Sanjay K. Agrawal, J.

1. Invoking jurisdiction of this court under Section 439 of the Cr.P.C., the applicants have filed this application for grant of regular bail stating inter alia that they have been arrested in connection with POR No. 8837/18, Forest Ranger, Duldula, Jashpur, Police Station Tapkara, District Jashpur, for the offence punishable under Section 9 of the Wild Life (Protection) Act, 1972 (for short, the Act, 1972) and under Section 26(i) of the Indian Forest Act, 1927 (for short, the Act, 1927).

2. Case of the prosecution, in brief, is that the applicants haunted Barking Deer which is a animal specified in Schedule-III of the Act of 1972, and concealed the meat of such animal in the forest which is an offence punishable under Section 26(1)(i) of the Act, 1927.

3. Shri Dilman Rati Minj, learned counsel for the applicants would submit that for commission of offence under Section 9 of Act of 1952, punishment is prescribed under Section 51(1) of Act of 1972, and shall, on conviction, be punishable with imprisonment for a term which may be extend to three years or fine with Rs. 25,000/- or with both, and proviso to Section 51(1) of Act, 1972 is not applicable because the barking Deer which is allegedly killed by the applicants is neither schedule-I or Schedule-II animal for which imprisonment may extend to seven years and a such offence which the applicants are charged is bailable one and offence under Section 26(1)(i) of Act 1927 is also bailable offence as punishment prescribed in only six months or with fine and therefore, both the courts below have committed an legal error in not granting to them bail in the bailable offence.

4. On the other hand, Shri D.K. Gwalre, learned counsel for the non-applicant/State would submit that offence committed by the applicants are bailable offence and bail ought to have been granted by the court below.

5. I have heard the counsel appearing for the parties and perused the case diary with utmost circumspection.

6. At this stage it would be appropriate to notice, relevant provisions contained in Act of 1972 as well Act of 1927 and Code of Criminal Procedure, 1973.

"51. Penalties.- (1) Any person who [contravenes any provision of this Act (except Chapter VA and Section 38J)] or any rule or order made thereunder or who commits a breach of any of the conditions of any licence or permit granted under this Act, shall be guilty of an offence against this Act, and shall, on conviction, be punishable with imprisonment for a term which may extend to [three years] or with fine which may extend to [twenty-five thousand rupees] or with both;

[Provided that where the offence committed is in relation to any animal specified in Schedule I or Part II of Schedule II or meat of any such animal or animal article, trophy or uncured trophy derived from such animal or where the offence relates to hunting in a sanctuary or a National Park or altering the boundaries of a sanctuary or a National Park, such offence shall be punishable with imprisonment for a term which shall not be less than three years but may extend to seven years and also with fine which shall not be less than ten thousand rupees:

Provided further that in the case of second or subsequent offence of the nature mentioned in this sub-section, the term of imprisonment shall not be less than three years but may extend to seven years and also with fine which shall not be less than twenty-five thousand rupees.]"

*****

"SCHEDULE III

(See sections 2, 8, 9 [***] 11 and 61)

[***]

[1. ***]

2. Barking deer or muntjac (Muntiacus muntjak)"

*****

"The Indian Forest Act, 1927

26. Acts prohibited in such forests.-(1) Any person who-

(a) ........

(b) ........

(c) ........

(d) ........

(e) ........

(f) ........

(g) ........

(h) ........

(i) in contravention of any rules made in this behalf by the [State Government] hunts, shoots, fishes, poisons water or sets traps or snares; or"

*****

7. In a decision reported in Om Prakash and Another v. Union of India & Another the Supreme Co