Delhi District Court
State vs . Sanjay Kumar on 2 July, 2022
IN THE COURT OF MS MANSI MALIK,
METROPOLITAN MAGISTRATE03, NORTH WEST,
ROHINI COURTS, DELHI
Cr. Case No. 535908/2016
FIR No. : 02/2014
P.S. : Rithala Metro
State Vs. Sanjay Kumar
U/s. 25 Arms Act
State
v.
Sanjay Kumar
S/o Sh. Kishore Prasad
R/o H.No. S82/63, Jagdamba Camp, Sheikh Sarai, PhaseI, Delhi.
Date of institution of case : 24.01.2015
Date of reserving the judgment : 28.06.2022
Date of pronouncement of judgment : 02.07.2022
JUDGMENT
1. S. No. of the Case: 535908/2016 2. Date of Commission of Offence: 03.01.2014 3. Date of institution of the case: 24.01.2015 4. Name of the complainant: Ct. C. S. Bag 5. Name of the accused: Sanjay Kumar 6. Offence complained or proved: U/s 25 Arms Act 7. Plea of Accused: "Not Guilty" FIR no. 02/2014 State Vs. Sanjay Kumar PS Rithala Metro Page no.1/13 8. Final Order: Acquitted 9. Date of Final Order: 28.06.2022 BRIEF FACTS AND REASONS FOR DECISION
1. Succinctly, the case of prosecution is that the accused Sanjay Kumar has been sent to face trial with the allegations that on 03.01.2014 at about 03:34 PM at Punjabi Bagh Metro Station, Delhi, within the jurisdiction of PS Rithala Metro, accused was found in possession of one live cartridge, without any license or permit. Investigation was carried out. Upon completion of the investigation the instant chargesheet for the offence punishable under Section 25 Arms Act was filed by the investigating officer against the accused. The accused was then summoned by the Ld. PO at the time.
2. The copy of charge sheet and relevant documents was supplied to the accused in compliance of Section 207 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.PC).
3. Prima facie case was made out and charge for offence punishable under Section 25 Arms Act was framed on 27.01.2016 to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for recording of prosecution evidence.
FIR no. 02/2014 State Vs. Sanjay Kumar PS Rithala Metro Page no.2/13
4. In order to substantiate the allegations, the prosecution examined five witnesses. At the onset it would be appropriate to have glance at the gist of deposition made by the witnesses:
5. PW1/Complainant C.S. Bag deposed that on 03.01.2014, he was posted at DMRC, Unit CISF, Punjabi Bagh Metro Station as a Constable. He further deposed that on that day, his duty was on Xray Machine from 02:00 pm to 10:00 pm and at about 03:34 pm, one boy whose name was Sanjay Kumar (name told after inquiry) came and put his black coloured pittoo bag on Xray machine for checking. He found some suspicious thing inside the bag. Then he informed HC M. Shiv Putra, who was posted with him and he told him to check the bag. One live cartridge was recovered from the bag of accused. HC M. Shiv Putra took the above said bag and accused to the Control Room. At this stage, Ld. APP for state crossexamined the witness as he was not revealing the complete facts. The witness was confronted with his statement u/s 161 CrPC after which he stated that the above said bag was checked by HC Shiv Putra himself. Thereafter, HC Shiv Putra informed the police. IO arrived the spot and they handed over custody of the accused to the IO. IO recorded his statement and he proved his statement as Ex.PW 1/A, sketch of the recovered property as Ex.PW1/B and seizure memo of recovered cartridge as Ex.PW1/C and he also correctly identified test fired cartridges as Ex.P1. PW1 correctly identified the accused. PW1 was duly crossexamined by Ld. Counsel for accused.
FIR no. 02/2014 State Vs. Sanjay Kumar PS Rithala Metro Page no.3/13
6. PW2 is ASI Gajender who deposed that on 03.01.2014, while posted at PS Rithala Metro Station as HC and working as Duty Officer from 08:00 AM to 08:00 PM, at about 06:45, Ct. Naresh brought a rukka sent by SI Shiv Kumar on the basis of which he registered the present FIR No.2/2014, PS Rithala Metro having u/s 25/54/59 of Arms Act and proved copy of the said FIR as Ex.PW2/A. He also made necessary endorsement on the above said rukka. PW2 was not crossexamined despite opportunity given.
7. PW3 ASI Naresh Kumar deposed that on 03.01.2014 while posted as Constable at PS Rithala Metro Station and working on emergency duty and on that day SI Shiv Kumar received DD No.8A from Punjabi Bag Metro Station regarding the recovery of one live cartridge. Thereafter, he alongwith SI Shiv Kumar reached at Punjabi Bagh Metro Station and met with HC Shiv Putra and they handed over custody of accused and live cartridge to IO/SI Shiv Kumar. He further deposed that SI Shiv Kumar prepared the sketch of the recovered cartridge and he proved the sketch as Ex.PW1/B, seizure memo of recovered case property as Ex.PW1/C. PW3 further deposed that IO prepared rukka and got registered the present case through him. He also proved disclosure statement of accused as Ex.PW3/A and he also correctly identified test fired cartridges as Ex.P1. PW3 correctly identified the accused. PW3 was duly crossexamined by Ld. Counsel for accused.
8. PW4/HC M. Shiv Putra, CISF deposed that on 03.01.2014, while posted FIR no. 02/2014 State Vs. Sanjay Kumar PS Rithala Metro Page no.4/13 as HC at Punjabi Bagh, Metro Station and working as shift Incharge from 02:00 pm to 10:00 pm, on that day one live cartridge was recovered from the bag of accused during the scanning of his bag and he was informed by Ct. C.S. Bag regarding the same and thereafter he informed police and IO reached at the spot alongwith Ct. Naresh Kumar and met with him and he handed over the custody of accused and live cartridge to IO/SI Shiv Kumar and he proved the seizure memo of cartridge as Ex.PW4/A. He also proved crime incident memos as Ex.PW4/B and further deposed that SI Shiv Kumar prepared the sketch of the recovered cartridge and he proved the sketch as Ex.PW1/B, seizure memo of the recovered case property as Ex.PW1/C and also correctly identified test fired cartridges as Ex.P1. PW 4 correctly identified the accused. PW4 was duly crossexamined by Ld. Counsel for accused.
9. PW5/SI Shiv Kumar/ IO deposed that on 03.01.2014 he was posted as SI at PS Rithala Metro Station and working on emergency duty and on that day he received DD No. 8A from Punjabi Bagh Metro Station regarding the recovery of one live cartridge. Thereafter, he alongwith Ct. Naresh Kumar reached at the spot and met with HC Shiv Putra and they handed over the custody of accused and live cartridge to him. He further deposed that he prepared the sketch of recovered cartridge and he proved the sketch as Ex.PW1/B, seizure memo of the recovered case property as Ex.PW4/A. Thereafter, he prepared the pulinda of the recovered cartridge and sealed the same with the seal of 'SK' and seized vide seizure memo Ex.PW1/C. He FIR no. 02/2014 State Vs. Sanjay Kumar PS Rithala Metro Page no.5/13 recorded statement of Ct. C.S. Bag Ex.PW1/A. After getting the case registered through Ct. Naresh, he prepared site plan on the instance of complainant and recorded disclosure statement of accused Ex.PW3/A. He also filled up FSL form at the spot and recorded statement of witnesses. PW 5 was duly crossexamined by Ld. Counsel for accused.
10. Statement of accused person was recorded u/s 313 Cr.PC., wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. He stated that he voluntarily handed over his bag for scanning on the Xray machine and he is not aware whether any live cartridge was found in his bag or someone else's bag. Further, the accused person opted to lead defence evidence and the matter was listed for DE.
11. The accused examined himself as DW1 after moving an application U/s. 315 Cr.PC which was allowed by the court. DW1 deposed that on 03.01.2014, he was going from his office for official work assigned to him by his senior manager and he took his bag from the office and after finishing his work he was returning to his office wherein at the scanner he was stopped by CISF Officials and was told that his bag was consisting of a live bullet. After that the present case was registered on him. Before the scanning, he was not aware that there was any live bullet in the bag which he was carrying as the said bag and its stationery was commonly used by other office boy like him in the office. He was not aware how the said bullet was FIR no. 02/2014 State Vs. Sanjay Kumar PS Rithala Metro Page no.6/13 recovered from his bag and he stated that he has been falsely implicated. The witness was duly cross examined by Ld. APP for the state.
12. The Court has carefully perused the case record and has heard arguments advanced by Ld. APP for the state as well as by Ld. Defence counsel.
13. Short point for determination before the court is as under "Whether on 03.01.2014 at about 03:34 PM at Punjabi Bagh Metro Station, Delhi, within the jurisdiction of PS Rithala Metro, accused was found in possession of one live cartridge, without any license or permit?"
14. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused was found in possession of one live cartridge without permit and submitted that accused be convicted of the offence charged.
15. Per contra, it is argued by the Ld. Counsel for the accused that accused is completely innocent and recovery of case property has been falsely implanted upon him. It is further submitted by Ld. Counsel that the accused did not have conscious possession of the cartridge allegedly recovered from him and therefore he cannot he held liable for an offence u/s 25 Arms Act. At the end, it is submitted that as the prosecution has miserably failed to prove its case beyond reasonable doubt, therefore, the accused is liable to be FIR no. 02/2014 State Vs. Sanjay Kumar PS Rithala Metro Page no.7/13 acquitted of the alleged offence.
16. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution. My findings on the point for determination and brief reasons for the same are now being discussed in following paragraphs.
17. The primary contention of the accused is that he did not have knowledge about the presence of any live cartridges in his bag. It is therefore submitted by the Ld. Counsel for the accused that as he did not have conscious possession of the cartridge/ammunition recovered from him, the offence u/s 25 Arms Act is not made out as one of the core ingredients for the same to be made out is conscious possession. On the aforesaid issue, the law has been clearly laid down by the Hon'ble Supreme Court of India in number of judicial pronouncements.
In the case titled as, Gunwantlal vs The State Of Madhya Pradesh on 3 May, 1972 (AIR 1972 SC 1756), the Hon'ble Supreme Court observed as follows:
"......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 FIR no. 02/2014 State Vs. Sanjay Kumar PS Rithala Metro Page no.8/13 whom physical possession is given holds it subject to that power and control....."
Further, in the case titled as Sanjay Dutt vs State Through C.B.I. Bombay on 9 September, 1994 (Special Leave Petition (crl.) 183435 of 1994) the Hon'ble Supreme Court observed as follows:
"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 unauthorised 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."
Therefore, in view of the aforementioned judgments, it is settled law that the expression conscious possession as occurring in Section 25 Arms Act means possession alongwith having the requisite mental element. It essentially means that mere possession of a firearm/ammunition without having FIR no. 02/2014 State Vs. Sanjay Kumar PS Rithala Metro Page no.9/13 awareness of such possession is not sufficient to constitute an offence under Arms Act. Relying upon the principles laid down in the aforesaid judgments, the Hon'ble High Court of Delhi in the case tilted as Ronald Albert Casanova v. State on 6 January, 2016 acquitted the accused. The facts of the case were that one live cartridge was recovered from the handbag of the accused while scanning his bag at Anand Vihar Metro Station. The Hon'ble High court after discussing the case law, held that as the petitioners were not aware of the presence of the live cartridge in their handbags till the same were detected by the secularity personnel during screening, it can be inferred that the possession does not fall within the ambit of conscious possession and thereby acquitted the accused.
Applying the above said principles to the matter at hand, it is observed that in the present matter also, the accused Sanjay had put his black coloured pithoo bag on the Xray machine and while checking one live cartridge was recovered from his bag. In the cross examination of PW1, he has stated that there was no sign of fear and hesitation on the face of the accused when he entered the Metro Station Punjabi Bagh. Further, PW4 also states in his crossexamination that no hesitation or hindrance was created by the accused at the time of checking of the abovesaid bag. Therefore, the behaviour and body language of the accused points towards the fact that he was unaware that he was in possession of any such live cartridge/ammunition. If the accused was aware that he was in possession of live cartridge/ammunition then firstly, he would not have voluntarily put his bag for screening in a FIR no. 02/2014 State Vs. Sanjay Kumar PS Rithala Metro Page no.10/13 metro station and secondly, he would have objected to and created obstruction in the checking of the said bag. Therefore, the behaviour of the accused creates doubt as to his awareness of the possession of the live cartridge/ammunition recovered from his bag.
Moreover, the accused in his defence has examined himself as DW1. He states that for official work assigned to him by his manager, he took his bag from his office and reached Punjabi Bagh by metro. After he finished his work and was returning, he was stopped at the scanner by CISF wherein he was informed that a live bullet was recovered from his bag. He further stated that the bag which he was carrying and its stationery was commonly used by other office boys in the office. Therefore, other people had access to the bag from which the live cartridge/ammunition was recovered and hence the possibility that the same was planted in the bag by a third person cannot be ruled out.
In light of the judicial pronouncements discussed above, it is clear that for an offence to be committed u/s 25 Arms Act, conscious possession of firearm/ammunition is necessary and that mere possession without knowledge/awareness will not suffice for an offence to be committed under the act. The FIR or the chargesheet in the present case contains no averments to show that the accused was in conscious possession or had any knowledge of being in possession of the ammunition. Therefore, in view of the aforesaid discussion it be said that the prosecution has been unable to prove FIR no. 02/2014 State Vs. Sanjay Kumar PS Rithala Metro Page no.11/13 that the accused had conscious possession of the cartridge recovered from him.
18. At this stage, it would also be worthwhile to refer to the judgment of Hon'ble Supreme Court in Sarwan Singh vs State of Punjab (AIR 1957 SC
637) regarding the nature of burden of proof on the prosecution to prove its case. The ratio of this judgment is applied with the same vigour even after passing of more than 50 years. It was held in this case that: "There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted." Again in Jagdish Prasad vs State (Govt Of NCT Of Delhi) 2011 (9) LRC 206 (Del), the Hon'ble High of Delhi had observed that "It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt.
19. In light of the above discussion and relying on the settled case law , this Court is of considered view that in the present case the prosecution has failed to prove its case against the accused Sanjay beyond reasonable doubt.
FIR no. 02/2014 State Vs. Sanjay Kumar PS Rithala Metro Page no.12/13 Accordingly, the accused Sanjay is acquitted for the offence punishable u/s 25 Arms Act.
20. Bail bonds u/s 437A of CrPC are to be furnished which would remain valid for a period of six months.
Announced in open Court (MANSI MALIK)
on 2nd Day of June, 2022 Metropolitan Magistrate
NorthWest, Rohini, Delhi
FIR no. 02/2014 State Vs. Sanjay Kumar PS Rithala Metro Page no.13/13