Karnataka High Court
Tamas Sen vs The Police Inspector Cisf on 10 January, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
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®
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 10TH DAY OF JANUARY 2017
BEFORE
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.9165 OF 2016
BETWEEN:
Tamas Sen,
Son of Thapan,
Aged about 26 years,
No.30, Chowdaiah Block,
HMT Layout, 2nd Cross,
Bengaluru - 560 102.
...PETITIONER
(By Shri Raghuram Cadambi and Shri Rathnakar, Advocates)
AND:
1. The Police Inspector,
CISF,
Bengaluru International Airport,
Bengaluru - 562 110.
2. The State of Karnataka,
Represented by
Bengaluru Intl. Airport
Police Station,
2
Bengaluru Rural District - 562 110.
...RESPONDENTS
(By Shri B. Visweswaraiah, Government Pleader)
*****
This Criminal Petition is filed under Section 482 code of
Criminal Procedure, 1973, praying to quash the FIR in Crime
No.156/2016 dated 25.11.2016 registered for the offence
punishable under Section 25(1B), a and b of Arms Act by the
Bangalore International Airport Police, Bangalore, pending on
the file of Principal Civil Judge and Judicial Magistrate First
Class, Devanahalli.
This petition having been heard and reserved on
4.1.2017 and coming on for pronouncement of orders this day,
the Court delivered the following:-
ORDER
Heard the learned counsel for the petitioner and the learned Government Pleader. The petition coming on for preliminary hearing is considered for final disposal by consent of parties, having regard to the circumstances of the case.
2. The petitioner is aged about 26 and is a resident of Bangalore. He is employed as a Senior Sales Manager with M/s Honeywell International India Private Limited. It transpires that he was traveling on official business and leaving 3 Bengaluru, by air on 25.11.2016 on an Indigo Airlines flight. When his cabin baggage was scanned at the Airport on the said date at about 4 A.M., a live bullet of .22 calibre weapon was found in his hand luggage. The Inspector, CISF, who was on duty at the point of time, on finding the said bullet is said to have questioned the petitioner about it and since the petitioner was clueless about the presence of the same in his hand luggage, the said officer is said to have lodged a complaint, with the Bengaluru International Airport Police Station, alleging an offence punishable under Section 25 (1B ) (a) & (b) of the Arms Act, 1959 (hereinafter referred to as 'the Arms Act', for brevity). It was in this background that a case was said to have been registered against the petitioner, who was thereafter produced before the court of the Magistrate and was enlarged on bail. The bullet was said to have been sent to a forensic science laboratory and it was verified that it was a live cartridge. Hence the present petition.
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3. The learned counsel for the petitioner would plead that he has no knowledge about the presence of the bullet in his bag. It was said to have been found between layers of lining of the bag and was never seen or felt by the petitioner earlier. He was an employee of a highly reputed company and was traveling on its business and he would not hence be expected to carry a live cartridge into a high security zone, where detection was certain. It is not that the petitioner had a history of any such activity. He was not a licence holder of any weapon and had no use for a bullet.
It is contended that in the absence of a weapon, it could not be said that the live cartridge was capable of being used so as to cause danger to anybody. In any event, the petitioner's intention to possess and carry the same was not apparent as he had no knowledge of the presence of the bullet in his bag and he is till date unaware of how it had found its way into his bag. He has no explanation to offer. It is contended that the case of 5 the petitioner would clearly fall under Section 45 (d) of the Arms Act.
It is contended that he has aged and ailing parents at home. And that on account of the above episode, his employer has placed him under suspension and unless his name is cleared on any wrong doing it is unlikely that he would resume employment and hence pleads hardship and seeks appropriate relief.
The learned counsel for the petitioner contends that the case of the petitioner is identical to the one decided by this court in the case of Thomas Jefferey Kidd vs. State of Karnataka, Criminal Petition 3219/2015, dated 19.8.2015 and seeks that the benefit of the said decision be extended to the present petitioner.
4. The learned Government Pleader on the other hand would contend that the petitioner's innocence is a self serving plea and that he would necessarily have to stand trial to absolve himself of any guilt and would contend that the petition is 6 misconceived and premature and seeks that the same be rejected.
5. In this background, the question that arises is whether the petitioner could even at this stage seek that the proceedings initiated against him for the offence alleged be quashed.
In Thomas Jefferey Kidd's case, supra, the petitioner therein was an American national and was visiting India on business. On his way out of Bengaluru, a live bullet was said to have been found in his hand baggage, on the baggage being screened at the airport, just as in the present case on hand. He was a license holder for a handgun and was certified to handle other weapons, as he was a gun enthusiast and was an active member of a rifle association in his home town in the USA. It was contended that he was neither conscious nor did he have knowledge about the presence of a live bullet in his bag.
A learned single judge of this court has upheld the contention urged that the case law on the subject lays emphasis on the circumstance that possession must mean possession with 7 the requisite mental element, namely, conscious possession and not mere custody without awareness, which is the core ingredient to establish the guilt for an offence under Section 25 of the Arms Act, 1959. (Reliance was placed on the following judgments of the Apex Court:
i) Gunwantlal vs. State of Madhya Pradesh, AIR 1972 SC 1756;
ii) Sanjay Dutt Vs. State through CBI, Bombay (II), (1994) 5 SCC 410;
iii) Chan Hong Saik through SPA: Arvinder Singh Vs. State and another, Crl.M.C.No.3576/2011, decided on 2.7.2012;
iv) Sri. Gaganjoth Singh vs. State, W.P. (Crl) No.1169/2014, decided on 1.12.2014;
v) Crl.M.C.No.1455/2014, decided on 22.5.2014;
vi) Manuel R. Encarnacion vs. State through NCT of Delhi and another, Crl.M.C.No.2642/2014 decided on 29.4.2015;
vii) Juan Manuel Sanchez Rosas vs. State though NCT Delhi and another;8
and a judgment of the Bombay High Court in Nurit Toker vs. State of Maharashtra and other, 2012 Bom CR (Cri) 154).
It was further noticed that the Apex court in the case of Sanjay Dutt, supra, while dealing with the case under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 has held that the expression "possession" occurring in Section 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 such possession.
It was hence held that the petitioner in that case was not conscious 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 hence it was not conscious possession. The proceedings were quashed.
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6. Given the circumstances of the present case, two issues would arise for consideration. Firstly, provisions of the Arms Act, 1959, do not apply in certain cases, where the acquisition, possession or carrying by a person of minor parts of arms or ammunition which are not intended to be used along with complementary parts acquired or possessed by that or any other person, as provided under Section 45 (d) of the Act. Secondly, as per the provisions of Section 25 of the Act, possession of any firearm or ammunition must be "conscious possession", meaning thereby possession with the requisite mental element and mere custody without the awareness of the nature of such possession does not amount to an offence under the Arms Act.
As regards the first issue qua exemption under Section 45
(d) of the Act, the said issue is no longer res-integra. A Constitution Bench of the Apex Court in the case of Sanjay Dutt, supra, while reiterating the position as laid down in Gunwantlal v. The State of Madhya Pradesh, AIR 1972 SC 1756, has held thus :
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"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 unauthorized substance has been understood. (See Warner v. Metropolitan Police Commissioner 1969 (2) AC 256 and Sambasivam v. Public Prosecutor, Federation of Malaya, 1950 AC
458.)
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, 11 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, it at all, on the interpretation of the Act placed by the decisions in Gunwantal (supra) and Sanjay Dutt (supra)."
With respect to the second issue of "conscious possession" , it is well settled that the possession of any fire arm or ammunition must be conscious possession. It is held thus by the Apex court in Sanjay Dutt, supra:
"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', 12 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 unauthorized substance has been understood."
Hence, applying the above principles and considering the fact that the petitioner was totally unaware of the presence of the bullet in his bag, till the same was detected by the security personnel during screening of the baggage at the airport, it can be safely inferred that the said possession does not fall within the ambit of "conscious possession" . Admittedly, no firearm or weapon was recovered from the petitioner and he has not extended any threat to any person or security official. Hence, 13 no offence under Section 25 of the Arms Act is made out against the petitioner. Therefore, allowing continuance of the criminal proceedings against him would be an abuse of process of the court.
Consequently, the petition is allowed. The F.I.R and the subsequent proceedings against the petitioner are hereby quashed.
Sd/-
JUDGE KS*