This case revolves around a businessman and his attempts of getting a pre-arrest bail which was previously rejected three times. The case brings on a debate regarding Section 7 of the Essential Commodities Act. The faith of a person depending upon a Section that has been gone through several amendments.
The case study is based on judgments given by the High Court of Gauhati that bring forth that an offense committed under Section 7(1) of essential commodities Act 1955 is a bailable offence.
In the High Court of Gauhati
|Case name||Jayanta Kr. Das v. State of Assam|
|Citation||A.B. No. 1205 of 2017|
|Year of the case||27th October 2017|
|Appellant||Shri Jayanta Kumar Das|
|Respondent||State of Assam|
|Bench||MR. JUSTICE UJJAL BHUYAN MR. JUSTICE PARAN KUMAR PHUKAN|
|Important Provisions||Section 7(1) of the Essential Commodities Act, 1955, Section 10A in The Essential Commodities Act, 1955|
How mistakes and amendments led to delay in a person’s bail plea is what is illustrated with this case study. Jayanta Kumar Das whose plea for pre-arrest bail was denied three-time finally get it in his fourth attempt. His two trucks full of rice were caught on the highway and It was alleged that the rice was predestined for public distribution and he has bought it on a subsidized rate and was planning to sell it for his financial gain.Several cases were taken into account before taking the judgement on this particular case the main for cases were- Kailash Kumar Agarwalla Vs State of Assam, Hekm Ali Vs State of Assam, Purthviraj Chandrakant Shinde Vs State of Maharashtraand Usha Sinha Case.The court held that offences under the given Section are bailable.
Background of the Case
Petitioner had approached this Court for the pre-arrest bail on three occasions earlier. Each time the anticipatory bail applications were rejected. The present application is the fourth anticipatory bail application filed by the petitioner. This time it is specifically pleaded that offences under the Essential Commodities Act, 1955 (briefly “the EC Act” hereinafter) are bailable.
Facts of the Case
- The petitioner claims to be a businessman of Barpeta. The first evidence was lodged before the Officer from CID Police Station, Assam by Shri Nirmal Baishya, APS, Additional Superintendent of Police, CID, Assam on 07-12-2012 saying that on the basis of specific source information, two trucks were seized on NH 37 at Amingaon, Guwahati on 07-12-2012 at around 7 AM.
- When the search was conducted of the two trucks, 60 bags of rice of 50 kg each, were retrieved. It was alleged that the rice was predestined for public distribution.
- On command, the two drivers, Md. Rafiqul Islam and Md. Miahsan Ali, showed two road challans viewing 17 quintals of Ijong rice in each challan in the name of M/S Das & Singha Wholesalers of Barpeta.
- On further inspection of the drivers, it brings to light that the delivery was owned by the petitioner and was stocked at Patbausi, Barpeta as per the direction of the petitioner for delivery to a godown at Khanapara owned by one Shri Kamal Bhatera.
- It was specified that petitioner, Shri Kamal Bhatera and other persons used to gather rice intended for public distribution at Government-subsidized rate and sell the same in the open market for wrongful gain, thereby stingy eligible consumers from availing subsidized rice under the public distribution system (PDS).
- The first data was treated as FIR and based on the same; CID PS Case No. 96/2012 under Section 7(1) of the Essential Commodities Act, 1955 was recorded.
Are offences under Section 7 of the Essential Commodities Act, 1955 (briefly “the EC Act” hereinafter) is bailable or not?
Section 7(1) of the Essential Commodities Act, 1955: Any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the commodity shall, if the court so orders, be forfeited to the Government.
Section 10A in The Essential Commodities Act, 1955: Offences to be cognizable notwithstanding anything contained in 4[the Code of Criminal Procedure, 1973 (2 of 1974)] every offence punishable under this Act shall be cognizable.
In this case, it was contended that In the case of Hekm at Ali Vs State of Assam : An interlocutory application was filed by the petitioner of which was contending that the word “not” appearing in the order dated 02-02-2016 was due to an inadvertent typographical error; actually, the order was that the offence under Section 7 of the EC Act was bailable one. Thus another order dated 05-02-2016, the word “not” as appearing in the order dated 02-02-2016 was deleted and it was ordered that an offence under Section 7 of the EC Act was a bailable one which was directed to be read as part of the order dated 02-02-2016.
A Single Bench of this Court in Kailash Kumar Agarwalla Vs State of Assam, 2004 referred to the case of Parm asiva Pandian and held that Section 7 of the EC Act is bailable. This decision was rendered on 31-05-2004. Since then this Court had proceeded on the basis that offences under the EC Act are bailable. The Single Bench in Hekmat Ali only followed this precedent by reiterating that an offence under Section 7 of the EC Act is a bailable one.
Thus, as per order dated 02-02-2016 passed in (Hekm at Ali Vs State of Assam), as clarified by order dated 05-02-2016, an offence under Section 7 of the EC Act is a bailable one.
In the case of Purthviraj Chandrakant Shinde Vs State of Maharashtra, (2005)the Bombay High Court held that in 1981, Section 10 A of the EC Act was amended and an offence under Section 7 was made non-bailable. This amendment came into effect from 01-09-1982. Initially, it was for a period of 5 years; thereafter it was extended for another 5 years and again for a further period of 5 years, total of 15 years. However, there was no extension of the amended provision after 15 years and therefore the amendment stood deleted. This would mean that the position which existed prior to 1981 stood revived; consequently, Section 10 A would have to be read as “offences under the EC Act are cognizable“. It was held that merely because the words “non-bailable” stood deleted, it would not mean that all the offences under the EC Act would be bailable. An offence would be bailable or non-bailable as per the quantum of punishment provided under the EC Act by applying the provisions of the Code of Criminal Procedure, 1973.A similar view has taken by the Orissa High Court in the case of Usha Sinha Vs State of Orissa.
The Court observed that they are of the well-thought-out opinion that the view taken by this Court in Kailash Kumar Agarwalla and followed subsequently included in the case of Hekmat Ali is the correct clarification of the legal position vis- à-vis Sections 7 and 10 A of the EC Act. Considering the above two mentioned cases and stating it the reasons, the court is not agreeing with the opinions press out by the Bombay High Court in the case of Purthviraj Chandrakant Shinde and by the Orissa High Court in Usha Sinha.
Therefore, the court held that Section 10A of the EC Act, as it stands reinstated, makes an offence under Section 7 of the EC Act bailable.
From this case, it can be inferred that the offences under Section 7 of the Essential Commodities Act, 1955 are bailable.
Q1. What does section 10A of the EC Act states?
Q2. Are offences under Section 7 of the EC Act bailable?
Q3. What did the court state in Purthviraj Chandrakant Shinde Vs State of Maharashtra, (2005) case?
Q4. What were the bases of the judgement given in this case?