Raj Kishore Das, J. - (1.) THIS a petition to enlarge the Petitioner on bail. The Petitioner was prosecuted under Rule 41 of the Defence of India Rules, 1962.
(2.) THE prosecution case is that the Petitioner who is said to be a dealer in Kerosene in Nilgiri in the district of Balasore, sold a tin of white kerosene to one Gopinath Behera for Rs. 20 - which is much in excess of the authorised price, and hereby committed prejudicial act within the meaning of Clause 35(6)(1) of the Defence of India Rules. After charge -sheet was submitted, the bail application moved on behalf of the Petitioner was rejected by the Sub -divisional Officer, Nilgiri by his order dated 15 -10 -1965 on the ground that Kerosene is an essential commodity and the materials on record disclosed that the Petitioners sold Kerosene at a much higher price than the prevailing price. His application for bail before the Sessions Judge having also been rejected, the Petitioner has come up to this Court with this petition to enlarge him on bail. The Defence of India Rules, 1962, (hereinafter mentioned as 'the Rules') makes a special provision in Rule 155 regarding release of an accused on bail. It runs as follows: 155. Special provision regarding bail: Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no person accused or convicted of a contravention of these Rules, or orders made thereunder shall, if in custody, be released on bail or on his own bond unless, (a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where the prosecution opposes the application and the contravention is of any such provision of these Rules or Orders made thereunder as the Central Government or the State Government may by notified order specify in this behalf, the Court is satisfied, that there are reasonable grounds for believing that he is not guilty of such contravention. Thus while Clause (a) requires that the prosecution should be given an opportunity in all cases of contravention of the Rules or orders to oppose the application for bail, Clause (b) restricts its application only to such cases of contravention of any provision of the rules or orders made thereunder as the Central or State Government may specify by a notification in this behalf. Therefore it is not the contravention of every rule or order made under the Defence of India Rules which are covered under Clause (b) above. Clause (b) also makes it clear that a person accused of contravention of a notified order made under the Rules, is not entitled to bail unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such contravention. In such cases the principles underlying the provisions of Sections 496 and 497 or any other provision of the Code of Criminal Procedure governing the grant of bail do not arise for consideration.
(3.) THE learned Standing Counsel was given notice of this petition for bail by the Petitioner and was given due opportunity to oppose this application as required under Rule 155(a). He produced a notification of the Government showing that Rule 41 which penalises the commission of a prejudicial act within the meaning of Rule 35(6)(i) and for the contravention of which the Petitioner has been prosecuted, is one of those Rules notified for the purposes of Clause (b) of Rule 155. The other question that next arises for consideration is whether on the materials on record the Court is in a position to say that there are reasonable grounds for believing that the Petitioner is not guilty of such contravention, that is, the commission of the alleged prejudicial act. The -: Defence of India Act and the Rules made thereunder are pieces of emergency legislations. Rule 155 is an over -riding provision which takes away the powers of the Court to release a person on bail when he is charged for contravention of any such notified Rule, unless the Court is satisfied that there are reasonable ground to believe that the accused is not guilty of such contravention. In the present case, it is difficult at this stage to Bay that the Petitioner is not guilty of such contravention.;