Jamuar, J -
(1.) THIS is an application for bail. It appears from the first information report lodged in the case that the offence which the petitioner is alleged to have committed is a contravention of Government notification No. 32676, dated 11-12-1951, published in the Bihar Gazette, dated 12-12-1951. The petitioner is said to have carried 125 maunds of rice on a lorry from Purulia to Hazaribagh, and this was prohibited by the said notification. The following passage from the first information report may be quoted:
Thus, the accused persons in moving by truck a consignment of 125 maunds of rice from village Sindri, which is in the Sadar Sub-division of Manbhum district, to Konar which is outside Manbhum Sadar, without any permit, have violated Bihar Government Notification No. 32676 dated 11-12-51, and, as such, I charge them for having committed an offence under Section 7 (2), Essential Supplies (Temporary Powers). Act.
(2.) THE petitioner moved an application for bail before Mr. S. C. Prasad, Vacation Judge in the judgeship of Manbhum Singhbhum, and the learned Judge, by his order dated 23-9-1952, released the petitioner on an ad interim bail. It appears to have been argued before him that Section 13A, Essential Supplies (Temporary Powers) Act was applicable to the facts of this case; but that argument was rejected. When the matter came to be heard finally, it was heard by Mr. Anant Singh, who was then the Vacation Judge in that judgeship, and he, by his order dated 14-10-1952, cancelled the ad interim bail granted to the petitioner, holding that Section 13A of the Act was applicable to the facts of this case.
Now, Section 13A of the Act contains provisions regarding bail, and it provides that no person accused of a contravention of any order under Section 3 relating to foodgrains which is punishable under the proviso to Sub-section (2) of Section 7 shall be released on bail unless (a) the prosecution has been given an opportunity to oppose the application for such release, and (2) where the prosecution opposes the application, it appears to the Court that there are reasonable grounds for believing that he is not guilty of such contravention. The argument advanced in the Court below appears to have been that, in the circumstances of this case, it could not be said that there are reasonable grounds for believing that the petitioner was not guilty of the contravention alleged. It was this argument which found favour with Mr. Anant Singh. Clearly, before Section 13A can be applied, it must be found that the person is accused of a contravention of an Order passed under Section S and which is punishable under the proviso to Sub-section (2) of Section 7. Mr. Baldeva Sahay, for the petitioner, has contended that, on the facts alleged in this case, the proviso to Sub-section (2) of Section 7 cannot be made applicable. This proviso states that where the contravention is of an order prescribing the maximum quantity of any food-grain that may lawfully be possessed by any person, or class of persons, and the person contravening the order is found to have been in possession of food-grain exceeding twice the maximum Quantity so prescribed, the Court shall award punishment as provided therein. Hence, now the question is whether the charge against the present petitioner is that of possessing food-grain exceeding twice the maximum quantity prescribed by law. The order prescribing the maximum quantity which can be possessed by a person is to be found in Clause 3 of the Bihar Food-grains Control Order, 1950. The petitioner before me is not stated to have contravened this Order. Clause 3 (b) of the Order enacts that no person shall keep, sell or store "in any place or premises occupied by him or under his control, or permit any other person to keep or store in any such place or premises, 10 maunds or more of any food-grains, or all foodgrains taken together" with a certain proviso. The petitioner in the present case is not alleged to have kept or stored "in any place or premises occupied by him or under his control" the 125 maunds of rice. What he did was to have carried this rice on a lorry in contravention of a certain notification. The learned Advocate who appeared for the State conceded that, in these circumstances, the petitioner could not be said to have contravened Clause 3 of the Bihar Food-grains Control Order, 1950. The first information report lodged in this case discloses the contravention of a notification banning the export of rice from one district to another. The learned Judge in the Court below, in support of his order, has placed reliance on the case of - 'Badri Prosad v. The State' A.I.R. 1953 Cal 28 (A). Mr. Baldeva Sahay has argued that, far from supporting the view taken by the learned Judge, this case supports the contrary view. The Calcutta case was not a case where the accused was charged for having contravened an order banning export : he was charged under Section 7 (2), Essential Supplies Act for the violation of certain rules of the Bengal Food-grains Control Order, 1945. I have just stated that the petitioner before me is not alleged to have violated any rules of the Bihar Food-grains Control Order, 1950. Had that been so, the proviso to Section 7 (2), Essential Supplies (Temporary Powers) Act would have come into play. The view expressed in the Calcutta case was in these words:
It is essential in my view to bear in mind that the restrictions in granting bail under Section 13A, Essential Supplies Act apply only in the case of an offence that attracts the proviso to Section 7 (2) of the Act. It is therefore necessary to make it clear and apparent in the charge that it is so before any question of applying Section 13A can arise. It may not be enough to spy merely that the accused is charged under Section 7 (2) of the Act because that sub-section describes a variety of offences not all of which attract Section 13A of the Act. It is the more specific offence under the proviso to Sub-section. (2) of Section 7 in respect of which the special provisions for bail in Section 13A of the Act operate. In this case the proviso is not specifically stated in the charge but the other facts stated in the charge clearly show that the proviso to Section 7 (2) is attracted. Here therefore it is a matter of form and not of substance. But having regard to the language of Section 7 (2) describing various offences, this may in some cases be a matter of great substance and not of mere form.
(3.) IN the case before me, there is no indication in the first information report that the operation of the proviso to Sub-section (2) of Section 7 can be made to apply. IN these circumstances, I am unable to hold that Section 13A, Essential Supplies (Temporary Powers) Act should, be made applicable to the facts of this case. That being so, the question now remains whether there are sufficient grounds for releasing the petitioner on bail. As I have stated in the earlier pan; of this judgment, when the petitioner had first applied in the Court below before Mr. S. C. Prasad for bail, the learned Judge had given reasons for allowing him to be released on ad interim bail. J see no reason now to hold that that order was erroneous.;