Basant Kumar v. State of U.P. . and Another

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11770 of 2023 Applicant :- Basant Kumar Opposite Party :- State Of U.P. . And Another Counsel for Applicant :- Amit Kumar Malviya,Brij Bhushan Upadhyay,Rishi Kesh Malviya Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1Heard learned counsel for the applicant as well as the learned AGA and perused the material available on record.

¶2The instant anticipatory bail application has been filed on behalf of the applicant Basant Kumar with a prayer to release him on anticipatory bail in Case Crime No. 598 of 2023, under Section 3/7 Essential Commodities Act, 1955, Police Station - Kasganj, District - Kasganj.

¶3At the very outset, it is to be clarified that offence under Section 3/7 of Essential Commodities Act is a bailable offence.

¶4By virtue of Act No.18 of 1981, as amended by Act No.34 of 1993, the words "and non-bailable" were inserted after the word "cognizable" and such arrangement was made for a period of 15 years, but now the same has ceased to have any effect. It is clarified that the special provisions under the Act No.18 of 1981 came into force w.e.f. 1.9.1982 initially for a period of 5 years and were extended for further period of 5 years and thereafter from 1992 to 1997 and as such special provisions were enforced till

13.8.1997. Subsequently, the Essential Commodities Amendment Ordinance, 1998 (Central Amendment Ordinance 13 of 1998) was promulgated by the President, but with the passage of time, it was lapsed since no enactment came into force to replace the Ordinance and that is why Special Provisions remained in force only till 8.7.1998. It is pertinent to mention here that the Essential Commodities (Special Provisions) Act, 1981 ceased to have effect on the expiry of 15 years from the date of commencement of this Act whereby in Section 10-A of the Principal Act, after the word "cognizable" the words "and non-bailable" were inserted.

¶5Resultantly, now the offence under Section 3/7 Essential Commodities Act is cognizable, but bailable as such and, therefore, the Application under section 438 Cr.P.C. for grant of anticipatory bail under this Section is not maintainable. It is pertinent to mention here that there is a specific provision under section 438 Cr.P.C. (U.P. Amendment) wherein it is provided that where any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session.

¶6This being the legal position, the present anticipatory bail application under section 438 Cr.P.C. is not maintainable as such and is disposed of accordingly. Order Date :- 28.10.2023 Shivangi High Court of Judicature at Allahabad