To Curb Gun Problem, Make Bail Provisions More Stringent Like PMLA; Reverse Burden Of Proof: Amicus Tells Supreme Court

In his latest written submissions, the amicus curiae has submitted a series of suggestions after careful consideration and consultation with experts in the field, to address India's rising gun problem. He has insisted that this is an issue that requires the urgent attention of the union and state governments, urging them to collaboratively come up with innovative methods on a 'war footing' or risk the situation spiralling out of control.

First and foremost, Nagamuthu has suggested that the central government establishes a committee of experts comprising individuals with substantial experience and specialized knowledge, and tasked with studying inputs from various sources, including the state and union governments, other countries, and subject-matter experts in the field of science and technology, and formulating recommendations for curbing the 'menace' of illegal arms and ammunitions within a specific time frame, preferably one year.

Other than this, the amicus curiae has proposed referring the question of potential legislative changes to the law commission, to study the inadequacies in the existing laws and within six months, to recommend amending the existing laws, or making new laws to strengthen regulatory measures in respect of, the manufacture, sale, import, export, use, possession, and storage of arms and ammunition”. The commission, the senior advocate has said, may be requested to suggest making existing provisions relating to the procedure for investigation, and inquiry, more stringent, or suggest incorporating such provisions in the new law to be made. Nagamuthu further submits –

“The Indian government, in consultation with the governments of states and union territories, and considering the committee's and the law commission's reports and after extensive deliberation, may take a decision whether to amend the existing laws or to make new laws providing stringent provisions. The law should be comprehensive and exhaustive to eradicate all forms of illegal manufacturing, import, export, sale, smuggling, use, etc. The union government, instead of having discussions internally within the home department on the above areas of focus, may also involve in the deliberations other departments like defence, science and technology, law and justice, the customs and central excise, etc.”

The amicus curiae's suggestions even call for the Centre to conduct quarterly meetings of the chief secretaries and police chiefs in all states and union territories to survey the situation and study the peculiar conditions prevailing in each region, along with the difficulties experienced by the state agencies in curbing the proliferation and use of illegal arms and ammunitions.

Not only this, but the amicus curiae has also proposed various supplementary measures to address the issue. The supplementary suggestions put forth by him encompass multiple areas of concern and delve into potential changes in the existing laws – particularly in theprovisions relating to pre-arrest and post-arrest bail, expediting the trial, and presumption of innocence – and the establishment of special police units and courts for fast-tracking the investigations and the trials.

The amendments to the Arms Act, Explosives Act, 1884, and Explosives Substances Act, 1908 that have been recommended by the amicus curiae are –

1. Special police units for each district, or for more than one district, consisting of specially trained police officers, should be constituted, empowering them exclusively to investigate the offences under these special laws.
2. Each special police unit should be assisted by forensic experts, more particularly, ballistic experts.
3. The investigation should be conducted swiftly and final report should be filed without any undue delay.
4. A special court should be constituted for each district, or for more than one district, headed by a judicial officer in the rank of a sessions judge, or additional sessions judge, exclusively to try the offences under these special laws, as well as offences that have been committed in the same occurrence.
5. A special public prosecutor should be appointed for each special court, with an experience of not less than ten years as an advocate, having dealt with the cases under these laws.
6. Section 438 of the Code of Criminal Procedure providing for anticipatory bail, should be excluded in its application to the offences under these special laws.
7. A special provision for bail should be made in addition to Section 437 and 439 of the Code of Criminal Procedure, making the bail provisions stringent in the model of Section 45 of the Prevention of Money Laundering Act (PMLA), and Section 37 of the Narcotic Drugs and Psychotropic Substances Act (NDPS).
8. The trial should be conducted expeditiously, preferably on a day-to-day basis, until the examination of witnesses is complete, and the judgment should be pronounced at the earliest.
9. There should be a provision made that the court should presume the guilt of the accused on proof of certain foundational facts, unless the contrary is proved by the accused.
10. There should be a provision directing the state forensic departments to give preference to examine the arms and ammunition involved in the criminal cases, and to offer their opinion within one month from the date of receipt.

Background

A bench led by retired judge KM Joseph in February took cognisance of the alarming issue of the widespread possession and use of unlicensed firearms in India, flagging the 'disturbing' trend during the hearing of a murder accused's bail application. It also stressed that, unlike the United States which recognised the right to bear arms as a fundamental right, the Indian Constitution did not confer such a privilege.

Underscoring the importance of curbing the use of unlicensed firearms, the court sought the Uttar Pradesh government's response on the number of cases related to the use and possession of unlicensed firearms, along with the steps taken to address the issue. In subsequent hearings, it continued to push for a robust response from not just the State of UP, but all states, union territories, and the union home ministry, seeking country-wide information on the steps taken to tackle the problem of unlicensed firearms. Besides suggesting improved implementation of the Arms Act, the court also indicated that legislative changes may be needed.

Case Details

Rajendra Singh v. State of Uttar Pradesh | Miscellaneous Application No. 393 of 2023 in Special Leave Petition (Criminal) No. 12831 of 2022