Dinesh And Ors vs State Of Rajasthan

In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.

This Court perused the material available on record.

The petitioners have been arrested in connection with FIR No.321/2020 of Police Station Bichiwada, District Dungarpur for the offences under

Section 8/20 of NDPS Act & Section 3/25 of Arms Act (CRLMB No.12956/2020); FIR No.296/2020 of Police Station Udaimandir, Jodhpur for the

offences under Sections 3/25 & 5/25 of Arms Act (CRLMB No.13088/2020) and; FIR No.266/2020 of Police Station, Jai Narayan Vyas Colony,

Bikaner for the offence under Section 3/25 of Arms Act (CRLMB No.13204/2020). They have preferred these bail applications under Section 439

Cr.P.C.

Mr. R.S. Choudhary and Mr. Jitendra Ojha, learned counsel for the petitioners, at the threshold, raised a legal issue that all the offences under the

Arms Act, 1959 (hereinafter also referred to as 'the Act'), by virtue of a bare reading of Section 37 of the Act read with Section 436 of the Code of

Criminal Procedure (for brevity, 'Cr.P.C.'), are bailable.

Learned counsel for the petitioners thus, while harping upon the offences under the Act being bailable, claimed absolute entitlement of bail for the

accused-petitioners under the Arms Act.

Learned counsel for the petitioners made it clear that they are not pressing the bail applications on merits, but were making submissions only on the

aforesaid law point, as, if the offences under the Arms Act are rendered bailable by this Court, then the petitioners shall become entitled for bail

without even going into the merits of the case in Arms Act cases only.

After hearing learned counsel for the petitioners for some time, looking to the greater importance of the aforesaid legal issue involved in the present

cases, wherein any verdict to be delivered, is likely to affect a large number of accused persons, this Court verbally extended invitation to the Bar at

large, to express their valuable views and advance their arguments for the purpose of adjudicating the issue. Such verbal invitation was spiritedly

accepted. Accordingly, apart from learned counsel for the petitioners and the assigned learned Public Prosecutor, Mr. Vineet Jain, learned Advocate

and Mr. Gaurav Singh, learned Public Prosecutor have, with their usual clarity, addressed this Court, while advancing their submissions on the

aforementioned legal issue at length.

Learned counsel representing the petitioners and other learned Counsels, submitted that the issue involved herein had already been decided by this

Hon'ble Court at Jaipur Bench in S.B. Criminal Misc. 2nd Bail Application No.6746/2009 (Ramvilas @ Billu Vs. State of Rajasthan, decided on

02.09.2009). The relevant portion of the said judgment reads as follows:

Learned Public Prosecutor has fairly conceded that under the provisions of section 37 of the Arms Act, any offence under the Act has been made

bailable.

Having considered the submissions made at the Bar and perused the relevant material available on record, I feel apt to reproduce section 37 of the

Arms Act which is thus:

Arrest and searches.--Save as otherwise provided in this Act,--

(a) all arrests and searches made under this Act or under any rules made thereunder shall be carried out in accordance with the provisions of the

Code of Criminal Procedure, 1973 (2 of 1974)], relating respectively to arrests and searches made under that Code;

(b) any person arrested and any arms or ammunition seized under this Act by a person not being a magistrate or a police officer shall be delivered

without delay to the officer in charge of the nearest police station and that officer shall--

(i) either release that person on his executing a bond with or without sureties to appear before a magistrate and keep the things seized in his custody

till the appearance of that person before the magistrate, or

(ii) should that person fail to execute the bond and to furnish, if so required, sufficient sureties, produce that person and those things without delay

before the magistrate.

This section envisages that if any person arrested and any arms or ammunition is seized under this Act, then that person is entitled to have been

released on his executing a bond with or without surety for his appearance before the Magistrate. The accused shall be taken to the Magistrate only in

the event when the accused fails to furnish the bail bond. The provisions of Section 37 of Arms Act are mandatory and analogous to the provisions of

Sec. 436 of Cr.P.C. It appears that these provisions have escaped notice of the learned court below.

As is evident, the petitioners are alleged to have been involved in the offence under Section 3/25 of Arms Act. Admittedly, this offence is bailable.

The grant of bail to a person accused of a bailable offence is governed by the provisions of Section 436 of Code of Criminal Procedure, 1973. . . . . .

At this juncture, per contra, Mr. Mahipal Bishnoi and Mr. Gaurav Singh, learned Public Prosecutors, representing the State of Rajasthan submitted

that in the judgment of Ramvilas @ Billu (supra), the Hon'ble Court has presumed the offence under the Arms Act to be bailable on count of Section

37 of the Act, and has not dealt with the merits of the legal position, so as to hold the offence under the Arms Act as bailable offence. 9.1 Learned

Public Prosecutor further submitted that the Hon'ble Court, while adjudicating the case of Ramvilas @ Billu (supra), has merely allowed the bail

application on count of the admission of the learned Public Prosecutor that the offences under the Arms Act were bailable in accordance with Section

37 of the Act, and therefore, it was mandatory in the spirit of Section 436 Cr.P.C. for the petitioner to have been granted bail.

9.2 Learned Public Prosecutor thus submitted that the question of the offence under the Arms Act being bailable, which has not been adjudicated at

all in the judgment of Ramvilas @ Billu (supra), remains open and in fact has been addressed in another judgment rendered by this Hon'ble Court at

Jaipur Bench in S.B. Criminal Misc. Bail Application No.13027/2014 (Amar Singh Naruka Vs. State of Rajasthan, decided on 02.12.2014), relevant

portion of which, reads as under:

I have considered the submissions made on behalf of the respective parties, the material made available for my perusal as well as the relevant legal

provisions and the case law relied upon on behalf of the petitioner.

... ... ..

Now, it is useful to quote Section 37 of the Act, which is as below :

Arrest and searches.--Save as otherwise provided in this Act,--

(a) all arrests and searches made under this Act or under any rules made thereunder shall be carried out in accordance with the provisions of the

Code of Criminal Procedure, 1973 (2 of 1974)], relating respectively to arrests and searches made under that Code;

(b) any person arrested and any arms or ammunition seized under this Act by a person not being a magistrate or a police officer shall be delivered

without delay to the officer in charge of the nearest police station and that officer shall--

(i) either release that person on his executing a bond with or without sureties to appear before a magistrate and keep the things seized in his custody

till the appearance of that person before the magistrate, or

(ii) should that person fail to execute the bond and to furnish, if so required, sufficient sureties, produce that person and those things without delay

before the magistrate.

Clause (a) of Section 37 of the Act provides that all arrests and searches made under the Act or under any rules made thereunder shall be carried out

in accordance with the provisions of the Code relating respectively to arrests and searches made under that Code. Thus, no special procedure has

been provided under the Act for arrest of a person or search and seizures to be effected under the Act. Clause (b) provides that any person arrested

or any arms or ammunition seized under this Act by a person not being a Magistrate or a police officer shall be delivered without delay to the officer

in-charge of the nearest police station and that police officer shall either release that person on his executing a bond with or without sureties to appear

before a magistrate and keep the things seized in his custody till the appearance of that person before the magistrate.

A close look at the aforesaid provision makes it clear that this provision is applicable only when a person is arrested by a person other than a

magistrate or a police officer and only in that situation the person so arrested is required to be handed over without delay to the officer in-charge of

the nearest police station. I am of the considered view that if a person is arrested under the provisions of the Act by a police officer or a Magistrate

i.e. Executive Magistrate, the provision is not applicable and it is not necessary that the person so arrested is handed over to the officer in-charge of

the nearest police station. Furthermore, at the most what this provision provides is that the person so arrested shall be released by the officer in-charge

of the police station only for the limited purpose of his appearance before a magistrate on his executing bond with or without sureties and merely

because the officer in-charge of a police officer has been empowered to release such person for a limited purpose of his appearance before the

Magistrate, in my view, it cannot be said that the offences or any of the offence punishable under the Act are/is bailable. I am of the considered view

that the provisions of Section 37 of the Act are not at all relevant to determine whether the offences or any of the offence punishable under the Act is

bailable or non-bailable. Reliance on this provision for that purpose is wholly misplaced. It is pertinent to note that as per the Section 38 of the Act

every offence under the Act has been made cognizable within the meaning of the Code i.e. a police officer is empowered to arrest a person accused

of an offence under the Act without warrant.

As already said, Section 20 of the Act empowers not only a Magistrate i.e. Executive Magistrate and a police officer, but some other persons also to

arrest a person without warrant if such person is found to be carrying or conveying any arms or ammunition in the circumstances enumerated in that

provision and also to seize such arms or ammunition, I am of the firm view that Clause (b) of Section 37 of the Act has been enacted only to deal with

a situation where the person is arrested by such other person and in that situation the person so arrested and the arms or ammunition so seized is

required to be delivered to the officer in- charge of the nearest police station and such officer has been empowered to release the person so arrested

on his executing a bond with or without sureties to appear before a Magistrate, but only by that reason it cannot be held that the offences or any of the

offence punishable under the Act is bailable. Section 37 of the Act is silent what will happen if the person so arrested fails to execute a bond and to

furnish the sufficient sureties as required by the officer in-charge of the police station and he is produced before the Magistrate i.e. Executive

Magistrate. According to the provisions of Section 436 of the Code, only a Court is empowered to release a person accused of a bailable offence and

not an Executive Magistrate. When the Executive Magistrate has not been empowered to release such person on bail, how the release of such person

by officer in-charge of the police station for a limited purpose of his appearance before an Executive Magistrate can be said to be release of such

person on bail. Merely because a special procedure has been provided under Clause (b) of Section 37 of the Act for release of an arrested person,

arrested by some persons specially empowered under Section 20 of the Act, by the officer in-charge of a police station for a limited purpose of his

appearance, before an Executive Magistrate, cannot and does not make the provision analogous to Section 436 of the Code. Section 436 of the Code

authorises an officer in-charge of a police station to release on bail a person accused of a bailable offence if such person is arrested or detained

without warrant by an officer in-charge of a police station. The power conferred upon an officer in-charge of a police station under Section 436 of the

Code is entirely different from the power conferred upon him under Clause (b) of Section 37 of the Act.

Apart from that, if one goes to determine the offences or any of the offence under the Act to be bailable only on the basis of Clause (b) of Section 37

of the Act, some absurd results are bound to occur as some of the offences under the Act are very serious and very severe sentences are provided

for them. Offences enumerated under Subsection (1) of Section 25 of the Act are punishable with imprisonment for a term, which shall not be less

than three years, but which may extend to seven years; offence under Section 25 (1) (a) of the Act is punishable with imprisonment for a term, which

shall not be less than five years, but which may extend to 10 years whereas offence under Section 25 (1AA) is punishable with imprisonment for a

term, which shall not be less than seven years, but which may extend to imprisonment for life. It is beyond imagination that the Legislature intended

that such serious offences carrying severe punishment be made bailable.

Although, a learned Single Bench of this High Court in more than one case relying upon Section 37 of the Act has held that offence under Section

3/25 of the Act is bailable but I am unable to persuade myself to endorse and follow the same, as it has been so held without properly considering all

the relevant provisions of the Code and the Act and, therefore, the view so taken by the learned Single Bench must be held to be per incuriam. It is

well settled that if a decision is rendered overlooking a statutory provision shall be treated as per incuriam and cannot be regarded as a binding

precedent.

.... .... ....

The net result of all this discussion is that there is no provision in the Act expressly or impliedly providing that the offences or any of the offence under

the Act is bailable and in absence thereof the provisions of the Code would be applicable. As the offence for which the petitioner is accused in the

present case is punishable with sentence of imprisonment which may extent to three years, it cannot be held to be bailable entitling the petitioner to be

released on bail as of right.

... ... . . . .

Learned counsel for the petitioners have thereafter taken this Court through Section 37 of the Act and Section 436 Cr.P.C., which read as follows:

Section 37 of the Act-

Arrest and searches.--Save as otherwise provided in this Act,--

(a) all arrests and searches made under this Act or under any rules made thereunder shall be carried out in accordance with the provisions of the

[Code of Criminal Procedure, 1973 (2 of 1974)], relating respectively to arrests and searches made under that Code;

(b) any person arrested and any arms or ammunition seized under this Act by a person not being a magistrate or a police officer shall be delivered

without delay to the officer in charge of the nearest police station and that officer shall--

(i) either release that person on his executing a bond with or without sureties to appear before a magistrate and keep the things seized in his custody

till the appearance of that person before the magistrate, or

(ii) should that person fail to execute the bond and to furnish, if so required, sufficient sureties, produce that person and those things without delay

before the magistrate.

Section 436 Cr.P.C. 436. In what cases bail to be taken.

(1) When any person other than a person accused of a non- bailable offence is arrested or detained without warrant by an officer in charge of a

police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the

proceeding before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, may, instead

of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: Provided further

that nothing in this section shall be deemed to affect the provisions of sub- section (3) of section 116 or section 446A.

Learned counsel for the petitioners, thereafter, have drawn the attention of this Court towards Schedule I Part II of Cr.P.C., pertaining

classification of offences against laws, which reads as follows:

Offence Cognizable or Bailable or By what

 Non-cognizable Non-Bailable court

 triable

If punishment Cognizable Non-bailable Court of

with death, Sessions

imprisonment

for life, or

imprisonment

for more than

7 years

If punishable Cognizable Non-bailable Magistrate of

with the First

imprisonment Class

for 3 years and

upwards but

not more than

7 years

If punishable Non-cognizable Bailable Any

with Magistrate

imprisonment

for less than

3 years or

with fine only

The attention of this Court has also been drawn by learned counsel for the petitioners towards Section 25(1B) of the Act, which prescribes the

least punishment in the Arms Act for the offence under Section 3 of the Act, and the same reads as follows:

25(1B) Whoever-

(h) . . . . .

(i) . . . . .

shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to

fine.

Learned counsel for the petitioners further submitted that in several decisions, Hon'ble High Court of Delhi held that the offences punishable under

other enactments for imprisonment upto three years do not fall under the second entry of Part-2 of Schedule-I Cr.P.C., and therefore, are non-

bailable. In this regard, learned counsel for the petitioner relied upon the precedent law of Mohan Lal Thapar Vs. Y.P. Dabara, 2002(1) JCC 460 and

Inderjeet Nagpal Vs. Director of Revenue Intelligence, ILR (2005) I Delhi 296.

Learned counsel for the petitioners also submitted that the Hon'ble Bombay High Court had taken a similar view in Avinash Bhosle Vs. Union of

India (CRLA 1174/2007, decided on 07.08.2007), while holding that the offences, punishment wherefor, may extend to three years imprisonment, are

non-bailable.

However, as per learned counsel for the petitioners, the Hon'ble Supreme Court thereafter, in Avinash Bhosle Vs. Union of India (Criminal Appeal

No.1138/2007, decided on 27.08.2007) had set aside the aforesaid view taken by the Hon'ble Bombay High Court, in the following terms:

Leave granted.

On the material placed on record, and the amended Section 135(1)(ii) of the Customs Act, 1962 it appears to us that apparently the offence which

is alleged to have been committed is a bailable offence and thus the Magistrate has rightly granted bail to the appellant. In view of this, the order of the

High Court is set aside.

We make it clear that if the Department wants to proceed with the appellant in regard to any other violation or infraction of the Customs Act or any

other Act which are distinct from the offence for which the appellant was arrested, the Department can proceed with such matters in accordance

with law.

The appeal is accordingly, allowed.

Learned counsel for the petitioners further submitted that once Section 37 of the Act is read with Section 436 Cr.P.C., the offence under the Act,

punishable with imprisonment upto three years being bailable, is beyond doubt.

Contrario sensu, learned Public Prosecutor vehemently opposed the aforesaid propositions advanced on behalf of the petitioners, on the ground

that the case laws of other Hon'ble High Courts and the Hon'ble Supreme Court were pertaining to the Customs Act and the Copyrights Act, and did

not cover the crucial issue of Arms Act, as involved herein.

Learned Public Prosecutor submitted that the gun culture has been consciously kept under check by the legislature, and thus, the intention behind

bringing in the Arms Act, was to ensure that the holding of arms is allowed, while keeping abundant caution and within the parameters of law.

Learned Public Prosecutor again harped upon the earlier judgment delivered by this Hon'ble Court in the case of Amar Singh Naruka (supra), and

explained that how Section 37 of the Act was only pertaining to arrests and searches by the authorities, other than a Magistrate or a police officer.

Learned Public Prosecutor also explained that the language employed in the relevant provision of Section 25(1B) of the Act, pertaining to the

punishment for the offence under Section 3 of the Act, is punishment of not less than one year's imprisonment, but extendable to three years'

imprisonment. Thus, as per the learned Public Prosecutor, once the threshold of three years' imprisonment was reached, Schedule I Part II of Cr.P.C.

would also not apply in the present case, as it only deals with the offences being bailable, when punishable with the imprisonment for less than three

years. The thin-line between less than three years' imprisonment and extendable upto three years' imprisonment has also been explained by the

learned Public Prosecutor.

Having given a thoughtful consideration to the arguments advanced by the learned counsels and the learned Public Prosecutors, this Court is of the

considered opinion that though both the views have been taken by this Hon'ble Court in various judgments, which have also been brought to the

knowledge of this Court, and the representative views have been reproduced here, but this Court is unable to persuade itself to agree with the view, as

taken in Ramvilas @ Billu (supra), as Section 37 of the Act is a clear provision only for arrests and searches, and does not deal with the bail in

specific. Thus, to rely upon Section 37 of the Act and to contend that all the offences punishable under the Act are bailable, as per the language of the

provision of Section 37(b), would be a far-fetched connotation of law.

On a bare reading of the judgment rendered in Ramvilas @ Billu (supra), it is clear that the Hon'ble Court has deemed the offence under Section

3/25 of the Arms Act as a bailable offence without adjudicating the issue, and has in fact dealt only with Section 436 Cr.P.C.

On a bare reading of Section 25(1B) of the Act, relevant extract of which has already been quoted hereinabove, and which provides for

punishment for the offence punishable under Section 3 of the Act, this Court finds that the punishment under the said provision is extendable upto

three years' imprisonment, and thus, Schedule I Part II of Cr.P.C., cannot be construed, as declaring the present offences as bailable, as the same

clearly mentions less than three years' imprisonment as limit for bailable offences.

The Arms Act, in itself, though being an independent law, but the same does not provide any answer to the question of bailability or non-bailability

of the offences, and thus, for finally determining the same , this Court shall have to go into the general provisions contained in the Cr.P.C., as Section 4

sub-section (2) of Cr.P.C. provides that offences under any law shall have to be dealt with in accordance with the same provisions, subject to other

enactments regulating such dealings, and since in the present case, the Arms Act is not regulating the nature of the offences being bailable or non-

bailable, the question has to be strictly answered within the realm of such provisions of Cr.P.C.

This Court also finds that Schedule I of the Cr.P.C. in its Part II, clearly envisages the offences, which are punishable with less than three years'

imprisonment and are non- cognizable, are the bailable offences.

The jurisprudence available for some guidance in the precedent law laid down by the other Hon'ble High Courts and the Hon'ble Supreme Court is

not pertaining to the Arms Act, but has widely considered the Customs Act and Copyrights Act, which cannot be equated with the present situation in

the Arms Act, because offences dealt with by the Hon'ble Supreme Court in the case of Avinash Bhosle Vs. Union of India - Criminal Appeal

No.1138/2007 (supra) were pertaining to non-cognizable offences, whereas the provision of Schedule I Part II would not fit in, for the cases pertaining

to the Arms Act, as the offences concerned, are not only cognizable (by virtue of Section 38 of the Arms Act), but also reaches the threshold of three

years' imprisonment and not less than three years.

This Court is conscious of the fact that the easy availability of various unauthorized and illegal arms among the persons, more particularly, the anti-

social elements, has posed, in the society, a very serious law and order situation, which has increased manifold serious challenges being faced by the

law enforcement agencies.

26.1. This Court is also conscious of the fact that as per the information available, more than 17,000 illegal weapons have been recovered in the State

of Rajasthan in last three years, and getting the illegal weapons in the State has become an easy task.

Every month, Rajasthan Police recovers about 500 illegal weapons and as per the information available, 60% of these weapons are smuggled from

Madhya Pradesh. As per the information available, the cost of an unauthorized weapon, like local pistol (desi katta or tamancha) ranges from Rs.500/-

to Rs.2,000/-. As per the information available, there are eleven districts of Rajasthan where the illegal arms are manufactured and stocked, and

supplied therefrom; Jhalawar District topping the list, and the Districts of Bharatpur, Dholpur, Karauli, Churu, Ganganagar, Hanumangarh, Alwar,

Dausa and Rajsamand also falling in the queue.

26.2.The domino effect of gun proliferation in the State of Rajasthan is relevant, and even the serious repercussions it has upon the situation in the law

and order. As per the information available, the National Crime Records Bureau has noted that a large number of seizure in criminal cases was of

unlicensed weapons, totaling 71,135 out of 74,877 arms, thus reflecting the unauthorized arms' menace in its true magnitude.

The legislative intent of bringing in the Arms Act reads as follows:

An act to consolidate and amend the laws relating to arms and ammunition. It aims to reduce the circulation of illegal weapons and the resultant

crimes.

Section 25 (1B) of the Act empowers the Courts to impose a sentence, which may extend upto three years, and thus, the analogy of less than

three years' imprisonment, also would not apply in the present case. As we go through the provisions of the Act, including Section 20 and Section 37

of the Act, it is seen that even person(s), other than a Magistrate or a police officer, are authorized to arrest a person without warrant and seize from

him the arms or ammunition, in the circumstances mentioned in the said provision. While understanding the purport of Section 37 of the Act, such

provisions have to be borne in mind and it has to be understood that for those arrests and searches, the requirement of production before the police

station or the Magistrate concerned for the bail, has been laid down in Section 37 of the Act, which is broadly dealing with arrests and searches only,

and does not have any direct law on the nature of offences being bailable or non- bailable. Thus, Section 37 part of the Act, does not render any help

to the cause of declaring the offences under the Arms Act as bailable.

Section 38 of the Act, which makes every offence under the Act as cognizable offence, reads as under :

Offences to be cognizable.--Every offence under this Act shall be cognizable within the meaning of the Code of Criminal Procedure, 1973 (2 of

1974).

Thus, Section 38 of the Act is the distinguishing feature of the Arms Act with the judgment rendered in the cases pertaining to the Customs Act and

Copyrights Act. The Schedule I Part II Cr.P.C., as for invoking the declaration of bailable offences, the offence has to be non-cognizable offence, and

punishable with imprisonment for less than three years. Since as per Section 38 of the Act, quoted above, every offence under the Act is cognizable,

therefore, the same would not fall within the category of bailable offence, being clearly distinguishable in the Schedule itself.

If Section 37 of the Act, particularly, clause (2) thereof, is read in the manner, as learned counsel for the petitioners want this Court to believe,

then it may result into all the serious offences under the Arms Act punishable with life imprisonment as well as the offences punishable under the Act

with ten years' imprisonment and above, would all become bailable offences.

This Court is thus, of the firm view that all offences, including the offence with minimum punishment provided under the Arms Act, as prescribed

under Section 25(1B) which is extendable upto three years imprisonment, are non-bailable offences.

In view of the above discussion, this Court holds all the offences under the Arms Act as non-bailable offences.

Consequently, the present bail applications under Section 439 Cr.P.C. are dismissed, as they were not pressed on merits at this stage.

This Court records appreciation for the valuable assistance provided by the learned counsels of the Bar and the learned Public Prosecutors in the

present adjudication.