The determination of bailability of an offence under the Essential Commodities Act, 1955 depends on the quantum of punishment provided under the Act and the provisions of the Code of Criminal Procedure, 1973.

1. This is a petition under S. 438, Cr. P.C. filed by the accused petitioner, seeking grant of anticipatory bail in a case bearing FIR No. 189 dated 14-10-2000 under S. 7 of the Essential Commodities Act, 1955 (hereinafter referred to as Act), recorded in PS Sadar, Panipat.

2. At the outset the question arose as to whether the offence under S. 7 of the Act is bailable or non-bailable. Hence the learned counsel for the parties were directed to address their arguments on this question.

3. After hearing the counsel for the parties and after perusing the record, it transpires that S. 7 of the Act, as it stood prior to the amendment of the said Act by virtue of the Essential Commodities (Special Provisions) Act, 1981, would be relevant in this regard. It transpired that under S. 10-A of the Act, as it stood prior to 1981 amendment, every offence punishable under the said Act was cognizable. Subsequently, by virtue of 1981 Amendment Act, the words "and non-bailable" were inserted. Initially, this was done for a period of 5 years from the date of commencement of 1981 Amendment Act (1st September, 1982). Later on, this period of 5 years was enhanced to 10 years. Later on this period was extended to 15 years. After the expiry of the said period of 15 years, the amendments which were introduced by way of 1981 amendment Act, ceased to exist. The Essential Commodities (Special Provisions) Ordinance, 1997, was promulgated by the President of India on 3rd October, 1997, whereby the Essential Commodities Act, 1955 was amended. However, no Act was passed by the Parliament in this regard. Subsequently, 2 more Ordinances were promulgated by the President of India in the year 1998, amending the Essential Commodities Act, 1955 . Even amendment bill was also introduced in the Parliament. However, no Act was passed by the Parliament, amending the Essential Commodities Act, 1955 . In this manner, the Ordinances promulgated in the years 1997 and 1998 lapsed in due course of time. The resultant effect is that the provisions of S. 7 of the Act, which existed prior to 1981 Amendment Act, would be applicable to the present case.

4. As referred to above, prior to 1981, every offence under the said Act was cognizable, as provided expired, it would be clear that the words "and non-bailable" cannot be read in S. 10-A of the Act, with regard to the offence which had taken place after the expiry of the period of 1981 Amendment Act (as extended from time to time) and after the period when the 1997 and 1998 Ordinances had lapsed. The net result would be that with regard to the offences committed after the expiry of the said period, the words "and non-bailable" could not be read in S. 10-A of the Act. Once it is found that the words "and non-bailable" had been omitted in S. 10-A of the Act, that by itself would not be sufficient to hold that all the offences under the Act had become bailable. The Essential Commodities Act, 1955 ,as it exists after the expiry of period of 1981 Amendment Act (as amended from time to time) and after the lapse of 1997 and 1998 Ordinances, is thus silent as to whether the offences under the said Act are bailable or non-bailable. In that eventuality, we have to fall back upon the provisions of Code of Criminal Procedure, 1973. In Schedule II of the Code of Criminal Procedure, 1973, it is provided that with regard to the offences against other laws (other than Indian Penal Code), if the offence is punishable with imprisonment for less than 3 years or with fine, the offence would be bailable and if the offence is punishable with imprisonment for 3 years and above, the offence would be non-bailable. Since the Essential Commodities Act does not specify as to whether the offence is bailable or non-bailable, the above said provisions of Code of Criminal Procedure would apply.

5. In view of the above, the question as to whether the offence is bailable or non-bailable, would depend upon the quantum of punishment provided under the said