# Unish Khan v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 1094
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-17
- **Case number:** Crl. Misc. Anticipatory Bail Appl. No. 12494 of 2022
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/unish-khan-v-state-of-u-p-anr-opp-parties-49794
- **Pages:** 7

## Headnote

Criminal Law - Essential Commodities Act,
1955 - Sections 3 &7 - The Code of
Criminal Procedure, 1973 - Schedule I
Part 2 - As per prosecution case - On the
basis of confidential information about
black marketing of grains by fair price
shop licensee, the sub-inspector along
with Regional Food Officer reached the
shop of applicant but it was closed - After
several failed attempts to contact shop
owner, it was sealed - On 30.09.2022,
team constituted by A.D.M. inspected shop
in presence of shop owner and witnesses,
12 gunny bags of wheat and 6 gunny bags
of rice were found less than the stock - On
this ground, FIR was lodged - The offence
under aforesaid section as bailable or nonbailable, in case of offence committed
after 08.07.1998 - Validity - Held, offence
fell
u/s 7(1)(a)(ii) of
the
Act
being
punishable with imprisonment extending
up to 7 years r/w Schedule I Part 2 of
Code are not bailable and correct position
of law is that said provision of Code shall
be taken into consideration to determine
whether
offence
punishable
under
Essential Commodities Act is bailable or
non-bailable - Judgment in Rajeev Kumar
Vs St. of U.P. is per incuriam and
oversighting
clear
and
unambiguous
statutory provisions - Hence, anticipatory
bail application rejected. (Para 2, 3, 16,
18, 23)

Application rejected. (E-13)
4 All. Unish Khan Vs. State of U.P. & Anr.
1095
List of Cases cited:

## Text

1094 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Format of marriage certificate be
modified to include details of parentage,
details of proof of age and details of
witnesses with their ID proof. They may be
required to file an affidavit also.

5. Or any other measure, which would
be appropriate to stop child marriage

19. It is a old saying that "Prevention
is better than Cure", therefore, it is directed
that Arya Samaj Krishna Nagar, Prayagraj
shall not solemnise any marriage where
proposed groom and bride have no consent
from there families for a period of two
months from today.

20. The apex body of Arya Samaj is
''Sarvadeshik
Arya
Pratinidhi
Sabha',
having its office at 15 Hanuman Road,
New Delhi. The Court directs its President
to look into above referred legal issues and
proposed suggestions so that a guideline be
issued by the apex body with the object to
avoid Arya Samaj Mandir to be a part of
''child
marriage'
and
for
that
discussion/consultation be undertaken with
stake holders, Senior Arya Samajists etc.
The President, Sarvadeshik Arya Pratinidhi
Sabha shall prepare a guideline/report
which shall be submitted before this Court
through Registrar General within a period
of eight weeks from today.

21. Registrar (Compliance) is directed
to take steps.

22. List before appropriate Bench for
consideration of guideline/report submitted
by
the
President,
Sarvadeshik
Arya
Pratinidhi Sabha.
----------
(2023) 4 ILRA 1094
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Crl. Misc. Anticipatory Bail Appl. No. 12494 of
2022

Unish Khan ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Anil Pratap Singh Raghav

Counsel for the Respondents:
G.A.

Criminal Law - Essential Commodities Act,
1955 - Sections 3 &7 - The Code of
Criminal Procedure, 1973 - Schedule I
Part 2 - As per prosecution case - On the
basis of confidential information about
black marketing of grains by fair price
shop licensee, the sub-inspector along
with Regional Food Officer reached the
shop of applicant but it was closed - After
several failed attempts to contact shop
owner, it was sealed - On 30.09.2022,
team constituted by A.D.M. inspected shop
in presence of shop owner and witnesses,
12 gunny bags of wheat and 6 gunny bags
of rice were found less than the stock - On
this ground, FIR was lodged - The offence
under aforesaid section as bailable or nonbailable, in case of offence committed
after 08.07.1998 - Validity - Held, offence
fell
u/s 7(1)(a)(ii) of
the
Act
being
punishable with imprisonment extending
up to 7 years r/w Schedule I Part 2 of
Code are not bailable and correct position
of law is that said provision of Code shall
be taken into consideration to determine
whether
offence
punishable
under
Essential Commodities Act is bailable or
non-bailable - Judgment in Rajeev Kumar
Vs St. of U.P. is per incuriam and
oversighting
clear
and
unambiguous
statutory provisions - Hence, anticipatory
bail application rejected. (Para 2, 3, 16,
18, 23)

Application rejected. (E-13)
4 All. Unish Khan Vs. State of U.P. & Anr.
1095
List of Cases cited:

1. Dinesh Kumar Dubey Vs St. of M.P.; 2001 (1)
M.P.H.T. 213

2. Rajeev Kumar Vs St. of U.P. (Crl Misc.
Anticipatory Bail Application u/s 438 No. 10698
of 2021)

3. Smt. Shakila Vs St. of U.P. & anr.(Application
u/s 482 No.44486 of 2012)

4. Nemchand Agrawal Vs St. of M.P.; M.Cr.C.
6111 of 1999

5. Rajesh Khatik Vs St. of M.P. (Misc. Criminal
Case No. 3248 of 2022)

6. Arun Bharti Vs St. of M.P. (Misc. Criminal Case
No. 20337 of 2020)

7. Hariom Vs St. of M.P., 2011 (1) MPLJ (Cri.)
267

8. Santosh Sahare Vs St. of M.P. (MCRC No.
2914/2015)

9. Balwant Vs St. of M.P., 2001 (3) MPLJ 414

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Anil Pratap Singh
Raghav, learned counsel for the applicant
and Sri O.P. Mishra, learned AGA for the
State.

2. The present application has been
moved on behalf of the applicant-Unish
Khan seeking anticipatory bail in Case
Crime no. 0979 of 2022, under Sections 3/7
of Essential Commodities Act, 1955, P.S.
Khurja Nagar, District Bulandshahr.

3. As per prosecution case, on the
basis of a confidential information about
black marketing of grains by the fair
price shop licensee, the sub-inspector
from local police station along with
Regional Food Officer reached the shop
of the present applicant but it was found
closed; after several failed attempts to
contact the shop owner; the shop was
sealed.
On
30.09.2022,
the
team
constituted by the A.D.M. inspected the
shop in presence of the licensee/shop
owner and the witnesses; 12 gunny bags
of wheat and 6 gunny bags of rice were
found less than the stock. On the basis of
this, FIR Case Crime No. 0979 of 2022,
under
Sections
3/7
of
Essential
Commodities Act, 1955 was lodged and
was investigated upon.

4. It is contended on behalf of the
applicant that the applicant is innocent
and is not involved in any kind of black
marketing; the case against him is
registered without any basis at the
initiative
of
a
political
party;
the
applicant has no criminal antecedents and
that he is ready to abide by the conditions
which may be imposed by the court.

5. Besides opposing the anticipatory
bail application on merits, it is opposed on
the ground that the offence with which the
applicant has been charged is bailable,
hence, the provisions of Section 438
Cr.P.C. shall not apply and therefore the
anticipatory
bail
application
is
not
maintainable. To support this contention a
judgment of Allahabad High Court passed
in Criminal Misc. Anticipatory Bail
Application U/S 438 Cr.P.C. No. 10698 of
2021 vide order dated 10.11.2021 (Rajeev
Kumar vs. State of U.P.) has been cited
before me. I went through the judgment of
the Allahabad High Court. Quoting certain
parts of the judgment of M.P. High Court in
Dinesh Kumar Dubey vs. State of M.P.;
2001 (1) M.P.H.T. 213, the court expressed
an opinion that the offences under Sections
3/7 of Essential Commodities Act, 1955 are
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
bailable. The Allahabad High Court held as
below:-

"The above legal position is not clear
to most of the Investigating Officers and the
courts below and therefore, the bail
application of the accused persons in such
cases are rejected by the Magistrate and
the special courts, treating the offences to
be non-bailable."

6.
 The
relevant
para
of
the
pronouncement of the M.P. High Court as
quoted in the Allahabad High Court's
judgment is reproduced here again:-

"It appears that by the Essential
Commodities (Special Provisions) Act,
1981 Section 10A of the original Act of
1955 was amended and after the word
'Cognizable', the words 'and non-bailable'
were introduced. The said Act of 1981 was
to remain in force for a period of five years
only from the date of commencement of
1981 Act. Thereafter by the Essential
Commodities
(Special
Provisions)
Continuance Act, 1987 Para 2 of the
preamble
of
1981
to
the
Essential
Commodities (Special Provisions) Act,
1981 was amended and in place of five
years period of 10 years was substituted.
Thereafter by Third Amendment, the said
period of continuance was made for fifteen
years. After expiry of fifteen years no
amendment Act was brought into force but
certain ordinances were issued. The last of
the ordinance was issued in the year 1988,
which lost its life and efficacy by lapse of
time, thereafter no Act or ordinances have
been issued to continue the provisions of
1981 Act. Learned counsel for the State
was given opportunity to go through the
provisions of law and report to the Court as
to whether after 1988 any further Act has
been brought in existence or any other
ordinance was issued to continue the effect
of 1981 Act. Learned counsel for the State
submits that despite his best efforts he
could not find any other Act or ordinance
which continued the effect and operation of
1981 Act.

3. If 1981 Act has lost its life then any
amendment incorporated by the said Act,
which was to remain in force for a period
of five, ten or fifteen years would come to
an end and additional words, "And nonbailable" shall become non-est and otios.
Section 10A without the said amendment
shall now be read as "Notwithstanding
anything contained in the Code of Criminal
Procedure, 1973 every offence punishable
under the Act shall be 'Cognizable'.

4. In view of the above legal
provisions the offence is not non-bailable.
Cognizance of such an offence can be taken
but in the absence of any other provisions
showing the offence to be non-bailable, the
offence would continue to be bailable in
view of Schedule-II to the Code of the
Criminal Procedure, 1973."

7. There is no dispute on the point
that the Essential Commodities Act, 1955
was
amended
by
the
Essential
Commodities (Special Provisions) Act,
1981. Section 10-A of the Act of 1955 was
amended in 1981 and the word 'nonbailable' was introduced after the word
'cognizable'. This is not disputed that 1981
amendment was to remain in force for a
period of 5 years only, thereafter for the
words '5 years' words '10 years' were
substituted. Consequently, the amended
part remained in force for total period of 15
years. The last of the ordinance issued in
the year 1988 lapsed as no ordinance came
thereafter to continue the provisions of Act
of 1981. On the basis of aforesaid
undisputed positions, the High Court of
M.P. was of the view that the offence under
4 All. Unish Khan Vs. State of U.P. & Anr.
1097
Sections 3/7 of Essential Commodities Act,
1955 no longer remained non-bailable. In
para-4 of the judgment just quoted above,
the
M.P.
High
Court
expressed
an
unambiguous view that in absence of any
other provisions showing the offence to be
non-bailable the offence shall continue to
be bailable in view of the Schedule-I Part 2
of the Cr.P.C.

8. It may importantly be noted that by
the Essential Commodities (Amendment)
Act, 1974 (Act No. 30 of 1974), Section
10-A of the principal Act was amended and
the word 'bailable' was omitted. This
amendment came into force on 2nd June,
1974. It is quite obvious that before coming
into effect of the Amendment of 1974, the
offences were being treated bailable by
virtue of provisions of Section 10-A of the
principal Act.

9. To clarify further it may be noted
that
by
the
Essential
Commodities
(Special Provisions) Act, 1981 word
'bailable' was substituted by the word
'non-bailable' that is the offences became
non-bailable by coming into force of
1981
Act,
however,
before
the
amendment of 1981 came into operation,
Section 10-A had no application as it did
not say whether the offence shall be
treated as bailable or non-bailable. To
summarize before coming into effect of
1974 Act, the offences were bailable and
after coming into force of 1974 Act,
Section 10-A remained silent on the
question of bailability/non-bailability of
the offence till the Act of 1981 came into
force. Subsequently, because of lapse of
ordinance, the position as existing just
before the promulgation of Essential
Commodities (Special Provisions) Act,
1981 was revived i.e., Section 10-A did
not say whether the offence is treated as
bailable or non-bailable by virtue of 1974
Act till coming into effect of 1981 Act.

10. Now very pertinent question
arises whether to treat the offence under
Section 3/7 of Essential Commodities
Act, 1955 as bailable or as non-bailable
in case of offence committed after
08.07.1998.
The
judgment
of
the
Allahabad High Court given in Rajeev
Kumar vs. State of U.P. (supra) has
referred to G.O. dated 03.10.1998 from
the judgment of Smt. Shakila Vs. State of
U.P. and Another, Application under
Section 482 No.44486 of 2012, which
was
addressed
to
all
the
District
Magistrates of this State making it very
clear that Essential Commodities (Special
Provisions
of
1981
and
Essential
Commodities
(Ordinance) Act,
1988
became ineffective from 31.03.1997 and
08.07.1998 respectively.

11. It may be usefully be noted that
Section 10-A was inserted below Section
10 of the principal Act by the second
amendment of 1967 (Act No. 36 of 1967)
w.e.f. 30.12.1967. The newly inserted
Section 10-A is quoted as below:-

"Offences to be cognizable and
bailable--Notwithstanding
anything
contained in the Code of Criminal
Procedure, 1898 (5 of 1898), every offence
punishable under this Act shall be
cognizable and bailable."

12. This newly Act added Section 10A was amended by Act No. 30 of 1974
w.e.f. 22.06.1974 and the word 'bailable'
was omitted. Thus legal position becomes
quite clear that because of lapse of
amendment of 1981, the offences under the
Essential Commodities Act shall be treated
as cognizable and as far as the point of
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
bailability and non-bailability is concerned,
it shall be dealt with as per the
provisions of Cr.P.C., 1973.

13. Schedule-I Part 2 of the Cr.P.C.
applies to offences punishable under other
laws. It says that offences punishable with
death
or
imprisonment
for
life
or
imprisonment upto 7 years but more than 3
years shall be non-bailable.

14. Section 7 of the Essential
Commodities Act, 1955 is as below:-

"(1) If any person contravenes any
order made under section 3,--

(a) he shall be punishable,--

(i) in the case of an order made with
reference to clause (h) or clause (i) of subsection
(2)
of
that
section,
with
imprisonment for a term which may extend
to one year and shall also be liable to fine,
and

(ii) in the case of any other order, with
imprisonment for a term which shall not be
less than three months but which may
extend to seven years and shall also be
liable to fine:

[Provided that the court may, for any
adequate and special reasons to be
mentioned in the judgment, impose a
sentence of imprisonment for a term of less
than three months;]

(b)................

(c) ................

(2) ................

(2A) .............

(2B) ..............

(3) ................"

It may be noted that certain offences
shall be punishable for imprisonment up to
1 year only and certain other offences shall
be punishable with imprisonment up to 7
years. As Section 10-A which was inserted
by the Act 36 of 1967, as amended by
amendment Act of 1974, stands revived,
after lapsing of Essential Commodities
(Special Provisions) Act, 1981, hence, the
offence committed after 08.07.1998 shall
be goverened as per the provisions of
Schedule I Part 2 of the Cr.P.C. and
therefore shall be treated bailable or nonbailable depending upon the term of
maximum punishment imposable.

15. It is very essential to note that the
judgment of a coordinate Bench of this
Court was passed on the basis of judgment
of M.P. High Court pronounced in Dinesh
Kumar Dubey (supra). However, the
opinion given in that judgment of the M.P.
High Court was digressed from by
pronouncement of the same High Court in
Misc. Criminal Case No. 3248 of 2022
passed on 04.02.2022 in Rajesh Khatik vs.
State of M.P. The judgment in Nemchand
Agrawal vs. State of M.P.; M.Cr.C. 6111 of
1999 in which the provisions of Section 10A of the Act were touched upon, were also
placed before the M.P. High Court to stress
the point that the offences under Sections
3/7 of the Essential Commodities Act are
bailable. The M.P. High Court was of the
view that certain point of law was not
brought and not argued before the Court
cannot be treated as precedent. The Court
did not agree with the view taken in
Nemchand (supra) and Dinesh Kumar
Dubey (supra) citing reasons as below:-

"8. As demonstrated earlier the
statutory legal position, as it exists today, is
that the offence under section 7(1)(a)(ii) of
the
Act
which
is
punishable
with
imprisonment for seven years is nonbailable. The question is whether the view
taken in the four cases referred to above
should be followed by this Bench or there is
a scope for clarification without referring
4 All. Unish Khan Vs. State of U.P. & Anr.
1099
the matter to a larger Bench. It is axiomatic
that a decision is an authority for the
question of law which it decides and not for
a question which was not raised or
considered.
A
sub-silentio
order
or
assumption in disregard of a clear and
unambiguous statutory provision is not a
precedent. If a provision in a statute is
construed or interpreted one way or the
other that would be a precedent for the
future and would be binding on co-ordinate
benches. But something which has been
assumed and not decided cannot be
considered
as
authoritative
binding
precedent.

10.
Failure
to
consider
a
statutory provision is one of the clearest
cases in which the Court is not bound to
follow its own decisions. Bonalumi v.
Secretary of State, (1985) 1 All ER 797.
In Young v. Bristol Aeroplane Co. Ltd.,
(1944) 2 All ER 293, it has been
observed
by
Lord
Greene,
M.R.C.P.:"Where
the
Court
has
construed a statute or a rule having the
force of a statute, its decision stands on
the same footing as any other decision
on a question of law. But where the
Court
is
satisfied
that an
earlier
decision was given in ignorance of the
terms of a statute or a rule having the
force of a statute the position is very
different. It cannot, in our opinion, be
right to say that in such a case the Court
is entitled to disregard the statutory
provision and is bound to follow a
decision of its own given when that
provision was not present to its mind.
Cases of this description are examples of
decisions given per incuriam." It has
been held by a Division Bench of this
Court
in
United
India
Insurance
Company v. Mahila Ramshree, 1996 JLJ
691 that a judgement is per incuriam if
the relevant law has not been considered
and it has no binding effect."

16. Ultimately it was held that as the
offence fell under Section 7(1)(a)(ii) of the
Act being punishable with imprisonment
extending up to 7 years read with Schedule
I Part 2 of the Code are not bailable and it
was held that the correct position of law is
that Schedule I Part 2 of the Code, 1973
shall be taken into consideration to
determine the question whether the offence
punishable
under
the
Essential
Commodities Act, 1955 is bailable or nonbailable.

17. Even before passing of this
judgment, the High Court of M.P. in Arun
Bharti vs. State of M.P.; Misc. Criminal
Case No. 20337 of 2020 decided on
01.07.2020 considered the position of law
in the light of number of judgments
pronounced earlier including the judgments
in
Dinesh
Kumar
Dubey
(supra),
Nemchand Agrawal vs. State of M.P.
(supra), Hariom vs. State of M.P., 2011 (1)
MPLJ (Cri.) 267, Santosh Sahare vs. State
of M.P. (MCRC No. 2914/2015 decide on
7.5.2015) and Balwant vs. State of M.P.;
2001 (3) MPLJ 414 held that in judgment
of Balwant case is the precedent to be
followed wherein it was held that the
offences punishable up to 3 years were
bailable and offences punishable up to 7
years were non-bailable as per Ist Schedule
of Cr.P.C.

18. The judgment inCriminal Misc.
Anticipatory Bail Application U/S 438
Cr.P.C. No. 10698 of 2021 vide order dated
10.11.2021 (Rajeev Kumar vs. State of
U.P.) is per incuriam and has been passed
oversighting the clear and unambiguous
statutory provisions.
1100 INDIAN LAW REPORTS ALLAHABAD SERIES

19. The present case before me is of a
fair price shop which when checked by the
authorities was found short of certain stock.
The applicant has not been able to show
that the FIR was registered with some
ulterior motives. The offence shall fall in
the categories under Section 7(1)(a)(ii)
entailing punishment up to 7 years.

20. No probable defence or reason has
been offered for false implication.

21. I considered all the submissions,
facts, circumstances and material before
me, It may be kept in mind that anticipatory
bail is an extraordinary remedy to be
exercised in suitable cases only. The power
under Section 438 Cr.P.C. cannot be
utilized in a routine manner and definitely
not as a substitute for regular bail. This
discretionary power calls for existence of
facts of the kind where the court is satisfied
that its interference is necessary to further
the cause of justice and to prevent misuse
of process of law.

22. In view of the facts and
circumstances of the case I do not find it fit
case to grant benefit of anticipatory bail.

23. Hence the anticipatory bail
application is rejected.

24. The Registry is directed to
circulate this judgment to all concerned.
----------

(2023) 4 ILRA 1100
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.04.2023

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.
Crl. Misc. Ist Bail Application No. 20211 of 2022

Satya Narayan @ Sattan ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sri Girish Kumar Singh, Sri Kamlesh Singh, Sri
Akhilesh Singh

Counsel for the Respondent:
Sri Paritosh Malviya(A.G.A.)

आपराथिक कानून - भारतीय दंड संहहता, 1860 - िारा
147, 302/34 - दंड प्रकक्रया संहहता, 1973 - िारा
154, 161, 173 - हत्या - प्रिकम सूचना ररपोटक के
अनुसार - हदनांक 18.12.2021 को करीब सायं 6 बजे
सूचनाकताक (मृततका का ससुर) की बहू, शौच के मलए
गााँव के बाहर खेत के तरफ गई िी, उसके साि उसकी
पुत्री के साि अन्य महहलाए भी िी - शौच से वापस
लौटते समय रास्ते में ही आवेदक (मृततका का वपता) के
साि अन्य लोगों ने चाकू मार कर उसकी बहू की हत्या
कर दी - दो वर्क पूवक मृततका ने अपने पररवार की सहमती
के बबना सूचनाकताक के पुत्र से भागकर वववाह कर मलया
िा, ण्जसके कारण आवेदक के साि पररवार के अन्य लोग
रंण्जश रखते िे - आरोप पत्र - आवेदक और दो अन्य के
ववरुद्ि दार्खल ककया गया - न्यायलय ने माना कक
घटना के समय तीन चक्षुदशी उपण्स्ित िे - उन्होने सभी
हमलावरो को पहचान मलया िा, जो उसी गााँव के िे व
मृततका के रररश्तेदार भी िे - उन्होने यह बताया कक कैसे
घटना घटी व ककसने मृततका पर प्राण घातक वार ककया -
आवेदक घटना स्र्िल पर मौजूद िा, घूाँघट उठा कर अपनी
पुत्री को पहचाना व उसके पुत्र ने चाकू से उसकी हत्या कर
दी, ण्जसकी मृत्यु पश्चात शव ववच्छेदन में वर्णकत मृत्यु
पूवक चोटों से पुण्ष्ट भी होती है - आवेदक ने पूणक योजना के
तहत, सामान्य आशय को अग्रसर करने के मलए कायक
ककया - अतः वह इस अपराि में प्रिम दृष्टया शाममल है
- अन्वेर्ण के दौरन एकत्र ककये गए साक्ष्य घटना को
'सम्मान रक्षा हेतु हत्या' का मामला बनाते है| (पैरा
1,2,3,4,17,18)

जमानत अजी खारिज की गई| (E-13)