1. Bail applications under NDPS Act and Arms Act — Offences under Arms Act questioned as bailable. (Para 3 , 4 , 5 )
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HIGH COURT OF JUDICATURE FOR RAJASTHAN
Pushpendra Singh Bhati, J
Dinesh – Appellant
Versus
State of Rajasthan – Respondent
S.B. Criminal Miscellaneous Bail Application No. 12956/2020|S.B. Criminal Miscellaneous Bail Application No. 13088/2020|S.B. Criminal Miscellaneous Bail Application No. 13204/2020
Advocates:
For the Appellants/Petitioners: R.S. Choudhary, Vineet Jain, Jitendra Ojha
For the Respondents: Mahipal Bishnoi, Gaurav Singh
For the Appellants/Petitioners: R.S. Choudhary, Vineet Jain, Jitendra Ojha
For the Respondents: Mahipal Bishnoi, Gaurav Singh
All offences under the Arms Act, 1959, are non-bailable because they are cognizable under Section 38 and the minimum punishment under Section 25(1B) extends up to three years, thus not meeting the bailability criteria under Schedule I Part II of the Cr.P.C.
Headnote:(A) Arms Act, 1959 - Sections 3, 25(1B), 37, 38 - Code of Criminal Procedure, 1973 - Sections 436, 439 and Schedule I Part II - Whether all offences under the Arms Act are bailable.
(B) Section 37 of the Arms Act deals specifically with the procedure for arrests and searches and does not determine the bailable or non-bailable nature of an offence. Relying on Section 37(b) to declare all offences under the Act as bailable is a far-fetched connotation of law. (Paras 20, 28)
(C) As per Schedule I Part II of the Cr.P.C., an offence is bailable if it is non-cognizable and punishable with imprisonment for less than three years. Since Section 38 of the Arms Act makes every offence under the Act cognizable and the punishment under Section 25(1B) is extendable up to three years, these offences do not qualify as bailable under the Cr.P.C. (Paras 22, 30)
Facts of the case:
Petitioners sought bail for offences under the Arms Act and NDPS Act, raising a legal issue that all offences under the Arms Act are bailable by virtue of Section 37 of the Act read with Section 436 of the Cr.P.C., and thus argued they were entitled to bail regardless of the merits.
Findings of Court:
The court found that Section 37 is purely procedural and does not override the general principles of bailability. Since the Arms Act specifies that all its offences are cognizable and the minimum sentence under Section 25(1B) reaches the three-year threshold, the provisions for bailable offences in the Cr.P.C. do not apply.
Issues: Whether offences under the Arms Act, specifically those punishable under Section 25(1B), are bailable by virtue of Section 37 of the Arms Act and Section 436 of the Cr.P.C.
Ratio Decidendi: All offences under the Arms Act are non-bailable because they are expressly made cognizable under Section 38 of the Act, and the punishment under Section 25(1B) is extendable up to three years, meanings they fail to satisfy the two-pronged criteria of being non-cognizable and punishable by less than three years required for bailability under Schedule I Part II of the Cr.P.C.
Result: Bail applications dismissed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Petitioners argued all Arms Act offences are bailable under Section 37 read with Section 436 Cr.P.C.; State opposed. (Para 4 , 5 , 6 , 8 , 9 )
3. Section 37 of the Arms Act deals only with arrest and search procedure, not bailability; Section 38 makes all offences cognizable. (Para 20 , 21 , 22 , 28 , 29 , 30 )
4. Offences under the Arms Act are non-bailable; Section 37 does not make them bailable. (Para 32 , 33 )
5. Held all Arms Act offences are non-bailable; bail applications dismissed as not pressed on merits. (Para 33 , 34 )
6. Does Section 37 of the Arms Act make all offences under the Act bailable?
No, Section 37 only governs arrest and search procedure, not bailability. It does not render any offence under the Act bailable. (Para 20 , 22 , 28 , 31 , 32 , 33 )
7. Are offences under the Arms Act bailable or non-bailable?
All offences under the Arms Act are non-bailable, including those punishable with imprisonment extendable to three years under Section 25(1B). (Para 30 , 31 , 32 , 33 )
8. Does Schedule I Part II of Cr.P.C. apply to make Arms Act offences bailable?
No, because Section 38 of the Arms Act makes every offence cognizable, which distinguishes it from the non-cognizable entry in the Schedule. (Para 29 , 30 , 31 )
9. Is the judgment in Ramvilas @ Billu a binding precedent for bailability under the Arms Act?
No, that judgment deemed the offence bailable without adjudication and was held per incuriam in Amar Singh Naruka. (Para 9 , 10 , 21 )
10. Does Section 37(b) of the Arms Act apply when arrest is by a police officer or magistrate?
No, Section 37(b) applies only to arrests by persons other than a magistrate or police officer. (Para 10 , 28 )
Reportable
Reserved on 20/11/2020
Pronounced on 02/12/2020
1. In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.
2. This Court perused the material available on record.
3. 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 Udaipur, 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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:
"4. 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.
5. 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:
"37. 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
