High Court · 2023

1. Heard Sri Abhishek, learned counsel for the applicant and Sri O.P. Mishra, learned AGA for the State.

2. The present application has been moved on behalf of the applicant- Ranjeet seeking anticipatory bail in Case Crime no. 0380 of 2022, under Sections 3/7 of Essential Commodities Act, 1955, P.S. Transport Nagar, District Meerut.

3. As per prosecution case, a confidential information was received by the District Supply Officer that from IOCL and HPCL Oil Depot at Pootha Oil Depot, petrol and diesel was being illegally drawn out from tankers and was being transported to other places; the place was raided and it was found that the petrol and diesel was being stocked in several drums and jerry cans by the applicant with the assistance of drivers and helpers of tankers; 9 places were raided, number of plastic jerry cans and iron drums of different capacity filled with petrol and diesel, certain tools, drill machines etc. were recovered. The present applicant was the owner of the premises where the petroleum products were being transferred from the tankers of I.O.C.L. and H.P.C.L. Oil Depot to a number of iron drums and plastic cans.

4. It is contended on behalf of the applicant that he is innocent and has been falsely implicated in this case.

5. Besides opposing the anticipatory bail application on merits, it is contended on behalf of the State that the offence with which the applicant has been charged is bailable, hence, the provisions of Section 438 Cr.P.C. shall not apply and the anticipatory bail application is not maintainable. To support this contention a judgment of Allahabad High Court passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 10698 of 2021 vide order dated 10.11.2021 (Rajeev Kumar vs. State of U.P.) has been cited before me. Quoting certain parts of the judgment of M.P. High Court in Dinesh Kumar Dubey vs. State of M.P.; 2001 (1) M.P.H.T. 213; the court expressed an opinion that the offences under Sections 3/7 of Essential Commodities Act, 1955 are bailable.

6. The question of maintainability of anticipatory bail application where the violation of Section 3 read with Section 7 of Essential Commodities Act, 1955 is concerned came before this Court in Criminal Misc Anticipatory Bail Application U/S 438 Cr.P.C. No. 12494 of 2022 vide order dated 17.01.2023. This Court went through the judgment cited above and also through the judgments given by the Madhya Pradesh High Court in Dinesh Kumar Dubey vs. State of M.P.; 2001 (1) M.P.H.T. 213, on the basis whereof the judgment in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 10698 of 2021 vide order dated 10.11.2021 (Rajeev Kumar vs. State of U.P.) was pronounced and it was held in para 18 as below:- “18. The judgment inCriminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 10698 of 2021 vide order dated 10.11.2021 (Rajeev Kumar vs. State of U.P.) is per incuriam and has been passed oversighting the clear and unambiguous statutory provisions.”

7. It was also held in para nos. 9 to 12 as below:- “9. To clarify further it may be noted that by the Essential Commodities (Special Provisions) Act, 1981 word 'bailable' was substituted by the word 'non-bailable' that is the offences became non-bailable by coming into force of 1981 Act, however, before the amendment of 1981 came into operation, Section 10-A had no application as it did not say whether the offence shall be treated as bailable or non-bailable. To summarize before coming into effect of 1974 Act, the offences were bailable and after coming into force of 1974 Act, Section 10-A remained silent on the question of bailability/non-bailability of the offence till the Act of 1981 came into force. Subsequently, because of lapse of ordinance, the position as existing just before the promulgation of Essential Commodities (Special Provisions) Act, 1981 was revived i.e., Section 10-A did not say whether the offence is treated as bailable or non- bailable by virtue of 1974 Act till coming into effect of 1981 Act.

10. Now very pertinent question arises whether to treat the offence under Section 3/7 of Essential Commodities Act, 1955 as bailable or as non-bailable in case of offence committed after 08.07.1998. The judgment of the Allahabad High Court given in Rajeev Kumar vs. State of U.P. (supra) has referred to G.O. dated 03.10.1998 from the judgment of Smt. Shakila Vs. State of U.P. and Another, Application under Section 482 No.44486 of 2012, which was addressed to all the District Magistrates of this State making it very clear that Essential Commodities (Special Provisions of 1981 and Essential Commodities (Ordinance) Act, 1988 became ineffective from 31.03.1997 and 08.07.1998 respectively.

11. It may be usefully be noted that Section 10-A was inserted below Section 10 of the principal Act by the second amendment of 1967 (Act No. 36 of 1967) w.e.f. 30.12.1967. The newly inserted Section 10-A is quoted as below:- "Offences to be cognizable and bailable--Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), every offence punishable under this Act shall be cognizable and bailable."

12. This newly Act added Section 10-A was amended by Act No. 30 of 1974 w.e.f. 22.06.1974 and the word 'bailable' was omitted. Thus legal position becomes quite clear that because of lapse of amendment of 1981, the offences under the Essential Commodities Act shall be treated as cognizable and as far as the point of bailability and non-bailability is concerned, it shall be dealt with as per the provisions of Cr.P.C., 1973.”

8. In the later part of para 14 of the judgment, it has been clearly opined 3/7 of Essential that in respect of offences under Sections 2 Commodities Act, 1955 committed after 08.07.1998, the question of bailability and non-bailability shall depend upon the terms of maximum punishment imposable in the light of Schedule-I Part 2 of the Cr.P.C.

9. The present case before me concerns with illegally drawing out oil from tankers in collusion with drivers and helpers and also hoarding and marketing thereof in violation of Motor Spirit and High Speed Diesel (Regulation of Supply Distribution and Prevention of Malpractices) Order, 2005 which entails punishment up to 7 years, therefore, the offence shall be treated as non-bailable. 10. No probable defence or reason has been offered for false implication.

11. I considered all the submissions, facts, circumstances and material before me, It may be kept in mind that anticipatory bail is an extraordinary remedy to be exercised in suitable cases only. The power under Section 438 Cr.P.C. cannot be utilized in a routine manner and definitely not as a substitute for regular bail. This discretionary power calls for existence of facts of the kind where the court is satisfied that its interference is necessary to further the cause of justice and to prevent misuse of process of law.

12. In view of the facts and circumstances of the case I do not find it fit case to grant benefit of anticipatory bail.

13. Hence the anticipatory bail application is rejected. Order Date :- 17.1.2023 #Vikram/-Saif VIKRAM GUPTA High Court of Judicature at Allahabad 3