R.K. Das, J.
1. This is 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 to he 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 thereby committed prejudicial act within the meaning of Clause 35 (6) (i) of the Defence of India Rules. After charge-sheet was submitted, the bail application was moved on behalf of the petitioner and it was rejected by the S.D.O Nilgiri by his order dated 15-10-65 on the ground that Kerosene is an essential commodity and the materials on record disclosed that the petitioner sold kerosene at a much higher rate than the prevailing market price His application for hail before the Sessions Judge having also been rejected, the petitioner has come up to this Court with this petition to enlarge him on bail.
3. The Defence of India Rules. 1962, (hereinafter mentioned as 'the Rules') make 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 Cr. Procedure, 1898, no person accused or convicted of a contravention of the 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 notification 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 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 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 Section 496 or 497 or any other provision of the Code of Criminal Procedure governing the grant of bail do not arise for consideration.
4. The learned Standing Counsel was given notice of this petition for bail by the petitioner and was given due opportunity to oppose the 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 purpose 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 there under are pieces of emergency legislations. Rule 155 is an overriding provision which lakes away the powers of the Court to release a person on bail when he is charged for contravention of am such notified Rules, unless the Court is satisfied that there are reasonable grounds to believe that the accused is not guilty of such contravention. In the present case, it is difficult at this stage to say that the petitioner is not guilty of such contravention.
5. Mr. Kanungo learned counsel for the petitioner, urged that the allegation against the petitioner being that he sold Kerosene at a price higher than the controlled price it may at best amount to violation of the provisions of the Kerosene Control Order issued by the Government under Rule 125 of the Rules, but does not amount to contravention of Rule 41 and since Rule 125 is not a notified Rule, the rigour of Clause (b) of Rule 155 has no application to the case, and as such the petitioner is entitled as of right to be released on bail. No doubt it appears that the Kerosene (Price) Control Order of 1963 was issued by Central Government in exercise of the powers conferred on them under Rule 125 of the Defence of India Rules, and it has not been shown whether that Rule was a notified Rule for the purpose of Clause (b) of Rule 155. But it is the case of the State that the petitioner committed a prejudicial act within the meaning of Rule 35 (b) (i) and as such, is punishable under Rule 41(5) and Rule 41 being one of the notified Rules for the purposes of bail under Rule 155 (b), the petitioner is not entitled to bail unless the Court is satisfied that he is not guilty of such contravention of Rule 41. There cannot be any dispute that a prejudicial act within the meaning of Rule 35(6) (i) is punishable under Rule 41(5) Sub-clause (i) of Clause (6) of Rule 35 describes 'prejudicial ad' to mean any act which is intended or is likely to impede, delay or restrict......supply or distribution of any essential commodity and 'essential commodity' has been defined in Clause (3) of Rule 35 to mean food, water, fuel, light, power or any other thing essential for the existence of the community which is notified in this behalf by Government. There cannot be any doubt that Kerosene which is used as fuel and light is one of the commodities essential for the existence of the community Whether the alleged act committed by the petitioner comes within the scope of Rule 41 or Rule 125 is a question of merit which has to be gone into by the Court at the stage of trial. For the purpose of the present application we are only concerned with the question whether Rule 41 is one of the notified rules so as to be attracted by the provisions in Clause (b) of Rule 155 that there are reasonable grounds for believing that the petitioner is not guilty of contravention of an offence provided under Rule 41.
6. In a case reported in AIR 1964 Cal 220 Suren Banerjee v. State while dealing with a case under Rule 41 of the Defence of India Rules their Lordships look the view that Rule 155 takes away the powers of the Court to release a person charged under a notified rule on bail, except on fulfillment of certain conditions, one of which is the satisfaction of the Court that there arc no reasonable grounds for believing that the person charged is not guilty of contravention ('See also AIR 1964 Ker 221 Govindan Kutty v. State of Kerala; AIR 1965 All 78 Betal Singh v State and 1963 (2) Cri LJ 238 (Punj) Rulia Baru v. State of Punjab) It is difficult to say at this stage that there are reasonable grounds to believe that the petitioner is not guilty of contravention of Rule 41 (5) for which he has been prosecuted.
7. The petition is accordingly rejected.
The learned Magistrate will, however, expedite the hearing of the case and try to dispose of the same preferably within two months.