M.M.PUNCHHI, J. - (1.) THE petitioner is accused of an offence under Section 25 of the Arms Act, for allegedly he was found in possession of a country-made pistol. Section 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1985, has been employed on the case, as concededly there is a notification by the Haryana State Government making all the provisions of the Arms Act applicable to the territories of Haryana under the said provision. It would be useful to reproduce section 6 herein :- "Enhanced Penalties 6(1) If any person contravenes in any area notified in this behalf by a State Government, any such provision of, or any such rule made under, the Arms Act, 1959, the Explosives Act, 1884, the Explosives Substances Act, 1908, or the Inflamable Substances Act, 1952 as may be notified in this behalf by the Central Government or by a State Government, he shall, notwithstanding anything contained in any of the aforesaid Acts or the rules made thereunder, be punishable with imprisonment for a term which may extend to ten years or, if his intention is to aid any territorist or distruptionist with death or imprisonment for a term which shall not be less that three years but which may extend to term of life, and shall also be liable to fine. (2) For the purposes of this section, any person who attempts to contravene or abets or attempts to abet, or does not act preparatory to the contravention of any provision of any law, rule or order shall be deemed to have contravened that provision."
(2.) IT is obvious that enhanced penalties which may extend to 10 years and in certain circumstances even to life, are now to be imposed by the designated courts and not by ordinary Magistrate who are only empowered to impose a maximum sentence of three years. To say that enhanced penalties could be imposed by Magistrates with equal efficacy is to runaway from the hard realities of the times for which measures like the aforesaid Act have been brought on the book. It is the Designated Court established under Section 7 of the said Act, exercising jurisdiction under Section 9, who can try offence which attract punishment under any provision of the Act. And, Section 6 is one such provision, the non-obstante text therein, afore-emphasised, making it explicit. In the matter of bail, under the Act, a heavy burden has been cast by the legislature to be shouldered proportionately by the Public Prosecutor and the Court. This is evident from the provisions of sub-section (5) of section 17. It reads as follows :- "(5) Notwithstanding anything contained in the Code no person accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released on bail on his own bond unless - (a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (b) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail." It is plain from the provision that despite the offence against an offender being triable by a designated court, bail can still be granted to him but in considering for it the Public Prosecutor has been cast a duty to weigh the pros and cons of the release of the offender on bail. If he chooses not to oppose the application for bail, he is that way shares a heavier burden, with a grave sense of responsibility, and thereby absolves the Court from recording satisfaction that while on bail the offender was not likely to commit an offence. Such satisfaction the Court has only to record where the Public Prosecutor opposes the application for bail yet choose the grant bail. This does not mean that where bail is conceded by the Public Prosecutor, the Court need always to allow it. The Court can still not grant bail even if conceded by the Public Prosecutor. But conversely, when bail is conceded by the Public Prosecutor the Court is absolved of the burden and is not required to record satisfaction that the offender while on bail was not likely to commit an offence.
(3.) THE bail has not been opposed by the learned Advocate General. Without discussing the merits of the case, I order release of the petitioner on bail to the satisfaction of the Chief Judicial Magistrate, Sirsa. Order accordingly.;