KARAMCHAND Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This application under Section 438 of the Code of Criminal Procedure for release of the applicants on bail in the event of their arrest has been made in these circumstances : A Truck No. B.H.V. 7680 loaded with rice bags was found on way between Pathalgaon and Jashpurnagar in Raigarh district. The Additional Superintendent of Police stopped that truck, checked it and found that the rice was being transported for sale but without selling to the Purchase Officer the requisite quantity of rice in accordance with Cl.3 of the Madhya Pradesh Rice Procurement (Levy) Order, 1960. The truck was seized. The driver and the cleaner were arrested. Chetandas, the applicant No.2, is a licensed dealer in foodgrain. Rice was being sent to Jashpurnagar. After seizure, he applied for placing the rice under his Suprudnama and that was done. The driver and the Khalasi working on the truck have been released on bail. The applicants could not be arrested and it is the allegation against Karamchand that he has been avoiding his arrest. His application for his release on bail in the event of arrest has been rejected by the Additional Sessions Judge, Raigarh on a finding that prima facie there appears to be breach under S.3/7 of the Essential Commodities Act, 1955. Now, it is Karamchand and Chetandas who have applied for their release on bail in the event of their arrest.

(2.) By this application, it was not disputed that the M.P. Rice Procurement (Levy) Order, 1960 is in force in District Raigarh where the rice was seized. 'Rice' under Cl.2(f) of the Levy Order is defined to mean any variety of rice produced or manufactured in a rice mill worked by power. Cl.3 of the order requires that every licensed miller and licensed dealer shall sell to the Purchase Officer at the controlled price certain quantity of rice held in stock by him. Any breach under this order is punishable under the Essential Commodities Act, 1955. The Parliament has now enacted the Essential Commodities (Special Provisions) Act, 1981 (Act No.18 of 1981) with a view to make special provision by way of amendment to the Essential Commodities Act, 1955, for a temporary period for dealing more effectively with persons indulging in hoarding and blackmarketing of, and profiteering in essential commodities and with the evil of vicious inflationary prices or any matter connected therewith or incidental thereto. S.12 of the Essential Commodities Act has been omitted and instead new Sections 12-A, 12-AA, 12-AB and 12-AC have been substituted. Special Courts have been constituted to try the offences under the Essential Commodities Act. It will be useful to reproduce Section 12-AA and its relevant clauses which are as follows :-

(3.) The effect of the aforesaid provisions is the change of forum by constituting Special Courts for trial of certain offence punishable under S.3/7 of the Essential Commodities Act. The Special Courts are authorised to exercise the same power which the Magistrate has under S.167, Cri. P.C. in relation to an accused person who has been forwarded to him by the Executive Magistrate. Clause (d) of Section 12-AA(1) authorises the Special Courts or the High Court to release on bail a person accused or suspected for commission of offence under the Act. The Special Court, however, has to give an opportunity to the prosecution to oppose the application for release on bail unless in its opinion it is not practicable to give such opportunity. Apart from the class of persons mentioned in proviso to sub-clause (ii) of clause (d), when the application for release on bail is opposed by the prosecution, the Special Court shall not release on bail any person accused of offence under the Act if it is satisfied that there appears reasonable ground for believing that he has been guilty of the offence alleged. It was argued and in my opinion rightly that even so bail may be granted in spite of opposition where prima facie there appears to be no case against the accused. This argument finds support from a decision of this Court, in Gulabchand Kannoolal v. State of M.P., 1982 MPLJ 7 and must be accepted. In that case a somewhat similar provision contained in Section 5(2) of the Madhya Pradesh Dacoity Prabhavit Kshetra Adhyadesh, 1981 came for consideration. The provision was that notwithstanding anything contained in Criminal Procedure Code, no application for bail of a dacoit shall be allowed, if opposed by the police or by the prosecution, Construing that provision, the Full Bench ruled that a person arrested for dacoity or for specified offence under the Ordinance can apply for bail in spite of Section 5(2) at the stage immediately after his arrest the ground that there was no reasonable suspicion of his being concerned in such offence; at the stage after twentyfour hours of his arrest and during investigation on the ground that there are no grounds that the accusation or information against him is well founded; and at the stage after the investigation is complete on the ground that there is no sufficient evidence or prima facie proof against him in support of the accusation. See also Badri Prosad v. State, AIR 1953 Cal 28 and Abbas Ali v. State of M.P. M.Cr.C. No.1004 of 1975 decided on the 20th Aug 1975 : 1975 MPLJ (SN) 109. Following that decision, it must be held that bail may be granted to a person accused of offence punishable under Section 3/7 of the Essential Commodities Act, even if opposed when there appears no sufficient evidence or prima facie proof in support of the accusation.