S.R.Waghmare, J.

( 1. ) By this application filed under Section 438 of the Cr.P.C, the applicant Hariom s/o Radheshyamji Gupta has moved the application for grant of anticipatory bail being implicated in crime No. 357/2009 registered by police station Garoth, District Mandsaur for offence under Section 3/7 of the Essential Commodities Act, 1955 ( hereinafter referred as to "the Act").

( 2. ) Counsel for the applicant has vehemently argued that the lower Court had erred in rejecting the bail application for grant of anticipatory bail to the present applicant since he was basically a businessman, a registered dealer and involved in the sale of fertilizers. Even if the prosecution allegations are considered, Counsel has stated that the present applicant being the proprietor of Annapurna Trading Company, Boliya; the offence was registered for selling the fertilizer for urea at higher rate than was permitted, according to the provisions of law. Counsel had averred that even if there was violation under Section 3 / 7 of the Act itself as alleged, this Court had considered whether the offence was bailable and the Court had held that the application for offence under Section 438 of the Cr.P.C. was maintainable since the amendment by the Act of 1988 had lost its life and efficacy by lapse of time and the police and the administration were not likely to know about the provisions and the interpretation and hence, allowed the anticipatory application in the matter of Dinesh Kumar Dubey and another vs. State ofM.P. and others {2001 Cri.L.J.1306}. Counsel has prayed for grant of anticipatory bail. He has also relied on Uday Bhan Singh vs. State of M.P. {2006(1) EFR119}.

( 3. ) Counsel for the respondent State, on the other hand, has opposed the submissions of the Counsel for the applicant and stated that the amendment was valid only for a period of 15 years after the Third Amendment and the offence is "cognizable" and there is no indication that it is non-bailable. Hence, Counsel urged that under such circumstances where no provision is made regarding the offence being bailable Schedule II of the Code of Criminal Procedure 1973 has to be seen and in case of violation of Section 7 of the Essential Commodities Act is punishable by 7 years of imprisonment then the offence would be non-bailable. And since the present applicant was selling urea at a higher rate than fixed by the State Government. Counsel has prayed for dismissal of the application.

( 4. ) At this juncture Counsel for the applicant Shri Z.A.Khan referred to a judgment of this Court in the matter of Balwant vs. State of Madhya Pradesh {2001 (3) M.P.L.J.414; whereby this Court has discussed several other cases besides Dinesh Kumar Dubey (supra), whereby the offence under Section 7 (l)(a)(ii) of the Act had been held to be "cognizable" and "bailable" and concluded that a sub-silentio order, an assumption in disregard of clear and unambiguous statutory provision is not a precedent. The Court held thus:

"(9) Where a certain point of law is not brought to the view of the Court in determining a cause, the decision is not a precedent calling for the same decision in a similar case in which the point is brought before the Court. (Law Lexicon by P.R. Aiyar edited by Justice Y.V. Chandrachud 1997 edition page 1494). In Goodyear India Ltd. vs. State of Haryana, AIR 1990 SC781, it has been observed by the Supreme Court that a decision on a question which has not been argued cannot be treated as a precedent. If an ingredient of a section was neither argued nor was considered, the passing reference based on the phraseology of the section cannot be said to be the dictum.

(10) Failure to consider a statutory provision is one of the clearest cases in which the Court is not bound to follow its own decisions. Bonalumi vs. Sectretary of State, (1985) 1 ALL ER797. In Young vs. Bristol Aeroplane Co. Ltd. (1994) 2 All ER293, it has been observed by Lord Greene. M.R.C.P.: "Where the Court has const