Jagroop Singh Gill v. The State (N.C.T of Delhi)

Delhi High Court · 25 Mar 2019 · 2019:DHC:1729

Sangita Dhingra Sehgal

W.P.(CRL) 570/2019

2019:DHC:1729

criminal petition_allowed Significant

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The Delhi High Court quashed FIR under the Arms Act against a licensed arms holder due to lack of conscious possession of a live cartridge found in his baggage.

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W.P (CRL)570/2019
HIGH COURT OF DELHI

JUDGMENT

reserved on:19th March, 2019

Judgment pronounced on:25th March, 2019

W.P.(CRL) 570/2019
JAGROOP SINGH GILL ..... Petitioner
Through: Mr.Satvinder Singh, Adv.

versus

THE STATE (N.C.T OF DELHI) & ORS. ..... Respondents
Through: Ms.Iti Pandey, Adv for Ms. Nandita Rao, ASC(Crl.) with SI Rajiv Gulati, PS IGI
Airport.

CORAM:

HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

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. 168/2018, under Section 25/54/59 of the Arms Act, 1959 registered at Police Station – IGI Airport, New Delhi.

2. The brief facts of the case are that on 03.04.2018 the petitioner was travelling from Delhi to Toronto, by Air Canada flight No. AC-043 and during the course of screening, 01 cartridge was detected inside 2019:DHC:1729 his check in baggage by the security personnel at IGI Airport, New Delhi. Pursuant to the same, FIR No. 168/2018 dated 04.04.2018 u/s 25/54/59 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/MOGA/PS BAGHA PURANA/APRIL 1980 valid till 31.12.2019 issued at Moga, Punjab by the District Magistrate, Moga in April 1980.

4. It was added that the petitioner was in a hurry to catch a flight to Canada from Delhi and in a haste, without checking the contents of the bag which was generally used to keep the Revolver etc, failed to notice that one cartridge had been left in the bag and was detected during the baggage check at the Airport.

5. Per contra, 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 mark- ‘A1’ 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 was having a valid arms License No. 2079/DM/Moga/PS Bagha Purana/Apr 1980 valid for Punjab only issued by District Magistrate, Moga, Punjab was verified from District Magistrate, Moga, Punjab and the same was found to be genuine and valid upto 31.12.2019.

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 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...................”

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 issues involved in the present case, is covered by the principles laid down in above said decision of the Supreme 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 No- DM/MOGA/PS BAGHA PURANA/APRIL 1980. 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.

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13. 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. Consequently FIR No. 168/2018 dated 04.04.2018 u/s 25/54/59 of the Arms Act 1959 registered at P.S. IGI Airport, Delhi and proceedings emanating therefrom are hereby quashed.

14. Accordingly, the present petition stands disposed of.

SANGITA DHINGRA SEHGAL, J March 25, 2019

Jagroop Singh Gill v. The State (N.C.T of Delhi)

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