Som Nath Vs. State of Haryana - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order.v.m. jain, j.1. this is a petition under section 438 cr.p.c. filed by the accused petitioner, seeking grant of anticipatory bail in a case bearing fir no. 139 dated 14.10.2000 under section 7 of the essential commodities act, 1955 (hereinafter referred to as act), recorded in ps sadar, panipat.2. at the outset the question arose as to whether the offence under section 7 of the act is bailable or non-bailable hence the learned counsel for the parties were directed to address their arguments on this question.3. after hearing the counsel for the parties and after perusing the record, it transpires that section 7 of the act, as it stood prior to the amendment of the said act by virtue of the essential commodities (special provisions) act, 1981, would be relevant in this regard. it transpired that under section 10-a of the act, as it stood prior to 1981 amendment, every offence punishable under the said act was cognizable. subsequently, by virtue of 1981 amendment act, the words 'and non-bailable' were inserted. initially, this was done for a period of 5 years from the date of commencement of the 1981 amendment act (1st september, 1982). later, on this period of 5 years was enhanced to 10 years. later on this period was extended to 15 years. after the expiry of the said period of 15 years, the amendments which were introduced by way of 1981 amendment act, ceased to exist, the essential commodities (special provisions) ordinance, 1997, was promulgated by the president of india on 3rd october, 1997, whereby the essential commodities act, 1955 was amended. however, no act was passed by the parliament in this regard. subsequently, 2 more ordinances were promulgated by the president of india in the year 1988, amending the essential commodities act, 1955. even amendment bill was also introduced in the parliament. however, no act was passed by the parliament, amending the essential commodities act, 1955. in this manner, the ordinances promulgated in the years 1997 and 1998 lapsed in due course of time. the resultant effect is that the provisions of section 7 of the act, which existed prior to 1981 amendment act, would be applicable to the present case.4. as referred to above, prior to 1981, every offence under the said act was cognizable, as provided expired, it would be clear that the words 'and non- bailable' cannot be read in section 10-a of the act, with regard to the offence which had taken place after the expiry of the period of 1981 amendment act (as extended from time to time) and after the period when the 1997 and 1998 ordinances had lapsed. the net result would be that with regard to the offences committed after the expiry of the said period, the words 'and non-bailable' could not be read in section 10-a of the act. once it is found that the words 'and non-bailable' had been omitted in section 10-a of the act, that by itself would not be sufficient to hold that all the offences under the act had become bailable. the essential commodities act, 1955, as it exists after the expiry of period of 1981 amendment act (as amended from time to time) and after the lapse of 1997 and 1998 ordinances, is thus silent as to whether the offences under the said act are bailable or non-bailable. in that eventuality, we have to fall back upon the provisions of code of criminal procedure, 1973. in schedule ii of the code of criminal procedure, 1973, it is provided that with regard to the offences against other laws (other than indian penal code), if the offence is punishable with imprisonment for less than 3 years or with fine, the offence would be bailable and if the offence is punishable with imprisonment for 3 years and above, the offence would be non- bailable. since the essential commodities act does not specify as to whether the offence is bailable or non-bailable, the above said provisions of code of criminal procedure would apply.5. in view of the above, the question as to whether the offence is bailable or non-bailable, would depend upon the quantum of punishment provided under the said act. some of the offences committed under the act are punishable with imprisonment upto 7 years, whereas some of the offences are punishable with lesser imprisonment, the maximum sentence provided is imprisonment for one year. it will all depend with regard to the offence committed by the accused. a similar view was taken by a division bench of the bombay high court, in the case reported as pruthviraj chandrakant shinde v. state of maharashtra, 2000(1) recent criminal reports 531.6. in the present case, it is not disputed before me that the offence involved is punishable with maximum punishment of 7 years. that being so, the offence is non-bailable. that being so, the provisions of section 438 cr.p.c. would be applicable to the present case.7. coming on merits, the learned counsel for the state, on the basis of instructions received by him from asi, sandeep singh, of ps sadar, panipat, has submitted that in the various ration cards, the entries regarding the sale of the sugar etc. are there in respect of the disputed period.8. after hearing the counsel for the parties and without expressing any opinion on the merits of the case, it is directed that in case of arrest of the petitioner, in this case, petitioner shall be released on bail by the arresting officer, on furnishing band to the satisfaction of the arresting officer. it is further directed that the petitioner shall join investigation, shall not tamper with the prosecution evidence, and shall not leave india without the prior permission of the court.9. order accordingly.