Delhi High Court - Orders
Adiraju Usha Bala vs State Of Nct Of Delhi on 5 January, 2023
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 2549/2022
ADIRAJU USHA BALA ..... Petitioner
Through: Mr. Aamir Chaudhary,
Ms. Sakshi Yadav and Mr.
Aman Yadav, Advs.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Rahul Tyagi, ASC
(Crl.) with Mr. Jatin, Ms.
Preeti and Mr. Aashish
Chojar, Advs. with SI
Prem Narayan, PS - IGI
Airport.
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
ORDER
% 05.01.2023
1. The present petition is filed seeking quashing of the FIR No. 322/2022 dated 05.08.2022 registered at PS IGI Airport, Delhi under Section 25 of the Arms Act, 1959 and all proceedings emanating therefrom.
2. The learned counsel for the petitioner submits that the Petitioner is a 56 year old lady and a government servant working with Indian Railways. He submits that when the Petitioner was returning from her trip on 04.08.2022 after visiting her sister in United States of America, while taking a connecting flight from Delhi to Hyderabad, during security check, 02 live cartridges were detected in the hand baggage of the petitioner and the petitioner immediately told the security personal present at Signature Not Verified the spot that she was unaware about the presence of the Digitally Signed By:HARMINDER KAUR Signing Date:10.01.2023 17:42:10 cartridges in her baggage and did not try to conceal or run from the spot.
3. It is submitted that the petitioner was unaware about presence of the said cartridges in the baggage and she, in a hurry to catch the flight in USA, stuffed her personal belonging without making proper sweeping of the bag.
4. It is further submitted that during the course of investigation, the petitioner informed the IO that when she visited her sister's place in U.S.A, her sister borrowed her bag to visit a shooting range namely Eagle Gun House Range, Valley Ridge Blvd, Lewisville, Tx, USA on 25.06.2022 where she practiced handgun target shooting and returned the same bag to petitioner after practice without removing 02 cartridges from the bag and it remained in the bag without knowledge of petitioner and petitioners' sister.
5. Recovery of 02 live cartridges as aforesaid led to registration of FIR No. 322/2022 dated 05.08.2022 at PS IGI Airport, Delhi.
6. A Status Report has been handed over in court and the same is taken on record. It is mentioned by the State that the facts narrated by the petitioner have been verified from the petitioner's sister residing in United states of America telephonically and she has also provided a copy of the invoice receipt dated 23.06.2022 of Eagle Gun House Range, Valley Ridge Blvd, Lewisville, Texas USA from where the cartridges in question were purchased.
7. Charge-sheet in the present case is yet to be filed.
8. The law in this regard is well-settled (Reference :
Gunwant Lal v. The State of Madhya Pradesh : (1972) 2 SCC Signature Not Verified 194 & Sanjay Dutt v. State through CBI Bombay (II), Crimes Digitally Signed By:HARMINDER KAUR Signing Date:10.01.2023 17:42:10 1994 (3) 344 (SC). The mere possession without the conscious possession or the awareness cannot make a person liable for an offence under the Arms Act, 1959.
9. The State has not alleged that the possession was conscious or there was some mens rea behind carrying the cartridges. The present case seems to be a case where the petitioner inadvertently carried the cartridges in her bag.
10. In similar circumstances, this Court in Adhiraj Singh Yadav Vs. State, decided on 31.12.2020 in W.P.(CRL) 754/2020, held as under:
"12. In view of the above, it is well settled that an offence under Section 25 of the Arms Act would not be made out in cases where the suspect was not conscious that he was in possession of live ammunition.
14. This Court has in several cases held that unconscious possession would not attract the rigours of the said Act. [See: Surender Kumar @ Surender Kumar Singh v. The State (GNCT of Delhi) &Anr.: W.P. (Crl) 2143/2019 decided on 27.09.2019; Aruna Chaudhary v. State &Ors.: W.P. (Crl.) 1975/2019 decided on 25.09.2019 and Paramdeep Singh Sran v. The State (NCT of Delhi) W.P.: (Crl) 152/2019 decided on 29.08.2019)]."
11. In Sonam Chaudhary v. The State (Government of NCT of Delhi) [CRL.M.C. 471/2015] this Court, held that:
"31. Recently, this Court in the case bearing Crl.M.C.No.4207/2104, titled as „Jaswinder Singh Vs. State Govt. of NCT of Delhi & Anr.', decided on 11.08.2015, held that since the prosecution has failed to prove that the possession was conscious possession and, therefore, on the basis of mere possession of a live cartridge the proceedings cannot continue qua the petitioner under the Arms Act, 1959. Accordingly, while allowing the petition noted above, this Court quashed the FIR, Signature Not Verified summoning order and all proceedings emanating Digitally Signed therefrom.
By:HARMINDER KAUR Signing Date:10.01.2023 17:42:10
32. Thus, the law is well settled that 'conscious possession' is a core ingredient to establish the guilt for the offences punishable under Section 25 of the Arms Act.
33. Coming back to the cases in hand, the same are covered by the above said decisions of the Supreme Court as case of the prosecution is not that the petitioners were in conscious possession and, therefore, on the basis of mere possession of live cartridge/cartridges, the proceedings cannot continue qua the petitioners under the Arms Act, 1959.
34. Therefore, applying the said principles of law, as discussed above, and considering the fact that the petitioners had left behind the live cartridge/cartridges in their luggage by mistake and/or inadvertent oversight, when they started their respective journeys and that the petitioners were not aware of the presence of the live cartridge/cartridges in their handbags till the same were detected by the security personnel during screening of the baggages at the concerned places, it can be safely inferred that the said possession does not fall within the ambit of 'conscious possession'. Admittedly, no firearm or weapon has been recovered from any of the petitioner and they have not extended any threat to any person or police official, hence, no offence under Section 25 of the Act is made out against any of the petitioner. Therefore, allowing continuance of the criminal proceedings against them would be an abuse of the process of Court.
35. Thus, the cases of the petitioners are squarely covered under the above said judgments and hence the entire proceedings, including the summoning order, charge-sheet, FIR need to be quashed."
12. It is also worth noting that Section 45(D) of the Arms Act, 1959 does not make the acquisition / possession or carrying of minor parts of arms or ammunition which are not intended to be used along with complementary parts an offence under the Arms Signature Not Verified Act, 1959. In the present case also, the petitioner was not found Digitally Signed By:HARMINDER KAUR Signing Date:10.01.2023 17:42:10 to be carrying a gun which is required for the use of the cartridges recovered. It cannot be said that the petitioner was having the conscious possession of the live cartridges.
13. In view of the above, this Court feels that it is a fit case for exercise of discretion under Section 482 of the CrPC and continuance of the proceedings would be an abuse of the process of the Court. However, since the State machinery has been put to motion because of the acts of the petitioner, this Court feels that cost should be imposed.
14. Thus, keeping in mind the aforesaid, the FIR No. 322/2022 dated 05.08.2022 registered at PS IGI Airport, Delhi under Section 25 of the Arms Act, 1959 and all proceedings emanating therefrom are quashed subject to payment of ₹5000/- to be deposited with the Delhi Police Welfare Fund within a period of four weeks.
AMIT MAHAJAN, J JANUARY 5, 2023 'KDK' Signature Not Verified Digitally Signed By:HARMINDER KAUR Signing Date:10.01.2023 17:42:10