Jeger Ali Oagaz v. State of NCT of Delhi & Anr.

1. This is a writ petition filed under Article 226 of the Constitution of India read with Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeking quashing of the FIR No. 643/2024 dated 01.09.2024 under Section 25 of the Arms Act, 1959 registered at PS IGI Airport

2. The petitioner is present in Court and is identified by Mr. Devinder Singh, learned counsel.

3. It is stated in the FIR that on 31.08.2024 at 1600 hours ammunition (i.e. one cartridge) was recovered from physical inspection of the petitioner’s bag. The petitioner failed to show any valid documents for the one cartridge and the FIR was registered.

4. The petitioner is a citizen of Iraq and works as an Assistant Lecturer in Faculty of Education, Erbil Soran University, Soran City, Iraq. It is submitted that the petitioner travelled to India on a medical visa on account of his niece undergoing Heart Surgery in Gurugram and was travelling from Delhi to Sharjah (UAE) on the date of the incident, i.e. 31.08.2024. Since there was a medical emergency, the petitioner borrowed a bag from his brother, who is working in the Directorate of Kurdistan Regional Government, Ministry of Interior (G. Directorate of Traffic) as a Lieutenant Colonel, prior to his departure from Iraq on 17.08.2024. The petitioner submits that the brother was allotted the said undeclared ammunition from his department/employer. The brother at the time of handing over the bag removed the revolver but inadvertently failed to remove the one cartridge.

5. The petitioner submits that he was neither conscious not have any knowledge about the presence of one cartridge in the bag. The cartridge was not detected when the petitioner came to India from Iraq on 17.08.2024 at Iraq Airport as well as the IGI Airport. Therefore, in view of the judgment of the Hon’ble Supreme Court in Gunwantlal v. State of M.P., (1972) 2 SCC 194 mere possession would not constitute offence for which conscious possession is required. The operative portion reads as under:-

offence corresponding to Section 25(1)(a) is committed if a person had in his or under his control any arms or ammunition in contravention of Sections 14 and 15 of that Act. The word “control” under Section 25(1)(a) has been omitted. Does this deletion amount to the Legislature confining the offence only to the case of a person who has physical possession or does it mean that a person will be considered to be in possession of a firearm over which he has constructive possession or over which he exercises the power to obtain possession thereof when he so intends? If the meaning to be given to the word “possession” is that it should be a physical possession only, then certainly the charge as framed on the facts of the prosecution case will not be sustainable but if the meaning to be given to the word “possession” is wider than that of actual or physical possession then it is possible, if the evidence produced by the prosecution is such as would sustain a finding, that he had constructive possession on September 17, 1966, when he handed it over to Miroo and Miroo handed it over to Chhaganlal because if it was not seized from Chhaganlal, the appellant could have at any time got back the physical possession of the revolver through Miroo. The possession of a firearm under the Arms Act in our view 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 despite physical possession being in someone else. If this were not so, then an owner of a house who leaves an unlicensed gun in that house but is not present when it was recovered by the police can plead that he was not in possession of it even though he had himself consciously kept it there when he went out. Similary, if he goes out of the house during the day and in the meantime some one conceals a pistol in his house and during his absence, the police arrives and discovers the pistol, he cannot be charged with the offence unless it can be shown that he had knowledge of the weapon being placed in his house. And yet again if a gun or firearm is given to his servant in the house to clean it, though the physical possession is with him nonetheless possession of it will be that of the owner. The concept of possession is not easy to comprehend as writers of Jurisprudence have had occasions to point out. In some cases under Section 19(1)(f) of the Arms Act, 1878 it has been held that the word “possession” means exclusive possession and the word “control” means effective control but this does not solve the problem. As we said earlier, the first precondition 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. In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question. In this view it is difficult at this stage to postulate as to what the evidence will be and we do not therefore venture to speculate thereon. In the view we have taken, if the possession of the appellant includes the constructive possession of the firearm in question then even though he had parted with physical possession on the date when it was recovered, he will nonetheless be deemed to be in possession of that firearm. If so, the charge that he was in possession of the revolver on September 17, 1966, does not suffer from any defect particularly when he is definitely informed in that charge that he had control over that revolver. It is also apparent that the words “on or before” were intended to bring home to the accused that he was not only in constructive possession of it on September 17, 1966, but that he was in actual physical possession of it prior to that date when he gave it to Miroo. It is submitted, however, that the word “on or before” might cause embarrassment and prejudice to the defence of the accused because he will not be in a position to know what the prosecution actually intends to allege. From a reference of Form XXVIII of Schedule 5 of the Code of Criminal Procedure, the mode of charging a person is that he “on or about”… did the act complained of. In view of the forms of the charge given in the Schedule to the Code, we think that it would be fair to the appellant if the charge is amended to read „on or about‟ instead of „on or before‟ which we accordingly order.”

6. I have already held in the judgment of Gurveer Singh v State, 2022:DHC:2066 that conscious possession or knowledge of possession is required to establish guilt under section 25 of the Arms Act, 1878. The operative portion of the judgment reads as under:-

7. In the present case, the petitioner has annexed the identity card of the brother of the petitioner to show that he is employed as Lieutenant Colonel with the Directorate of Kurdistan Regional Aviation and has been issued/allotted Gun No. H130668. The same appears to be genuine.

8. Since the petitioner had arrived in Delhi on account of medical emergency and borrowed a bag belonging to the brother of the petitioner, the Petitioner has prima-facie been able to make out a case that he was not in conscious possession of the one cartridge and that the presence of the same in the bag was merely an inadvertent error.

9. In view of the said facts and circumstances, there is nothing to show conscious and intentional possession of one cartridge by the petitioner. However, I am of the view that the police machinery has been put in motion on account of the acts of the petitioner and useful time of the police has been directed towards this case. Hence, the petitioner must pay costs.

10. Therefore, subject to the petitioner depositing a sum of Rs. 15,000/- as costs with the DHCLSC within 4 weeks from today, the aforesaid FIR No. 643/2024 dated 01.09.2024 under Section 25 of the Arms Act, 1959 and the consequential proceedings arising therefrom are quashed.

11. The proof of payment be filed with the Registry within 5 weeks, failing which the file shall be put up before the Court.

12. The petition alongwith pending applications is disposed of in the aforesaid terms.