Delhi District Court
Cr Cases/1727/2017 on 12 December, 2022
IN THE COURT OF MS NABEELA WALI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
PATIALA HOUSE COURTS, NEW DELHI DISTRICT:
NEW DELHI
State v. Sabir
FIR No : 39/2015
Police Station : IGI Airport
Under Section : 25 Arms Act
JUDGMENT
(a) Serial number of the case : 1727/2017
(b) Name of the complainant : Danish Binyahya (CSR for Saudi Arabian Airlines).
R. No. 4, Level-5, T-3, IGI Airport
(c) Name of the accused person : Sabir S/o Sh. Rasheed, R/o Village Asalatpur, Post Farukhnagar, Distt Ghaziabad
(d) Offences complained of : 25 Arms Act, 1959
(e) Plea of the accused : Pleaded not guilty
(f) Final Judgment : Acquitted
(g) Date of institution of case : 18.03.2017
(h) Date of final arguments : 12.12.2022
(i) Date of Judgment : 12.12.2022 BRIEF FACTS AND REASONS FOR THE DECISION:
1. Briefly stated the case of the prosecution is that on 25.01.2015 at about 1800 hrs at T-3, IGI Airport, New Delhi Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.13 11:01:35 +0530 FIR No:- 39/15 State v. Sabir Page No. 1 of 10 accused was found in possession of 3 live cartridges, without holding any license or authority and in contravention of provisions of the Arms Act, 1959. On the basis of complaint filed by the complainant, FIR was registered for commission of offence punishable under Section 25 of the Arms Act. The case was investigated into. The investigation ended in the filing of the charge sheet under Section 173 Cr.P.C. on 18.03.2017, charging the accused with the commission of an offence punishable under Section 25 of the Arms Act.
2. On the basis of aforesaid charge sheet, Ld. Predecessor Court took cognizance of the offence. Accused appeared before the Court and was supplied with copy of charge sheet and documents under Section 207 Cr.P.C.
3. Arguments on the point of charge were heard and vide order dated 24.07.2018, Ld. Predecessor Court framed charge under Section 25 of Arms Act upon accused Sabir to which he pleaded not guilty and claimed trial. Thereafter, matter was fixed for prosecution evidence.
4. To substantiate its case, prosecution has examined six witnesses. A gist of their testimonies is as under:-
COMPLAINANT 4a) Sh. Danish Binyahya was examined as PW-1. He deposed that on the intervening night of 25/26.01.15, while he was working as Customer Services Agent in Saudi Arabian Airlines at IGI Airport he received information from DIAL security staff regarding Digitally signed NABEELA by NABEELA WALI FIR No:- 39/15 State v. Sabir WALI Date: 2022.12.13 Page No. 2 of 10 11:01:52 +0530 objectionable item found during 'X-ray scanning' in the baggage of passenger/ accused namely Sabir who was traveling via Flight No. SV-759 from Delhi to Jeddah. PW-1 further deposed that the accused along with staff was sent to DIAL Security Room. As per PW-1 baggage of the accused was opened in the presence of security officials and the accused himself, and three bullets were found in the said baggage. PW-1 further deposed that he alongwith the CISF security official took the accused to PS IGI Airport. PW-1 proved his complaint Ex.PW1/A and identified his signature at point 'A'. He further stated that he handed over the boarding pass Ex.P1 and letter from DIAL which is 'Mark A1' bearing his signatures at point A along with the complaint. PW1 identified his signature on sketch memo of the bullets which is Ex PW1/B and the seizure memo which is E.xPW-1/C and seizure memo of the bag which is Ex.PW1/D. PW-1 also identified the accused present in the court as well as the case property which is Ex.P2 to P4.
5. PW-1 was duly cross-examined by Ld. Counsel for the accused, wherein he deposed that the said bullets were not taken out of the bag in his presence and neither had he seen the bullets in the bag during X-ray screening.
RECOVERY WITNESS
6. Sh. Dipendra Singh Shekhawat is the recovery witness and was examined as PW-2. PW-2 deposed that on 25.01.2015 while performing his duties as a security coordinator in DIAL at IGI Airport, Terminal-3, level-ll, Baggage Screening Room and during the screening of the baggages he saw bullet shaped articles in a bag. Thereafter he diverted the said bag to Level-IV at the Digitally signed by NABEELA NABEELA WALI FIR No:- 39/15 State v. Sabir WALI Date: 2022.12.13 11:02:01 +0530 Page No. 3 of 10 Physical Check Area and the information was passed to the officials of the Airlines concerned. As per PW-2, the passenger was brought at the Physical Check area and the bag was opened in his presence and the Airlines Officials and 3 bullets of 8 mm were found inside the bag. PW-2 proved the XRay image of the bag which is Ex PW2/A and identified bullet shaped objects at point A and his signatures at point X. PW2 correctly identified the case property i.e. the bag Ex.P1 and cartridges Ex. P2 -P4.
7. PW-2 was duly cross-examined by Ld. Counsel for the accused, wherein he stated that he did not observe any lock on the bag. He also stated that no independent public person was called before opening the bag. He also admitted that the said ammunitions which were recovered were not given any special identification mark.
Formal Witnesses
8. HC Dharambir was examined as PW-3. He proved that a sealed pullanda bearing seal no. 5 IFIA vide RC NO. 14/21/15 was handed over to him by SI Tulsi Ram and he deposited the same to FSL, Rohini vide receipt no. FSL-2015/F- 779 dated 03.02.2015. PW-3 further deposed that receipt and copy of RC were handed over to MHCM by him. He further deposed that as long as the pullanda remained with him, no tampering was done with the said pullanda. PW-3 was not cross-examined by Ld. Counsel for accused despite opportunity.
9. ASI Jagmal Singh, was examined as PW-4. He deposed about his posting at Police Station IGI Airport as a duty Digitally signed NABEELA by NABEELA WALI FIR No:- 39/15 State v. Sabir WALI Date: 2022.12.13 Page No. 4 of 10 11:02:11 +0530 officer and receiving the rukka/tehrir from SI Tulsi Ram. He proved his endorsement on the rukka/tehrir which is Ex. PW 4/A bearing his signatures at point A and the FIR, copy of which is Ex. PW 4/B (OSR) bearing his signature at point A. He further deposed that after registration of FIR he handed over the rukka and copy of FIR to SI Tulsi Ram. He further proved the certificate u/s 65-B of Indian Evidence Act which is Ex.PW4/C and identified his signatures on the same. PW-4 was not cross-examined by the Ld. Counsel for the accused, despite opportunity.
INVESTIGATION OFFICER
10. Inspector Manoj Kumar who deposed as PW-5, stated that on 14.04.2016 he collected the FSL report and obtained sanction u/s 39 Arms Act from concerned department. He further deposed about filing of the present charge-sheet. PW-5 was duly cross-examined by counsel for the accused, wherein he stated that no other investigation was conducted by him.
11. Inspector Tulsi Ram, was examined as PW-6. He deposed regarding the investigation conducted by him in the present case. He proved his signatures on sketch memo which is ExPW1/B, seizure memo of three live cartridges Ex.PW1/C and seizure memo of bag Ex.PW1/D. He further deposed that he prepared a tehrir for the registration of the FIR which is Ex.PW6/1 bearing his signature at point A. He further deposed about taking into possession the boarding pass of the accused which is Ex.P1 and sending the said live cartridges to FSL for Ballastic Examination. PW-6 correctly identified the accused and the case Digitally signed property which is Ex.P2/ to P4. NABEELA by NABEELA WALI WALI Date: 2022.12.13 11:02:25 +0530 FIR No:- 39/15 State v. Sabir Page No. 5 of 10
12. PW-6 was duly cross-examined by counsel for the accused, wherein he stated that no other passenger had joined the investigation in the present case. He further deposed that he had neither checked the baggage of the accused personally nor recovered the ammunition from the same.
13. No other witness was examined by the prosecution and thereafter prosecution evidence was closed.
Admission/Denial of documents under Section 294 Cr.P.C.
14. Statement of the accused was recorded under Section 294 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C') wherein he admitted sanction order under Section 39 of the Arms Act of Sh. Dinesh Kumar Gupta, Deputy Commissioner of Police, IGI Airport which is Ex. C-1 and FSL report dated 30.11.2015 which is Ex. C-2.
Statement of Accused under Section 313 Cr.PC
15. Statement of accused under Section 313 Cr.P.C was recorded on 30.11.2022 wherein incriminating circumstances were put to the accused which he denied. Accused in response to the question regarding his apprehension on 25.01.2015 admitted that he was travelling and was de-boarded from the plane but went on to state that he was not aware about presence of cartridges in his bag. He further stated that the bag was already opened when he reached the physical check-in area and was shown the cartridges by officials. He further deposed that he has been falsely implicated in Digitally signed NABEELA by NABEELA WALI WALI Date: 2022.12.13 11:02:36 +0530 FIR No:- 39/15 State v. Sabir Page No. 6 of 10 the present case and there is no independent witnesses in the present case.
Final Arguments
16. Thereafter, the matter was fixed for final arguments. Final arguments were addressed by Ld. APP for State and the Ld. Counsel for the accused. It was argued on behalf of State that all the witnesses have deposed in sync with each other and the recovery of case property from the accused is duly proved. It is also submitted by Ld. APP that accused has failed to show valid licence for the ammunition recovered and hence is liable to be convicted.
17. Per contra it was argued on behalf of accused that there is contradiction in the testimony of PW-1 and PW-2 and no public person was joined in the investigation. Counsel for accused also relied upon the judgment of Rahul Dhir v. State (NCT of Delhi) & Anr., Crl.M.C.No.3435/2015 of the Hon'ble Delhi High Court to support his submission that since accused was not in conscious possession of the cartridges, hence he is liable to be acquitted.
Analysis & Reasoning
18. This Court has perused the record and heard arguments from both the sides. It is settled proposition of law that prosecution is required to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further, in order to prove its case, prosecution is required to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of accused. Also, it is Digitally signed by FIR No:- 39/15 State v. Sabir NABEELA NABEELA WALI Page No. 7 of 10 WALI Date: 2022.12.13 11:03:06 +0530 well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal.
19. Let us now examine the evience adduced by the prosecution. PW-2 in support of the case of prosecution has deposed that during screening of the bag of the accused, he had seen bullet-shaped articles in the bag. The X-ray image of the bag has been placed on record as Ex.PW2/A where the bullet-shaped objects are visible at point 'A' in the image. PW-2 has identified his signature at point 'X' on Ex.PW2/A. As per PW-2, the bag was thereafter diverted to physical check area.
20. To further the case of the prosecution, PW-1 during his deposition has said that he along with accused had reached the physical check area where the baggage of passenger was opened in the presence of security officials and passenger/accused and three bullets were found in the baggage of the passenger/accused. However, in his cross-examination, PW-1 stated that the said cartridges were not taken out from the bag in his presence. Thus, PW-2 is the only witness to support the factum of presence of cartridges in the baggage of accused.
21. Even otherwise, mere recovery of cartridges itself is insufficient to prove the offence and the prosecution is required to prove the conscious possession of the cartridges in the knowledge of the accused for the purpose of making him liable under Section Digitally signed by NABEELA 25 of the Arms Act. NABEELA WALI Date: WALI 2022.12.13 11:03:21 +0530 FIR No:- 39/15 State v. Sabir Page No. 8 of 10
22. The Hon'ble Supreme Court in Gunwantlal v. State of Madhya Pradesh (1972) 2 SCC 194 has held that:
"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 nonetheless a power or control over that weapon so that his possession thereon continues despite physical possession being in someone else."
23. Also, the Hon'ble Supreme Court in Sanjay Dutt v. State through CBI Bombay (II), Crimes 1994 (3) 344 (SC), has observed as under:-
"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 clement, 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. 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."
24. As can be seen from the record, PW-1 andPW-2 have clearly deposed that the said cartridges were recovered from the check-in baggage of the accused during X-ray scanning. PW-2 in his cross-examination has stated that he did not find any lock on the bag of the accused. Further, both prosecution witnesses have Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.12.13 11:03:34 +0530 FIR No:- 39/15 State v. Sabir Page No. 9 of 10 made it clear that cartridges were detected from the baggage of the accused in his absence and he was subsequently called in the check-in area to open the bag in which the said cartridges were found. Also, as deposed by prosecution witnesses, there was no public witness to support that the said cartridges were recovered from the baggage of the accused. Accused during his examination under Section 313 Cr.PC has stated that he had no knowledge of the cartridges in his bag. Prosecution has also failed to putforth any cogent evidence to show conscious possession of the said cartridges by the accused.
25. Thus, in view of the above stated facts and discussion this Court is of the considered opinion that prosecution has failed to prove guilt of the accused beyond reasonable doubt. Accordingly, accused Sabir S/o Sh. Rasheed is hereby acquitted from the charge of offence punishable under Section 25 of the Arms Act, 1959.
ANNOUNCED IN THE OPEN COURT DATED: 12.12.2022 This judgment contains ten pages and each page is signed by me. Digitally signed by NABEELA NABEELA WALI WALI Date:
2022.12.13 11:03:51 +0530 (NABEELA WALI) ACMM-01, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI 12.12.2022 FIR No:- 39/15 State v. Sabir Page No. 10 of 10