Full Judgment
(Prayer: This Criminal Petition is filed U/s.482 Cr.P.C praying to quash the entire proceedings in Cr.No.195/2015 on the file of the Additional Civil Judge and JMFC, Devanahalli and direct the Respondent No.1 Police to return the petitioner passport.
1. The petitioner who is accused in crime No.195/2015 of Bengaluru International Airport Police Station has filed this petition praying to quash the proceedings in Crime No.195/2015 of Bengaluru International Airport Police Station.
2. On 21.12.2015, the petitioner and his wife were travelling from Bengaluru to Mumbai. They came to Kempe Gowda International Air Port, Bengaluru to board the flight at about 4.00 p.m. At that time, the 2nd respondent found four live bullets in the makeup pouch/bag of the petitioner s wife. The 2nd respondent lodged a complaint with the Bengaluru International Airport Police Station. A case in Crime No.195/2015 has been registered against the petitioner for the offence punishable under Section 25(1B)(a)(b) of Arms Act.
3. The investigation is going on. At this stage, the petitioner has approached this Court praying to quash the proceedings in Crime No.195/2015 of Bengaluru International Airport Police Station.
4. The learned counsel for the petitioner contended that the registration of the case for the offence punishable under Section 25(1B)(a)(b) of Arms Act is bad in law. The allegation is that the petitioner was carrying four live bullets. Mere carrying of live bullets do not attract Section 25(1B)(a)(b) of the Arms Act. Section 45(d) of the Act provides that the acquisition, possession or carrying by a person of minor parts of arms or ammunition which are not intended to be used along with complementary parts acquired or possessed by that or any other person is not an offence. The petitioner was found in possession of four live bullets. It is not an offence by itself. Therefore, the registration of case for the offence punishable under Section 25(1B)(a)(b) of Arms Act cannot be sustained in law. In support of his submission he placed reliance on the following decisions;
(1) 1995 Crl.L.J.477 SC Sanjay Dutt v/s. The State through C.B.I, Bombay.
(2) Crl.P.No.3219/2015 (D.D.19.8.2015)
(3) Crl.P.No.5448/2015 (D.D.15.10.2015)
5. The learned Government Pleader submitted that the bullets have been sent for experts opinion and investigation is going on.
6. There is no representation on behalf of the 2nd respondent.
7. I have carefully considered the submissions made by the learned counsel for the parties.
8. I find considerable force in the submission of the learned counsel for the petitioner. Section 45(d) of the Arms Act, 1959, reads as follows:-
Nothing in this Act shall apply to,
(d) The acquisition, possession or carrying by a person of minor parts of arms or ammunition which are not intended to be used along with complementary parts acquired or possessed by that or any other person.
9. The Hon ble Supreme Court in Sanjay Dutt v/s. State though CBI, Bombay reported in MANU/SC/0554/1994: 1999 Crl.L.J.477 has observed as follows at para 22;
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 unauthorized substance has been understood. (See Warner V. Metropolitan Police Commissioner (1969) 2 A.C.256 and Sambasivam V. Public Prosecutor, Federation of Malaya, 1950 AC 458).
10. This court in Crl.P.No.3219/2015 in Thomas Jeffrey Kidd v/s. State of Karnataka and another, disposed of on 19th August 2015, has observed as follows at paras 19 and 20:
19. I am convinced that the petitioner was not conscious/aware of the presence of the bullet in his handbag till it was detected by the security personnel during screening of the handbag at Kempegowda International Airport, Bengaluru and therefore, it was not a conscious possession.
20. Applying the principles, in the decisions noticed supra, to the facts of the present case and considering the attending circumstances, in my opinion, no offence is made out against the petitioner under S.25(1-B)(a) and (b) of the Arms Act, 1959 read with section 10 of the Aircraft Act, 1934. Hence, allowing continuance of the criminal proceeding against the petitioner would be an abuse of process of law and that the ends of justice require that the impugned proceeding be quashed.
11. In Crl.P.No.5448/2015 Mr. Joseph Kevin Shay v/s. State of Karnataka and another disposed of on 15th October 2015 this Court has observed as follows at para No.7:
7. When it is not shown that the single live bullet found in the bag of the petitioner was accompanied with any firearm, that takes away the matter from the purview of the Arms Act, 1959. By virtue of Section 45(d) of the Arms Act, no offence is made out by the prosecution. The eventuality is, the complaint and FIR registered against the petitioner are liable to be quashed.
12. In the petition, at para 4(e), it is stated that the pouch/bag containing the alleged bullets belonged to the petitioners son Mr. Or Bamnolker who had given the same to the petitioner s wife before travelling from Israel, not knowing that there were bullets in one of the zip pockets. The petitioners son Or Bamnolker is a member of the Israel Defence Forces-Personal No.8121758, I.D.No.313471237, Card No.70418582 issue dated 2.8.2015. The bullets found with the petitioner belong to his son. The petitioner was not aware that such bullets were inside the pouch/bag.
13. The learned Government Pleader has produced copy of the statement given by the petitioner before the Police. It reads as follows:-
I came to the air port to go to Goa. I made check in. I came to India for a tour to visit different places. They found live bullets in my baggage. I don t know how it came in my bag.
My son is doing military service in Israel. We gave him a small bag to him to keep is shaving set, shampoos, etc. Probably by mistake he must have kept the bullets in the bag. When we packed out things he returned the bag to my wife to put her personal things like, lipstick, power, makeup. She also did not pay heed to the bullet. This came with us by mistake. We had not bad intentions. We appolozise for the incident.
14. It is clear, the petitioner was carrying four live bullets innocently and they were not intended to be used for any purpose. Therefore, the allegations do not attract Section 15(1B)(a)(b) of Arms Act, 1959. Therefore, the proceedings in Crime No.195/15 of Bengaluru International Airport Police Station needs to be quashed.
Accordingly, the criminal petition is allowed. The proceedings in Crime No.195/2015 of Bengaluru International Airport Police Station is hereby quashed.
I.A.No.I/2016 does not survive for consideration and accordingly, it is dismissed.