HARIOM Vs. STATE OF M P

JUDGEMENT

(1.) By thi.s application filed under Section 438 of the Cr.PC, the applicant Hariom s/o Radhcshyamji 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. liven if the prosecution allegations arc 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 rale 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.PC 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 lo know about the provisions and the interpretation and hence, allowed the anticipatory application in the matter of Dinesh Kumar Dubey and another Vs. Stale of M.P. and others, 2001 CrLJ 1306. Counsel has prayed for grant of anticipatory bail. Fie has also relied on Uday Bhan Singh Vs. State of M.P.,2006 1 EFR 119.

(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 period of 15 years after the Third Amendment and the offence is "cognizable" and there is no indication that it is non-bailable. I lence, 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 Hssential Commodities Act is permissible 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.