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advtanmoy
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Balchand Jain vs State Of Madhya Pradesh

SUPREME COURT OF INDIA

1977 AIR 366, 1977 SCR (2) 52

Section 438 of the Code of Criminal Procedure, 1973 provides that when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this Section. Rule 184 of the Rules made under Defence and Internal Security of India Act, 1971 enacts that notwithstanding anything contained in the Code of Criminal 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 the 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.

A Food Inspector raided the shop of the appellant, who was a merchant dealing in kiryana goods and kerosene oil etc., and seized his account books. Apprehending that he might be arrested on a charge of non-bailable offence for contravention of the provisions of the Defence and Internal Security of India Act and the Rules, the appellant approached the Sessions Judge for an anticipatory bail under s. 438 of the Code of Criminal Procedure, 1973. The Sessions Judge rejected the application. Dismissing his appeal, the High Court held that the express provisions of r.184 of the Rules superseded s. 438 of the Code in so far as offences set out in r. 184 were concerned.

Allowing the appeal and remanding the case to the High Court: