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Dipa Rani vs State (Nct Of Delhi) Through Standing ... on 5 January, 2023

                          $~22
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      CRL.M.C. 1469/2022 & CRL.M.A. 6358/2022 (for stay)
                                 DIPA RANI                           ..... Petitioner
                                                   Through:     Mr. Naginder Benipal,
                                                                Ms. Arpita Rawat, Mr.
                                                                Harithi   Kambiri, Mr.
                                                                Ankit Siwach, Advs. with
                                                                Ms. Dipa Rani, petitioner
                                                                in person

                                                   versus

                                 STATE (NCT OF DELHI) THROUGH
                                 STANDING COUNSEL (CRIMINAL) ..... Respondent
                                                   Through:     Ms. Richa Dhawan, APP
                                                                for State
                                                                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. 330/2015 dated 27.07.2015 registered at PS I.G.I. Airport, Delhi under Sections 25/54/59 of the Arms Act and all proceedings emanating therefrom.

2. The learned counsel for the petitioner submits that on 27.07.2015, when the Petitioner was travelling from Delhi to Chandigarh via flight no. AI-864 (Air India), during security check, one live cartridge of 8mm was recovered from the hand bag of the petitioner. Upon being asked to produce the valid documents, the accused/petitioner was unable to show the same.

3. Thereafter on the Complaint of Mr. Santosh Kumar Shaw, a CISF personnel, the FIR in the present case was registered alleging that on 27.07.2015, a live cartridge was recovered from the petitioner.

4. Learned counsel for the petitioner submits that the seized cartridge does not belong to the petitioner. The same belongs to her cousin namely, Deepak Kumar, who had taken the petitioner's handbag during marriage function.

5. It is submitted that the said Deepak Kumar is a holder of a valid arm license.

6. Learned counsel further submits that the possession of the cartridge was unconscious and the petitioner has no reason or mens rea to keep a cartridge in her bag.

7. The Status Report has been filed in the present case.

8. It is submitted that the chargesheet has already been presented before the learned Trial Court.

9. I have perused the chargesheet, the only allegation made against the petitioner is that she was carrying ammunition without valid license and that she has failed to produce any arms license. It is to be kept in mind that the arms which are alleged to be carried is not the gun but the cartridge.

10. The law in this regard is well-settled (Reference :

Gunwant Lal v. The State of Madhya Pradesh : (1972) 2 SCC 194 & Sanjay Dutt v. State through CBI Bombay (II), Crimes 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.

11. The State has not alleged that the possession was conscious or there was some mens rea behind carrying the Signature Not Verified Digitally Signed By:HARMINDER KAUR Signing Date:11.01.2023 18:14:30 CRL.M.C. 1469/2022 Page 2 of 5 cartridge. The present case seems to be a case where the petitioner inadvertently carried the cartridge in her bag.

12. 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)]."

13. 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, summoning order and all proceedings emanating therefrom.

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 Signature Not Verified Court as case of the prosecution is not that the Digitally Signed By:HARMINDER KAUR Signing Date:11.01.2023 18:14:30 CRL.M.C. 1469/2022 Page 3 of 5 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."

14. 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 Act, 1959. In the present case also, the petitioner was not found 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.

15. In view of the above, this Court feels that it is a fit case for Signature Not Verified exercise of discretion under Section 482 of the CrPC and Digitally Signed By:HARMINDER KAUR Signing Date:11.01.2023 18:14:30 CRL.M.C. 1469/2022 Page 4 of 5 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.

16. Thus, keeping in mind the aforesaid, the FIR No. 330/2015 dated 27.07.2015 at PS I.G.I. Airport, Delhi under Sections 25/54/59 of the Arms Act and all proceedings emanating therefrom are quashed subject to payment of cost of ₹20,000/- to be deposited with the Police Welfare Fund within a period of eight weeks.

AMIT MAHAJAN, J JANUARY 5, 2023 "SS"