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2020 DIGILAW 857 (MP)

Rakesh Kumar v. State Of M. P.

2020-09-05

SHAILENDRA SHUKLA

body2020
JUDGMENT Shailendra Shukla, J. - Heard. Case diary perused. 2. This is first application filed under Section 438 of Cr. P.C. for grant of anticipatory bail. Applicant - Rakesh Kumar S/o Gyarasilal Agrawal is apprehending his arrest in connection with Crime No.116/2020 registered at Police Station Baghana, District Neemuch for the offence punishable under Sections 3/7 of the Essential Commodities Act, 1955. 3. As per prosecution story on 17.07.2020, junior food supply officer, Jitendra Nagar along with his bureau members inspected the warehouse of Rakesh Agrawal and prima-facie, on inspection, it was found that the rice bags which were stored in the warehouse belonged to the public distribution system. On demanding legitimate documents from the applicant regarding the rice bags, no such documents were presented by the applicant and the applicant took undue advantage of Janmukhi Yojana. Hence, a case under Section 3/7 of the Essential Commodities Act was registered against the applicant. 4. The grounds which have been mentioned are that applicant is a bonafide purchaser of allegedly seized rice bags and he has filed copy of requisite invoice regarding procurement of alleged seized rice bags as Annexure-B. 5. Learned counsel for the applicant submits that case has been registered against the applicant merely on suspicion and prosecution has failed to prove that the seized rice bags were procured from the public distribution system. He also submits that FIR does not disclose the contravention of any specific order of the central government as per Section 3 of the Essential Commodities Act. 6. During the course of submissions, counsel for the applicant has also referred to number of citations in which offence under Section 3/7 of the Essential Commodities Act has been held to be a bailable offence. However, anticipatory bail in those cases were still granted because of the confusion prevailing as to whether such offence is bailable or not and therefore, risk of arrest looms large. He has further produced a bill and also some photographs which generally show that any grains from public distribution system belonging to the government are stored in sacks which display the fact that the grains inside is for the purpose of public distribution system and it belongs to the government. He has also submitted that no such kinds of sacks were found in the warehouse. He has also submitted that no such kinds of sacks were found in the warehouse. As to whether the offence under Section 3/7 of the Essential Commodities Act is bailable or not, number of citations have been submitted and they are, ? a) Santosh Sahare vs. State of Madhya Pradesh, (2015) 3 MPJR 50 ? b) Shri Jayanta Kumar Das vs. State of Assam, AB No.1205/2017 (High Court of Gauhati-DB) ? c) Mahendra Singh vs. State of Madhya Pradesh (MCRC No.40511/2019) ? d) Kuldeep Singh vs. State of Madhya Pradesh (MCRC No.32496/2019) ? e) Harendra Singh vs. State of Madhya Pradesh (MCRC No.37312/2019) ? f) Sachin Kumar Oswal vs. State of Madhya Pradesh (MCRC No.17474/2020). 7. In the aforesaid citations, the question as to whether offence under Section 3/7 of the Essential Commodities Act is bailable or non-bailable has been very clearly dealt with. The same is specifically delineated in a citation which has been produced by the counsel which is Shri Jayanta Kumar Das vs. State of Assam, AB No.1205/2017 and following paragraphs of the same are relevant for consideration :- 19. Legislative history of Section 10 A of the EC Act and interpretation: Before we proceed to discuss the legislative history of Section 10A of the EC Act, it would be useful to briefly note the provisions of Sections 3 and 7 of the said Act. 20. Section 3 of the EC Act deals with the powers to control production, supply, distribution, etc. of essential commodities. Central Government may by order provide for regulating or prohibiting the production, supply and distribution of essential commodities and trade and commerce therein subject to the conditions mentioned in Section 3. 21. Penalty for contravention of any order made under Section 3 is provided under Section 7. For certain category of contraventions, Section 7 (1)(a)(i) provides for punishment of imprisonment for a term which may extend to one year and shall also be liable to fine. For the remaining contraventions, the punishment is imprisonment for a term which shall not be less than 3 months but which may extend to 7 years and also be liable to fine though a sentence of imprisonment for a term of less than 3 months may be imposed for adequate and special reasons. 22. Having noticed the above, we may now proceed to deal with Section 10A of the EC Act. 22. Having noticed the above, we may now proceed to deal with Section 10A of the EC Act. Section 10A was not there when the EC Act was originally enacted in the year 1955. It was inserted in the principal Act by Section 9 of the Essential Commodities (Second Amendment) Act, 1967 (Act No.36 of 1967), which was as follows :- "9. After section 10 of the principal Act, the following section shall be inserted, namely :- "10A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898, every offence punishable under this Act shall be cognizable and bailable".'" 23. Section 10A came into force w.e.f. 30-12-1967 and it made every offence punishable under the EC Act to be cognizable and bailable. 24. Section 10 A was amended by Section 7 of the Essential Commodities (Amendment) Act, 1974 (Act No.30 of 1974) w.e.f. 22-06-1974. As per Section 7, the words and figures "the Code of Criminal Procedure, 1898" would stand substituted by the words and figures "the Code of Criminal Procedure, 1973" and the words "and bailable" would stand omitted. Thus, following the amendment in 1974, Section 10A came to be read as under :- "10A. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be cognizable." 25. A significant development had taken place in the year 1978 which appears to have been overlooked by the Bombay High Court as well as by the Orissa High Court or for that matter, even by the Madhya Pradesh High Court whose decision is relied upon by the petitioner. The Repealing and Amending Act, 1978 (Act No.38 of 1978) was enacted to repeal certain enactments and to amend certain other enactments. As per Section 2 of the aforesaid Act, the enactments specified in the first schedule were repealed to the extent mentioned in the fourth column thereof. The first schedule included the Essential Commodities (Amendment) Act, 1974 and the extent of repeal was confined to Sections 2 to 12 and 14thereof as mentioned in the fourth column of the first schedule. This included Section 7 which had amended Section 10A. However, Section 4 of the Repealing and Amending Act, 1978, which is the savings clause, clarified that the repeal of any enactment by the aforesaid Act would not affect any other enactment in which the repealed enactment had been applied, incorporated or referred to. 26. This included Section 7 which had amended Section 10A. However, Section 4 of the Repealing and Amending Act, 1978, which is the savings clause, clarified that the repeal of any enactment by the aforesaid Act would not affect any other enactment in which the repealed enactment had been applied, incorporated or referred to. 26. Though the savings clause Section 4 clarified that repeal of any enactment would not affect any other enactment in which the repealed enactment had been applied, incorporated or referred to, the fact remains that by the aforesaid repealing Act, only Sections 2 to 12 and 14 of the Essential Commodities (Amendment) Act, 1974 were repealed and not the Essential Commodities (Amendment) Act, 1974 in its entirety. At this stage, we may refer to Section 6 of the General Clauses Act, 1897, which reads as under:- "6. Effect of repeal Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not - (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." 27. Learned author Justice G.P. Singh in his seminal work Principles of Statutory Interpretation, 14th Edition, has examined the consequences of repeal of a statute. Under the common law rule, the consequences of repeal of a statute are very drastic. Except as to transactions past and closed, a statute after its repeal is as completely obliterated as if it had never been enacted. Another result of repeal under the common law rule is to revive the law in force at the commencement of the repealed statute. Except as to transactions past and closed, a statute after its repeal is as completely obliterated as if it had never been enacted. Another result of repeal under the common law rule is to revive the law in force at the commencement of the repealed statute. This led to lot of confusion. The resultant confusion gave rise to the practice of inserting savings clauses in repealing statutes. However, a general provision was made in Section 6 of the General Clauses Act, 1897 which has been extracted above. As a result of the principle of obliteration associated with repeal, continuation of pending proceedings under a repealed statute depends either under the savings clause contained in the repealing Act itself or under Section 6 of the General Clauses Act, 1897. 28. Reverting back to the Repealing and Amending Act, 1978, what it had repealed was Sections 2 to 12 and 14 of the Essential Commodities (Amendment) Act, 1974 only and not the entire Act. The savings clause Section 4 says that repeal of the above sections of the Essential Commodities (Amendment) Act, 1974 would not affect any other enactment in which the repealed enactment had been applied, incorporated or referred to. In other words, the repeal as above did not affect the parent Act i.e., the EC Act as it stood prior to the enactment of the statute which was repealed. It would mean that Section 10A of the EC Act, as it was prior to coming into force of the Essential Commodities (Amendment) Act, 1974, stood revived. Logically, following its restoration, Section 10 A of the EC Act, should have read as follows :- "10A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898, every offence punishable under this Act shall be cognizable and bailable." 29. However, Section 6(a) of the General Clauses Act, 1897 says that repeal of an enactment shall not revive anything not in force or existing at the time at which the repeal takes effect. Applying this provision, the Code of Criminal Procedure, 1898, would not have stood revived as it was not in existence at the time at which the repeal took effect because it was replaced by the Code of Criminal Procedure, 1973. Therefore, following the repeal, Section 10A of the EC Act would read as under :- "10A. Applying this provision, the Code of Criminal Procedure, 1898, would not have stood revived as it was not in existence at the time at which the repeal took effect because it was replaced by the Code of Criminal Procedure, 1973. Therefore, following the repeal, Section 10A of the EC Act would read as under :- "10A. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be cognizable and bailable." 30. Proceeding further, we find that the Essential Commodities (Special Provisions) Act, 1981 was enacted to make certain special provisions by way of amendments in the EC Act for a temporary period of 5 years. Section 9 dealt with amendment of Section 10A. It was provided that in Section 10 A of the principal Act, after the word "cognizable", the words "and non-bailable" should be inserted. By the amendment brought in by the Act No.34 of 1993, 5 years was substituted by 10 years. By a subsequent amendment brought by Act No.30 of 2001, the period of 15 years was substituted for 10 years w.e.f. 27-08-1992. Section 1(3) provided that the provisions of the Essential Commodities (Special Provisions) Act, 1981 would cease to have effect on the expiry of 15 years from the date of commencement of the said Act, which was notified as 01-09-1982. 31. Thus, the Essential Commodities (Special Provisions) Act, 1981 was a temporary statute and its effect came to an end on expiry of the specified period mentioned in the said Act itself. 32. Though two ordinances were promulgated thereafter viz., Essential Commodities (Special Provisions) Ordinance, 1997 and Essential Commodities (Special Provisions) Second Ordinance, 1998 making offences under the EC Act, except those under Section 7(1)(a)(i), including repeat offences non-bailable, those had lapsed on expiry of the ordinance period. Consequently, Section 10 A as it were prior to coming into force of the Essential Commodities (Special Provisions) Act, 1981 stood revived as under :- "10A. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be cognizable and bailable." 33. Analysis : This brings us to the case of State of Tamil Nadu -Vs- Parm asiva Pandian, (2001) CriLJ 4772 . Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be cognizable and bailable." 33. Analysis : This brings us to the case of State of Tamil Nadu -Vs- Parm asiva Pandian, (2001) CriLJ 4772 . In that case, Supreme Court was confronted with the question as to whether the Special Court which ceased to be a Special Court under the Essential Commodities (Special Provisions) Act, 1981 but continued as such under the Narcotic Drugs and Psychotropic Substances Act, 1985 had the power to remand an accused who was implicated for an offence under the EC Act. 34. Supreme Court found that the Special Court was constituted at Madurai under the Essential Commodities (Special Provisions) Act, 1981 for speedy trial of cases under the EC Act. Section 11 of the aforesaid Act provided for substitution of Section 12 A by providing for constitution of Special Courts. The aforesaid Act came into force w.e.f. 01-09-1982 and was in force for 15 years; therefore, it ceased to exist in October, 1998. In that case, the offence under the EC Act was allegedly committed by the respondents in February, 2000 long after the Special Court had ceased to exist. The respondents were arrested in February and April, 2000. It appears that the Special Court constituted for trial of cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was authorized to act as the Special Court under Section 12 A of the EC Act as substituted by the Essential Commodities (Special Provisions) Act, 1981. After the aforesaid Act lapsed by efflux of time, the Special Courts ceased to exist. Thereafter, the position that used to prevail before the Essential Commodities (Special Provisions) Act, 1981 was enforced, stood restored and the Judicial Magistrates who were previously competent to try EC Act cases got back the jurisdiction to deal with such cases. 35. Therefore, Supreme Court took the view that the substituted Section 12A of the EC Act brought in by the Essential Commodities (Special Provisions) Act, 1981 ceased to exist after the aforesaid Act lapsed by efflux of time and the original Section 12 A that existed prior to coming into force of the aforesaid Act stood restored. 36. 35. Therefore, Supreme Court took the view that the substituted Section 12A of the EC Act brought in by the Essential Commodities (Special Provisions) Act, 1981 ceased to exist after the aforesaid Act lapsed by efflux of time and the original Section 12 A that existed prior to coming into force of the aforesaid Act stood restored. 36. By applying the same logic, Section 10 A which existed prior to coming into force of the Essential Commodities (Special Provisions) Act, 1981 stood restored after the aforesaid Act lapsed by efflux of time. We have already discussed the effect of the Repealing and Amending Act, 1978 on Section 10A of the EC Act. Consequently, after the Essential Commodities (Special Provisions) Act, 1981 lapsed by efflux of time, Section 10A of the EC Act stood restored as under :- "10A. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be cognizable and bailable." 37. Madhya Pradesh High Court in Santosh Sahare (supra) did not take note of the Repealing and Amending Act, 1978 and its impact on Section 10A. However, it was held that in the absence of any provision showing the offence to be non- bailable, the offence would continue to be bailable in view of Schedule II of the Code of Criminal Procedure, 1973. 38. A Single Bench of this Court in Kailash Kum ar Agarw alla -Vs- State of Assam, (2004) 2 GauLT 347 referred to the case of Parm asiva Pandian (supra) and held that Section 7 of the EC Act is bailable. This decision was rendered on 31- 05-2004. Since then this Court had proceeded on the basis that offences under the EC Act are bailable. The Single Bench in Hekm at Ali (supra) only followed this precedent by reiterating that an offence under Section 7 of the EC Act is a bailable one. 39. Conclusion : Having regard to the above and upon thorough consideration of the matter, we are of the considered opinion that the view taken by this Court in K ailash K um ar Agarw alla (supra) and followed subsequently including in the case of Hekm at Ali (supra) is the correct interpretation of the legal position vis- -vis Sections 7 and 10 A of the EC Act. With utmost respect, for the reasons indicated above, we are unable to agree with the views expressed by the Bombay High Court in the case of Purthviraj Chandrakant Shinde (supra) and by the Orissa High Court in Usha Sinha (supra). 40. Therefore, we hold that Section 10A of the EC Act, as it stands restored, makes an offence under Section 7 of the EC Act bailable. Reference is answered accordingly. 8. The M. P. High Court has also in the case of Santosh Sahare vs. State of Madhya Pradesh, (2015) 3 MPJR 50 has discussed the same point of law and following paragraphs are relevant for consideration : 6. Section 10(A) of the Act of 1955 reads as under :- "Offence to be cognizable and bailable notwithstanding anything contained in the Code of Criminal Procedure,1973 every offence punishable under the Act shall be 'cognizable' "(xxx)2. 7. From the bare perusal of aforesaid section it appears that by the Essential Commodities (Special Provision) Act-1981 Section 10(A) of the original Act of 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 commencement of 1981 Act. Thereafter by the Essential Commodities (Special Provisions) Continuance Act, 1987 para-2 of the preamble of 1981 to the Essential Commodities (Special Provisions) Act,1981 was amended and in place of 5 years, period of 10 years was substituted. Thereafter by Third Amendment, the said period of continuance was made to 15 years. After expiry of 15 years no amendment Act was brought into force but certain ordinance were issued. The last ordinance was issued in the year 1988, which lost its life and efficacy by lapse of time. Thereafter no Act or ordinance has been issued to continue the Provisions of 1981 Act. 8. When 1981 Act has lost its life, then any amendment incorporated by the said Act which was to remain in force for a period of 5,10 or 15 years would come to an end and additional words 'and non-bailable' shall become 'non-est' and 'otiose' Section 10(A) without the said amendment shall now be read as "notwithstanding anything contained in the Code of Criminal Procedure-1973, every offence punishable under the Act shall be 4 M.Cr.C. N0. 2914/2015 cognizable" 9. 2914/2015 cognizable" 9. In view of the above legal provisions, the offence is not non- bailable. Cognizance of such an offence can be taken but in the absence of any other provision showing the offence to be non- bailable, The offence would continue to be bailable in view of schedule II of the Code of Criminal Procedure,1973 . 10. Therefore, as the offence is bailable, an application under section 438 of Cr.P.C. would not be maintainable. However, keeping in view the relevant provision as well as the possibility of the non-awareness of the relevant provisions of Act of 1955 and amended Act,1981 and the interpretation, it would be appropriate to direct the Arresting Officer/Authority that in the event of arrest of applicant, the officer arresting the applicant shall release the applicant Santosh Sahare on bail treating the offence to be bailable. In the alternative, the applicant may also appear before the Special Court along with the copy of this order and furnish bail to the satisfaction of the said Court. 9. Thus, it becomes quite clear that the offence under Section 3/7 of the Essential Commodities Act is infact a bailable offence. However, as laid down by the Courts referred to above, the confusion is likely to prevail in the minds of the investigating agency who may not be aware of the correct legal position hence, anticipatory bail has been granted looking to such position. 10. As far as present matter is concerned, keeping in view that offence under Section 3/7 of the Essential Commodities Act is actually bailable in nature but still due to reasons mentioned earlier i.e. investigating agency may not be aware about the correct legal position, there is likelihood of arrest of the applicant. In the light of views expressed in the aforesaid citations with which I concur absolutely, application for grant of anticipatory bail is allowed in this matter. 11. On due consideration of the aforesaid submissions, without commenting upon the merits of the case, this application for grant of anticipatory bail is allowed. In the light of views expressed in the aforesaid citations with which I concur absolutely, application for grant of anticipatory bail is allowed in this matter. 11. On due consideration of the aforesaid submissions, without commenting upon the merits of the case, this application for grant of anticipatory bail is allowed. It is directed that in the event of arrest, the applicant - Rakesh Kumar shall not be arrested by the Arresting Officer, subject to his furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty thousand only) with one solvent surety of like amount to the satisfaction of the Arresting Officer, subject to abiding the conditions enumerated under Section 438 (2) of the Cr.P.C. and he shall give due assistance to the Investigating Officer in the matter. The applicant shall appear before the Investigating Officer on 14.09.2020 and on all other subsequent dates, as may be fixed by the Investigating Officer from time to time. 12. M.Cr.C. No.26957/2020 is allowed and stands disposed of. Certified copy as per rules.