Karnataka High Court
Thomas Jeffrey Kidd vs State Of Karnataka on 19 August, 2015
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF AUGUST, 2015
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
CRIMINAL PETITION NO.3219/2015
BETWEEN:
THOMAS JEFFREY KIDD
S/O. ARTHUR JACKSON KIDD
AGED ABOUT 43 YEARS
PERMANENTLY RESIDING AT
1001 GRASSVIEW CT
APEX, NC 27502
C/O. CISCO SYSTEMS
BENGALURU - 560 087.
... PETITIONER
(BY SRI RAVI B. NAIK, SENIOR ADV. FOR
SRI H.N. VASUDEVAN, ADV.)
AND:
1. STATE OF KARNATAKA
BY INTERNATIONAL AIRPORT POLICE STATION
DEVANAHALLI
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
Dr. B.R. AMBEDKAR VEEDHI
BENGALURU - 560 001.
2. THE ASSISTANT SUB INSPECTOR
CENTRAL INDUSTRIAL SECURITY FORCE
2
KEMPEGOWDA INTERNATIONAL AIRPORT
BENGALURU - 560 300.
... RESPONDENTS
(BY SRI B. VISWESWARAIAH, HCGP FOR R1;
SRI ASHOK NAIK, ADV. FOR R2;
SRI KRISHNA S. DIXIT, AMICUS CURIAE)
THIS CRL.P. IS FILED UNDER S.482 CR.P.C., PRAYING TO
QUASH THE COMPLAINT AND THE FIR DTED 23.4.2015
REGISTERED IN CRIME NO.57/2015 REGISTERED BY THE
AIRPORT POLICE STATION, DEVANAHALLI, BENGALURU RURAL
DISTRICT FOR THE OFFENCE UNDER S.25(1-B)(a)(b) OF THE
ARMS ACT, 1959 PENDING ON THE FILE OF CIVIL JUDGE AND
JMFC, DEVANAHALLI.
THIS CRL.P. HAVING BEEN RESERVED, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition under S.482 of Cr.P.C., was filed for quashing of the FIR dated 23.04.2015, registered in Crime No.57/2015, by the Airport Police Station, Devanahalli, Bengaluru Rural District, in respect of an offence under S.25 (1-B) (a) and (b) of the Arms Act, 1959 (for short 'the Act') pending on the file of the Civil Judge and JMFC, Devanahalli and to refund cash security of `10,000/- deposited by the petitioner, as a condition for grant of bail and also for cancellation of personal bond executed for 3 `20,000/- by the petitioner and entire proceedings pending thereon.
2. The case of the petitioner is that he is an American national and issued with an American Passport and employed on the rolls of M/s. CISCO Systems, a large multinational enterprise, for the past thirteen years. His function in the said organization includes imparting of training in EMC storage area and is working on HP-UX11 Certified Systems Administrator. The petitioner was entrusted with the task of imparting certain training to their employees in Bengaluru from 15.04.2015 to 23.04.2015 and as per the itinerary, he arrived in Bengaluru on 14.04.2015, accompanied with his regular baggage, including the bag used to keep his sporting accessories and the entire bag was checked from the time. He boarded the aircraft at Releigh, USA upto Bengaluru via Toranto in Canada and Frankfurt in Germany. He stayed in Bengaluru, at Leela Palace Hotel, from 15.04.2015 till 23.04.2015 and was scheduled to fly back to USA on 4 23.04.2015. As per the travel schedule, the petitioner arrived at Kempegowda International Airport on 23.04.2015 in order to travel back to USA and at Kempegowda International Airport, his travel baggage was screened through X-ray machine at the security checking counter and was detained by the Central Industrial Security Force Officers by alleging that a live bullet was detected in the handbag, which he was carrying as his cabin baggage. Respondent No.2 seized the passport of the petitioner and lodged a complaint with respondent No.1, whereupon, the petitioner was arrested and was produced before the JMFC., Devanahalli. The petitioner was enlarged on bail on 23.04.2015, subject to execution of a personal bond for `20,000/- and cash security of `10,000/- apart from other conditions.
3. The petitioner contends that he possesses a valid license/permit issued by the State of North Carolina, USA to hold a concealed handgun and he is also professionally authorized to teach basic courses in 5 'certified muzzle loading rifle, certified pistol, certified rifle and certified short gun'. He holds a certificate to train NRA Safety Officers. The case of the petitioner is that while in USA, he being a gun enthusiast and a trainer in handling weapons, frequently visited the rifle association in his hometown to teach and practice handling arms and ammunition and while visiting the rifle range and the association, he routinely used to carry his bag containing sporting accessories. The petitioner having carried the same handbag while traveling to India-Bangalore, genuinely believed he had emptied all the materials in the bag before packing it in the check in baggage during the onward journey to India. During his onward journey to India, the said handbag was checked at several checking counters at different international airports at Releigh, Toranto, Frankfurt and Kempegowda International Airport, Benglauru without the said bullet being detected from the handbag. The petitioner contends that he was neither conscious nor did have knowledge about the presence of a 6 live cartridge in his hand bag and that no offence is made out.
4. A requisition having been submitted by the Investigating Officer on 29.06.2015 seeking permission to conduct the investigation in respect of the offence under S.10 of the Aircraft Act, 1934, the learned Magistrate accorded permission on 30.06.2015. According to the respondents, the petitioner has committed offences punishable under S.25(1-B)(a) and (b) of the Act, read with S.10 of the Aircraft Act, 1934. I was immensely benefited by his able assistance which I thankfully acknowledge.
5. Heard Sri Ravi B.Naik, learned Senior Counsel, on behalf of the petitioner and Sri B.Visweswaraiah, learned HCGP and Sri Ashok Naik, learned advocate for respondent No.2. Sri Krishna S.Dixit, advocate was requested to appear as Amicus Curiae, to assist the Court in deciding the case.
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6. Sri Ravi B.Naik, learned Senior Advocate, contended that though the article seized and subsequently tested in this case is a live cartridge and, therefore, constitutes "ammunition", nevertheless, in the long line of decisions, the Apex Court and High Courts having held that mere possession without any consciousness of such possession, would not constitute an offence. He relied upon the decisions of the Apex Court in (i) Gunwantlal Vs. State of Madhya Pradesh, AIR 1972 SC 1756, (ii) Sanjay Dutt Vs. State through CBI, Bombay (II), (1994) 5 SCC
410. He also relied upon the decisions of the Delhi High Court in the cases of (i) Chan Hong Saik through SPA:
Arvinder Singh Vs. State and another, Crl.M.C.No.3576/2011, decided on 02.07.2012, (ii) Sri Gaganjoth Singh Vs State, W.P.(Crl) No.1169/2014, decided on 01.12.2014, (iii) Crl.M.C.No.1455/2014, decided on 22.05.2014, (iv) Manuel R. Encarnacion Vs. State through NCT of Delhi and another, Crl.M.C.No.2642/2014 decided on 29.04.2015 and (v) Juan Manuel Sanchez Rosas Vs. State through NCT Delhi and 8 another and that of the Bombay High Court in Nurit Toker Vs. State of Maharashtra and others, 2012 BomCR(Cri)154. He submitted that the long line of decisions have emphasized that possession must mean possession with requisite mental element i.e., consciousness possession and not mere custody without awareness. He submitted that the Apex Court in the two decisions, noticed supra, has been held that mere possession of a live cartridge is insufficient, to even to proceed for framing of charge. Learned Counsel submitted, that keeping in view the point that the petitioner is a US citizen and was on his return journey to go back, investigation being complete and no material having been gathered, indicating any culpability, other than the fact that the cartridge which was recovered from the bag carried by the petitioner, in the interest of justice, entire proceedings is liable to be quashed. He submitted that in the circumstances of the case, relegating the petitioner to a full trial, would cause undue hardship and would subject him to uncertainty.
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7. Learned advocates appearing for the respondents were unable to show any material from the investigation record, which point towards awareness or consciousness about the fact that the petitioner was in possession of a live cartridge in the hand bag carried by him. Learned counsel submitted that S.45(d) of the Act has no application to the present case.
8. Learned Amicus Curiae, submitted that it is well settled position of law that conscious possession is the core ingredient to establish the guilt for the offence under S.25 of the Arms Act, 1959 and that the Apex Court in the case of Sanjay Dutt (supra), while dealing with the case under S.5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 having held that the expression "possession" occurring in S.5 of the said Act, must mean possession with the requisite mental element i.e., conscious possession and not mere custody without the awareness of the nature of the such possession, the present case being identical to the decision in William 10 Michael Hurtubise Vs. State and Odisha and others, Crl.M.C.No.3358/2013, decided on 17.01.2014 by the Orissa High Court, the petition has merit.
9. In the case of Gunwantlal (supra), Apex Court has emphasized the necessity for the prosecution to prove the possession of the arm or ammunition as conscious one. The relevant portion reads thus:
"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."
10. In the case of Sanjay Dutt (supra), the aforesaid position of law has been reiterated and the relevant portion reads thus:
"22. 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 objective 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 11 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 unauthorized 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)."
11. In Nurit Toker (supra), the petitioner was a citizen of Israel and was detained at Mumbai International Airport for carrying 2 live cartridges (bullets ) of 0.1 MM and 0.5 MM. She had purchased air-tickets to visit for Kathmandu, Bangkok and back to Israel. She had traveled with the luggage and was preparing to leave Kathmandu as per her preplanned travel itinerary. The petitioner was found to be carrying 2 live cartridges when she was at Mumbai in India and therefore, she was detained at Mumbai International Airport for carrying live cartridge and hence, she was charged with offence under Ss.3 and 25 of the Arms Act. The Division Bench, relying upon the decision of the Apex Court in the case of Sanjay Dutt (supra), has held, that merely because the petitioner was found to be carrying 2 live cartridges when she was at 12 Mumbai in India, the same cannot constitute conscious possession or establishes the guilt for commission of the offence under Ss.3 and 25 of the Act.
12. In Gaganjot Singh (supra), the petition was filed for quashing of FIR registered by Police Station, Indira Gandhi (IGI) Air Port, for an offence allegedly committed under S. 25, 54 and 59 of the Arms Act, 1959. FIR was registered on account of the petitioner's conceded possession of an 8 mm KF live cartridge when he tried to board China Eastern Airlines - Flight No.MU-564. The petitioner therein was a US citizen and holding passport. At the time of examination of his baggage, the Police discovered live cartridge, consequently, after interrogation, lodged FIR. After considering the rival contentions, it was held that the petitioner's claim for quashing is merited having regard to the fact that the petitioner expressed his lack of awareness of the solitary live cartridge and the final report of the Police did not indicate his awareness and there is no material to show that he was conscious of his 13 possession of a cartridge, despite ballistic report conforming it to be a cartridge and consequently, it is an 'ammunition' by itself, i.e., 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. Finding that there is no such material and the offence cannot be proved even after trial, on the interpretation in the decision in Gunwantlal and Sanjay Dutt (supra), it was held that the petitioner's claim for quashing is merited. As a result, the petition was allowed and the impugned proceeding was quashed.
13. In the case of Manuel R. Encarnacion (supra), the petitioner, holder of U.S. Passport was called for checking his baggage and when the physical check was done in his presence, three live cartridges were found and FIR was registered. When the FIR was assailed in the Delhi High Court, on the ground that even if the prosecution version is taken as it is, still the offence in 14 question is not made out against the petitioner, as he was not in conscious possession of the three live cartridges recovered and so, to secure the ends of justice, the proceeding arising out of the FIR in question be quashed, while allowing the petition, following the dictum of law in the case of Sanjay Dutt (supra), it was held as follows:
"Upon hearing both the sides and on perusal of the FIR of this case, the status report, the material on record and the decision cited, I find that even if the prosecution case is taken as it is, still it cannot be said that petitioner was in conscious possession of the recovered three live cartridges."
14. In the case of Juan Manuel Sanchez Rosas, (supra), the petitioner was a Lt. Colonel in the Armed Forces of Columbia and on 18.02.2010, had gone to IGI Airport, Delhi to take return flight to his country and on checking of his baggage two live bullets of 9 mm were found. Hence, FIR under Ss. 25, 54 and 59 of the Act, was registered at Police Station, IGI Airport, Delhi against him. The quashing of the FIR was sought on the ground that he was not in conscious possession of the two live bullets of 9 mm. During the pendency of the case, charge sheet was 15 also filed. The respondent - State filed status report, upon notice of the petition being filed, which discloses that as per the FSL report, two cartridges recovered were live and could be fired through 9 mm caliber fire arm. Considering the rival contentions and while allowing the petition and quashing the impugned proceedings, it was held as follows:
"Upon hearing and on perusal of the FIR of this case, copy of the charge-sheet filed, status report and the decision cites, I find that it cannot be said that petitioner was in conscious possession of the two live cartridges. When petitioner, a serving Lt. Colonel in Armed Forces of Columbia asserts that recovered cartridges were of his service revolver, there is no reason to discard his stand."
15. In the case of William Michael Hurtubise (supra), the petitioner was a citizen of USA and was employed in the State of Texas, as Field Service Engineer. He was deployed with two other engineers and one technician to attend offshore drillship. The petitioner along with his colleagues, had left Houston in the State of Texas in USA and via Amsterdam, arrived in New Delhi. From there, they boarded a flight to Bhubaneshwar and arrived 16 at Biju Pattanaik Airport in Bhubaneshwar on 18.09.2013. While the petitioner and his colleagues were about to board an helicopter to proceed to the place of work in Paradeep, he was detained by the CISF personnel and was informed that during screening of his baggage, 8 nos., of 0.22 mm bullets have been found in his handbag. Though the petitioner explained to the CISF personnel at the Airport that the bullets may have been left behind in his handbag due to oversight and that he is possessing a Arms Licence issued by the State of Florida in USA and if he is given some time, he can obtain copy of the said Arms Licence by fax and pleading that 0.22 mm bullets are harmless and is only used for sporting purpose in a sporting rifle, the CISF personnel did not heed to the request and plea and instead, handed over the petitioner to the Airfield Police Station, Bhubaneshwar, who registered the FIR for the offence under S.25 of the Act. To quash the said proceedings, a petition under S.482 was filed. Considering the rival contentions and while allowing the petition, it has been held as follows:
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"16. The law is well settled that conscious possession is a core ingredient to establish the guilt for the offence under Section 25 of the Act and the apex Court in Sanjay Dutt (supra), while dealing with a case under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, has held that the expression 'possession' occurring in the Section 5 of the said Act 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, which means that the possession must be conscious possession. The apex Court has held that only then the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an unauthorized substance has to be understood.
17. Applying the said principles, as discussed above, to the facts of the present case and considering the attending circumstances, it can be safely said that the petitioner had left behind 8 nos. of 0.22 mm bullets in his handbag by mistake and/or inadvertent oversight, when he started his journey from USA. He was not aware of its presence in his handbag till it was detected by the security personnel during screening of his baggage at the Bhubaneswar Airport and therefore, it was not a conscious possession. Further, the petitioner holds a valid licence for possessing such bullets, issued by the State of Florida in USA and admittedly no fire arm or weapon has been recovered from him. Therefore, no offence under Section 25 of the Act is made out against the petitioner and allowing continuance of criminal proceeding against him would be an abuse of the process of Court".
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16. In the present case, respondent No.1 had made a reference to the FSL on 01.06.2015 with regard to the seized live bullet. The FSL, in its report dated 23.06.2015, has opined that the cartridge is a live 0.22 calibre cartridge and legally manufactured, which can be fired through 0.22 calibre rifle and the effective range of the 0.22 rifle is about 100 yards.
17. The petitioner has stated before the respondents, on 23.04.2015, as follows:
"Statement Thomas Jaffery Kidd, S/o.Arthur Jackson Kidd 43, 919-606-3201 1001 Grassview Ct Apex, NC 27502 USA.
System Administrator I came to Bangalor to teach new team Members for Cisco Systems.
The one bullet was in the bottom of my bag from the US without my knowledge. It came with me on accident. I entered Bangalore on15.04.2015. Deporting Bangalore on 23.04.2015.
The Leela Palace 19 Cisco Systems Salarpuria Hallmark Bldg., A.No.133, Panatoor Gram Panchayat, Outer Ring Rd., Bangalore, Karnataka 560 037."
(underlining is by me)
18. Undisputedly, the petitioner is a citizen of USA and has come to India for one week, commencing from 13.04.2015 for the purpose of imparting training to new team at Bengaluru. He has stayed from 14.04.2015 to 23.04.2015 at Leela Palace Hotel, Old Airport Road, Bengaluru. After completing the training program, he went to Kempegowda International Airport on 23.04.2015 to emplane back to USA, as per his itinerary. The said bullet, during screening of his bag, was found in his cabin baggage. The petitioner was not aware of the bullet lying in the hand bag and the same must have been left out in the bag due to inadvertent oversignt and the same appears to be genuine bona fide, as no attempt was made by him to conceal the said bullet nor the said bullet was found hidden in a secret compartment of his baggage to 20 evade detection. The handbag of the petitioner has passed through several security checks in different airports from 13.04.2015 to 23.04.2015 and nowhere, the said bullet was detected. Carrying of the bullet in the handbag into the aerodrome though is a mistake, appears to be inadvertent oversight, when he has started his journey from USA.
19. I am convinced that the petitioner was not conscious/aware of the presence of the bullet in his handbag till it was detected by the security personnel during screening of the handbag at Kempegowda International Airport, Bengaluru and therefore, it was not a conscious possession.
20. Applying the principles, in the decisions noticed supra, to the facts of the present case and considering the attending circumstances, in my opinion, no offence is made out against the petitioner under S.25(1-B)(a) and
(b) of the Arms Act, 1959 read with S. 10 of the Aircraft Act, 1934. Hence, allowing continuance of the criminal 21 proceeding against the petitioner would be an abuse of process of law and that the ends of justice require that the impugned proceeding be quashed.
In the result, petition is allowed and FIR in Crime No.57/2015 registered on 23.04.2015 by the first respondent and pending on the file of Civil Judge and JMFC, Devanahalli, is quashed. Security amount of `10,000/- deposited by the petitioner, as a condition for grant of bail, shall be refunded to him. If any documents have been seized from the petitioner or deposited with the respondent, the same shall be returned to the petitioner.
Sd/-
JUDGE sac*