Dismissed

Mohammad Amin Khan v. Government of J and K and Anr. (Home Department)

J&K HC13 Jul 2021CRM(M)/197/2021

Case brief

AI extract

What is this about?

The High Court at Srinagar held that offences under the Essential Commodities Act, 1955 are neither inherently bailable nor non-bailable. The court ruled they are bailable or non-bailable depending on the quantum of punishment prescribed, applying the First Schedule Part-II of the Cr.P.C.

What did the court decide?

Petitioner directed to approach competent court for regular bail under Section 439 CrPC as the offence is non-bailable based on sentence prescribed.

Mohammad Amin Khan Vs Government of J and K and Anr. (Home… — Bail and Remand | J&K HC (2021)

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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR

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Reserved on:09.07.2021 Pronounced on: 13.07.2021

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CRM(M) No.197/2021

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CrlM No.755/2021

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Mohammad Amin Khan

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…PETITIONER(S)

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Through: Mr. Lone Altaf, Advocate.

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Vs.

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GOVT. OF J&K & ANR. ….RESPONDENT(S)

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Through: Mr. D.C.Raina, AG with Mr. Rayees-ud-Din Ganai, GA

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CORAM:HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

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JUDGMENT

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1) The petitioner, who is booked in FIR No.112/2021 under Sections 3/7 of the Essential Commodities Act, 1955 (“the Act of 1955”), is before this Court for quashing of order dated 03.07.2021 passed by the Court of Principal Sessions Judge, Ganderbal (“the trial Court”) in bail application titled Mohammad Amin Khan v. S.H.O. Police Station, Ganderbal. He invokes the inherent powers of this Court vested by Section 482 of the Code of Criminal Procedure (hereinafter “the Code”) for declaring the offences under the Act of 1955 as bailable and consequently releasing the petitioner from incarceration. Aside the merit of the contentions raised by the learned counsel for the petitioner to assail the impugned order dated

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03.07.2021, the petitioner has put entire thrust on his argument that with the cessation of the Essential Commodities (Special Provisions) Act, 1981 by efflux of time, all offences under the Act of 1955 have become bailable and, therefore, the police arresting an accused in connection with such offences is bound to release the arrestee subject to furnishing of bail bonds etc.

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2) It may be noted that as per the police report, Police Station, Ganderbal received information through reliable sources on 21.06.2021 that the petitioner, a shopkeeper at Beehama, had stored kerosene oil illegally and was selling the same to the public at large at exorbitant rates. On receipt of the information, the police registered case FIR No.112/2021 for commission of offences under Section 3/7 of the Act of 1955. The investigation was set in motion and during investigation a huge quantity of kerosene oil totalling 14960 litres was recovered from the possession of the petitioner. The seizure memo was prepared, samples were taken in presence of the Executive Magistrate, Ganderbal, sent to the FSL for opinion and statements of the witnesses under Section 161 Cr.P.C. were also recorded. The police found the offences alleged against the petitioner having been established. Apprehending his arrest, the petitioner approached the Court of learned Sessions Judge, Ganderbal under Section 438 Cr.P.C. for grant of bail in anticipation of his arrest. It appears that initially the trial Court vide its order dated 22.06.2021 granted interim anticipatory bail, but upon receipt of police report and after hearing the VINOD KUMAR prosecution, the trial Court found the application meritless and 2021.07.14 11:40 I attest to the accuracy and integrity of this document

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dismissed the same. The question as to whether the offences under the Act of 1955 were bailable or non-bailable was not gone into.

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3) From the impugned order it clearly transpires that the trial Court treated the offences under Sections 3/7 of the Act of 1955 as non-bailable and, therefore, entertained the application for bail in anticipation of arrest under Section 438 of the Code. Needless to point out that an application under Section 438 of the Code would lie only where a person apprehends his arrest on accusation of having committed a non-bailable offence. With the dismissal of anticipatory bail application by the trial Court the petitioner was arrested in the FIR. It is this order of the trial Court dated 03.07.2021 the petitioner is aggrieved of. The petitioner claims that instead of filing fresh bail plea before this Court or applying for regular bail before the Court below, the petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the code for the reason that the petitioner believes and is sure that the offences under the Act of 1955 are bailable and, therefore, it is obligatory on the police to release the petitioner form custody subject to submission of requisite bail bond/surety bond. It is in this backdrop, the petitioner also prays for issuance of general directions to all the Courts and the Police Stations that the offences under the Act of 1955 are bailable and, therefore, a person arrested, if he is ready to submit bail, he should be released forthwith.

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4) Having heard learned counsel for the parties and perused record, I am of the view that this petition raises an important question of seminal importance:

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Whether the offences punishable under the Essential Commodities Act, 1955, as it stands today, are bailable or non-bailable?

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5) Determination of this question, which turns on legislative history of the Act of 1955, as amended from time to time, would also determine the fate of the petitioner with regard to his entitlement to bail.

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6) The Essential Commodities Act, 1955 was enacted by the Parliament in the sixth year of the Republic of India with a view to provide, in the interests of the general public, for the control of the production, supply and distribution of, and trade and commerce in, certain commodities. This Act has been amended from time to time. Section 3 empowers the Central Government to issue order/orders for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices. It also provides for securing any essential commodity for the defence of India or the efficient conduct of military operations. Section 7 of the Act of 1955 lays down penalties for contravention of any order made under Section 3 of the Act of 1955. The punishment provided for contravention of the order(s) made under Section 3 varies from a sentence of one year and fine to a punishment of a sentence extending upto seven years. Section 10-A was introduced in the Act of 1955 by

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Section 9 of the Essential Commodities (Amendment) Act, 1967 [Act No.36 of 1967]. Section 10-A, as introduced by the Act No.36 of 1967, was as follows:-

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“ 10-A. Offences to be cognizable and bailable .---Notwithstanding anything contained in the Code of Criminal Procedure, 1898, every offence punishable under this Act shall be cognizable and bailable.”

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7) This position existed till the year 1974 when by virtue of Essential Commodities (Amendment) Act, 1974 (Act No.30 of 1974), Section 10-A was further amended and the words “and bailable” were omitted. With this omission by the Act No.30 of 1974, the offences punishable under the Act of 1955 became bailable or non-bailable depending on the punishment prescribed for such offence/offences. Indisputably, Section 10-A begins with non obstante clause and exclude the application of the Code of Criminal Procedure insofar as it is in conflict with the provisions of Section 10-A. Since Section 10A, as amended by the Act No.30 of 1974, did not declare or provide the offences punishable under the Act of 1955 bailable or nonbailable, Schedule-1 of the Code of Criminal Procedure became applicable and the offences punishable under the Act of 1955 became bailable or non-bailable depending upon the quantum of sentence of imprisonment prescribed by Section 7 of the Act of 1955.

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8) In the meanwhile, there was a significant development that took place with the promulgation of The Repealing and Amending Act, VINOD KUMAR 2021.07.14 11:40 I attest to the accuracy and integrity of this document

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1978 (Act No.38 of 1978). This Act was enacted to repeal certain enactments and to amend certain other enactments. As per Section 2 of the aforesaid Act, the enactments specified in the first schedule were repealed to the extent mentioned in the fourth column thereof. The first schedule, inter alia, included the Essential Commodities (Amendment) Act, 1974 and the extent of repeal was to the extent of Sections 2 to 12 and 14 thereof. It is contended on behalf of the petitioner that the amendment made to Section 10-A by Section 7 of the Act No.30 of 1974, came to be effaced with the repeal of Section 7 of the Act No.30 of 1974 and that the position of Section 10-A, as it existed prior to the amendment effected to it by Act No.30 of 1974, came to be restored and the offences punishable under the Act of 1955 became bailable. This position underwent change with the promulgation of Essential Commodities (Special Provisions) Act, 1981 [the Act No.18 of 1981] andby virtue of Section 9 thereof, the words “and non-bailable” were inserted after the word “cognizable” appearing in Section 10-A of the Act of 1955.

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9) It is true that with the coming into force of Essential Commodities (Special Provisions) Act, 1981 and with the insertion of words “and non-bailable” in Section 10-A, the offences punishable under the Act of 1955 became non-bailable, but as it is not disputed, the Act No.18 of 1981 remained in force only for a period of 15 years, to be reckoned w.e.f. 1^st September, 1982, on which date the Act No.18 of 1981 had come in force.There is no other change in Section 10-A made except the changes taken note of herein above.

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10) From the above narration, the position that emerges is as under:-

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a) That from the commencement of Essential Commodities(Second Amendment) Act, 1967 till 21.06.1974 when Essential Commodities (Amendment) Act, 1974 was promulgated, the offences punishable under Essential Commodities Act, 1955 were cognizable and bailable.

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b) That with effect from 22.06.1974 and with the omission of words “and bailable” in view of Section 7 of the Essential Commodities (Amendment) Act, 1974, the offences under Essential Commodities Act, 1955 became bailable or non-bailable depending upon the punishment prescribed for the offence i.e. if the offence committed under the Act of 1955 was punishable with imprisonment for three years but not more than seven years, it would be non-bailable and the offence punishable with imprisonment less than three years and fine only would be bailable. This was in terms of First Schedule part-II of the Code of Criminal Procedure.

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c) By “Repealing and Amending Act, 1978”, Essential Commodities (Amendment) Act, 1974 to the extent of Sections 2 to 12 and 14 came to be repealed.

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d) With effect from 01.09.1982 i.e. when Essential Commodities (Special Provisions) Act, 1981 came in force till 01.09.1997 i.e. the expiry of fifteen years of its commencement, the offences punishable under the Act of 1955 were “non-bailable” irrespective of the punishment prescribed.

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11) What happened after the Essential Commodities (Special Provisions) Act ceased to be in operation; whether Section 10A of the Act of 1955 got restored to position where it was “cognizable and bailable” or where it was only “cognizable” is a question that seeks determination in this petition.

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12) So far as the effect of “Repealing and Amending Act, 1978” on the amendments effected to Section 10-A of the Act of 1955 is concerned, it is argued that the Repealing Act had repealed only Sections 2 to 12 and 14 of the Essential Commodities (Amendment) Act, 1974 and not the entire Act and, therefore, to understand the impact and effect of the Repealing and Amending Act, 1978, the provisions of Section 6-A of the General Clauses Act could not be pressed into service. It is contended that repeal as above, did not affect the Act of 1955, as it stood prior to 22.06.1974. It is, thus, urged that Section 10-A of the Act of 1955, as it stood prior to coming into force of the Essential Commodities (Amendment) Act, 1974, stood revived and, therefore, the offences punishable under the Essential Commodities Act as on date shall be “cognizable and bailable”.

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Strong reliance has been placed by the learned counsel for the petitioner on the judgment of a Division Bench of the Guwahati High Court in the case of Shri Jayanta Kumar Das v. State of Assam [AB No.1205/2017] decided on 27.10.2017 in which the Division Bench of the Guwahati High Court declined to follow the view taken by the Bombay High Court in the case of Purthviraj Chandrakant Shinde v. State of Maharashtra, (2005) 5 Bom CR 889 and the Orissa High Court in the case of Usha Sinha v. State of Orissa (2002) 1 OLR 262 on the ground that in both the judgments, the “Repealing and Amending Act, 1978”had not been brought to the notice of their lordships. The Division Bench of the Guwahati High Court in the case (supra) has also discussed the scope of Section 6 of the General Clauses Act, 1897 and the effect of repeal of Section 7 and few other Sections of the Essential Commodities (Amendment) Act, 1974.

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13) I have thoroughly gone through the judgment of the Guwahati High Court but I regret my inability to follow the ratio laid down in the aforesaid judgment. The object and effect of Repealing and Amending Act on the parent Act amended by a subsequently repealed Act has been discussed by Hon’ble the Supreme Court elaborately in the case of JethanandBetab v. State of Delhi, AIR 1960 SC 89. Hon’ble JusticeK. Subba Rao, as he then was, speaking for the Court and dealing with a case of similar nature, held the provisions of Section 6A of the General Clauses Act, 1897 applicable to the VINOD KUMAR “Repealing and Amending Act” of the Parliament. It may be noted 2021.07.14 11:40 I attest to the accuracy and integrity of this document

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that in Jethanand’s case (supra), the parent Act i.e. the Indian Wireless Telegraphy Act, 1933 came to be amended by the Indian Wireless Telegraphy (Amendment) Act, 1949and in Section 6 of the parent Act of 1933, Sub-Section (1A) came to be inserted. Subsequently by “Repealing and Amending Act, 1952”, the Indian Telegraphy (Amendment) Act, 1949, as a whole, was repealed. Section 4 of the “Repealing and Amending Act of 1952” provided that the repeal by the Act of 1952 shall not affect any other enactment in which the repealing enactment has been applied, incorporated or referred to. Before their Lordships, the question that arose for determination was; “whether with the repeal of Indian Wireless Telegraphy (Amendment) Act, 1949, Sub Section (1A) added in Section 6 of the Act of 1933 (the original Act) also stood repealed/effaced?

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14) Their lordships after holding discussion and placing strong reliance on Section 6A of the General Clauses Act, in paragraph No.6, 7, 8, 9 and 11 held thus:-

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“6. The general object of a repealing and amending Act is stated in Halsbury's Laws of England, 2nd Edition, Vol. 31, at p. 563, thus:

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"A statute Law Revision Act does not alter the law, but simply strikes out certain enactments which have become unnecessary. It invariably contains elaborate provisos." In KhudaBux v. Manager, Caledonian Press (1) A.I.R. 1954 Cal. 484, Chakravartti, C.J., neatly brings out the purpose and scope of such Acts. The learned Chief Justice says at p. 486:

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" Such Acts have no Legislative effect, but are designed for editorial revision, being intended only to excise dead matter from the statute book and to reduce its volume. Mostly, they expurgate amending

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Acts, because having imparted the amendments to the main Acts, those Acts have served their purpose and have no further reason for their existence. At times inconsistencies are also removed by repealing and 'amending Acts. The only object of such Acts, which in England are called Statute Law Revision Acts, is legislative spring-cleaning and they are not intended to make any change in the law. Even so, they are guarded by saving clauses drawn with elaborate care,. . .".

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It is, therefore, clear that the main object of the 1952 Act was only to strike out the unnecessary Acts and excise dead matter from the statute book in order to lighten the burden of everincreasing spate of legislation and to remove confusion from the public mind. The object of the Repealing and Amending Act of 1952 was only to expurgate the amending Act of 1949, along with similar Acts, which had served its purpose.

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The next question is whether S. 4 of the Act of 1952 saved the operation of the amendments that had been inserted in the Act of 1933 by the repealed Act. The relevant part of S. 4 only saved other enactments in which the repealed enactments have been applied, incorporated or referred to. Can it be said that the amendments are covered by the language of the crucial words in S. 4 of the Act of 1952, namely, applied, incorporated or referred to". We think not. Section 4 of the said Act is designed to provide for a different situation, namely, the repeal of an earlier Act which has been applied, incorporated or referred to in a later Act. Under hat section the repeal of the earlier Act does not affect the subsequent Act. The said principle has been succinctly stated in Maxwell on Interpretation of Statutes, 10th Edition, page 406:

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“Where the provisions of one statute are, by reference, incorporated in another and the earlier statute is afterwards repealed the provisions so incorporated obviously continue in force so far as they form part of the second enactment."

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So too, in Craies on Statute Law, 3rd Edition, the same idea is expressed in the following words, at p. 349:

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" Sometimes an Act of Parliament, instead of expressly repeating the words of a section contained in a former Act, merely refers to it, and by relation applies its provisions to some new state of things created by the subsequent Act. In such a case the is rule of construction is that where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third does not affect the second ".

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The Judicial Committee in Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society, Ltd. (1) endorsed the said principle and restated the same, at p. 267, thus:

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" This doctrine finds expression in a common-form section which regularly appears in the amending and repealing Acts which are passed from time to time in India. The section runs: " The repeal by this Act of any enactment shall not affect any Act.............. in which such enactment has been applied, incorporated or referred to." The independent existence of the two Acts is therefore recognized; despite the death of the parent Act, its offspring survives in the incorporating Act. Though no such saving clause appears in the General Clauses Act, their Lordships think that the principle involved is as applicable in India as it is in this country."

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It is, therefore, manifest that S.4 of the 1952 Act has no application to a case of a later amending Act inserting new provisions in an earlier Act, for, where an earlier Act is amended by a later Act, it cannot be said that the earlier Act applies, incorporates or refers to the amending Act. The earlier Act cannot incorporate the later Act, but can only be amended by it. We cannot, therefore, agree with the view expressed by the Punjab High Court in Mohinder Singh v. Mst. Harbhajan Kaur ILR (1955) Punj 625 ((S) AIR 1955 Punj 141) and in Darbara Singh v. ShrimatiKarnail Kaur 61 Pun LR 702 that S.4 of the Repealing and Amending Act of 1952 applies to a case of repeal of an amending Act.

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This legal position does not really help the appellant, for the case on hand directly falls within the four corners of s. 6-A of the General Clauses Act, 1897 (X of 1897). - The above section reads:

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"Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal."

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As, by the amending Act of 1949, the text of the Act XVII of 1933, was amended by the insertion of 6 (1A) therein, the repeal of the amending Act by the 1952 Act did not affect the continuance of the amendment made by the enactment so repealed. It is said that for the application of s. 6-A of the General Clauses Act, the text of any enactment should have been amended; but in the present case the insertion of S. 6 (1-A) was not a textual amendment but a substantial one. The text of an enactment, the argument proceeds, is the phraseology or the terminology used in the Act, but not the content of that Act. This argument, if we may say so, is more subtle than sound. The word " text ", in its dictionary meaning, means " subject or theme ". When an enactment amends the text of another, it amends the subject or theme of it, though sometimes it may expunge unnecessary words without altering the subject. We must, therefore, hold that the word " text " is comprehensive enough to take in the subject as well as the terminology used in a statute.

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Another escape from the operation of S. 6-A of the General Clauses Act is sought to be effected on the basis of the words " unless a different intention appears ". The repealing Act does not indicate any intention different from that envisaged by the said section. Indeed, the object of the said Act is not to give it any legislative effect but to excise dead matter from the statute book. The learned Counsel placed before us the historical background of the amending Act with a view to establish that the intention of the legislature in passing the said Act was to expurgate s. 6 (1 -A) from the statute as it was redundant and unnecessary. It is said that the Indian Telegraph Act, 1885 (XIII of 1885) provided for the offence covered by s. 6 (1-A), and, therefore, the legislature though, by the Act of 1948, inserted the said section in the Act of 1933, removed it in the year 1952 as the said amendment was

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unnecessary and redundant. There is no foundation for this argument, and the entire premises is wrong. Section 20 of Act XIII of 1885 reads;

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“S. 20 (1): If any person establishes, maintains or works a telegraph within India in contravention of the provisions of section 4 or otherwise than as permitted by rules made under that section, he shall be punished, if the telegraph is a wireless telegraph with imprisonment which may extend to three years, or with fine, or with both, and in any other case, with a fine which may extend to one thousand rupees.

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…………………….

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For the aforesaid reasons, we hold that S.6 (1- A) of the Act continued to be on the statute book even after the amending Act of 1949 was repealed by Act XLVIII of 1952 and that it was in force when the offence was committed by the appellant.”

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(Emphasis Supplied)

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15) In the instant case, this Court is also confronted with the similar situation and the question that begs determination in this case is; “whether the repeal of Sections 2 to 12 and 14 of the Essential Commodities (Amendment) Act, 1974 by “Repealing and Amending Act, 1978” shall affect the amendment already carried in the parent Act?”

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16) Following the judgment of Supreme Court in the case of Jethanand’s case (supra), I am of the considered view that, though, Section 4 of the Repealing and Amending Act, 1978 is not attracted qua the amendment made in Section 10-A of the parent Act, yet the instant case falls within the four corners of Section 6A of the General Clauses Act reproduced in para 8 of Jethanand’s case (supra). For

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ready reference Section 4 of the Repealing and Amending Act, 1978 is reproduced hereunder: -

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“04. SAVINGS.- The repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied, incorporated or referred to: and this Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing; nor shall this Act affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existingusage, custom privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed or recognised or derived by, in or from any enactment hereby repeated: nor shall the repeal by this Act of any enactment revive or restore any jurisdiction, office, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force.”

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17) As is observed by the Supreme Court in Jethanand’s case (supra), Section 4 of the Repealing and Amending Act, 1978 shall have no application to a case of later Amending Act inserting certain provisions in an earlier Act because where an earlier Act is amended

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by a later Act, it cannot be said that the earlier Act applies, incorporates or refer to the amending Act, for, earlier Act cannot incorporate the later Act but can only be amended by it. It is, therefore, not correct to say that Section 4 of the “Repealing and Amending Act, 1978” applies to a case of repeal of amending Act. This issue has been elaborately discussed by the Supreme Court in para 7 of the Jethanand’s case (supra), which has already been reproduced herein above.

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18) From the aforesaid discussion, it is clear that in view of the provisions of Section 6A of the General Clauses Act and in the absence of contrary intention appearing in “Repealing and Amending Act, 1978”, it is an irresistible conclusion that the amendment effected to Section 10-A of the Essential Commodities Act, 1955 by Section 7 of the Essential Commodities (Amendment) Act, 1974 will not be affected and shall continue to exist on the Statute, the repeal of 1974 Act notwithstanding.And if that be so, the position that emerges, as on date, is that the offences under the Essential Commodities Act, 1955 are bailable or non-bailable depending upon the punishment prescribed and in the instant case the offence with which the petitioner is charged is punishable with imprisonment which is more than three years and may extend up to seven years, therefore, non-bailable under the Schedule First Part-II of the Code of Criminal Procedure.

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19) In the view I have taken, I am persuaded by a recent judgment of a Single Bench of Bombay High Court in the case of Vikrant

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Chandrakant Angolkar v. The State of Maharashtra (ABA No.2632 of 2020, decided 10.12.2020).

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20) For the foregoing reasons, this petition is disposed of by directing as under: -

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i) That in terms of Section 10-A of the Act of 1955, as it exists today, offences punishable under the Act of 1955 shall be bailable or non-bailable depending upon the punishment prescribed by Section 7 of the Act of 1955 read with provisions of Part II of Schedule First of the Code of Criminal Procedure, 1973.

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ii) That the application under Section 438 of the Code of Criminal Procedure for grant of bail in anticipation of arrest would be maintainable in relation to the offences which, as per the punishment prescribed, shall be non-bailable, as per Schedule First Part-II of the Code of Criminal Procedure.

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21) The petitioner, who is already arrested in connection with commission of non-bailable offence under Sections 3/7 of Act of 1955, shall be free and within his right to approach the Court of competent jurisdiction for grant of regular bail under Section 439 Cr.P.C., 1973.

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22) The petition shall stand disposed of in the above terms.

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(Sanjeev Kumar) Judge

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Srinagar 13.07.2021

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“Vinod, PS”

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Whether the order is speaking: Yes Whether the order is reportable: Yes

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Mohammad Amin Khan v. Government of J and K and Anr. (Home Department)

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Mohammad Amin Khan v. Government of J and K and Anr. (Home Department)

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