Judgment

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 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.

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 to ex