Dhinrendara Brahamchari vs State of J & K

This is an application filed under Section 497A of the Code of Criminal Procedure, for the grant of Anticipatory bail to the petitioner on the

ground that he has reason to believe that he may be arrested for offences punishable under sections 3/5, 10, 12, 25, 26 and 30 of the Indian Arms

Act, and other nonbailable offences. It is stated in the petition that among his various multifarious activities and projects for national reconstruction,

he engages himself in industrial concerns also. On such industrial project in which he is a partner is ""Shiv Gun Factory"" running the business of

manufacturing of ML/BE guns. This factory is licenced under the provisions of the Indian Arms Act. The factory is authorised to manufacture 3000

guns per annum. The manufacture of guns so allowed could be made by components obtained from any where in the world according to the

provisions of law. Component parts were accordingly imported in accordance with law from one M/s Carrero Y. Astelarra, Spain. The import of

component parts from Spain is, according to the petitioner, strictly in accordance with the rules and regulations governing it. The petitioner,

because of his national and international repute has invited great ""jealousy"" and animosity from interested quarters. The petitioner came to know

that a crime F. I. R. No. 364 of 1983, police station Gandhi Nagar, Jammu, has been registered against him. The substance of the complaint is that

barrels and guns with identification mark of a foreign country have been stored in Shed No. 6 belonging to the firm of which the petitioner is a

partner in violation of the relevant provisions of the Arms Act. Three persons were arrested. Wide publicity was given to this arrest. The petitioner

was shocked to receive the news of the arrest of said persons. From the Press Reports he came to know that Steps were afoot for his arrest also.

The petition contains various other details to make out that the apprehended arrest is malafide and that a special team is proceeding to Delhi to

arrest him. He fears that he would be arrested to humilitate and to bring him down in the estimate of the public at large who have great respect for

him, Hence this application for grant of anticipatory bail. Along with the application, the petitioner has produced a few Annexures to show that the

manufacture of the guns was being done strictly in accordance with law He has also produced extracts from leading Newspapers to justify his case

that his arrest was imminent.

The state has filed objections to the application through the learned Advocate General. The following facts are disclosed in the objections

On receipt of reliable information, the police conducted a search of Shed No. 6 of M/s. Shiv Gun Factory Industrial Estate Gandhi Nagar, Jammu

and seized 500 barrels and connected components from the first floor. They were made in Spain. The Manager, the Store Keeper and a partner

who were present failed to produce any documents in respect of those fire arms. On 191183, the partner produced a licence wfeich authorised

manufacture of 3000 HL/ BL guns at Shed No. 9 only. The licence was not valid for the purpose of assembling components of foreign made fire

arms. The seized barrels and firing machanism were complete components of foreign guns and all that was required to be done was to fit them to

make a full gun. No valid import licence was produced. The police suspected contravention of the provisions of the Arms Act and clandestine

import of arms and their storage in unlicenced premises. The accusation necessiate through investigation, for which interrogation of connected

persons was essential and the petitioner who is the major partner of the firm had also to be interrogated. It is stated in the objections that if the

petitioner is to be enlarged on bail, that would hamper investigation. It is also stated that he would win over the prosecution witnesses.

One Shri Bharat Vinod Dutt, ExMunicipal Councillor filed an application to permit him to assist this court for deciding the petition as an

intervener. It is stated in the petition that one Shri Dharam Chand, held a licence for the repair of guns only, and, that the petitioner got the said

licence converted into a gun manufacturing licence using his influence. The licence was so converted in the name of original licencee and in the name

of the petitioner. Manufacturing of guns was started in the premises over which he had no right. The petitioner has no valid documents for the

import of the said seized guns. The accusation against the petitioner is serious in nature and bail should not be granted to him, since grant of bail

would seriously effect the course of investigation.

An Advocate of this Court Shri Bhim Singh, has also filed an application to permit him to intervene. The application contains materials not

relevant for the petition although it is stated in the petition that the petitioner cannot import the seized guns made in Spain on the Strength of the

licence in favour of Shiva Gun Factory.

On 25111983, I passed orders granting anticipatory bail to the petitioner and imposing certain conditions for his strict observance. I directed the

case to be posted before me on 11283, The matter was argued at length again before me on that day. The petitioner has produced further

documents in support of his case alongwith an affidavit.

I would like to disabuse an impression attempted to be created by the petitioner's counsel relying upon the decision of the Supreme Court

reported in A. I. R. 1930 S. C. 1632 that all that an applicant has to establish in an application under Section 497A Cr. P. C. to get anticipatory

bail, is to satisfy the court that he apprehends that he would be arrested. The Supreme Court has not Laid down the law thus. The Supreme Court

has before it a case wholly dissimilar in nature with one that I have before me. The background of that case can be best understood from the

following observations in Paragraph 8.

'""But the crimes, the criminals and even the complainants can occasionally possess extraordinary features. When the even flow of life becomes

turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be

perverted for achieving extraneous ends. Attendant upon such investigation, when the police are not free agents within their sphere of duty, is a

great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in handcuffs,

apparently on way to a court of Justice. The foul deed is done when an adversy, is exposed to social .ridicule and obloquy, no matter when and

whether a conviction is secured or is at all possible. It is in order to meet such situation though not limited to these contingencies that the power to

grant anticipatory bail was introduced into the Code of 1973.

Two conditions that are to be satisfied to entitle a person to approach the Court for anticipatory bail are, (1) that he fears that he would be

arrested, and (2) that the anticipated arrest is for a nonbailable offence. If these two conditions are satisfied alone, can one maintain an application.

But that does not give one a right of grant of bail as a matter of course. The Court has always discretion to consider each case on its facts and

either grant anticipatory bail or refuse it. The Supreme Court his in the case mentioned above, outlined the powers of the Court for grant of

anticipatory bail and highlighted the discretion vested in the court to at in a given case having regard to its particular facts, la paragraph 14, the

Supreme Court has observed thus :

Generalizations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ

from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and, therefore, courts have to be allowed a

little free play in the joints if the conferment of discretionary power is to be meaningful There is no risk involved in entrusting a wide discretion to

the court of Sessions and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced person,

secondly their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by

courts judicially arid not according to whim, caprice, or fancy. On the other hand. there is a risk in foreclosing categories of cases in which

anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges"".

Suffice it to say that the petitioner's counsel is not well founded in his contention that the applicant before a court for grant of anticipatory bail gets a

right once he satisfies the court that he is liable to be arrested for a nonbailable offence Much more needs to be done and that rests with the

discretion of the court.

Counsel on both sides took me through the relevant provisions of law, Import and Export Policy, (Red Book) and various Schedules. It would

be premature for me to pronounce upon the validity of the contentions raised on either side and hence I refrain from doing so.

Since this is only an application for bail, I do not think that I will be justified in going into the merits of the case. Suffice it to say, that the

disclosures made serious in nature. A thorough investigation into the wide ramification of the allegations is absolutely necessary, in the present

context of alarming state of affairs existing around us. There is serious allegation that the petitioner has imported ready made guns from outside

without valid documents. It is further alleged that even the documents produced have been tampered with, I refrain from making any comment

upon these allegations countered by the petitioner for the good reason, that the correctness of these allegations will have to be tested at the

appropriate stage and not now. However, I cannot close my eyes to one disturbing development between 24111983 and 11283. On the 24th of

November, 1983, the learned Advocate General displayed before me a ready made barrel made in Spain and a butt made in Germany. He said

that these were component parts seized from Shed No. 6 and that 500 such guns similar in nature were also seized at that time the counsel

appearing for the petitioner, did not dispute that such guns were seized from the factory. All that he said was that the display by the Advocate

General was to mislead the court and to prejudice me. However, on 1121983, the same counsel appearing for the petitioner vehemently asserted

that the guns displaced on the early occasion along with 500 guns seized had nothing to o with the petitioner's firm and that they were manufactured

by 'the police in their factory. This assertion evoked derisive reaction both from the Advocate General and Shri R. P. Sethi, appearing for the

intervener. The petitioner's counsel, how ever, displayed another barrel and some component parts wrapped in a piece of cloth and said that those

were the parts manufactured in the petitioners factory. He did not try to tell me from where this ready made barrel and parts were obtained by him.

On 24II83, I felt that the only indigenous process that the petitioner's factory engaged itself was to connect the barrel made in Spain to the but end

made in Germany, to make it a finished gun. On that date, I was under the impression that what was displayed before me were the parts of the

guns seized from the petitioner's factory. I did not think of probing further into the matter at that time. I cannot now suppress may amusement at the

volts face and the strongly worded assertion now made before me by the petitioner's counsel to tally disowning the petitioner's factory's ownership

of these finished products. This disturbing development constrains me to remark that the case needs through investigation in all its details minutely.

Another development that has caused resentment in me is the fact that the petitioner met the Frees after he was given liberty by the order

passed by this Court, and offered remarks touching matters related with the case. The petitioner's counsel admitted this and offered regrets. It is

necessary to remarks that this conduct of the petitioner to say the least is improper and tends to obstruct the process of law. It is a flagrant abuse

of the indulgence shown by the Court in granting him bail.

The learned Advocate General stated before me that the petitioner was accompanied by a retinue of persons when he came to Jammu for

interrogation. That included Ballistic experts. Advocates and others. Their presence hindered proper interrogation. They even meddle with

interrogation by the police the petitioner's counsel did not seriously dispute the presence of some persons alongwith the petitioner. This again is an

abuse of the permission given by this Court. The petitioner's counsel justified the presence of the Advocates on the strength of the decision

rendered by the Supreme Court in A. I. R. 1978 S. C. 105. I may atone state that the facts of the present case are dissimilar with the facts of that

case. A person accused of a crime cannot as of right demand the presence of an advocate to assist him at the time of his interrogation. Even if a

counsel is present, he has to be tightlipped when the accused is under interrogation.

I view these subsequent developments not without concern, However, since the petitioner has cooperated with the police in submitting himself

for interrogation, I would extend the earlier directions given by me in my order dated 25111983 to be operative until further orders with the

conditions attached but subject to the following conditions also :

(a) The petitioners shall not make any public statement or meet the Press and say anything touching the case under investigation.

(b) The petitioner shall have the services of one counsel of

(a) his choice for consultation before interrogation. He shall however, be not present at the time of interrogation.

If any of the above conditions are violated by the petitioner, the state will be at liberty to move the court for cancellation of the bail.

Before parting with this case I would like to express my great concern at the proliferation of gun factories in a small and sensitive state like this.

In the present context, it is necessary to have utmost vigilance and strict surveillance over the factories

Manufacture of guns should normally be the monoploy of the Central Government even for civilian use. It is any body's guess whether the guns

manufactured in these factories clandestinely go to place where they can be used for antinational activities. What ever be the reason for the

existence of a large number of gun factories in the State, historical or otherwise, it would be in the fitness of things to have utmost vigilance and to

see that every gun manufactured is accounted for. When I say this I should not be taken to cast any suspicion on any other gun factory. It only

shows my concern at the mad ballistic activism around

I dispose of the application as above.