JUDGMENT :

1. Heard Sri Anil Pratap Singh Raghav, 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-Unish Khan seeking anticipatory bail in Case Crime no. 0979 of 2022, under Sections 3/7 of Essential Commodities Act, 1955, P.S. Khurja Nagar, District Bulandshahr.

3. As per prosecution case, on the basis of a confidential information about black marketing of grains by the fair price shop licensee, the sub-inspector from local police station along with Regional Food Officer reached the shop of the present applicant but it was found closed; after several failed attempts to contact the shop owner; the shop was sealed. On 30.09.2022, the team constituted by the A.D.M. inspected the shop in presence of the licensee/shop owner and the witnesses; 12 gunny bags of wheat and 6 gunny bags of rice were found less than the stock. On the basis of this, FIR Case Crime No. 0979 of 2022, under Sections 3/7 of Essential Commodities Act, 1955 was lodged and was investigated upon.

4. It is contended on behalf of the applicant that the applicant is innocent and is not involved in any kind of black marketing; the case against him is registered without any basis at the initiative of a political party; the applicant has no criminal antecedents and that he is ready to abide by the conditions which may be imposed by the court.

5. Besides opposing the anticipatory bail application on merits, it is opposed on the ground 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 therefore 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. I went through the judgment of the Allahabad High Court. 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. The Allahabad High Court held as below:-

"The above legal position is not clear to most of the Investigating Officers and the courts below and therefore, the bail application of the accused persons in such cases are rejected by the Magistrate and the special courts, treating the offences to be non-bailable."

6. The relevant para of the pronouncement of the M.P. High Court as quoted in the Allahabad High Court's judgment is reproduced here again:-

"It appears that by the Essential Commodities (Special Provisions) Act, 1981 Section 10A 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 five 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 five years period of 10 years was substituted. Thereafter by Third Amendment, the said period of continuance was made for fifteen years. After expiry of fifteen years no amendment Act was brought into force but certain ordinances were issued. The last of the ordinance was issued in the year 1988, which lost its life and efficacy by lapse of time, thereafter no Act or ordinances have been issued to continue the provisions of 1981 Act. Learned counsel for the State was given opportunity to go through the provisions of law and report to the Court as to whether after 1988 any further Act has been brought in existence or any other ordinance was issued to continue the effect of 1981 Act. Learned counsel for the State submits that despite his best efforts he could not fin