Delhi District Court
The Present Case Pertains To ... vs . on 2 April, 2022
IN THE COURT OF Ms. BHARTI GARG,
METROPOLITAN MAGISTRATE09 SOUTHWEST DISTRICT,
DWARKA COURTS, NEW DELHI
FIR No. 26/15
Police Station Domestic Airport
Under Section(s) 25 Arms Act
Cr. Case no. 430293/2016
CNR no. DLSW020072462016
IN THE MATTER OF:
State ...........Prosecution
Vs.
Sudesh Kumari
W/o Sh. Prem Singh
R/o H. no.848, Pana Moja, Village Bawana,
Delhi. ...............Accused
1. Name of complainant : SI Raja Kumar, CISF no.
110402116
2. Name of accused : Sudesh Kumari
3. Offence complained of : Under Section 25 of Arms
Act, 1959
4. Plea of accused : Not guilty
4. Date of commission of offence : 14.03.2015
5. Date of institution of case : 02.07.2016
6. Date of reserving judgment : 11.03.2022
7. Date of pronouncement : 02.04.2022
8. Final judgment : Convicted u/S 25(1B)(a) of
Arms Act, 1959
State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.1/32
JUDGMENT:
1. The present case pertains to prosecution of accused in respect of offence punishable under Section 25 of Arms Act, 1959 (hereinafter referred to as 'Act').
2. Constituting the gist of prosecution case are the following facts. On 14.03.2015 at about 04.20 AM, the accused was scheduled to travel to Kolkata along with her son Pankaj from Terminal1, Domestic Airport, New Delhi by Go Airways flight no. G8101, seat no.14F. As she approached for pre embarkation security check at XBISD, during the screening of her hand baggage, two live ammunitions of 7.65mm and one magazine (mark no.71) were found in her hand baggage. Upon inquiry, she failed to produce any valid documents or licence in that regard. The said ammunitions and magazine were seized and the accused was apprehended by the complainant SI/Exe. (CISF) Raja Kumar. Subsequent thereto, the accused was taken by the complainant to PS Domestic Airport for further course of action, where he lodged a complaint in respect of the present case. The sketch of recovered ammunitions and magazine was drawn on a piece of white paper. The length and diameter of two live ammunitions were noted to be 2.5 cm each and 0.9 cm each respectively and length of magazine to be 10.5 cm. These were then sealed with seal of "DOM.AIRPORT 12" and the FIR was registered on the basis of the complaint. During the course of further investigation, the IO seized the two live ammunitions, magazine, hand baggage and boarding pass of the accused vide seizure memo. The statements of witnesses were recorded under Section. 161 Cr.P.C. and the accused was interrogated. The accused could not produce any valid arms licence. She was arrested and subsequently was released on court State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.2/32 bail. The criminal record of her son Pankaj was verified who was also arrested in kalandra under Section 41(1)(c) Cr. P. C. The live ammunitions and magazine were sent to FSL Rohini, Delhi and report was collected according to which the said ammunitions and magazine were opined to be ammunitions as defined in the Act. Upon the culmination of investigation, the sanction under Section 39 of Arms Act was obtained from the concerned authority. Finally, the chargesheet was filed against the accused in court.
3. Cognizance was taken of offence under Section 25 of the Act and the accused was summoned to face trial for the said offence. Upon her appearance, the copy of chargesheet was supplied to accused in compliance with Section 207 Cr. P. C.
4. On the basis of material filed along with chargesheet, charge was framed against the accused for offence under Section 25 of the Act to which she pleaded not guilty and claimed trial. The accused admitted the recording of FIR registered on 14.03.2015 under Section 294 of Cr. P. C. and consequently, PW W/HC Rajesh Malik was dropped from the list of witnesses and the FIR was marked as Ex. C1, vide court order dated 01.04.2021.
5. In order to bring home the guilt of accused, the prosecution examined as many as ten witnesses. PW9 SI Exe (CISF) Raja Kumar (the complainant) deposed that on 14.03.2015, he was on duty at XBIS machine D at Terminal1D. At 4.20 AM, the accused, who was accompanied by her son Pankaj and travelling from Delhi to Kolkata by Go Airways flight no. G8101, seat no.14F, approached for preembarkation security check at XBISD. During the screening of her hand baggage, two live ammunitions and one magazine State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.3/32 were detected which were then recovered after checking the bag. The accused did not produce any valid document in that regard. He prepared the seizure list of ammunition and magazine Ex. PW4/A and also took the photocopy of her boarding pass Mark Y and Aadhar card Mark Z. The accused also gave in writing that she had no valid document regarding the same which is Mark A1 dated 07.08.2018. Thereafter, the accused and her son Pankaj were taken to police station where he handed over his complaint Ex. PW9/A along with the relevant articles, documents and handbag to police. The sketch of the ammunitions and magazine was prepared in his presence which is Ex.PW8/B. The two ammunitions and magazine were further seized by the IO in his presence vide seizure memo Ex.PW8/C. The IO also seized the handbag in his presence vide seizure memo Ex. PW8/D. The witness correctly identified the accused and case property in court. The CD Ex. PW9/B containing the CCTV footage was played in court during his deposition, wherein the woman in yellow suit, identified as accused, was seen at the security screening machine and the person sitting at the machine is identified as himself. It is further stated that when the baggage of accused was screened, it showed in the screening image that it contained an instrument like mouth organ. Thereafter, he checked the bag but could not trace it. Thus, the bag was screened again to locate the exact place of the equipment as the accused denied having any knowledge about carrying the same. Thereafter, the exact location was identified and the accused was asked to open the side pocket of her bag, wherein the magazine and two ammunitions were found.
6. In his crossexamination, the witness stated that he did not mention the color and size of handbag in his complaint. He further stated that he did not know that accused was the mother of Neeraj Bawana. He denied the suggestion State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.4/32 that he had falsely implicated the accused in connivance with the police officials as her son was wanted in several criminal cases in Delhi. He admitted that the magazine and ammunitions could not be seen in the CCTV footage anywhere. He further admitted that there is an option to save the screening image of bags kept in machine. He stated he did not know if the screening image of alleged ammunitions and magazine were provided by him to IO.
7. PW4 SI Sreedevi CISF (the recovery witness) stated that she was posted as SI at Domestic Airport on 14.03.2015. On the said day, she was on duty along with SI Raja Kumar and ASI K.B.Bharti at XBIS machine D at Security Hold Area, Terminal1D. At around 4.15 AM, one passenger whose name was later on revealed as Sudesh Kumari approached for preembarkation security check at XBISD. During the screening of her hand baggage, two live ammunitions and one magazine were detected. Her handbag was separated as a suspect bag and passenger was called and asked to open the same. During the checking, two live ammunitions and one magazine were found. The seizure list Ex. PW4/A was prepared in her presence and the passenger failed to produce any valid documents for said articles. However, the witness failed to identify the accused in the court as she stated that more than two years had lapsed since the date of incident. PW4 SI Sreedevi was crossexamined by accused wherein she failed to recall if the accused was the same person from whom the ammunitions were recovered.
8. PW5 ASI K.B.Bharti (another recovery witness) deposed in similar vein as PW4 SI Sreedevi and stated that seizure list Ex. PW4/A was prepared in his presence. He also could not recall if the accused was the same passenger from whom the alleged ammunitions and magazine were recovered State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.5/32 on the ground that more than two years had lapsed. In his crossexamination, he stated that the place of incident is crowded even in the early hours of day and further stated that he did not remember the person who had put the bag in machine.
9. PW2 Puneet Puri (ballistic expert) proved the FSL report Ex. PW2/A. He stated that a duly intact sealed parcel was received by him along with specimen seal and FSL form. Upon opening the parcel, two ammunitions of 7.65mm each and one improvised magazine were taken out and marked as Ex A1, A2 and M1 respectively by him. After examining the same, he opined that Ex M1 was the part of firearm and Ex A1 and A2 were ammunitions as defined in the Act and the exhibits were resealed with seal of PPFSL Delhi. His testimony remained unrebutted owing to no crossexamination despite opportunity.
10. PW10 HC Yashbir Kumar, the official from DCP Office, IGI Airport, Delhi brought the sanction letter dated 04.05.2016. The original sanction letter is on record as Ex.PW10/A bearing signatures of Sh. Dinesh Kumar Gupta, the then DCP, whose signatures were identified by the witness as he stated that he had seen him writing and signing during the regular course of his duties. In his crossexamination, he admitted that he did not have any personal knowledge about the present case.
11. PW8 Inspector Rajesh Kumar (the IO of present case) deposed that the complainant had come along with accused to police station on 14.03.2015 and given a written complaint along with seizure list, boarding pass, air ticket, statement of accused, handbag, two live ammunitions and one State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.6/32 magazine, which was lodged vide DD No. 13 Ex.PW8/A. He prepared the sketch of two ammunitions and magazine which is Ex.PW8/B and thereafter, sealed and seized the same vide seizure memo Ex.PW8/C. The handbag of accused was also seized vide seizure memo Ex.PW8/D. He made an endorsement Ex. PW8/E on the complaint and presented the tehrir to duty officer for registration of FIR. He arrested the accused and her personal search was conducted by W/Ct. Manju. He then recorded the disclosure statement of accused Ex.PW8/F. The son of accused, namely Pankaj, was also arrested in kalandra ExPW8/G. He collected the relevant flight manifesto and CCTV footage. Further, after obtaining the FSL report and sanction under Section 39 of the Act, he filed the chargesheet. He correctly identified the case property Ex.P1 (colly).
12. PW8 Inspector Rajesh Kumar was crossexamined at length. In his crossexamination, he stated that the distance between the place of incident and police station is one kilometer. The information regarding the incident was received at about 08.10 AM and he prepared the tehrir at 10.40 AM after which the FIR was registered. He admitted that the magazine and live cartridges cannot be used without pistol or revolver. He stated that he did not implicate Neeraj Bawana as accused in the present case. He further stated that he did not collect the DVR in present case. He further admitted that the CD containing the CCTV footage was not sent by him to FSL. He denied the suggestion that he falsely implicated the accused in order to harass her son Neeraj Bawana as he is a notorious criminal and wanted in various FIRs. He further denied that the case property has been falsely implicated upon the accused by police officials and that accused did not give any disclosure statement.
State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.7/32
13. The remaining are formal witnesses. PW1 H.S.Nayal, Asst. Commandant CISF tendered the forwarding letter dated 21.03.2015 to SHO regarding the CCTV footage signed by Umesh Dubey, the then Asst. Commandant CISF which is Mark A1 dated 15.10.2016 and admitted in his crossexamination that the document was not prepared in his presence. PW6 Ct. Manju stated that the accused was arrested in her presence vide arrest memo Ex. PW6/A and her personal search was conducted by her vide personal search memo Ex. PW6/B. She denied the other formal suggestions put to her in cross examination. PW3 HC Radhey Shyam, MHC (M), proved that the case property in one sealed pullanda and handbag were deposited in Malkhana vide entry no.386/15 in register no.19 tendered as Ex.PW3/A (OSR). PW7 Ct. Raghubir Singh proved the Road Certificate Mark C vide which the exhibits of the present case were sent to FSL Rohini on 31.03.2015 and after depositing the same, the acknowledgement slip Ex.PW7/A was handed over by him to MHC(M). PW3 HC Radhey Shyam and PW7 Ct. Raghubir Singh were not crossexamined by the accused despite opportunity.
14. Thereafter, the prosecution evidence was closed and statement of accused was recorded under Section 313 Cr. P. C. All the incriminating circumstances appearing against the accused in evidence were put to her. The accused controverted the material facts and further expressed ignorance about certain other facts as she stated either that she did not know or that it was a matter of record. Nevertheless, she admitted that she had approached for pre embarkation security check at XBIS machine on 14.03.2015 at around 04.20 AM as she had a flight from Delhi to Kolkata by GO Air Flight G8101 where PW4 SI Sreedevi, PW5 ASI K.B.Bharti and PW9 SI Raja Kumar were on duty.
State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.8/32 She also affirmed that PW9 SI Raja Kumar took the copy of her boarding pass and Aadhar card and took her to police station where her handbag was seized by PW8 IO Inspector Rajesh Kumar. She admitted that she was arrested and her personal search was conducted, however, she stated that PW9 SI Raj Kumar is an interested witness. She denied as having committed any of the illicit acts alleged by the prosecution. She added that that the police wanted to pressurize her in order to enquire about her son Neeraj Bawana who was absconding during that time and in this manner, they lodged a false case against her. Further, she was forced to sign on blank papers and nothing illegal was recovered from her. In her additional statement under Section 313 Cr.P.C., she further admitted that the woman in yellow suit seen in the CCTV footage was her. The accused submitted that she intended to lead defence evidence. However, subsequently the accused chose to not lead any defence evidence and accordingly, defence evidence was closed.
15. Subsequently, by invoking powers under Section 165 of The Indian Evidence Act, 1882 read with Section 311 Cr.P.C, the court summoned the court witness CW1 Inspector Anil Yadav who proved the certificate under Section 65 of Indian Evidence Act Ex.CW1/A issued by him qua the CD Ex.PW9/B. The accused was granted leave to crossexamine the court witness. In his crossexamination, the witness admitted that the certificate did not bear the particulars of CD Ex.PW9/B. Upon closure of the entire evidence, the matter was taken up for final arguments.
16. It is argued by the Ld. APP for State that the prosecution has been able to establish the case against accused beyond reasonable doubts. The statements of prosecution witnesses are consistent with each other so as to prove State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.9/32 the fact of recovery of ammunition from the handbag of accused. It is further corroborated by the documentary evidence on record as well as the CCTV footage. Therefore, it is prayed that the accused be convicted of alleged offence.
17. Per contra, the Ld. Counsel for accused has strenuously urged that the accused is entitled to benefit of doubt and prayed for her acquittal. He has argued that both the material witnesses PW4 SI Sreedevi and PW5 K.B.Bharti could not identify the accused. There is a delay of about six hours in lodging the FIR even though the distance between place of incident and police station is merely one kilometer. The screening image of alleged ammunitions is not placed on record and the handbag has not been produced in court. The DVR in which the footage was recorded has not been seized by the IO and the CD containing CCTV footage was not sent to FSL, which creates doubt over its genuineness. Further, the certificate under Section 65B of Indian Evidence Act is incomplete and unreliable as it does not bear the particulars of CD. Moreover, it cannot be seen in the CCTV footage if alleged ammunitions were found in the bag of accused. The accused has been falsely implicated in the present case as she is the mother of notorious criminal Neeraj Bawana and the police wanted to interrogate the accused about her son. Alternatively, it is contended that the accused could not be stated to have been in conscious possession of the alleged ammunitions as no firearm was recovered. In support of the submissions made, the Ld. Counsel for accused has relied upon the judgments of Chan Hong Saik Vs. State and another Crl. M. C. 3576/2011 and Crl. M.A. no.12699/2011 decided on 02.07.2012 by Hon'ble High Court of Delhi; State of M.P. Vs. Ratan Singh and Ors. Criminal Appeal No. 1034/2013 decided on 05.09.2018 by Hon'ble Supreme Court of India; Adhiraj Singh Yadav Vs. State W.P. (Crl) State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.10/32 754/2020 decided on 31.12.2020 by Hon'ble High Court of Delhi; and Upendra Pradhan Vs. State of Orissa Criminal Appeal No. 2174/2009 decided on 28.04.2015 by Hon'ble Supreme Court of India.
18. Arguments heard. Record perused. Considered.
19. The allegations against the accused pertain to possession of ammunitions and magazine without holding a valid licence. Before embarking upon the appreciation of evidences, it would be apposite to reproduce the provisions of Section 3(1) read with Section 25(1B)(a) of the Act qua which the accused has faced trial: "25. Punishment for certain offences. --
(1B) Whoever
(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or...
...shall be punishable with imprisonment for a term which shall not be less than [one year] but which may extend to three years and shall also be liable to fine: Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than [one year]."
"3. Licence for acquisition and possession of firearms and ammunition.―1 [(1)] No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder: Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder."
State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.11/32
20. Thus, any person who acquires or possesses any firearm or ammunition without holding arms licence issued according to law is liable to be punished under the abovementioned provisions of Act. As a corollary, the court shall convict the accused only once the prosecution proves the following elements:
(a) that the firearm or ammunition is recovered from the possession of accused.
(b) that such firearm or ammunition is one covered under the category of Arms Act.
(c) that the accused does not hold any valid licence for possessing such firearm or ammunition.
(d) that the possession of such firearm or ammunition by accused is conscious, meaning thereby that the accused has knowledge thereof.
21. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond all reasonable doubts under Section 101, The Indian Evidence Act, 1872. Thus, the prosecution is under a bounden duty to prove all these points on the aforesaid standard. The failure to do so would necessarily result in acquittal of accused. It has been held by Hon'ble Punjab & Haryana High Court in Sadhu Singh Vs. State of Punjab (1997) 3 RCR (Cri) 421: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.12/32 Recovery of magazine and two live ammunitions from the possession of accused
22. The main apple of discord raised by accused is that no ammunition or magazine as alleged were recovered from the handbag of accused; rather, the same have been planted upon the accused in connivance with Delhi police as she is the mother of notorious criminal Neeraj Bawana. Suffice it to say, the prosecution case hinges primarily on successfully establishing the fact of recovery of one magazine and two live ammunitions from the possession of accused on 14.03.2015 at about 4.20 AM at XBis Machine Security Hold Area (SHA), Terminal1, Domestic Airport. The complainant/PW9 SI Raja Kumar CISF is the most crucial witness as he had intercepted the handbag of accused during security check on the suspicion of it containing prohibited articles detected in Xray screening in the machine which, after physical search, were found to be two live ammunitions and one magazine.
23. At the outset, the comprehensive reading of testimony of PW9 SI Raja Kumar suggests that he has supported the prosecution in material facts. He also correctly identified the case property and accused in court. He prepared the seizure list Ex.PW4/A regarding the said articles in the presence of PW4 SI Sreedevi CISF and PW5 ASI K.B.Bharti. He stated that after seizing the two ammunitions and magazine from accused, he made a written complaint Ex.PW9/A at police station and handed over the said articles to police. The IO had prepared the sketch of these articles and thereafter, sealed them in pullanda and seized vide seizure memo Ex.PW8/C in his presence. The IO also seized the handbag of accused vide seizure memo Ex.PW8/D. The seized ammunitions and magazine were then taken to FSL on 31.03.2015 by PW7 Ct. Raghubir State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.13/32 Singh on the instructions of IO. Further, the testimonies of both PW4 SI Sreedevi CISF and PW5 ASI K.B.Bharti corroborate the fact of recovery of ammunitions and magazine at the security check area. Nothing substantial has been elicited in crossexamination to injure the credibility of either of these witnesses.
24. In the CCTV footage Ex.PW9/B also, the accused (wearing a yellow suit) can be seen at the preembarkation security check at the relevant time. Further, PW9 SI Raja Kumar can be seen checking the handbag of accused after it came out of the machine. It may be highlighted here that it clearly visible in the CCTV footage that the accused was present all the while when the bag was being searched by PW9 SI Raja Kumar which is evident of the fact that the said bag belonged to the accused, lest she would have not remained continuously standing during that time at the spot. The accused has also admitted in her statement under Section 313 Cr.P.C that her handbag was seized by the IO.
25. It may further be noted that the accused has not disputed her presence at the time when and the place where the incident happened. In her statement u/S 313 Cr.P.C, she has admitted that she had a flight to board from Delhi to Kolkata on 14.03.2015 for which she had approached for pre embarkation security check at about 4.20 AM. At this stage, it is pertinent to mention that those inculpatory parts of statement of accused, recorded under Section 313 Cr.P.C, which are in consonance with the other proved evidence on record can be used by the court in arriving at decision when the exculpatory portions of the statement are inconsistent with the evidence on record. This court seeks to rely on the following observations of the Hon'ble High Court of State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.14/32 Bombay in the case of State of Maharashtra Vs. Alister Anthony Pareira 2007 SCC OnLine Bom 1489 (and further affirmed by Hon'ble Apex Court in appeal) as regards the use of statement made by accused without oath during the stage of Section 313 Cr.P.C: "While rejecting this contention we would also observe that the admission or confession of the accused in his statement under Section 313 of the Code, in so far as it provides support or even links to, or aids the case of the prosecution proved on record, can also be looked into by the court in arriving at its final conclusion. It will be more so when explanation in the form of answers given by the accused under Section 313 of the Code are apparently untrue and also when no cross examination of the crucial prosecution witnesses was conducted on this line."
26. Thus, the admission of facts made by the accused in her statement as regards her presence at the security check area, the checking of her bag and seizure thereof can also be safely called in aid in support of prosecution case since those facts have been established as constituting chain of circumstances by the prosecution. Accordingly, the oral evidence read with documentary evidence and CCTV footage brought on record proves the complete chain of recovery of case property from the possession of accused beyond all reasonable doubts.
27. In an attempt to dismantle the veracity of prosecution story, the Ld. counsel has sought the benefit of doubt to accused by impressing on court certain discrepancies in the investigation and prosecution evidence. He has waxed eloquent about the prejudice caused to accused due to nonexamination of any independent public witness, even though PW5 ASI K.B.Bharti admitted in his crossexamination that there was rush at the spot of incident. It is argued that PW9 SI Raja Kumar, PW4 SI Sreedevi and PW5 ASI K.B.Bharti are State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.15/32 interested witnesses being CISF officials who colluded with Delhi police to illegally apprehend the accused and plant the recovery on her so as to extract information about the whereabouts of her son Neeraj Bawana since he was absconding at that time. Before delving into the justifiability of this contention, it is apposite to refer to the following dictum of Hon'ble Supreme Court in Tahir Vs. State (Delhi) (1996) 3 SCC 338: "In our opinion no. infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can from basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
28. Thus, it is clear that credibility of a witness has to be tested on the touchstone of truthfulness and trustworthiness. It is no rule of law that the evidence of complainant or other official witnesses cannot be accepted unless it is corroborated by other independent witness even if such evidence is otherwise reliable. The rule of prudence may require a more critical scrutiny of their evidence but if the court is convinced the testimony of such witness has a ring of truth, then conviction can rest on such evidence. Adverting to the present case, the complainant on whose complaint the case was set in motion is a CISF personnel and has a duty to ensure the security of Industrial Undertaking of Airport premises. Section 11 read with Section 13 of The Central Industrial State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.16/32 Security Force Act, 1968 further empowers such personnel to arrest the person who commits and cognizable offence involving danger to life of any person engaged in such Undertaking and then make over such person to a police officer. As regards the cases where arms or ammunitions are detected during screening of a passenger or its baggage, the Circular No. CAS 7(9)/2005/DIV.I(Weapons)85333 issued by Bureau of Civil Aviation Security, Ministry of Civil Aviation, Government of India, stipulates that where the passenger neither has a valid arms licence nor claims to possess the same, the security staff shall hand him over to local police along with arms and ammunition with a complaint about the incident.
29. Viewed through the prism of aforementioned statutory provisions, the complainant/PW9 SI Raja Kumar had followed due procedure from the point of detaining the accused to handing over her at police station after the ammunitions and magazine were recovered from bag of accused. The fact that the complainant intercepted the bag of accused at SHA after screening the same in Xray machine and thereafter searched the same in presence of accused is also corroborated by footage played on CD Ex.PW9/B. While it is true that the ammunitions and magazine cannot themselves be seen in the footage, but that is for the reason of lack of clarity in the video and obstruction in the camera view by another person when the search was purportedly being made and therefore, the invisibility of those articles in the CCTV footage is rendered immaterial.
30. No material inconsistency or rebuttal has come to surface in his crossexamination or in the crossexamination of other two recovery witnesses. Also, the accused did not make a single suggestion to either complainant or IO in their crossexamination about the nonexamination of any other independent State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.17/32 witness. The critical analysis of evidence of complainant and two recovery witness in conjunction with the CCTV footage creates an impression that they are trustworthy witnesses and their evidence suffers from no infirmity. Furthermore, it is of common knowledge that at the security check area, only those persons travelling besides the staff posted there are available. The travellers at the Airport are not expected to join the investigation at drop of hat as they are in haste to catch their flights. In these facts and circumstances, the nonjoining of any other public witnesses does not dilute the veracity of prosecution case.
31. Moreover, the accused has not shown as to why these CISF official witnesses would drag her into a false case, apart from making a bald insinuation to the possibility of their connivance with Delhi police as the son of accused namely Neeraj Bawana is wanted in various criminal cases. There is nothing brought on record by the accused to even slightly manifest the alleged false motive of the witnesses. In the absence of anything more, and faced with unimpeachable testimonies of PW9 SI Raja Kumar, PW4 SI Sreedevi and PW5 ASI K.B.Bharti, this court finds no force in the submission of accused that they are interested witnesses. The submission of accused, that the police wanted to interrogate her about the whereabouts of her absconding son Neeraj Bawana and she was falsely implicated when she could not provide the requisite details, is unsubstantiated as the accused did not produce anything on record to prove the alleged fact that Neeraj Bawana was absconding at the relevant time. Further, none of the witnesses were confronted with such suggestion during trial. Thus seeming to be a mere figment of fanciful defence, the contention of accused merits rejection.
State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.18/32
32. Moving further, it is agitated on behalf of accused that according to prosecution, the accused had stated in her disclosure statement Ex.PW8/F that the ammunitions and magazine in question belonged to her son Neeraj Bawana, but the IO has neither examined Neeraj Bawana nor made him the accused. In the considered opinion of this court, the said omission is of little consequence in as much as the disclosure statement made by accused during investigation to IO is hit by Section 25 of The Indian Evidence Act, 1882 and ought to be discarded from the purview of admissible evidence in this case. It is no gainsay that the prosecution case has to stand on the strength of other admissible evidences and not on the confession of accused. Moreover, the offence at hand relates to possession of proscribed articles and not their ownership. Furthermore, it is not the case of accused that she or any of her family members were authorized licencees of the ammunitions and magazine. These factors render the failure of implicating Neeraj Bawana immaterial as far as present allegations against the accused are concerned.
33. The Ld. counsel for accused has propounded another lapse in investigation, that of delayed registration of FIR by about six hours, although the distance between police station and place of incident is admittedly one kilometer only since the incident is stated to have happened at about 4.20 AM and the FIR was registered at about 10.40 AM on the same date. He has placed reliance upon the judgment of Ratan Singh and Ors. (supra) to buttress his submissions. It is wellsettled that no hard and fast rule can be applied to determine the effect of delay in filing the FIR and the court would see whether the explanation afforded is plausible enough in the given facts and circumstances. Not every hour delay is required to be explained and a State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.19/32 commonsense view has to be taken in ascertaining if the delay in lodging the FIR is such as to provide scope for manipulation of evidence. In Ram Jag Vs. State of U.P (1974) 4 SCC 201, it was held by Hon'ble Supreme Court that: "Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution."
34. In the present case, IO/PW8 Inspector Rajesh Kumar stated in his crossexamination that the information regarding the incident was received at police station at about 8.10 AM and FIR was registered at 10.40 AM. The same is corroborated by DD no.13 Ex.PW8/A and DD no.17 Ex.PW8/E. The accused has not rebutted the said fact. The cumulative reading of prosecution evidences makes it evident that after receiving the written complaint Ex.PW9/A at the police station, the IO drew the sketch of ammunitions and magazine, converted them into pullanda to seal them, seized the same, interrogated the accused about documents for holding the said articles and thereafter, the FIR was registered. In view of the detailed preliminary enquiry having been conducted subsequent to the receipt of information relating to offence, it cannot be said that the duration of two and a half hours lapsed thence constituted an unexplained delay. Even otherwise, the accused did not make any suggestion to IO in his cross examination regarding the delay in FIR.
35. As regards the delay of around four hours in filing the written complaint by complainant/ PW9 SI Raja, again no question was put about the said witness in crossexamination by the accused to seek his explanation to the State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.20/32 said fact. Additionally, the complainant is a CISF official who was charged with the duty of safeguarding the Industrial Undertaking of Airport premises at the time of incident, and more specifically, of screening the cabin luggage at the preembarkation security check. Although the offence must be reported at the police station without any unreasonable delay, nonetheless, one cannot reasonably expect a personnel on duty at such a high security area to leave his place of duty immediately on the occurrence of incident of nature in question as there might be other passengers proceeding for boarding who needed to be thoroughly checked at SHA. The offence pertains to recovery of articles proscribed under the Act and not of such emergent nature as would have required to be reported in a jiffy in such a situation. Furthermore, some amount of reasonable time can also be presumed to have been lapsed in the preparation of seizure list and written complaint. In these circumstances, the delay of four hours in reporting at the police station cannot be considered significant or such as would provide wiggle room to manipulate evidences, particularly when PW9 SI Raja Kumar has otherwise remained unshaken in his testimony. The delay of six hours having been reasonably been accounted for in the present case, the facts in case Ratan Lal (supra) are clearly distinguishable.
36. The Ld. counsel has next asserted that both the recovery witnesses PW4 SI Sreedevi and PW5 ASI K.B.Bharti could not identify the accused in court and only PW9 SI Raja Kumar identified her in court, which is a glaring loophole in prosecution evidence as being a female officer, PW4 SI Sreedevi would have been the best person to identify the accused who is also a female since she would have come in close contact with her. It is submitted that PW9 SI Raja Kumar was sitting at the screening machine and looking at the monitor State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.21/32 which makes his evidence of identification dubious. This court is unable to countenance with Ld. counsel as firstly, the distance between the official monitoring the machine and the passenger keeping the bag in that machine is close enough as to afford an opportunity to the official to look at the face of passenger irrespective of their gender; secondly, it can also be seen in the footage in CD Ex.PW/B that PW9 SI Raja Kumar, who was sitting at the machine, stood up from his place and went up to accused, who was standing just across the table when her bag was being searched and thirdly, he had taken the accused to police station and remained with her at the police station for a considerable duration, thereby affording him ample time and opportunity to gain the enduring impress of identity of accused on mind and memory.
37. PW9 SI Raja Kumar has stood entrenched in his testimony while identifying the accused in court. It was the duty of accused to discredit the witness on that aspect but no attempt was made by the accused towards that end. The fact that other two recovery witnesses could not identify the accused in court is not of much significance as they both clarified in their evidence that owing to lapse of two years from the date of incident, they could not remember the face of accused. It is a trite proposition of law that it is the quality of which evidence which matters and not the quantity. Thus, no mala fide could be attributed to prosecution case simply on that premise.
38. It is also argued that the CCTV footage Ex.PW9/B is not reliable because the primary source, i.e. the DVR in which the CCTV footage is recorded was not seized and produced in evidence. The said CD was also not sent to FSL to ensure its genuineness and this gives rise to the possibility of it having been tampered. The validity of certificate under Section 65B of The State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.22/32 Indian Evidence Act, 1882 Ex.CW1/A is also assailed by submitting that the certificate does not bear the particulars of CD Ex.PW9/B. As far as the objection of accused pertaining to requirement of production of original DVR is concerned, the same is plainly contrary to the provisions of Section 65A and Section 65B of The Indian Evidence Act, 1882 which dispense with the production of original computer device and permit the electronic record to be proved by the computer output, in this case CD, subject to fulfilment of conditions laid down further in that Section including the mandate of certificate as well.
39. The investigation agency is also not bound to verify the authenticity of CD from FSL as long as these conditions are complied with. The CD Ex.PW9/B is appropriately supported with the requisite certificate of Section 65B of The Indian Evidence Act, 1882 Ex.CW1/A. Additionally, the accused also identified herself as the one in yellow suit in her statement under Section 313 Cr.P.C which further corroborates the truthfulness of the evidence. Thus, the Court has no hesitation in relying upon the contents of said CD.
40. As regards the certificate Ex.CW1/A, CW1 Anil Yadav duly proved the same in evidence and stated that he worked as CCTV operator on the date of incident. The said certificate records that the contents of CD in respect of present FIR were copied by him from the main computer which was under
his control. Notably, the case details are mentioned on the CD Ex.PW9/B which are in tandem with the details mentioned in the certificate. This establishes a sufficient nexus between the certificate issued by CW1 Anil Yadav and the CD placed on record. It is not clear from the arguments of Ld. counsel for accused as to what other particular or detail of CD was material to have found mention State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.23/32 in the certificate. Even otherwise, merely because the certificate does not bear particulars of the CD does not render the certificate deficient or inadequate. To construe otherwise would be too farfetched to the mind of this court.
41. As a lastditch effort to taint the recovery proceedings, the Ld. counsel for accused has raised the contention that since the handbag in which the ammunitions and magazine were allegedly found is not produced in evidence and further the Xray screening image of these articles was not seized by the IO, the seizure thereof from the possession of accused is not proved beyond the shadow of reasonable doubts. Now, it is true that production of handbag and the screening image in evidence would have bolstered the prosecution case, being corroborative pieces of evidence. The omission to produce such handbag in evidence can be attributed as negligence on the part of prosecution. Nevertheless, after due deliberation, this court opines that the failure is not so grave as to demolish the prosecution case in entirety, in view of the fact that the oral testimony of PW9 SI Raja Kumar is unblemished and corroborated by CCTV footage and two recovery witnesses. In fact, nowhere the accused has suggested in her defence that she was not carrying any handbag; rather, she can be seen carrying the bag in CCTV footage as well. She has also admitted in her statement under Section 313 Cr.P.C that her handbag was seized by the IO vide seizure memo Ex.PW8/D.
42. Moreover, any defect in conducting investigation by IO is not necessarily fatal to prosecution case if such irregularity is not material in light of there being other cogent evidence on record. Else, criminal trial would be relegated to IO ruling the roost. Reliance is placed upon the judgment of Hon'ble Supreme Court in the case of Karnel Singh Vs. State of M.P. 1995(5) State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.24/32 SCC 518 : "5. Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. Any investigating officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements the statements of the two witnesses and would have drawn up a proper seizurememo in regard to the `Chaddi'. That is the reason why we have said that the investigation was slip shod and defective."
43. This contention of accused is also devoid of any merits and falls face down. In this manner, the accused has failed to bring anything on record which would create a cloud of reasonable doubt over the oral and documentary evidence led by prosecution on the fact of recovery. Consequently, the prosecution has been able to establish that the case property, i.e. two live ammunitions and magazine were recovered from the possession of accused on 14.03.2015 at about 04.20 AM at preembarkation security check area, Terminal1, Domestic Airport.
The magazine and live ammunitions recovered from the possession of accused are covered under The Arms Act, 1959
44. PW2 Puneet Puri testified in court that the sealed parcel with intact seal of DOM AIRPORT 12 was received in FSL through PW7 Ct. Raghubir Singh and it contained two 7.65mm live cartridges and one improvised magazine. After examination, he opined that the magazine was a part of firearm and cartridges were ammunition as defined under the Act. He tendered his State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.25/32 ballistic report in evidence which is Ex.PW2/A. The evidence of PW2 Puneet Puri has remained unrebutted as the accused did not crossexamine him. There exists no reason on record to doubt the testimony and opinion of said expert witness. In view thereof, it is proved that the two ammunitions seized from accused are ammunition as defined under the Act, while the magazine so seized is a part of firearm.
The accused does not hold valid licence for possessing magazine and ammunitions
45. First and foremost, PW9 SI Raja Kumar, PW4 SI Sreedevi and PW5 K.B.Bharti consistently deposed that the accused failed to produce any legal document for carrying the ammunitions and magazine after these were detected in her handbag in the screening machine at the airport. Even during the investigation, no valid licence could be produced by the accused before the IO. This fact stands uncontroverted in as much as no suggestion was made by the accused in crossexamination of either of the witnesses. Not even during the arguments did the accused try to indicate anything to the contrary in his defence. Hence, it is proved that the accused did not hold any valid licence for possessing the case property.
The accused was in conscious possession of magazine and ammunitions
46. It has been held in catena of judgments that unconscious possession would not attract the rigors of the Act. In other words, the possession, physical or constructive, must have the element of knowledge in the accused in order to constitute an offence. The possession of firearm or ammunition under the Act has been explained by the Constitution Bench of State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.26/32 Hon'ble Supreme Court in the case of Gunwantlal Vs. The State of Madhya Pradesh AIR 1972 SC 1756 as under: "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 eun 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. In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the defacto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question. In this view it is difficult at this stage to postulate as to what the evidence will State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.27/32 be and we do not therefore venture to speculate thereon. In the view we have taken, if the possession of the appellant includes the constructive possession of the firearm in question then even though he had parted with physical possession on the date when it was recovered, he will nonetheless be deemed to be in possession of that firearm."
47. In the instant case, the two ammunitions and magazine were recovered from the handbag of accused which she was carrying at the Airport. It is sufficient discharge of onus on the part of prosecution to prove that case property was recovered from the bag which belonged to accused. To put it another way, the prosecution cannot be expected to lead any further evidence to prove that possession was conscious. The fact that accused was not aware about the case property lying in her bag would be specifically within her knowledge. In light of Section 106 of The Indian Evidence Act, the burden fell upon the accused to prove those circumstances in her defence.
48. At this juncture, guidance can be sought from a recent judgment of Hon'ble High Court in Gurjit Singh Sandhu Vs. State of NCT of Delhi W.P. (CRL) 2193/2021 & CRL.M.A. 2352/2022 dated 22.03.2022 wherein it is held as under: "16. In most of these cases, a single live cartridge has been found in possession of the accused and this Court found that there was reasonable or sufficient material to indicate that the person carrying one live cartridge might not have been in conscious possession of the same. Furthermore, in all these cases, the accused or his near family members possessed a valid arms licence in India.
...
20. This Court finds considerable force in the contention of Mr. Sanjay Lao, learned Standing Counsel for the State, that the box containing 50 cartridges weighing around 200 grams cannot be State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.28/32 inadvertently kept in the bag. The petitioner could have assumed that he was permitted to carry these ammunitions in the country on the ground that he has a valid licence in Canada and that he would not have to pay duty on the same but that reason is not sufficient to quash the FIR. The petitioner would have to face trial and get himself exonerated in the trial by proving that he was not in conscious possession of the cartridges."
49. Therefore, it is presumed that the accused had adequate knowledge about the contents in her bag, unless she could show otherwise. This is particularly true of a person carrying luggage at the Airport as ordinarily, one is more meticulous of the things he or she keeps in the bag when travelling by flight. In fact, the size of magazine being 10.5cms in length as per the sketch Ex.PW8/B is considerable enough to presume knowledge of it being present in the bag. The accused did not point to a single circumstance in her defence to imply that she had no knowledge.
50. The reliance placed on the judgment of Adhiraj Singh Yadav (supra) by accused in the given facts and circumstances is illconceived. In that judgment, the Hon'ble High Court of Delhi had quashed the FIR against the accused as it was verified that the luggage in which the cartridges were found belonged to his close family friend who also held a valid licence. Here, the facts are completely different as it is not the case of accused that the ammunitions and magazine recovered belonged to any family member of accused who was also a licence holder. The mere fact that ammunitions alone are not hazardous to safety and security of others cannot be the sole ground for exonerating the accused as the Act makes the unauthorized possession of ammunition, even without any firearm, a punishable offence. Therefore, accused has miserably failed in discharging her burden to disprove the fact of conscious possession.
State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.29/32
51. The last limb of contention of accused deals with Section 45(d) of the Act. It is argued on her behalf that the ammunitions and magazine recovered from the accused are minor parts as envisaged by the aforesaid statutory provision which excludes the applicability of the Act to the present case. A vehement reliance is placed upon the judgment in Chan Hong Saik (supra) in that regard.
52. The submission of accused is bereft of any substance. The judgment in Chan Hong Saik (supra) has been overruled by 3 judges bench of the Hon'ble High Court of Delhi in Gaganjot Singh Vs. State 2014 SCC OnLine Del 6885. The relevant paragraph is reproduced as hereinunder: "The structure of Section 45(d) is that it is only "minor parts of arms or ammunition" that are "not intended to be used along with complementary parts" which can be excluded from the application of the Act. There cannot be any question as to which category a live cartridge falls into; it is clearly whole or entire or "ammunition", given the inclusive nature of the definition under Section 2(d). The reasoning in Chang Hong Saik (supra), in this Court's opinion, has proceeded without appreciation of Section 2(b) and the fact that there is no term as "minor ammunition " in that provision. A single whole cartridge is not a part of an ammunition; it is a whole ammunition, nor can it be called a "minor ammunition". Having regard to the facts of Chang Hong Saik (supra), the Court is of the opinion that the interpretation placed upon the expression "ammunition", i.e. that the whole live cartridge is a minor ammunition falling within Section 45(d), is plainly contrary to the Act and erroneous. The said view is accordingly overruled."
53. It is amply clear that whole live ammunition cannot be classified as a part of ammunition or minor ammunition. In the present case, two live ammunitions were recovered from accused and the case is clearly covered State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.30/32 within Section 3 read with Section 25 of the Act. The accused cannot be allowed to take the defence of Section 45 of the Act in that respect. However, as regards the magazine, this court is convinced that it ought to be excepted under Section 45 as the FSL report Ex.PW2/A mentions that magazine recovered was found to be a part of firearm. In such a scenario, the accused cannot be held guilty for possessing the magazine.
54. Lastly, the sanction under Section 39 of the Act Ex.PW10/A is also proved by PW10 HC Yashbir Kumar as he identified the signatures of its executant for the reason that he had seen him writing and signing in the ordinary course of his duties. The perusal of sanction shows that it was accorded by the Sh. Dinesh Kumar Gupta, the then DCP, IGI Airport after perusing the chargesheet and all the documents annexed therewith. No material challenge has been made by the accused to deny its legality.
55. The upshot of the foregoing discussion is that the prosecution has brought formidable evidence on record to establish that the accused was found in conscious possession of two live ammunitions without holding any valid licence in that regard, in contravention of Section 3 of the Act. The accused has failed to rebut the prosecution case. The loopholes pointed out by her are not sufficient to disbelieve the prosecution case and her own defence is tenuous. The prosecution has been able to establish beyond reasonable doubts all the basic ingredients of the offence punishable under Section 25(1B)(a) of the Act.
56. Resultantly, the accused Sudesh Kumari W/o Sh. Prem Singh R/o H. no.848, Pana Moja, Village Bawana, Delhi is hereby convicted of the offence punishable under Section 25(1B)(a) of The Arms Act, 1959.
State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.31/32
Pronounced in open court
in the presence of accused
Digitally signed
on 02.04.2022. BHARTI
by BHARTI
GARG
GARG Date:
2022.04.02
16:21:38 +0530
(Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/02.04.2022
It is certified that this judgment contains thirtytwo pages and each page Digitally signed has been signed by the undersigned. by BHARTI BHARTI GARG GARG Date:
2022.04.02 16:21:45 +0530 Bharti Garg) MM09/South West District Dwarka Court/New Delhi/02.04.2022 State Vs. Sudesh Kumari CNR no. DLSW020072462016 Page no.32/32