Jobanjit Singh Johal vs State Of Nct Of Delhi & Anr on 21 September, 2023

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Delhi High Court - Orders

Jobanjit Singh Johal vs State Of Nct Of Delhi & Anr on 21 September, 2023

1. The present petition under Section 482 of the CrPC seeks quashing of FIR No. 88/2020 under Section 25 of the Arms Act registered at PS IGI Airport and all other consequential proceedings emanating therefrom including the chargesheet pending in the Court of Sh. Abhishek Kumar, learned Additional Chief Metropolitan Magistrate, Patiala House Courts.

2. The case of the prosecution, as stated in the status report dated 19.09.2023 authored by Inspector Yashpal Singh, SHO, PS IGI Airport is that on 11.02.2020, 01 live cartridge was recovered from a luggage bag being carried by the applicant. During interrogation, the applicant revealed that he was travelling from Delhi to Canada and was unable to produce any This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 26/09/2023 at 22:06:04 valid documentation regarding the ammunition. During the course of investigation, FSL Report was received which concluded that the recovered cartridge was live and was covered under the category of arms. Sanction in terms of Section 39 was obtained and the chargesheet was filed in the Court of competent jurisdiction. Later, the applicant provided an Arms License bearing number DM/GSP/ARM/BCTY/0119/9 issued in his name. The same was duly verified.

3. Learned counsel for the petitioner submits that he holds a valid arms license bearing number DM/GSP/ARM/BCTY/0119/9 which was issued to him by the competent authority and was valid in the State of Punjab, till 09.01.2022. It is submitted that the said license entitles him to keep one .32 Bore Pistol alongwith cartridges for the weapon. Learned counsel for the petitioner submits that the latter had purchased a .32 Bore PIstol and 25 cartridges from an arms dealer in Punjab and has a valid invoice for the said purchase. It is further submitted that on 11.02.2020, the petitioner was travelling from Delhi to Canada and the cartridge was left in his bag on account of a genuine oversight. It is submitted that no material has come on record to demonstrate that the petitioner was in 'conscious possession' of the recovered cartridge or that he committed the alleged offence intentionally, with pre-planning and meditation. In view of the aforesaid circumstances, it is submitted that no useful purpose will be served by continuing with the present FIR and the same may be quashed.

4. Learned APP for the State submits that at the time of recovery, the petitioner was unable to produce any valid documents permitting him to carry the ammunition and hence, the present FIR was registered. It is submitted that the arms license issued to the petitioner has been verified and This is a digitally signed order.

5. Heard learned counsel for the parties and perused the record.

6. In W.P.(CRL.) 754/2020 titled 'Adhiraj Singh Yadav v. State', vide order dated 31.12.2020, a cordinate bench of this Court quashed an FIR registered in similar circumstances. It was 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.

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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)]."

The Hon'ble Supreme Court, in Gunwant Lal v. The State of Madhya Pradesh, (1972) 2 SCC 194, held as under:

"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. Similary, 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 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 26/09/2023 at 22:06:04 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...."

Vide judgment dated 28.07.2021 a coordinate bench of this Court, in Namanpreet S. Dillon v. State, 2022:DHC:2864, held as under:

"11. Extrapolating from the principles enunciated in the above judgments, 'conscious possession' is a core ingredient to establish the guilt for offences punishable under the Arms Act, 1959. Mere possession without the awareness cannot make the accused liable of the offence.

12. In the instant case, the claim of the Petitioner is that his Paternal Uncle (Tayaji) Sh. Palwinder Singh Dhillon had an arms licence and it was his cartridge that inadvertently remained in the pocket of his trouser which was detected by the X-ray Machine at the Departure Hall at the IGI Airport.

13. It is very much evident from the facts that the Petitioner was indeed not in conscious possession of the cartridge but rather inadvertently carried it with him during the X-ray Scan.

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15. It is apparent from the facts of the case that only a single cartridge has been recovered from the Petitioners and no other fire arm has been recovered from him which makes it clear that the petitioner was not having conscious possession of the live cartridge. This is a testament to the fact that there was no animus possidendi.

16. In light of the mentioned judgments, where the facts are para materia to the facts of the instant case and taking into account the fact that the Petitioner was indeed not in conscious possession the FIR No. 0308/2021 dated 15.11.2021 under Section 25 of the Arms Act, at P.S. IGI Airport against the petitioner is hereby quashed and thus the This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 26/09/2023 at 22:06:04 proceedings emanating there from against the petitioner are also quashed."

In W.P.(CRL.) 2393/2021 titled 'Dildar Singh v. State of NCT of Delhi', vide order dated 08.02.2023, a coordinate bench of this Court held as under:

"8. There are several other orders of this Court, wherein this Court had quashed the FIR on the ground that unless the accused is not in a conscious possession of the ammunition, he cannot be prosecuted for the offence under Section 25 of the Arms Act, 1959.

9. It is stated by the petitioner that the ammunition belonged to his friend, Devender. The arms license of Devender has been filed along with the petition as Annexure A-3 (page No.33 of the paperbook).

10. In the facts and circumstances of this case, this Court is inclined to quash FIR No.76/2020 dated 05.02.2020, registered at Police Station IGI W.P.(CRL) 2393/2021 Page 9 of 9 Airport, New Delhi for offence under Section 25 of the Arms Act, 1959 and the proceedings emanating therefrom."

7. The petitioner has adequately explained the presence of the live cartridges in his bag. He holds a valid arms license and there is no reason to doubt that the recovered live cartridges were found on account of a genuine mistake. The investigation in the present case is complate and the chargesheet stands filed. As per the status report as well, nothing has come on record to doubt the explanation given on behalf of the petitioner.

8. In view of the facts and circumstances of the case, no useful purpose will be served by continuing with FIR No. 88/2020 under Section 25 of the Arms Act registered at PS IGI Airport and all other consequential proceedings emanating therefrom including the chargesheet pending in the Court of Sh. Abhishek Kumar, learned Additional Chief Metropolitan Magistrate, Patiala House Courts.

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 26/09/2023 at 22:06:04

9. FIR No. 88/2020 under Section 25 of the Arms Act registered at PS IGI Airport and all other consequential proceedings emanating therefrom including the chargesheet pending in the Court of Sh. Abhishek Kumar, learned Additional Chief Metropolitan Magistrate, Patiala House Courts, is hereby quashed.

10. The petition is allowed and disposed of accordingly.

11. Pending applications, if any, also stand disposed of.

AMIT SHARMA, J SEPTEMBER 21, 2023/nk This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 26/09/2023 at 22:06:04

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Delhi High Court - Orders