A.F.R.

Court No. - 85

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/

S 438 CR.P.C. No. - 12494 of 2022

Applicant :- Unish Khan

Opposite Party :- State Of U.P And Another

Counsel for Applicant :- Anil Pratap Singh Raghav

Counsel for Opposite Party :- G.A.

Hon'ble Mrs. Jyotsna Sharma,J.

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

1

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 provis