Full Text
HIGH COURT OF DELHI
CRL.M.C. 466/2022
S. MURALI KRISHNA ..... Petitioner
Through: Mr. Y. Rajagopala Rao, Mr. Y.
Vismai Rao, Mr. Y. Ramesh and Mr. Dhuli Gopi Krishna, Advocates.
Through: Mr. Amit Sahni, APP for State and SI
Yogender Singh, PS IGI Airport.
Date of Decision: 12.05.2023.
JUDGMENT
1. The present petition has been filed under Section 482 Cr. P.C. seeking quashing of case FIR No. 0247/2021 dated 05.09.2021 registered at PS IGI Airport under Sections 25 of Arms Act, 1959. The said FIR was lodged on the statement of Ms. Savita, police officer, against the petitioner herein alleging therein that 04 undeclared ammunitions were recovered from the check-in baggage of the petitioner when he was travelling from Delhi to Vishakhapatnam in the presence of passengers and airline staff. It was further alleged that when asked to produce the valid documents for the ammunitions the petitioner could not produce the same as he was not in possession of the relevant documents.
2. Briefly stated that facts are that the petitioner is working in the USA and presently residing at 272, Rudolph Avenue, Elmwood Park, New Jersey, USA. It has been submitted that prior to this, the petitioner was working in Alaska from 2017 to 2018 whereby the law of the land requires no firearms registration, no permit to purchase the firearms, no background check to buy a handgun from a private individual. Ld. Counsel submits that as per the law in Alaska, any person who is aged more that 16 yrs. can openly carry a gun and anyone older than 21 yrs. can legally possess a firearm for which permit is not required.
3. It has been submitted that the petitioner along with his friends used to go for shooting on weekends and holidays during his stay in Alaska. It has been further submitted that one of the petitioner’s friends namely Mr. Tom James Riley, who is an American national, is an avid gun enthusiast having a large collection of bullets as souvenirs. Ld. Counsel submits that the petitioner and his friends shared their baggage while going for such trips in Alaska. It has been submitted that the friend of the petitioner must have inadvertently kept and forgotten about the four bullets collected by him as souvenirs in the baggage of the petitioner. Ld. Counsel submits that the petitioner neither had knowledge nor had any notice regarding the presence of the said bullets in his bag as the bags remained unopened and unchecked for a long time due to the travel ban during the Covid-19 pandemic.
4. It has been further submitted that the petitioner travelled from USA to Delhi on 04.09.2021 to further went to his hometown in Vishakhapatnam on 05.09.2021. The baggage of the petitioner was scanned and cleared at Terminal 5 Airport Illinois, USA, on 04.09.2021 and no objectionable items or ammunition were found in the baggage. The same baggage was then handed over at the Delhi Airport for screening, whereby the said bullets were recovered and seized. It is the plea of the petitioner that he had absolutely no knowledge about the presence of the said bullets in his check-in baggage.
5. Ld. Counsel for the petitioner submits that a mere perusal of the contents of the FIR and the nature of the offence alleged therein reveals that the petitioner was carrying 04 live bullets without any weapon. It has been submitted that from the above it can be inferred that the same was carried inadvertently in his luggage without any prior knowledge or intention. Moreover, the said bullets did not belong to the petitioner but his friend who may have left the same in his bag and by mistake forgot to take it back.
6. It has been thus contended that since the petitioner was carrying the said bullets in his bag without any prior knowledge, he cannot be said to have any "conscious possession" of the bullets in his check-in baggage which is a main ingredient to constitute an offence u/s 25 of the Arms Act. Ld. Counsel submits that the petitioner had absolutely no knowledge at all about the presence of the 4 bullets in his check-in baggage, and therefore no offence u/S 25 of Arms Act is made out.
7. Ld. Counsel submits that the instant case is squarely covered by a catena of judgements rendered in Sanjay Dutt v. State 1994 (5) SCC 410, Gunwantlal v. the State of Madhya Pradesh 1972 (2) SCC 194. Ld. Counsel further places reliance on judgments of this Court in Jaswinder Singh v. State Government of NCT of Delhi & Anr., 2015 SCC online Del 10894, Sonam Choudary v. the State (Govt. of NCT Delhi), 2016 SCC Online Del 47 and Manuel R. Encarnacion v. State through NCT of Delhi and Anr., Crl. MC 1455/2014.
8. In Sanjay Dutt v. State 1994 (5) SCC 410 the Constitution Bench of the Hon'ble Supreme Court inter alia held as under:
9. In Gunwant Lal v. the State of Madhya Pradesh 1972 (2) SCC 194 the Constitution Bench of the Hon'ble Supreme Court inter alia held as under: “5. The possession of the Arms under the Arms Act in our view must have, firstly the element of consciousness or knowledge of that possession in the person charge with such offence and secondly where he has not the actual physical possession, he has nonetheless a power and control over that weapon so his possession thereon continues despite physical possession being in someone else. If this were not so, then an owner of a house who lives and unlicensed gun in that house hut 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. Similarly, if he goes out of house during the day and in the meantime someone concealed a pistol in his house and during his absence, the police arise and discover the pistol, he cannot be charge with the offence unless it can be shown that he had been knowledge of the weapon being placed in the house.” XXX “As we said earlier, the first pre condition for an offence under Section 25(1)(a) of the Arms Act, 1959 is the element of intention, consciousness or knowledge with which a person possessed the fire arm before it can be said 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 hold it subject to their power and control.”
10. Further, a Division Bench of this Court in Gaganjot Singh v. State relying on the judgments in Sanjay Dutt (supra) and Gunwant Lal (supra) inter alia held as under:
14. It has been submitted that in terms of the order of this Court dated 03.03.2022 the documents pertaining to Mr. Tom Riley regarding the purchase of the cartridges in possession of the petitioner has been placed on record. A copy of the mail dated 05.04.2022 sent by Mr. Tommy James Riley, a copy of the Driving Licence of Mr. Tommy Riley issued by Govt. of Alaska, USA and a copy of an email dated 22.05.2022 containing the statement of Mr. Raja Jayakanthan along with a copy of his carry license have also been placed on record. The mail dated 05.04.2022 contained a statement on behalf of Mr. Riley which reads as under: “Mr. Gopal, Please allow this letter to serve as my personal testimony on behalf of Somarouthu Murali Krishna, known to me as Murali, in the incident of the ammunition recently found in his possession. While I can't speak for the circumstances surrounding how the discovered ammunition came into his possession in India, I can provide testimony on an occasion in which he was invited to join in a social activity that included the lawful discharge of various firearms. As I'm sure you're aware, the United States of America has a very generous firearm ownership stance due to the Second Amendment of the Bill of Rights of the U.S. Constitution. As such, firearm ownership in the U.S. is a very common occurrence, and while the restrictions on how those guns are handled on a daily basis varies from state to state within the country, the State of Alaska is one of the least restrictive states in the U.S. with no special permits being required to have a weapon in your possession at any time. For reference, please refer to the State of Alaska Department of Public Safety Website for specific references: “illegible” --- specifically "Do I need a permit to carry a firearm concealed in Alaska?” and “Do I need to do anything special when I am carrying concealed in Alaska and I come into contact with a law enforcement officer?” I personally own numerous rifles and pistols of various calibres all lawfully purchased in accordance with state and federal law, and routinely discharge them at various shooting ranges near my home. As for Murali, on Sunday, September 17th, 2017, myself and a coworker, both employed at the Alaska Railroad Corporation where Murali was under contract as a Project Manager, did invite him to join us for some recreational target practice at a nearby shooting range. We took our families, and Murali, to the Maud Road Shooting Range which is a tax-funded shooting range open to the general public located in Palmer Alaska near our homes. During the 2-3 hours we were at the shooting range, we collectively shot various calibre of firearms including the two for which Murali had ammunition:.223 calibre and 30-06 calibre rifles. The shooting activities included firearm safety, range safety, proper handling of firearms, and the loading and unloading of ammunition, along with an opportunity for Murali to experience firing a wide range of calibre rifles and pistols. While in my presence, and to the best of my knowledge, Murali observed all local and federal laws pertaining to firearms, was a cautious and responsible shooter, and respectful of all laws and rules pertaining to the safe discharge of firearms. Sincerely, S/d Tommy James Riley 4/4/2022”
15. Further, the statement contained in the email dated 22.05.2022 of Mr. Raja Jayakanthan reads as under: “I know Mr. Somarouthu Murali Krishna and Mr. Tommy James Riley. We three worked at Alaska Railroad Corporation when Murali was under contract as a Project Manager. I lived in Alaska and worked for AKRR (Alaska Railroad Corporation). I have a Concealed Carry License and the same is herewith enclosed. I had participated in a social activity at public gun range on September 17, 2017, along with Mr. Tommy James Riley and Mr. Somarouthu Murali Krishna and friends. During shooting all the participants used bullets from common bag and unknowingly some of the bullets were left in Murali‟s baggage. Thanks S/d Raja Jayakanthan”
16. The said documents have been verified by the IO who has stated that there is no other case pending against the petitioner herein.
17. I have considered the submissions and perused the records. The perusal of the above shows that there was no knowledge on the part of the petitioner with respect to the presence of the 04 bullets in his baggage which may have been inadvertently left in his baggage. Moreover, as a matter of record there was no recovery or seizure of any corresponding firearm from the petitioner. Further, a perusal of the FIR also does not indicate that the prosecution had a case that the petitioner possessed a live cartridge with the conscious intention to possess it. Admittedly the Petitioner is working and residing in USA and was coming back to India after a long time to visit his hometown in Vishakhapatnam during the Covid -19 pandemic. The law with respect to firearms in the USA is substantially different from the law here.
18. This coupled with the statements made by Mr. Tom Riley and Raja Jayakanthan leaves no room for doubt that there was no 'conscious possession' of the said bullets by the petitioner, and hence, the same would not amount to an offence under section 25, of the Arms Act,
1959.
19. In view of the above, this court is of the considered opinion that the presence of the live cartridge alone recovered from the baggage of the petition without a corresponding firearm implies that there was no conscious possession of the bullets by the petitioner. The precondition for an offence under Section 25(1)(a) is the element of intention, consciousness or knowledge with which a person possesses the firearm before it can be said to constitute an offence. Moreover, the possession merely does not require physical possession but also constructive possession. Thus possession of bullets under Section 25 of the Act to attract the penal provision of section 25 Arms Act would require possession of the said bullets with a mental element and intent.
20. This court can exercise its inherent jurisdiction under section 482 Cr.P.C. to secure the ends of justice or to prevent the abuse of the process of the Court. This Court in absence of any intention or knowledge on the part of the petitioner to carry the said bullets, deems it appropriate to exercise this inherent power to quash the present FIR in the interest of justice.
21. Thus, taking into account the totality of the facts and circumstances of the case, the present FIR No. 0247/2021 dated 05.09.2021 registered at PS IGI Airport under Sections 25 of Arms Act, 1959 and all the subsequent criminal proceedings arising therefrom are quashed.
22. The present petition stands disposed of.
DINESH KUMAR SHARMA, J MAY 12, 2023