M. B. SHARMA, J. - (1.) THE controversy in the present application u/s 438 Cr. P. C relates to the contravention of the Rajasthan Trade Articles (Licensing and Control) Order, 1980 (for short the Order) made u/s 3 of the Essential Commodities Act, 1955. During the relevant years i. e. 1981 to 1983 different categories of coal including 'z' (domestic use) and S. L. V. (industrial use) were being brought in the State of Rajasthan from Dhanbad and other places. THE 'z' category of coal was also brought in the State of Rajasthan for domestic consumption under the sponsored scheme. THEre was a ceiling fixed for each of the State for 'z' category of coal also in those years and it was only on the allotment of the 'z'/s. L. V. category of coal by the State Government or its authorised officers that a trader could have brought the rakes allotted to him by the State Government. It appears that in both the cases with which this order is dealing under the sponsored scheme coal for domestic consumption i. e. 'z' category was being allotted to two concerns with which the petitioners are concerned namely Jaipur Coal Supply Company, Jaipur and Sunil Enterprises. THE case of the civil supply department is that under the various allotments made of 'z' category of coal to the two aforesaid concerns the quality as well as the destination were clearly mentioned. But without any change of the quality or destination the petitioner on their own in case of many rakes of coal, changed the destination from 'z' category to S. L. V. i. e. from domestic use to industrial use and the destination was also changed. THEre is sufficient material on record that during the period from 1981 to 1983 both the aforesaid concerns were allotted 'z' category of coal for domestic consumption and the destination was also mentioned therein, but not only the quality was changed from 'z' category to S. L. V. without any intimation to sale supply department but the destination was also changed on their own. This fact came to the notice of the authorities concerned and a detailed enquiry was made in the matter and ultimately under letter dated 11. 1. 1989 the Deputy Secretary to the Government of Rajasthan in Food and Civil Supply Department a report was lodged to the Deputy Inspector Police, C. I. D. where a case was registered and investigation was set in motion. It may be stated that a detailed inspection was made not only of the two concerns with which we are presently dealing i. e. Jaipur Coal Supply Company, Jaipur and Sunil Enterprises but also in respect of other concerns which were dealing with the sponsored scheme of coal and many irregularities during the period 1981 to 1983 were noticed. THE case is under investigation and the two petitions have been filed for pre-arrest bail.
(2.) THE contention of learned counsel for the petitioner is that the offence is only punishable upto two years of imprisonment and the offence is said to have taken place during the period 1981 to 1983 and, therefore, cognizance of the offence is barred as the cognizance could only be taken within a period of three years u/s 468 Cr. P. C. He also contends that at any rate the occurrence is said to have taken place in the year 1981 to 1983 and we are presently in the year 1990 and, therefore, it is a case where pre-arrest bail should be allowed to the accused petitioners. The contention of Mr. Bajwa, learned counsel for the petitioners is that u/s 12. AA of the Essential Commodities Act, 1955 (for short E. C. Act) all offences under that Act are triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts then one for such area, by such one of them as may be specified in this behalf by the High Court and under clause (f) of sub-section (1) of Section 12 AA all offences are triable only in a summary way and the provisions of Section 262 to 265 (both inclusive) of the Code shall as far as may be are made applicable to the trial of the ease. In summary trial as aforesaid it is only lawful for the Special Court to pass any sentence of imprisonment for a term not exceeding two years. According to Mr. Bajwa sentence as provided u/s 7 of the Act stands impliedly repealed to a sentence of imprisonment for a term of two years and, therefore, cognizance could not have been taken after three years. In support of his contention the learned counsel has referred to the case of The Dharamgadhra Chemical Works Vs. Dharamgadhra Municipality (1), T. Barai Vs. Henry Ah Hoe (2), Swastik Rubber Products Ltd. Vs. Municipal Corporation of the City of Poona (3 ). In my opinion none of the aforesaid case is applicable to the present controversy. A look at Sec. 7 of the E. C. Act wiil show that if any person contravens any order made under Sec. 3, he shall be punishable in the case of an order made with reference to clause (h) or clause (i) of sub-sec. (2) of Sec. 3, with imprisonment for a term which may extend to one year and shall also be liable to fine and 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 and, therefore, if the offence is only in relation to the contravention of an order made with reference to clause (h) or clause (i) of sub-sec. (2) of Sec. 3 then no doubt the period of limitation as prescribed u/s 468 Cr. P. C. shall be three years. But even that period of three years will commence as prescribed u/s 469 Cr. P. C. on the date of the offence where the commission of an offence or if it was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, which ever is earlier. If the offence is such which is punishable with imprisonment which may extend to seven years then there is no period of limitation prescribed. There are certain alleged contraventions which do not necess-arliy fall with reference to clause (h) or clause (i) of sub-sec. (2) of Sec. 3 of the E. C. Act and fall u/ss (i) (ii) of Sec. 7 of the E. C Act and in case the offence is proved the offence is liable to imprisonment for a term which shall not be less then three months but which may extend to seven years and shall also be liable to fine. Therefore, the imprisonment provided for contravention of such an order as aforesaid is for a term which shall not be less than three months but which may extend to 7 years. By virtue of Sec. 12 AA of the E. C. Act, it was made specifically clear that offences shall be triable only by the Special Court constituted for the area in which the offence has been committed and it was further provided by clause (f) of sub-sec. (1) of Sec. 12 AA of the E. C. Act that they shall be tried in a summary way but in case of conviction in a summary trial, it is lawful for the Special Court to pass a sentence of imprisonment for a term not exceeding two years. While making summary trial u/ss. 262 to 265 (both inclusive) Cr. P. C, it was necessary to provide that the Special Court shall be competent to pass a sentence of imprisonment for a term not less than two years because otherwise as will appear from sub-sec. (2) of Sec. 262 Cr. P. C. that in a trial in Chapter XXI which deals with summary trials no sentence of imprisonment for a term exceeding three months could be passed. Therefore, in order to enable the Special Court which alone can try the offence under the E. C. Act in a summary way the legislature thought proper to confer powers to such Special Courts that notwithstanding the provisions contained in Sec. 262 Cr. P. C. the Special Court shall be competent to pass a sentence of imprisonment which may extend to two years. It does not mean that the sentence of seven years imprisonment as prescribed u/s 7 of the E. C. Act for contravention of an order made under any of the clauses of Sub-sec. (2) of Sec 3 other than clauses (h) & (i) stood reduced to two years. It is one thing to show that the sentence upto two years may be imposed but it cannot be said that the sentence stands reduced to two years and thereby provisions of Sec. 468 (2) (c) shall be attracted. A reading of Sec. 468 will show that it contains a bar for taking cognizance after lapse of the period of limitation, and it provides that except as otherwise provided else where in this Code, no court shall take cognizance of an offence of the category specified in sub-sec. (2) after the expiry of the period of limitation, prescribed therein. I am therefore, of the opinion that there is no force in the contention of the learned counsel for the petitioner that the cognizance of the offence could not have been taken in view of the provisions contained u/s 12aa (l) (f) of the E. C. Act. As already stated earlier in case the contravention of an order be ultimately proved only of an order made in clause (f) (i) of Sub-sec. (2) of Sec. 3 then no doubt the court ultimately have to hold that the cognizance of the offence would not be taken unless the court by virtue of the provisions contained in sec. 469 Cr. P. C. comes to the conclusion that the contravention of an order come to the notice only in the year 1989 or within one year of the filing of the chargesheet. Coming to the merits of the case it has already been stated in the earlier part of this order that it does appear that prima facie there is contravention of the conditions of the license issued under the order in so far as change of destination and the quality of the coal concerned. But at the same time there is a letter dated 5. 1. 1984 of the Food and Civil Supply Department addressed to the Director, Movement (Railway), Railway Board, Calcutta from which it appears that adjustment of S. L. V. coal against the quota of soft and hard coal prior to that letter was prima facie rectified. It appears that on 21 March 1982 the restriction was imposed. It is not for this court to say whether any contravention of that order has been taken place or not. But various letters have been brought to the notice of the court but so far as the year 1981 is concerned, all restrictions in respect of destination and quality have been removed and in case of the years 1982 and 1983 even if there is any contravention about which I express no opinion it will not be in the interest of justice to deny the pre-arrest bail to the accused petitioner. Consequently, I hereby allow both the applications and direct that in the event of arrest of the accused petitioners namely Ved Prakash Dangri & Anil Kumar Dangi in F. I. R. No. 23/1989 P. S. Ashok Nagar, Jaipur, the S. H. O. /i. B. shall release each of the accused petitioner named above on each of them furnishing a personal bond in the sum of Rs. 10,000/- with two sureties of Rs. 5,000/- each to his satisfaction, undertaking to appear before him for interrogation/investigation as and when called upon to do so and further undertaking not to temper with any of such persons who are conversant with the facts and circumstances of the case. The accused petitioners are directed to co-operate the LB. in the investigation of the case and to appear before him as and when they are directed to do so. .;