Arms Act, 1959 - Section 25 -
'Conscious Possession' - the expression 'possession' refers to possession
backed with the requisite mental element, that is, 'conscious possession' - Mere
custody without the awareness of the nature of such possession does not constitute
an offence under the Act - 'Conscious possession' of any fire arm / ammunition
is a necessary ingredient of the statutory offence, entailing strict liability
on the offender.
IN THE HIGH COURT OF DELHI AT NEW
DELHI
CORAM: HON'BLE MS. JUSTICE SANGITA
DHINGRA SEHGAL
April 1, 2019
W.P.(CRL) 344/2019
DAVINDER SINGH DHINDSA ..... Petitioner
Through: Mr. Siddhartha Shankar Ray, Mr. Abhik Kumar,
Mr. Suryadeep Singh, Mr. Rinku Mathur, Advs.
versus
THE STATE (N.C.T OF DELHI) ..... Respondents
Through: Mr. Rajesh Mahajan, ASC,
Ms. Jyoti Babbar, Adv with Insp. Pawan Kumar, PS IGI
Airport.
1. The present petition under Article
226 of Constitution of India read with Section 482 of the Code of Criminal
Procedure has been filed by the petitioner for quashing of FIR No. 0196/2018,
under Section 25 of the Arms Act, 1959 registered at Police Station – IGI
Airport, New Delhi.
2. The brief facts of the case are that
on 18.04.2018 the petitioner along with his wife, son and sister was travelling
from New Delhi to Canada; by China Southern Airlines bearing flight No. CZ-360
and during the course of screening, One cartridge bearing mark “KF 325 &
W.L” was detected inside his check in baggage by the security personnel at IGI
Airport, New Delhi. Pursuant to the same, FIR No. 0196/2018 dated 19.04.2018
u/s 25 of the Arms Act 1959 was registered at P.S. IGI Airport, Delhi.
3. Learned counsel for the petitioner
submitted that the petitioner is Arms License holder bearing No.
DM/SNG/ARM/AMAR/0218/17 valid till 01.02.2021 issued at Sangrur, Punjab by the
District Magistrate, Sangrur on 02.02.2018.
4. It was added that the petitioner,
packed his jacket in his check in baggage and failed to notice that one
cartridge had been left in the jacket and was detected during the baggage check
at the Airport.
5. Per contra, Mr. Rajesh Mahajan,
Additional Standing Counsel for the State opposed the present petition on the
ground that prima facie it is clear that the petitioner was in ‘conscious
possession’ of the seized catridge, moreover, the exhibited catridge
was sent to FSL and it was opined by the expert that the recovered bullet was a
live ammunition as defined in the Arms Act, 1959.
6. I have heard the submissions of the
learned counsel for the parties and perused the material available on record.
7. From the persual of the record, it
transpires that the petitioner is having a valid arms License bearing No.
DM/SNG/ARM/AMAR/0218/17 valid for Punjab only issued by District Magistrate,
Sangrur, Punjab which was verified from District Magistrate, Sangrur, Punjab
and the same was found to be genuine and valid upto 01.02.2021.
8. With respect to the issue of 'conscious
possession', it is settled law that the expression 'possession' under
Section 25 of the Arms Act, 1959 refers to possession backed with the requisite
mental element, that is, ‘conscious possession’. Mere custody
without the awareness of the nature of such possession does not constitute an
offence under the Arms Act, 1959.
9. In the case of Sanjay Dutt Vs.
State reported in 1994(5) SCC410 the Supreme Court inter
alia observed that:
“The meaning of the first ingredient
of 'possession' of any such arms etc. is not disputed. Even though the word
'possession' is not preceded by any adjective like 'knowingly', yet it is
common ground that in the context the word 'possession' must mean possession
with the requisite mental element, that is, conscious possession and not mere
custody without the awareness of the nature of such possession. There is a
mental element in the concept of possession. Accordingly, the ingredient of
'possession' in Section 5 of the TADA Act means conscious possession. This is
how the ingredient of possession in similar context of a statutory offence
importing strict liability on account of mere possession of an unauthorised
substance has been understood.
Therefore 'conscious possession' of any
fire arm/ammunition is a necessary ingredient of the statutory offence,
entailing strict liability on the offender.
10. Further, the question of conscious
possession has been elaborately dealt with by the Constitution Bench of the
Supreme Court in the case of Gunwantlal Vs. State of Madhya Pradesh, reported
in (1972) 2 SCC 194, wherein it was observed as under:
“the possession of a firearm under
the Arms Act must have, firstly the element of consciousness or knowledge of
that possession in the person charged with such offence and secondly, where he
has not the actual physical possession, he has nonetheless a power or control
over that weapon so that his possession thereon continues besides physical
possession being in someone else. The first pre-condition for an offence under
Section 25(1) (a) is the element of intention, consciousness or knowledge with
which a person possessed the firearm before it can be said to constitute an
offence and secondly that possession need not be physical possession but can be
constructive, having power and control over the gun, while the person to whom
physical possession is given holds it subject to that power and
control...................”
11. In the case of Gaganjot Singh
vs. State reported in 2014 (3) JCC 2020 the Delhi High
Court had observed the following:
“12. As noticed previously, a
solitary cartridge - which on examination by expert has been confirmed to be a
live one -was found by the police. The petitioner was in possession of it.
However, he expressed his lack of awareness of that article; and also, that the
bag from which it was recovered belonged to his uncle. The Police, in the final
report, does not indicate that his statement is groundless; there is no
material to show that he was conscious of his possession of the cartridge.
Though the ballistic report confirms it to be cartridge and consequently it is
"ammunition", by itself, that is insufficient to point to suspicion -
much less reasonable suspicion of petitioner's involvement in an offence which,
necessarily, has to be based on proven conscious possession. Since there is no
such material, the offence cannot be proved even after a trial, which would
have to proceed, if at all, on the interpretation of the Act placed by the
decisions in Gunwantlal (supra) and Sanjay Dutt (supra).
Xxxx xxxx xxxx xxxx
“16. In Chan Hong Saik (supra), like
in the present case, a single live cartridge was found from the possession of
the alleged offender. The learned Single Judge proceeded to quash the criminal
proceedings. The discussion in that judgment was that there were no suspicious
circumstances other than the mere recovery of the live cartridge from the
possession of the charged individual. In para 43, learned Single Judge was of
the opinion that the single live cartridge " cannot be used for the
purpose without fire arms" and then proceeded to state: "though the
petitioner has not admitted recovery of the cartridge and claimed trial,
however, if it is admitted, in my considered view, he cannot be punished for
the charge framed against him because a single cartridge without firearm is a
minor ammunition which is protected under clause (d) of Section 5 of the Arms
Act."
12. The same view has been reiterated by
a coordinate bench of this court in Sonam Chaudhary vs. State reported
in 2016 SCC
Online Del 47 which
reads as:
“34. Therefore, applying the said
principles of law, as discussed above, and considering the fact that the
petitioners had left behind the live cartridge/cartridges in their luggage by
mistake and/or inadvertent oversight, when they started their respective
journeys and that the petitioners were not aware of the presence of the live
cartridge/cartridges in their handbags till the same were detected by the
security personnel during screening of the baggages at the concerned places, it
can be safely inferred that the said possession does not fall within the ambit
of 'conscious possession'. Admittedly, no firearm or weapon has been recovered
from any of the petitioner and they have not extended any threat to any person
or police official, hence, no offence under Section 25 of the Act is made out
against any of the petitioner. Therefore, allowing continuance of the criminal
proceedings against them would be an abuse of the process of Court.”
13. The issue involved in the present
case, is covered by the principles laid down in above said decision of the
Hon’ble Supreme Court and the Hon’ble Delhi High Court, as there is no
sufficient evidence or reasonable ground of suspicion to justify ‘conscious
possession’ of the live cartridge recovered from the baggage of the
petitioner. The petitioner was in possession of the said cartridge; however, he
expressed his lack of awareness in respect of the said cartridge. He also holds
a valid arms license bearing No- DM/SNG/ARM/AMAR/0218/17. The said license has
been duly verified from the concerned DM Office and found that the license was
issued in the name of the petitioner. Further there is no other material on
record to show that the petitioner was conscious of his possession of the live
cartridge. The FSL report by itself is insufficient to point to reasonable
suspicion of petitioner's involvement in an offence which is based on proven ‘conscious
possession’. Hence, it can be safely inferred that the said possession
by the petitioner does not fall within the ambit of 'conscious
possession' which is a core ingredient to establish the guilt for
offence punishable under Section 25 of the Arms Act, 1959. Therefore, on the
basis of mere possession of the live cartridge the proceedings cannot continue
qua the petitioner under the Arms Act, 1959 and the same shall be quashed to
secure the ends of justice.
14. Applying the aforementioned
principles of law, and considering the fact that the petitioner was unaware of
the live cartridge in the bag till the same was detected by the security staff
during the screening of the baggage, this court finds that continuance of
proceedings would be an exercise in futility as the necessary ingredients to
constitute the offence in question is lacking and this court has always shown
its keenness in quashing such futile proceedings. Reference in this regard can
also be made to Michael
Joseph Hayden vs State (Gnct) (2018 SCC Online 8940), Jasbir Chahal vs State
(2018 2 JCC 1043), Undis Vatvedt Singh vs State (2018 SCC Online Del 8591), Francisco
Del Pino Madrona vs. NCT of Delhi (2017 (4) JCC 2646).
15. Before quashing the FIR, I deem it
appropriate to impose costs of Rs. 20,000/- on the petitioner to be deposited in the Advocates Welfare
Fund, Bar Council of Delhi, Delhi High Court as a pre-condition for the
quashing of the aforesaid FIR as due to the casual attitude of the petitioner,
the entire state machinery was set in motion. Consequently, FIR no. 0196/2018
under section 25 of the Arms Act, 1959 registered at Police Station – IGI
Airport, New Delhi and proceedings emananting therefrom are hereby quashed.
Costs be deposited within one week from the date of passing of this order.
16. Registry is directed to list the
matter before court in case the receipt of costs be paid by the petitioner is
not filed within the stipulated time.
17. Accordingly, the present petition
stands disposed of.