ORDER

This is an application filed under section 438 of Cr.P.C in crime no.612/2023 under section 3 and 7 of Essential Commodities Act and 7 and 8 of Fertilizers (control) Order, registered at police station Kanwar District Dhar.

2. As per prosecution story, complaint has been lodged by Fertilizer Inspector / Senior Agriculture Development Officer (hereinafter referred to as ‘SADO’) about transport of urea in an Eicher truck. As per the information given by a tipster/informer, the said truck was stopped and it was found that there is urea in it. When asked about it, the driver-Umesh s/o Manoharlal Vyas failed to show any bill or bilty for the said urea and its transport. He further said that truck is of his own ownership. He said that he was contacted & instructed on phone by Mayank Jain to transport this urea to Labriya. The said SADO has formed an opinion that it appears that this is a case of black-marketing of urea.

On the above allegation the said FIR has been registered, and the allegation are made with respect to the provisions of Section 3 & 7 of The Essential Commodities Act, 1955 r/w Rule 5, 7,8 & 35 of The Fertilizer (Control) Order, 1985; and, Rule 3 & 4 of The Fertilizer (Movement Control) Order, 1973.

3. Learned counsel for the applicant submits that there was a confusion in regard to the maintainability of the application under section 438 of Cr.P.C in respect of alleged offence. However, the provisions have been interpreted by co-ordinate bench of this court in its order dated 07.05.2015 passed in M.Cr.C No.2914/2015 (Santosh Vs. State of MP). The relevant part of the said order reads 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.

(xxx)2 - अधिनयम 92 सन 1976 ारा दस वष के लए तत्पश्चात अधिनयम 18 सन 1981 ारा (िद 1-9-1982 से )दस के स्थान पर पन्ह वष के लए शब्द **और अजमानतीय** स्थािपत िकये गए थे। िद 31-8-1997 को पन्ह वष पूण हो जाने के कारण धारा अपने मूल प म स्थािपत।**

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, t