The court clarified the maintainability of anticipatory bail for non-bailable offenses under the Essential Commodities Act.

( 1 ) THIS is an application filed u/s. 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) and (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 pro forma have been received by the transporter. He refers to those receipts which have been filed as annexures-A-1 and 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 ball 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 u/s. 438, Cr. P. C. 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 10-A of the Act was inserted by the Amendment Act No. 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. 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 issuedto 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