Ujjal Bhuyan, J.

We have heard Mr. N. Dutta, learned Senior counsel assisted by Ms. T. Som, learned counsel for the petitioner and Mr. P.P. Baruah, learned Public Prosecutor, Assam. We have also heard Mr. G.N. Sahewalla, learned Senior counsel who has assisted the Court as the amicus curiae.

2. This anticipatory bail application is before us as per order of Hon’ble the Chief Justice dated 21-07-2017 on the administrative side following an order passed by the learned Single Judge in the present application on 17-07-2017.

3. Submissions made by learned counsel at the Bar have received the due consideration of the Court.

4. Before we advert to the referral order, it would be apposite to briefly narrate the facts of the case.

5. Facts of the case :

Petitioner claims to be a businessman of Barpeta. A first information was lodged before the Officer-in-Charge, CID Police Station, Assam by one Shri Nirmal Baishya, APS, Additional Superintendent of Police, CID, Assam on 07-12-2012 stating that on the basis of specific source information, two trucks were intercepted on NH 37 at Amingaon, Guwahati on 07-12-2012 at about 7 AM. On search of the two trucks, 60 bags of rice of 50 kg each, total 120 bags, were recovered. It was suspected that the rice was meant for public distribution. On demand, the two drivers, Md. Rafiqul Islam and Md. Miahsan Ali, produced two road challans showing 17 quintals of Ijong rice in each challan in the name of M/S Das & Singha Wholesellers of Barpeta. On further examination of the drivers, it revealed that the consignment was owned by the petitioner and was loaded at Patbausi, Barpeta as per instruction of the petitioner for delivery to a godown at Khanapara owned by one Shri Kamal Bhatera. It was stated that petitioner, Shri Kamal Bhatera and such other persons used to collect rice meant for public distribution at Government subsidized rate and sell the same in the open market for wrongful gain, thereby depriving eligible consumers from availing subsidized rice under the public distribution system (PDS). 06. The first information was treated as FIR and on the basis of the same, CID PS Case No. 96/2012 u/s 7(1) of the Essential Commodities Act, 1955 was registered.

7. Petitioner had approached this Court for the pre-arrest bail on three occasions earlier. Each time the anticipatory bail applications were rejected. The present application is the fourth anticipatory bail application filed by the petitioner. This time it is specifically pleaded that offences under the Essential Commodities Act, 1955 (briefly “the EC Act” hereinafter) are bailable. In this connection, petitioner has relied upon a decision of the Madhya Pradesh High Court in the case of Santosh Sahare Vs State of MP, Miscellaneous Criminal Case No. 2914/2015 decided on 07-05-2015.

8. On 16-06-2017, when the present anticipatory bail application was moved, learned Single Judge requested Mr. Sahewalla, learned Senior counsel, who was present in the Court, to examine as to whether an offence under Section 7 of the EC Act is bailable. On the next date i.e., on 19-06-2017, Mr. Sahewalla was requested to act as the amicus curie. Following a detailed hearing, the reference order was passed by the learned Single Judge on 17-07-2017.

9. Referral order:

Learned Single Judge in the order dated 17-07-2017 referred to an order dated 02-02-2016 passed by a Single Bench of this Court in AB No. 166/2016 (Hekmat Ali -Vs- State of Assam) and the related order dated 05-02-2016 passed in an interlocutory application IA No. 469/2016.

10. AB No.166/2016 was filed by the petitioner of that case seeking pre-arrest bail in connection with a police case which was registered under Section 7 of the EC Act. The anticipatory bail application was disposed of by order dated 02-02-2016 by holding the same to be not maintainable as the offence under Section 7 of the EC Act was “not” a bailable one.

11. Subsequently, an interlocutory application was filed by the petitioner of A