment and the offence is "cognizable" and there is no indication that it is non-bailable. Hence, Counsel urged that under such circumstances where no provision is made regarding the offence being bailable Schedule II of the Code of Criminal Procedure 1973 has to be seen and in case of violation of Section 7 of the Essential Commodities Act is punishable by 7 years of imprisonment then the offence would be non-bailable. Hence, Counsel urged that under such circumstances where no provision is made regarding the offence being bailable Schedule II of the Code of Criminal Procedure 1973 has to be seen and in case of violation of Section 7 of the Essential Commodities Act is punishable by 7 years of imprisonment then the offence would be non-bailable. And since the present applicant was selling urea at a higher rate than fixed by the State Government. Counsel has prayed for dismissal of the application. ( 4. ) At this juncture Counsel for the applicant Shri Z.A.Khan referred to a judgment of this Court in the matter of Balwant vs. State of Madhya Pradesh {2001 (3) M.P.L.J.414; whereby this Court has discussed several other cases besides Dinesh Kumar Dubey (supra), whereby the offence under Section 7 (l)(a)(ii) of the Act had been held to be "cognizable" and "bailable" and concluded that a sub-silentio order, an assumption in disregard of clear and unambiguous statutory provision is not a precedent. The Court held thus: "(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 SC781, it has been observed by the Supreme Court that a 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 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. Sectretary of State, (1985) 1 ALL ER797. In Young vs. Bristol Aeroplane Co. Ltd. (1994) 2 All ER293, it has been observed by Lord Greene. M.R.C.P.: "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. Bonalumi vs. Sectretary of State, (1985) 1 ALL ER797. In Young vs. Bristol Aeroplane Co. Ltd. (1994) 2 All ER293, it has been observed by Lord Greene. M.R.C.P.: "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. Manila Ramshree, 1996 JLJ69 691 that a judgment is per in curiam 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 Section 7(l)(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 Section 7(l)(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." Thus the Court held that the offences are non-bailable and judgments rendered 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., 2001 (1) MPHT213 and two other cases holding that the offence under Section 7 of the Act as bailable were per in curiam. ( 5. ( 5. ) On considering the above submissions, I find that the entire controversy pertains to the amendment in Section 3, Section 6-A and 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 in to an Act. Then under such circumstances, I find that there is a Division Bench judgment of Bombay High Court Purthviraj 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. (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. (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 (V) or sub-section (2) of Section 3 of the Act and, therefore, the provisions of Section 7 (l)(a)(ii) are not applicable where the maximum sentence of imprisonment provided extends to one year only. The offences alleged fall under Section 7(l)(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 18.8.1999, in Criminal Writ Petition No.302/1999, is vacated." ( 6. ) This position has been reiterated by our own High Court in the matter of Balwant (supra) in 2001 and by Single Judge of the Jharkhand High Court in Nathuram Agrawal vs. State of Bihar in 2001 and in the matter of Amarnath Sahu vs. State of Chhatisgarh High Court in the year 2001 and our own High Court in the matter of Uday Bhan (supra) in the year 2005. ( 7. ( 7. ) Consequently, I find that the offence under Section 7 (l)(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 others cases are per in curiam. ( 8. ) Coming to the facts of the present case, I find from record that the applicant has been alleged to sell without licence fertilizer urea at higher prices than prescribed under the control order. However, to the contrary the applicant is a registered dealer his registration is filed along with the application, the applicant has also filed an amended circular of the State Government of M.P., whereby the rates of urea have been upgraded and amended; besides certain bills receipts of sale have also been filed to indicate his bona- fides but they are not very legible to hold that proper rates are being levied by. the applicant. Counsel for the applicant has urged that he was willing to cooperate with the investigating agency as and when required, but arresting him would lead to loss of face and social ostracism. And hence giving the applicant the benefit of doubt the application is allowed. ( 9. ) It is directed that in the event of arrest, the applicant Hariom shall be released on bail for the period of 30 days (thirty days) upon his furnishing personal bond to the tune of Rs.25,000/- (Rupees Twenty five thousand only) with one surety in the like amount to the satisfaction of the Arresting Officer for his further appearance as and when directed. The applicant shall apply for regular bail within the aforesaid period of 30 days which shall be dealt by the trial Court in accordance with law. It is also directed that the applicant shall abide by all the conditions enumerated under Section 437(3) of the Cr.RC. C.c.as per Rules. Order accordingly.