Balwant vs State of M. P. - 2001 Supreme(MP) 155

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2001 Supreme(MP) 155

2001 (2) JLJ 126
S.P. Khare, J.
Balwant v. State of M.P.
Misc. Cr. Case No. 814 of 2001; Decided on 5.3.2001.

Advocates:
Manish Datt for applicant; Ku. Alka Pandey, Govt. Advocate for State.

Headnote:(1) Essential Commodities Act, 1955 -- S. 10A (as amended in 1974) -deletion of words "and bailable" -- effect -- there remained no specific provision whether the offences under the Act were bailable or non-bailable. [Para 4
        (2) Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 --cl. 4(c) -- Essential Commodities Act, 1955 -- Ss. 3 and 7 -contravention of cl. 4(c) of the order -- is punishable with imprisonment which may extend to 7 years. [Para 4
        (3) Criminal P.C., 1973 -- First Sch. Part II -- Essential Commodities Act, 1955 -- Ss. 7(1)(a)(ii) and 7(2) -- offences under Ss. 7(1)(a)(ii) and 7(2) of the Act -- are punishable with imprisonment for 7 years -- are "non-bailable" as per First Schedule Part II of the Code. [Paras 4 & 5
        (4) Precedent -- relevant statutory provisions not considered -- decision is not precedent. Misc. Cr. Case No. 6111/99 and 2001(1) MPWN 73 dissented from. [Para 3
        (5) Precedent -- sub silentio order or assumption in disregard of clear and unambiguous statutory provision -- is not a precedent. [Para 8
        (6) Precedent -- point of law not brought to the notice of Court -- decision on question not argued -- are not precedents. Law Lexicon. 1997 Edn. 1494 and AIR 1990 SC 781 followed. [Para 9
        (7) Precedent -- failure to consider statutory provision -- Court is not bound to follow even its own decisions. (1985) 1 All ER 797 and (1944) 2 All ER 293 relied on. [Para 10
        (8) Precedent -- relevant law not considered -- decision is per incuriam. 1996 JLJ 691 relied on. [Para 10
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ORDER

1. This is an application under section 438 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as 'the Code') for anticipatory bail. It relates to Crime No. 23/2001 of Police Station Mu1tai, District Betul.

2. The case has been registered under section 7 of the Essential Commodities Act, 1955 (hereinafter to be referred to as 'the Act') for contravention of Clause 4 (c) of the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 (hereinafter to be referred to as 'the Control Order') issued under section 3 of the Act. Applicant Balwant is said to have been found selling kerosene at the rate of Rs. 8.50 per litre. According to the prosecution retail price of kerosene fixed under the Control Order was Rs. 7.90 per litre. This offence is punishable under section 7(1) (a) (ii) of the Act. The punishment provided for this offence is imprisonment which may extend to seven years.

3. The first point which has been raised on behalf of the applicant is that the offence punishable under section 7 of the Act is bailable. Reliance has been placed on the order dated 15.10.1999 (by Hon'ble Dipak Misra, J.) in M. CrC. No. 6111 of 1999 -- Nemchand Agrawal v. The State of MP and a reported decision Dinesh Kumar Dubey v. State of MP. 2001 (1) MPWN 73 = [2001 (1) MPHT 213] (by Hon'ble RS. Garg, J.). During the course of hearing two more decisions have been cited, one dated 30.12.99 (by Hon 'ble S.S. Saraf, J.) and the other dated 20.11.2000 in M. Cr. C. No. 7681/2000, (by Hon'ble S.C. Pandey, J.). These decisions have also taken the view that offence under section 7 of the Act is bailable.

4. Before considering the cases referred to above in detail, it is necessary to look at the statutory provisions. Section 10A of the Act inserted by the Amending Act (No. 36 of 1967) provided that every offence punishable under the Act shall be bailable. By the Amending Act (Act No. 30 of 1974), the words "and bailable" were deleted from section 10A of the Act. The effect of the deletion of these words from section 10A was that there remained no specific provision in the Act on the point whether the offences punishable under it are bailable or non-bailable. This attracted the applicability of Schedule First Part II "Classification of Offences Against Other Laws, CrPC." A reference to this Schedule shows that if an offence is punishable with imprisonment for three years and upwards that would be "non-bailable". If the offence is punishable with imprisonment for less than three years or with fine only it would be bailable. According to section 7(1) of the Act if any person contravenes any order made with reference to clause (h) or clause (i) of sub-section (2) of section 3, he shall be punishable with imprisonment for a term which may extend to one year and in the case of any other order with imprisonment which may extend to seven years. The contravention of clause 4 (c) of the Control Order issued under section 3 of the Act is punishable with imprisonment which may extend to seven years.

5. Then came the Essential Commodities (Special Provisions) Act, 1981 (Act No. 18 of 1981) by which the words "and non-bailable" were added in section 10A of the Act. This amendment was not a permanent feature of the Act. It was for a specified period and it was extended from time to time. The said amendment ultimately lapsed after the expiry of the period of the Essential Commodities (Amendment) Ordinance, 1998 which was promulgated on 25.4 .1998. As the amendment which was incorporated in 1981 has come to an end by efflux of time, the words "and non-bailable" in section 10A of the Act stand deleted. Therefore, section 10A as amended in 1974 will hold the field now. As already discussed, the offences under section 7(1)(a) (ii) and 7 (2) of the Act which are punishable with imprisonment for seven years are non-bailable by virtue of the provisions in First Schedule Part II of the Code.

6. Now the cases relied upon by the learned counse

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2001 Supreme(MP) 155

2001 (2) JLJ 126S.P. Khare, J.Balwant v. State of M.P.Misc. Cr. Case No. 814 of 2001; Decided on 5.3.2001.

Cases Referred (3)

Judicial Analysis

2001 (2) JLJ 126
S.P. Khare, J.
Balwant v. State of M.P.
Misc. Cr. Case No. 814 of 2001; Decided on 5.3.2001.