Raj Kumar vs State of Punjab

M.M. Punchhi, J. (Oral)

Heard. The power to grant pre arrest bail lies with the Court of Sessions as also the High Court. The learned Sessions Judge, Bhatinda, refused bail to the petitioner solely on the ground that since the offence was triable by the Special Court, he could not deal with the application in view of the express bar provided by section 12AA (d) of the Essential Commodities Act, 1955. That clause reads as follows :

"12AA(d) : save aforesaid no person accused of or suspected of the commission of an offence under this Act shall be released on bail by any Court other than a Special Court or the High Court."

This provision prima facie to the cases of bail of persons who stand arrested seemingly the power of Court of Session to grant prearrest bail under section 439, Cr.P.C. has not been taken away by the insertion of section 12AA. A parallel can be drawn with analogous provisions in the Terrorist Affected Areas (Special Courts) Act, 1984. Here the provision to clause (d) aforequoted spells out the conditions in which the special Court established under the Essential Commodities Act can grant bail. Somewhat similar are the terms/conditions for a Special Court in the terrorist affected areas under section 15 (5) and (6) of the Act concerned. But in that Act specially subsection (4) of section 15 has provided that nothing in section 438, Cr.P.C. shall apply in relation to any case involving the arrest of any person on an accusation of having committed a scheduled offence in a terrorist affected area, where the legislature wanted that power of section 438, Cr.P.C. should be taken away, it has said so in specific words. There is no such provision, so as so take away the power under section 438, Cr.P.C. embodied in section 12AA of the Essential Commodities Act. Thus, the Court of Session had the power to grant prearrest bail to the petitioner.

The direction sought for is not seriously opposed by learned counsel for the State. More so, when the proprietor or the dealer has been released on bail. The petitioner is stated to be a Karinda and was a signatory to the seizure Memo. The challan is stated to be ready. The arrest of the petitioner is a formality so that he can be prosecuted along with Gora Lal proprietor. Accordingly this petition is allowed. A direction is issued to the officer arresting the petitioner that he is required to release the petitioner on bail to his satisfaction. The petitioner on the other hand is directed to make himself available for interrogation or investigation as the case may be as and when required by the investigating officer.

JUDGMENTed accordingly.