ATIN CHOPRA vs THE STATE, GOVT. OF NCT OF DELHI
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 11.03.2024
+ CRL.M.C. 4708/2023
ATIN CHOPRA ….. Petitioner
Through: Mr. Hirein Sharma, Advocate
Versus
THE STATE, GOVT. OF NCT OF DELHI ….. Respondent
Through: Mr. Sanjeev Sabharwal, APP
CORAM:
HON’BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT (ORAL)
1. The present petition has been instituted under Section 482 Cr.P.C. seeking quashing of FIR No. 262/2023 registered under Section 25 of the Arms Act, 1959 at P.S. IGI Airport, New Delhi and the proceedings emanating therefrom.
2. As per the facts of the case, the petitioner decided to travel from Delhi to Dubai via SpiceJet Flight Number SG11 on 23.04.2023. During the scanning of his baggage, image of 1 live ammunition was seen and resultantly, physical inspection of the baggage was made in the presence of the petitioner. During the said inspection, 1 live ammunition was found and the same was handed over to Duty Officer P.S. IGI Airport. Consequently, the present FIR came to be registered.
3. Petitioner states that his father-in-law was working as an Audit Officer in the Indian Army, Roorkee Cantonment, Roorkee, India and consequent to his death, his belongings were collected and brought back by the petitioner. Subsequently, for the purpose of undertaking the travel from Delhi to Dubai, the petitioner used one of the empty baggage belonging to his father-in-law and it was this baggage, which had the live ammunition. He submits that he was not aware of the presence of the said ammunition in the baggage.
4. On the strength of the above submissions, the petitioner contends that he was not in conscious possession of the seized ammunition.
5. During the investigation, the seized live ammunition was sent to FSL Rohini for analysis. Further, notice u/s 91 Cr.P.C. was also sent to LAO office, Roorkee Cantonment, Uttarakhand seeking verification of the service of the petitioners father-in-law. As per the status report dated 10.03.2024, service of Late Lalit Mohan Sarin, father-in-law of the petitioner has been verified vide letter dated 07.03.2024 issued by Officer-in-charge, LAO (Army), Roorkee. Further, vide letter dated 06.03.2024, Joint Magistrate, Roorkee has verified that Late Lalit Mohan Sarin was holding an Arms License bearing No.688/77 which was valid till 18.03.2019. Both the said letters have also been attached with the aforesaid status report. Father-in-law of the petitioner is stated to have retired in 2010 and expired in 2019.
6. To make out an offence under Section 25 of the Arms Act, the possession must be conscious possession meaning thereby that offender had knowledge and was not unaware of it.1
7. In a similar view, a Constitutional Bench of the Supreme Court in Sanjay Dutt v. State Through CBI, Bombay (II)2 elucidated the meaning of possession to be conscious possession and not mere custody, lacking any knowledge or intention to use:-
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19. 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. (See Warner v. Metropolitan Police Commissioner, (1969) 2 A.C. 256 and Sambasivam v. Public Prosecutor, Federation of Malaya, (1950) AC 458.
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8. The petitioner has categorically stated that the baggage belonged to his father-in-law and so did the 1 live ammunition lying in it. Concededly, there is no other incriminating material against the petitioner. The petitioners version is a plausible one. It is a settled law that the Court, while exercising jurisdiction under Section 482 Cr.P.C., can interfere at any stage to prevent abuse of process of Court, with the safeguard that the use of such power should be legitimate.
9. Whether the word possession as mentioned in Section 25 of the Arms Act, 1959 would simply mean physical/constructive possession or conscious possession has already been the subject matter of many judicial decisions and the law on the subject is no longer res integra. This Court deems it profitable to refer to the decision of the Supreme Court in Gunwantlal (Supra), wherein while dealing with the question of what possession meant, it was held that there has to be an element of intention, consciousness or knowledge. It was observed:-
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5. 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. Similarly, 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 .
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10. Apart from the aforementioned, there are several decisions of this Court which reiterate that unconscious possession would not attract the rigours of the Arms Act [Refer: Sh. Gaganjot Singh v. State3; Sonam Chaudhary v. The State (Govt. of NCT Delhi)4; Hari Kishan v. State (NCT of Delhi)5; Sh. Surinder Kumar @ Surender Kumar Singh v. The State (GNCT of Delhi) and Anr.6; Aruna Chaudhary v. State & Ors.7; Paramdeep Singh Sran v. The State (NCT of Delhi)8; Davinder Singh Dhindsa v. State (NCT of Delhi)9; Adhiraj Singh Yadav v. State10; Abid Qureshi v. State (Govt. of NCT of Delhi) & Anr.11; and Ms. Mamta Tushar Chaudhary v. State of Delhi (Govt. of NCT)12]
11. From the above discussion, it becomes apparent that even if the factum of physical possession is made out against a person charged under the Arms Act, it remains for the Court to enquire if a mental element was also present. A search for mental element would include discovering whether or not the person accused was vested with an intention, knowledge or consciousness in regard to the ammunition recovered from his possession. In the present case, barring the allegation of having been found in possession of 1 live cartridge in his baggage, there is no other material on record to show that the petitioner was in conscious possession of the said live ammunition.
12. Keeping in view the exposition of law propounded by the Supreme Court extracted hereinabove and which was also followed by the Co-ordinate Benches of this Court, the petitioner in the present case cannot be held to have been in conscious possession of the 1 live ammunition. On a holistic reading of the facts and the material placed on record, this Court is of the opinion that the necessary ingredients for the offence under Section 25 of the Arms Act, 1959 are not made out against the petitioner. The continuance of proceedings would in fact, be an exercise in futility and accordingly, for the reasons stated above, the aforesaid FIR and the proceedings emanating therefrom are quashed.
13. The petition is disposed of in the above terms.
MANOJ KUMAR OHRI
(JUDGE)
MARCH 11, 2024
na
1 Gunwantlal v. State of Madhya Pradesh, (1972) 2 SCC 194
2 (1994) 5 SCC 410
3 2014 SCC OnLine Del 6885
4 2016 SCC OnLine Del 47
5 2019 SCC OnLine Del 8829
6 Order dated 27.09.2019 passed in W.P. (Crl.) 2143/2019
7 Order dated 25.09.2019 passed in W.P. (Crl.) 1975/2019
8 Order dated 29.08.2019 passed in W.P. (Crl.) 152/2019
9 2019 SCC OnLine Del 7895
10 2020 SCC OnLine Del 2110
11 2021 SCC OnLine Del 4410
12 2024:DHC:955
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