Harpal Singh vs The State Govt Of Nct Of Delhi on 2 September, 2022

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Delhi High Court - Orders

Harpal Singh vs The State Govt Of Nct Of Delhi on 2 September, 2022

1. The instant petition under Article 226/227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 („Cr.P.C.‟) has been filed by the petitioners praying for quashing of FIR bearing No. 0210/2022 dated 06.06.2022 registered at Police Station I.G.I. Airport, New Delhi for offences punishable under Sections 25 of the Arms Act, 1959.

2. The brief facts of the present case are as under:

a. On 05.06.2022, at about 10.30 hours, the petitioner was boarding a flight to Singapore bearing No. UK115 Seat No.30-E. At the security check point at IGI Airport, New Delhi, one live cartridge marked 32S & Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:07.09.2022 16:01:09 WL.K.F. was found from the bag of the petitioner. The petitioner had a valid license in his name bearing license No. 7171/CP/LDH/DVS/May-2021. The petitioner informed that he had purchased ten cartridges from Verma Gun House on 18.06.2021. Thereafter, the pistol had been deposited in the PS Div.No.5, Ludhiana, Punjab, in compliance of the condition before State Assembly Election in the year 2022 in Punjab. Subsequently, the live cartridge was seized and taken into possession and the instant FIR was registered against the petitioner. b. It is stated by the petitioner that the said cartridge belongs to his friend, namely, Shri Devender and his friend holds a valid Arms License bearing No.121/AUGUST/08 P.S. Bisrakh. It is contended by the petitioner that he was not in conscious possession of the cartridge and thus prayed that FIR No. 76/2020 dated 05.02.2020, registered at Police Station IGI Airport, New Delhi for offence under Section 25 of the Arms Act, 1959, be quashed.

3. In Dhanwant Kaur v. State & Anr, (CRL.M.C. No. 3593/2016), this Court observed as under:

"5. It is trite law that the power of the High Court under Section 482 Cr.P.C. is required to be exercised ex debito justitiae to prevent abuse of process of the Court but should not be exercised to stifle legitimate prosecution and the High Court cannot assume the role Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:07.09.2022 16:01:09 of a Trial Court and embark upon an enquiry as to the reliability of evidence and sustainability of accusation on a reasonable appreciation of such evidence. However, if on the face of the charge-sheet the ingredients of the offences are not disclosed, the High Court would be within its power to quash a frivolous proceedings.

[See State of A.P. Vs. Golconda Linga Swamy & Anr. (2004) 6 SCC 522]

6. The Division Bench of this Court Gaganjot Singh (supra) in a case of recovery of a solitary live cartridge found from the possession of the petitioner therein expressed his lack of awareness as the bag recovered belonged to his uncle and held that the possession of the petitioner therein was not conscious and quashed the proceedings.

7. Similar view was expressed by this Court in Juan Manuel Sanchez Rosas Vs. State through NCT Delhi & Anr. Crl.M.C.2642/2014; Chan Hong Saik Thr. SPA:

Arvinder Singh Vs. State & Anr. Crl.M.C. 3576/2011; Jaswinder Singh Vs. State Govt. of NCT of Delhi & Anr. Crl.M.C. 4207/2014 and Sonam Chaudhary Vs. The State (Govt. of NCT Delhi)Crl.M.C.471/2015.

8. As verified and forms part of the charge-sheet, the husband of the petitioner is holder of an arms license and was also entitled to possess ammunition for the two weapons. The case of the petitioner is that inadvertently she did not check the pouch in which she kept her artificial jewellery which also contained live cartridges and carried it with her. Thus there was no material before the Court to come to a prima facie opinion that the petitioner was in conscious possession of 5 live cartridges. Moreover, the constructive possession of the 5 cartridges was that of the husband of the petitioner, whose possession is not illegal Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:07.09.2022 16:01:09 attracting Section 25 Arms Act as he held a valid Arms license."

(emphasis added)

4. In Narinderjit Kaur Singh v. State (NCT of Delhi) & Anr., W.P.(Crl). 1669/2017, this Court observed as under:

"For prosecution under the Arms Act, it needs to be proved that the accused had the knowledge or consciousness of possession. "Possession", for the purposes of prosecution must mean possession with the requisite mental element, i.e. conscious possession and not mere custody without awareness (refer to Gunwantlal vs. The State of Madhya Pradesh, AIR 1972 SC 1756; Sanjay Dutt vs. State through CBI, Bombay (II), (1994) 5 SCC 410)."

(emphasis added)

5. In Nimesh Kumar v. State NCT of Delhi & Anr., W.P. (Crl.) 3540/2017, this Court observed as under:

"8. In the present case, the petitioner was carrying a handbag which contained one live cartridge inside it. He has claimed that the bag belongs to his brother, who has a valid firearm licence, the latter fact has been confirmed by the police. The petitioner's claim of ignorance of the presence of this cartridge in the bag removes the element of "conscious" or knowing possessionǁ. The petitioner claims that he was in a hurry to catch his flight, therefore, he quickly stuffed his belongings in the handbag borrowed from his brother. This version is plausible and there is no reason why a rational person would carry a live firearm cartridge in his handbag on a flight, unless it was inadvertently. Apart from the cartridge being in the handbag, there is no incriminating material against the petitioner. Ex facie there is insufficient material to frame charges against the petitioner and to subject him Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:07.09.2022 16:01:09 to the rigours of a trial.

9. Charges can be framed only when there is reasonable suspicion or sufficient material to indicate that the alleged offender had committed the offence. A perusal of the records show that the elements satisfying "reasonable suspicion" are entirely absent in the present circumstances. The case would have to be based and proven on "conscious possession".

However, since there is no such material, apart from the mere recovery of a live cartridge in the bag of the petitioner, the offence cannot be proved even after a trial."

6. 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.

7. It is stated by the petitioner that the ammunition belonged to his friend, Devender and the live cartridge was left inadvertently in the bag of the petitioner, without any deliberate or malafide intention. The arms license of Devender has been placed on record.

8. It is also submitted that the IO has verified the arms license from the office of the Commissioner of Police, Ludhiana (Punjab) and the bill regarding purchase of 10 cartridges of .32 bore from M/s Verma Gun House, Arms & Ammunition Dealer, Ludhiana (Punjab) by the petitioner.

9. Considering that the petitioner is a permanent resident of India, had a valid flight ticket to Singapore and the fact that there exists a valid license accounting for the live cartridge found in his bag, the Court deems this a fit case to quash the present FIR.

Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:07.09.2022 16:01:09

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 Airport, New Delhi for offence under Section 25 of the Arms Act, 1959 and the proceedings emanating therefrom, subject to the petitioner depositing the cost of Rs.10,000/- with the Delhi High Court Bar Association Lawyers Social Security and Welfare Fund within a week. The details of the account are given as under:

Account Name: DHCBA Lawyers Social Security and Welfare Fund Account Number: 15530100009730 Bank Name: UCO Bank Branch: Sher Shah Road, New Delhi IFSC Code: UCBA 0001553

11. Copy of the receipts be also filed with the Registry to show compliance of the order and provide the receipt to the IO of the case, the petition stands disposed of in the above terms. The pending application also stands disposed of.

12. The petition stands disposed of in the above terms along with the pending application(s), if any.

13. The passport of the petitioner shall be handed over to the petitioner by the IO concerned on proper receipt since the FIR has been quashed.

SWARANA KANTA SHARMA, J SEPTEMBER 2, 2022/ns Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:07.09.2022 16:01:09

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Delhi High Court - Orders