Delhi District Court
Cr Cases/885/2017 on 30 October, 2021
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
PATIALA HOUSE COURTS, NEW DELHI DISTRICT:
NEW DELHI
State v. Eshendu Singh
FIR No : 304/2013
Police Station : IGI Airport
Under Section : 25 Arms Act
JUDGMENT
(a) Serial number of the case : 885/2017
(b) Name of the complainant : Sh. Vijender Singh
Security Supervisor
Jet Airways, IGI Airport
New Delhi
(c) Name of the accused person : Eshendu Singh
S/o Sh. Brijraj Singh
(d) Offences complained of : 25 Arms Act
(e) Plea of the accused : Pleaded not guilty
(f) Final Judgment : Acquitted
(g) Date of institution of case : 07.02.2017
(h) Date of final arguments : 22.10.2021
(i) Date of Judgment : 30.10.2021
BRIEF FACTS AND REASONS FOR THE DECISION:
1. In the present case charge-sheet was filed by the State under Sections 25/54/59 of Arms Act, 1959 (hereinafter referred to as 'Act') against the accused Eshenu Singh on 07.02.2017. The FIR No:- 304/13 State v. Eshendu Singh Page No. 1 of 8 case of the prosecution is that on 08.10.2013 at about 21:05 Hrs., the accused was found in possession of one live cartridge of 0.32, without having valid license and he thereby committed an offence under Section 25 of the Act.
2. On the basis of aforesaid charge-sheet, Ld. Predecessor Court took cognizance of the offences under Section 25 of the Act against accused. Accused appeared before the court and documents were supplied to him in compliance of Section 207 of Code of Criminal Procedure, 1973 (hereinafter mentioned as 'Cr.P.C.'). Arguments on charge were heard and on 15.05.2018 charge was framed under Section 25 of Arms Act against the accused. Subsequent to framing of charge, the accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for prosecution evidence.
3. In order to prove its case prosecution examined five witnesses. PW-1 is Assistant Director, Ballistics, FSL, Rohini, Delhi, who deposed that on 28.03.2014, one sealed parcel sealed with the seal of IGIA 20 was received in FSL through Ct. Arvind Kumar, which was marked to him for examination. He further deposed that on opening the parcel, one .32 inch cartridge was taken out and marked vide Ex.A-1. On examination, he found that the cartridge was live one and was test fired through revolver .32 inch caliber vide Ex.F1 in case FSL No. 2014/F-883, FIR No. 235/13 Police Station DBG Road. He further deposed that cartridge mark Ex.A1 is an ammunition as defined in Arms Act, 1959. The detailed reort in this regard is Ex. PW 1/A. FIR No:- 304/13 State v. Eshendu Singh Page No. 2 of 8
4. PW-2 is Vijender Singh, who deposed that on 08.10.2013, he was posted as Security Supervisor in Jet Airways and on that day, one passenger namely Eshendu Singh was travelling on flight No. S2-4607 from Delhi to Lucknow. During X'Ray screening of registered baggage of accused, one live bullet was detected by DIAL Security Staff at Level-4. He further deposed that he took the accused alongwith letter head of Jet Airways and with baggage in which live bullet was detected to Police Station IGI Airport. Thereafter, he handed over the bullet to the police officials and gave complaint Ex.PW2/A. IO seized the bullet vide seizure memo Ex.PW2/B and he further prepared the sketch of said bullet vide Ex.PW2/C. PW-2 further deposed that he handed over the boarding card of accused to police officials vide seizure memo Ex.PW2/D. He also identified the accused as well as case property i.e. .32 bore as Ex. P1. PW-2 was duly cross- examined by Ld. Counsel for accused.
5. PW-3 is ASI Man Singh who was the duty officer on 08.10.2013. He received rukka at about 09:05 PM and made endorsement on the rukka Ex. PW 3/A and on the basis of said rukka, FIR in question Ex. PW 3/B (OSR) was registered. After that, copy of FIR and original rukka was handed over to SI Vidhyadhar Singh as investigation of the case was marked to him. PW-3 further issued certificate under Section 65-B of Indian Evidence Act as Ex. PW 3/C.
6. PW-4 is Constable Arvind Kumar, who was posted on emergency duty at Police Station IGI Airport on 28.03.2015 and he deposited the sealed packet to FSL.
FIR No:- 304/13 State v. Eshendu Singh Page No. 3 of 8
7. PW-5 is IO Inspector Vidyadhar Singh, who deposed that on 08.10.2013, he was on emergency duty and at about 09:00 PM complainant Vijender Singh handed over him a complaint along with accused and one live cartridge of .32 bore, boarding pass etc. Thereafter, he endorsed the complaint Ex. PW 5/A and seized the live cartridge vide memo Ex. PW 2/B. He prepared sketch of the said bullet vide memo Ex. PW 2/C and also seized the boarding pass Mark-A vide seizure memo Ex. PW 2/D. The accused was arrested by PW-5 vide arrest memo Ex. PW 5/B. Personal search memo of accused is Ex. PW 5/C and disclosure statement was recorded by PW-5 vide Ex. PW 5/D. PW-5 further deposed that he collected the examination report of live cartridge from FSL, Rohini and placed the same on record. Thereafter, he took the permision under Section 39 of Arms Act from DCP, IGI Airport vide Ex. PW 5/E. He recorded the statement of witnesses and after completion of investigation, filed the charge-sheet in the Court. PW-5 got duly cross-examined by Ld. Counsel for accused.
8. Thereafter, prosecution evidence stood closed vide order dated 07.01.2020 and statement of accused was recorded under Section 281 Cr.P.C., during which all incriminating evidence was put to him which he denied and claimed innocence. He stated that possession of the bullet in question was not conscious as the bag which was recovered from him belonged to his grand-father, who was having a valid license of the ammunination in question and who had already expired. He chose to lead defence evidence. Thereafter, matter was fixed for defence evidence.
FIR No:- 304/13 State v. Eshendu Singh Page No. 4 of 8
9. Accused examined himself as DW-1 and stated that on 08.10.2013, he was travelling from Delhi Airport to Lucknow and at that time he was carrying a luggage bag which belonged to his grand-father (who had expired) and inadvertently said bag contained live cartridge belonging to his grand-father. He further deposed that his grand-father had valid license of gun vide license bearing no. FG00340 bore .32. He placed on record copy of said license Mark-1. He also deposed that the license holder of gun i.e. Sh. Bramhdeen Yadav was his grand-father vide family register Ex. DW 1/1 (OSR). He also relied upon the document to prove death of his grand-father as Ex. DW-1/2. He further stated that said gun had been deposited into safe custody and placed on record the document in this respect vide Ex. DW 1/3. DW-1 further stated that he was not carrying the cartridge consciously as he was not aware about the cartridge which was found in his bag. Accused was cross-examined by Ld. APP for the State. During cross- examination he admitted that one live cartridge had been found in his luggage bag.
10. Thereafter, defence evidence was closed vide order dated 10.09.2021 and the matter was fixed for final arguments.
11. I have heard the Ld. APP for the State and Ld counsel for the accused and also carefully gone through the record.
12. It is well settled that if a person is not conscious of the possession of the ammunition, an offence punishable under Section 25 of the Arms Act, 1959 is not made out.
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13. In Gunwant Lal v. The State of Madhya Pradesh, (1972) 2 SCC, Hon'ble Supreme Court has explained the scope of possession of fire arms/ammunition in the following words:-
"... 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 Signature and secondly where he has not the actual physical possession, he has none-the-less 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. Similarly, if he goes out of the house during the day and in the meantime someone 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 of the owner. The concept of possession is not easy to comprehend as writers of (sic) 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..."
14. In Sanjay Dutt v. State through CBI Bombay (II), Crimes 1994 (3) 344 (SC), Hon'ble Supreme Court has observed as under:-
"... 20. 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 FIR No:- 304/13 State v. Eshendu Singh Page No. 6 of 8 '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..."
15. Hon'ble Delhi High Court has further held in catena of cases that a person cannot be prosecuted for possession of ammunition if he is not aware of the same. [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)].
16. It is the case of the acused that on 08.10.2013, he was travelling from Delhi Airport to Lucknow and was carrying a luggage bag belonging to his grand-father who was possessing licence of the gun to which the said ammuniation belongs. The licence of gun bearing no. FG00340 bore .32 is Mark-1 and the fact that the arm in question had been deposited in safe custody is proved Ex. DW 1/3. Nothing adverse is brought on record by the prosecution to the contrary.
17. In these circumstances, there is no reason to disbelive the version of accused that he was not aware of the live FIR No:- 304/13 State v. Eshendu Singh Page No. 7 of 8 ammuniation in his checking baggage. Moreover it has been categorrically held in the case of Golap Saikia v. State (NCT of Delhi) & Anr., 2017(2) JCC 1107, that the absence of firearm itself shows that the accused was not having conscious possession of the live cartridge. The recovery of single cartridge ipso facto does not prove that the accused had animus possidendi.
18. Keeping in view the ratio of judgments of Hon'ble Supreme Court and Hon'ble Delhi High court and aforesaid findings, it is held that accused was not having conscious possession of live cartridge in question. Accused Eshendu Singh S/o Late Sh. Brijraj Singh is thus, acquitted of the offence under Section 25 of Arms Act, as alleged against him. Fresh Bail bonds furnished on behalf of accused which shall stand extended in terms of Section 437-A Cr.P.C. for six months from today.
ANNOUNCED IN OPEN COURT ON 30.10.2021 (AKASH JAIN) ACMM-01/NEW DELHI DISTRICT PATIALA HOUSE COURTS NEW DELHI FIR No:- 304/13 State v. Eshendu Singh Page No. 8 of 8