The main legal point established in the judgment is the interpretation of the bailability of offences under the Essential Commodities Act, 1955, and the grant of anticipatory bail based on the court's interpretation of the legal provisions.

JUDGMENT :

S.A. Dharmadhikari, J.

1. Heard, learned counsel for the parties.

2. Case diary perused.

3. This is the first application under Section 438 of the Code of Criminal Procedure filed for grant of anticipatory bail.

4. Applicant apprehends arrest in connection with Crime No. 366/2020 registered at Police Station Indargarh, District Datia for the offences punishable under Sections 3 & 7 of Essential Commodities Act, 1955.

5. The allegation against the applicant, in short, is that on 14.12.2020 at about 13 hours when the Food Inspector inspected the shop of the present applicant, he was present and on conducting the inquiry, it was found that the stock of 6272 Kg. Wheat, 14512 Kg. Rice, 204 Kg. Salt, 7 Kg. Sugar and 129 Kg. Gram was found short, which amounts to Rs. 3,19,580/-. On the basis of the aforesaid, crime has been registered.

6. Learned counsel for the applicant has placed reliance upon the judgment dated 07.05.2015 passed in M.Cr.C. No. 2914/2015 (Santosh Sahare Vs. State of M.P.) by the Coordinate Bench of this Court, wherein under similar circumstances it has been held as under:-

"5. Learned Panel Lawyer for the State opposes the aforesaid submission on the ground that there is prima-facie evidence available against the applicant and prays for dismissing the same.

6. Firstly, I would like to reproduce the relevant provision of Act of 1955 to clear the position as to whether offence under section 3/7 of Essential Commodities Act, 1955 is bailable or non-bailable.

7. Section 10(A) of the Act of 1955 reads as under:-"Offence to be cognizable and bailable notwithstanding anything contained in the Code of Criminal Procedure, 1973 every offence punishable under the Act shall be 'cognizable' "(xxx)2.

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8. From the bare perusal of aforesaid section it appears that by the Essential Commodities (Special Provision) Act-1981 Section 10(A) 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 5 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 5 years, period of 10 years was substituted. Thereafter by Third Amendment, the said period of continuance was made to 15 years. After expiry of 15 years no amendment Act was brought into force but certain ordinance were issued. The last ordinance was issued in the year 1988, which lost its life and efficacy by lapse of time. Thereafter no Act or ordinance has been issued to continue the Provisions of 1981 Act.

9. When 1981 Act has lost its life, then any amendment incorporated by the said Act which was to remain in force for a period of 5,10 or 15 years would come to an end and additional words 'and non-bailable' shall become 'non-est' and 'otiose' Section 10(A) without the said amendment shall now be read as "notwithstanding anything contained in the Code of Criminal Procedure- 1973, every offence punishable under the Act shall be cognizable"

10. In view of the above legal provisions, the offence is not non-bailable. Cognizance of such an offence can be taken but in the absence of any other provision showing the offence to be non-bailable, The offence would continue to be bailable in view of schedule II of the Code of Criminal Procedure, 1973.

11. Therefore, as the offence is bailable, an application under section 438 of Cr.P.C. would not be maintainable. However, keeping in view the relevant provision as well as the possibility of the non- awareness of the relevant provisions of Act of 1955 and amended Act, 1981