Judgment:
$~54 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.M.C. 704/2017 ANKIT MEHROTRA .....Petitioner Through: Mr. Suman Doual, Advocate. Versus % 1. STATE (GOVT. OF NCT OF DELHI) & ANR. ....Respondent Through: Mr. Mukesh Kumar, APP for the State. CORAM: HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL ORDER
1808.2017 The present petition under Section 482 Cr.P.C. has been filed by the petitioner for quashing of FIR No.03/2012, under Section 25 of the Arms Act, 1959 registered at Police Station – Domestic Airport, New Delhi.
2. The case of the prosecution is that on 23.01.2012, a complaint was received at P.S. Domestic Airport, New Delhi by the Assistant Manager Security/Hawa Singh alleging that during in line screening, one live cartridge of 0.32 bore was detected and recovered from the baggage of the petitioner. On that day, the petitioner was travelling to Bangalore from Delhi via Indigo flight No.6E-125. During interrogation, the petitioner failed to produce a valid arms license or any authorization with regard to possession of the live cartridge in his registered bag. Hence, FIR No.03/2012 dated 23.01.2012 under Section 25 of Arms Act, 1959 was registered. However, the petitioner was arrested in the present case CRL.M.C. 704/2017 Page 1 of 4 and was then produced before the concerned Metropolitan Magistrate, Dwarka Courts, New Delhi, but was released on bail vide order dated 24.01.2012.
3. During the course of investigation, the seized live cartridge recovered from the registered bag of the petitioner was sent to FSL, Rohini, Delhi for Ballistic Examination and expert opinion. The FSL No.2012/F-1966 revealed that the exhibits fall in the category of ''ammunition'' as defined in Arms Act, 1959. Charge-sheet was prepared against the petitioner under Section 25 of the Arms Act, 1959 and filed before the concerned Court, New Delhi.
4. Learned counsel for the petitioner submitted that the petitioner had no knowledge of the presence of the cartridge or intention to carry the same in his baggage especially when he was on an official assignment. Also, as the petitioner was unaware of the possession of the said cartridge in the bag, he did not declare the same at security check and when he was informed about the same by the security officials, he extended his fullest co-operation to them. Therefore, the petitioner seeks exemption under Section 45(d) of Arms Act, 1959 as he bonafidely remained oblivious of the presence of live cartridge in his baggage..
5. Per contra, Mukesh Kumar, APP for the State opposed the present petition on the ground that on interrogation, the petitioner-herein failed to produce any valid arms license to authenticate the possession of the ammunition as legal and thus prima facie an offence under Section 25 of the Arms Act, 1959 was made out. He further argued that during the course of investigation, the accused on interrogation admitted his guilt of carrying live ammunition with him in his bag without a valid arms CRL.M.C. 704/2017 Page 2 of 4 license. Further, the ballistic expert has opined in the FSL report that the cartridge sent for examination is live and covered under '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. At the outset, the question of conscious possession has been elaborately dealt with by the Constitution Bench Supreme Court in the case of Gunwantlal Vs. State of Madhya Pradesh, reported in (1972) 2 SCC194 wherein the Supreme Court 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 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...................” element of intention, 8. Reliance was also placed upon the decision of Sanjay Dutt vs. State Through CBI, Bombay (1994) 5 SCC, wherein the Supreme Court held that the word ‘possession’ must mean possession with the requisite mental element i.e. conscious possession and not mere custody without the awareness of the nature of such possession.. CRL.M.C. 704/2017 Page 3 of 4 9. In the instant case, the petitioner was in possession of the cartridge however he expressed his lack of awareness of that article. There is no material to show that the petitioner was conscious of his possession of the live cartridge. Though, the ballistic report confirms it to be a cartridge falling within the meaning of 'ammunition', the report by itself is insufficient to point to reasonable suspicion of petitioner's involvement in an offence which is based on proven conscious possession. It can also be safely inferred that the petitioner’s possession of the cartridge 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. As the prosecution has failed to prove that the possession was ‘conscious’ and 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.
10. Consequentially FIR No.03/2012 under Section 25 of the Arms Act, 1959 and proceedings emanating therefrom are hereby quashed.
11. Accordingly, the present petition stands disposed of. SANGITA DHINGRA SEHGAL,J.
AUGUST18 2017 / gr// CRL.M.C. 704/2017 Page 4 of 4