Not all offences under Essential Commodities Act are bailable: Madhya Pradesh High Court

The Madhya Pradesh High Court recently clarified that not all offences under the Essential Commodities (EC) Act are bailable offences [Anuj Sharma v State]..Justice Atul Sreedharan said that only those offences which are punishable with imprisonment of less than 3 years are bailable. Further, an anticipatory bail plea would not lie in case of such bailable offences, the High Court Court said."Only the offences arising from violation of clause (h)(i) of sub-section 2 of Section 3 which provides for maximum sentence of one year under Section 7 of the EC Act are bailable. Also any other offence under the Essential Commodities Act which may provide for maximum sentence which is less than 3 years shall also be bailable. All other offences which provide maximum sentence of more than 3 years are non-bailable," the Court observed. The Court, therefore, rejected an argument that all offences under the EC Act were bailable as per Section 10A of the Act. The Court made the observation while dismissing a plea for anticipatory bail moved by the manager of a Fair Price Shop, who had been booked under Sections 3 and 7 of EC Act..The Court recounted that Section 10A of the EC Act, as it originally stood in 1967, made all offences "cognizable and bailable." However, the provision was revised in 1974, when the Legislature "consciously omitted the phrase 'and bailable'", perhaps on account of rampant black marketing prevailing at the time. In 1981, the words "non-bailable" were inserted. By another amendment in 1993, the effect of the 1981 amendment was to be taken away after 15 years. As on date, Section 10A only provides for offences to be "cognizable", the Court noted. The Court proceeded to surmise that law-makers had consciously chosen not to reinsert that the offences were "bailable" in the said provision. This meant that not all offences under the EC Act are bailable, the Court explained. "If it was the legislative intent to make all offenses bailable under the Essential Commodities Act, nothing prevented the Legislature which had earlier inserted the phrase "and non-bailable" which stood automatically deleted after a passage of 15 years, to specifically insert in Section 10A that the offences were to be cognizable and bailable," the Court said..Non-inclusion of the term "bailable" cannot be looked upon as a mere incident of casus omissus or an inadvertent omission on the part of draftsman to include the said phrase in Section 10A, the Court added. Rather, it was a conscious stand of the Legislature that all offences under the EC Act should not understood as bailable offences, the Court said..The Court observed further that when Section 10A is read with the penalties provided under Section 7, it becomes clear as to why the legislature did not insert the term "bailable" in Section 10A. The Courts are required to assess whether the act of the accused violated Section 3(2)(h)(i), in which case, as per Schedule l of the CrPC, the same would be bailable, the Judge explained."However, if the violation of the order under the EC Act was for any other clause of Section 3(2), the same under Schedule Il [I] of the Cr.P.C would be a non- bailable offences," the Bench added..The Court also relied upon the judgment Santosh Saharae v State of MP and a Gauhati High Court judgment to add that it would be the facts of an individual case that would disclose whether the offence alleged against accused under the EC Act is bailable or non-bailable..The Court further noted that it is necessary to ascertain if the alleged offence is bailable or non-bailable, as provided under Section 7 of the EC Act, to determine whether an accused can be granted anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC). .It is only when the alleged offence is punishable with jail time up to 7 years that the Court can consider an anticipatory bail application under Section 438, CrPC "as the said offence would be non-bailable in light of the ... schedule to the CrPC", the Court said. Where an offence is only punishable with a sentence of less that 3 years' imprisonment, the same would be a bailable offence under the schedule of the CrPC, due to which an application for anticipatory bail cannot be considered, the Court added. .In the case at hand, the Court noted that accused had been accused of offences under Section 3(2)(e) (Central government may order withholding from sale of any essential commodity ordinarily kept for sale) and Section 3(2)(f) (Central government may pass order requiring any person holding in stock, or engaged in the production, or in the business of buying or selling, of any essential commodity to sell whole or part of commodity) of the EC Act.Since the offences alleged were bailable, it dismissed the anticipatory bail plea..The applicant was represented by advocate Sanjay Bahirani while the State was represented by Public Prosecutor Naval Gupta..[Read Order]