Arunjit Gill vs State on 24 March, 2022

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Delhi High Court

Arunjit Gill vs State on 24 March, 2022

1. By way of the present petition filed under Section 482 Cr.P.C. read with Article 227 of the Constitution of India, the petitioner seeks quashing of FIR No. 91/2019 registered under Section 25 of the Arms Act, 1959 at Police Station I.G.I. Airport, New Delhi and the consequent proceedings emanating therefrom.

2. A perusal of the FIR would show that the same came to be registered on 03.03.2019, when the petitioner was in the process of departure from Delhi to Shanghai via Flight No. MU-564 of China Eastern from Terminal- III, Indira Gandhi International Airport, New Delhi. It is alleged that during CRL.M.C. 1417/2019 Page 1 of 7 This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001244 the screening of the petitioner's check-in-baggage one (.380 MK2 58 KF) bore cartridge was recovered.

3. Mr. Abhinav Sharma, learned counsel for the petitioner contended that the petitioner is a Canadian citizen of Indian origin, who had been residing in Canada for last more than 45 years and is an official in the Ministry of Labour, Government of British Columbia, Canada. In this regard, he has drawn attention of the Court to the petitioner's passport, a copy of which has been annexed and placed on record. It is submitted that the petitioner's father, namely, Late Sh. Balram Gill, who was a resident of Punjab, expired on 12.03.2016 and bequeathed his properties in equal share in favour of his both sons by way of registered Will. It is further submitted that the petitioner had visited India in the year 2019 to dispose of the said properties bequeathed in favour of him by his late father. At the time of his return from India to Canada, the petitioner also collected all the personal belongings of his late father including his service uniform, stars, medals etc. as they were of great sentimental values for him. The petitioner's father is stated to have served as an Inspector in Punjab Police and in this regard, learned counsel for the petitioner has drawn attention of the Court to the copy of the Death Certificate as well as Pension ID Card of his late father Sh. Balram Gill.

4. It is the submission of learned counsel for the petitioner that at the time of packaging, the petitioner had put the service uniform of his late father without checking the contents of the same. It is submitted that the service uniform consisted of the belt as well as the holster (made of leather and worn on the belt). The said cartridge was found lying in the holster of the uniform of his late father. It is further submitted that the said cartridge CRL.M.C. 1417/2019 Page 2 of 7 This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001244 was not even visible and as such the same came to be packed in the check- in-baggage without the petitioner having any knowledge of it.

5. Mr. Sanjeev Sabharwal, learned APP for the State, on the other hand, has stated that on being confronted with the said cartridge, the petitioner was found neither in possession of any valid document for carrying the recovered cartridge nor provided any satisfactory explanation except stating that the same belongs to his late father, who had served as an Inspector in the Punjab Police. He lastly submits that the charge sheet in the present case has already been filed.

6. I have heard learned counsels for the parties and have gone through the entire material placed on record.

7. As per the Status Report dated 11.12.2019, the recovered cartridge was seized and sent to FSL, Rohini, Delhi for examination and as per the FSL Report, the same has been opined to be 'ammunition' as defined under Section 2(1)(b) of the Arms Act, 1959.

8. A perusal of the FIR and the charge sheet placed on record would show that besides a single cartridge, no other fire arm was recovered from the check-in-baggage of the petitioner. The petitioner has claimed that the said cartridge belongs to his late father, who had served as an Inspector in the Punjab Police. The petitioner has also claimed that he had visited India to dispose of the ancestral properties and while going back carried his late father's uniform for his sentimental values. The service uniform was put in the check-in-baggage without checking the contents of the same. As per the Status Report, the factum of the petitioner's father having served as an Inspector in the Punjab Police has been verified and found to be correct.

CRL.M.C. 1417/2019 Page 3 of 7

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001244

9. Whether the word 'possession' as mentioned in Section 25 of the Arms Act, 1959 would simply mean physical/constructive possession or 'conscious possession' has already been the subject matter of many judicial decisions and the law on the subject is no longer res integra. This Court deems it profitable to refer to the decision of the Supreme Court in Gunwantlal v. State of Madhya Pradesh reported as (1972) 2 SCC 194, wherein while reading into the word 'possession', the Constitution Bench has held there has to be an element of intention, consciousness or knowledge. It was further held:-

"5. ...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 and secondly where he has not the actual physical possession, he has nonetheless 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 Jurisprudence 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, CRL.M.C. 1417/2019 Page 4 of 7 This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001244 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..."

10. Subsequently, in Sanjay Dutt v. State through C.B.I., Bombay (II) reported as (1994) 5 SCC 410, the Supreme Court observed as under:-

"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', 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 un-authorised substance has been understood. (See Warner v. Metropolitan Police Commissioner and Sambasivam v. Public Prosecutor, Federation of Malaya.) "

11. Apart from the aforementioned, there are several decisions of this Court which reiterate that unconscious possession would not attract the rigours of the Arms Act [Refer: Sh. Gaganjot Singh v. State reported as 2014 SCC OnLine Del 6885; Sonam Chaudhary v. The State (Govt. of NCT Delhi) reported as 2016 SCC OnLine Del 47; Hari Kishan v. State (NCT of Delhi) reported as 2019 SCC OnLine Del 8829; Sh. Surinder Kumar @ Surinder Kumar Singh v. The State (G.N.C.T. of Delhi) and Anr., W.P. (CRL) 2143/2019; Aruna Chaudhary v. State & Ors., W.P. (CRL) 1975/2019; Parmdeep Singh Sran v. The State (NCT of Delhi), W.P. (CRL) CRL.M.C. 1417/2019 Page 5 of 7 This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001244 152/2019; Davinder Singh Dhindsa v. State (NCT of Delhi) reported as 2019 SCC OnLine Del 7895 and Adhiraj Singh Yadav v. State, W.P. (CRL) 754/2020.]

12. Recently, this Court in Abid Qureshi v. State (Govt. of N.C.T. of Delhi) and Another reported as 2021 SCC OnLine Del 4410 and Shupinder Kaur Sidhu v. State (Govt. of NCT of Delhi) & Anr., CRL.M.C. 1593/2019 also concurred with the view taken in the aforesaid decisions.

13. On a combined reading, it becomes apparent that if the factum of physical possession is made out against a person charged under the Arms Act, it remains for the Court to enquire if a mental element was also present. A search for mental element would include discovering whether or not the person accused was vested with an intention, knowledge or consciousness in regard to the 'ammunition' recovered from his possession. In the present case, barring the allegation of being found in possession of one live cartridge from the check-in-baggage containing holster attached to the belt of the service uniform of the petitioner's father and the results contained in the FSL Report, there is no other material on record to show that the petitioner was in 'conscious possession' of the recovered cartridge.

14. A perusal of the statement of Constable Ram Jatan recorded under Section 161 Cr.P.C. on 03.03.2019 would show that the cartridge was recovered from the belt attached to the service uniform of the petitioner's late father.

15. Keeping in view the exposition of law propounded by the Supreme Court extracted hereinabove and followed by the Co-ordinate Benches of CRL.M.C. 1417/2019 Page 6 of 7 This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001244 this Court, the petitioner in the present case cannot be held to have been in 'conscious possession' of one live cartridge. On a holistic reading of the facts and the material placed on record, this Court is of the opinion that the necessary ingredients for the offence under Section 25 of the Arms Act, 1959 are not made out against the petitioner. The continuance of proceedings would in fact, be an exercise in futility.

16. Accordingly, for the reasons stated above, the aforesaid FIR and the proceedings emanating therefrom are quashed.

17. The petition is disposed of in the above terms. Miscellaneous application is disposed of as infructuous.

(MANOJ KUMAR OHRI) JUDGE MARCH 24, 2022/v CRL.M.C. 1417/2019 Page 7 of 7 This is a digitally signed Judgement.

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Delhi High Court