Delhi High Court - Orders
Raj Mulk vs The State (Nct Of Delhi) on 21 September, 2022
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 1007/2022
RAJ MULK ..... Petitioner
Through: Mr. Varun Malik, Adv. through
VC.
versus
THE STATE (NCT OF DELHI) ..... Respondent
Through: Mr. Yasir Rauf Ansari, Addl.
Standing Counsel (Crl.) with
Mr. Adeeb-ul-Hasan, Adv. for
State.
CORAM:
HON'BLE MS. JUSTICE POONAM A. BAMBA
ORDER
% 21.09.2022 (Matter is taken up today through Hybrid Mode) 1.0. Vide this petition under Article 226/227 of the Constitution of India read with 482 Cr.P.C, the petitioner has sought quashing of FIR No. 443/2018 dated 11.08.2018 under Section 25/54/59, Arms Act, PS IGI Airport.
2.0 It is submitted that the petitioner is a retired Brigadier, a veteran of four wars from Indian Army and Non-Resident Indian (NRI), who belongs to Delhi.
Signature Not Verified Digitally Signed W.P. (Crl.) 1007/2022 Page 1 of 7 By:GEETA JOSHI Signing Date:13.10.2022 15:43:012.1 It is further submitted that the petitioner was to take his flight from Delhi Airport to Chicago by Air India Flight No. AI-127, Seat no. 2. On 11.08.2018, while he was waiting to take his flight from Delhi to Chicago, one live bullet was detected from his hand baggage during scanning by security officials at airport and he was detained.
2.2. It is submitted that the aforesaid bullet was from the licensed rifle No. EDVV 120013 (Expired) of the petitioner. Therefore, no offence under Section 25 Arms Act is made out. Copy of the Arm Licence (Expired) is annexed as Annexure P-2 along with this petition.
2.3 It is also submitted that the petitioner had no knowledge of the presence of the bullet/live cartridge in his hand baggage. Possession simplicitor is not enough to attract Section 25 of the Arms Act. For the offence punishable under Section 25, the person must be in conscious possession of the arm. In support, reliance is placed upon the judgment of Hon'ble Supreme Court in "Gunwantlal vs. The State of Madhya Pradesh"
AIR 1972 SC 1756, judgment of this Court in "Sonam Chaudhary and Ors. Vs. The State (Govt. of NCT Delhi) and Ors." in Crl.M.C 471, 3172/2015, judgment of Division Bench of the Bombay High Court in "Nurit Toker Vs. State of Maharashtra" in Crl.W.P No. 3569/2011 and the judgment of Orissa High Court in "William Michael Hurtubise Vs. State of Odisha and Ors." 117 (2014) CLT 303.
3.0. The State vide its reply/status report dated 19.06.2022 has stated that Signature Not Verified Digitally Signed W.P. (Crl.) 1007/2022 Page 2 of 7 By:GEETA JOSHI Signing Date:13.10.2022 15:43:01 Arm's Licence No. EDVV-120013 dated 13.02.1997 produced by the petitioner was sent for verification to the Issuing Authority ; and it has been found that License No. EDVV-120013 was registered in the name of the petitioner with the area validity of All Over India and said License expired on 27.02.2001.
3.1 Status report also mentions that the petitioner was permitted to sell his weapon to K.K. Sharma Arms and Ammunition Dealers. Sale was verified with the dealer K.K. Sharma Arms and Ammunition, who vide its reply, has stated that they have purchased one .30-06 Bore Rifle No. 464664 by Spring field Armory (USA) with 20 Cartridges from the petitioner vide Arms License No. EDVV-120013 which was valid up to 27.02.2001.
4.0. I have duly considered the submissions made by both the sides.
5.0. It is the petitioner's case that on 11.08.2018, when he was waiting for his flight (flight no. AI-127) from Delhi to Chicago at Delhi Airport, he was detained as one (01) live ammunition (bullet) was detected from his hand bag by the security officials of Airport. As the petitioner could not produce any valid arm license, the present FIR no. 0443/2018, u/Ss 25/54/59 Arms Act. was registered against him at PS IGI Airport on the complaint of Mr. Dhirender Prasad, SI/Exe, CISF No. 110201164, S-2 coy, CISF Unit, IGI Airport.
6.0. The Petitioner has sought quashing of the aforesaid FIR invoking inherent powers of this Court under Sec. 482 Cr.P.C. It is a settled position Signature Not Verified Digitally Signed W.P. (Crl.) 1007/2022 Page 3 of 7 By:GEETA JOSHI Signing Date:13.10.2022 15:43:01 of law that inherent powers conferred on this Court under Section 482 Cr.P.C are of wide amplitude but the same have to be exercised with care and caution. This power can be used for twin objectives i.e. to prevent abuse of process of law ; and to secure the ends of justice/to do complete and substantial justice.
7.0. As per the aforesaid impugned FIR, as the petitioner could not produce valid arm license, on recovery of one live cartridges from his hand baggage during screening at IGI Airport, New Delhi, the present FIR came to be registered.
8.0. As per the status report, during investigation, the petitioner stated that he is a Retired Brigadier from Indian Army and the recovered cartridge belong to him and he had a valid license of Springfield Assembly Gun, which had expired and the gun had been sold and he kept one cartridge as a souvenir.
8.1. The Status report further mentions that during investigation, it was found that License No. EDVV-120013 was registered in the name of the petitioner with the area validity of All Over India and said License expired on 27.02.2001. Further, the Arms Dealer K.K. Sharma Arms and Ammunition Dealers has confirmed purchase of one .30-06 Bore Rifle 464664 by Spring field Armory (USA) with 20 Cartridges from the petitioner vide Arms License No. EDVV-120013. (valid up to 27.02.2001) 9.0. The petitioner has stated that he is a Retired Brigadier from Indian Signature Not Verified Digitally Signed W.P. (Crl.) 1007/2022 Page 4 of 7 By:GEETA JOSHI Signing Date:13.10.2022 15:43:01 Army and the recovered cartridge belong to him and he had a valid license of Springfield Assembly Gun, which has expired and the gun has been sold and he kept one cartridge as a souvenir ; that the petitioner had no knowledge about the presence of any bullet/live cartridge in his hand baggge. Therefore, no FIR could have been registered against him.
10.0. In this respect, let me refer to Section 25 of Arms Act, which reads as under:
Punishment for certain offences--
(1) Whoever--
(a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or 10.1. Nature of possession for commission of offence under Section 25 Arms Act, came to be interpreted in catena of cases. In Gunwantlal's case (supra) as relied upon by the petitioner, the Hon'ble Supreme Court in para 5 observed :-
".............The possession of a firearm under the Arms Act 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 none-the-less a power or control over that weapon so that his possession thereon continues despite physical possession being in someone else............... 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 Signature Not Verified Digitally Signed W.P. (Crl.) 1007/2022 Page 5 of 7 By:GEETA JOSHI Signing Date:13.10.2022 15:43:01 person to whom physical possession is given holds it subject to that power and control."
10.2. Further, in Dhanwant Kaur vs State and Another Crl.M.C. No.3593/2016 decided on 04.10.2016 this Court noted :
"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 attracting Section 25 Arms Act as he held a valid Arms license."
10.3. In its judgement dated 01.12.2014, in Shri Gaganjot Singh vs. State in W.P. (Crl.) 1169/2014, where a single live cartridge was found from the possession of the petitioner, the Division Bench of this Court quashed the proceedings u/S 25 Arms Act considering that the possession of such cartridge by the petitioner was not conscious as he lacked awareness about the same, as the bag from which the same was recovered, belonged to his uncle.
10.04. Similar view has been taken by this court in number of cases. In somewhat in similar facts, while quashing FIR, in case of Tarun Raghav vs. State, Govt. Of NCT of Delhi 2021 SCC OnLine Del 277, this Court held as under :-
Signature Not Verified Digitally Signed W.P. (Crl.) 1007/2022 Page 6 of 7 By:GEETA JOSHI Signing Date:13.10.2022 15:43:01"7. In Chan Hong Saik Thr SPA: Aryinder Singh vs. State and Another Crl.M.C.No.3576/2011 decided on 02.07.2011 the FIR under Section 25 Arms Act was quashed having similar facts and the Court held:-
"43. Single live cartridge cannot be used for any threat purpose without fire arms. Value of the same in the market is also not attractive. It cannot be used for any third purpose. If the intention of the petitioner was not of either of the purpose mentioned above, then he cannot be held guilty and punished for the charge framed against him."
11.0. In view of the above facts and circumstances and settled position of law, I am of the considered opinion that the petitioner lacked the element of consciousness and knowledge of possession of the one live cartridge recovered from his hand baggage. Therefore, prima facie, the petitioner cannot be said to be in conscious possession of the said one live cartridge. Thus, in the interest of justice, the FIR No. 443/2018 dated 11.08.2018 under Section 25/54/59, Arms Act, PS IGI Airport registered against the petitioner and all consequential proceedings emanating therefrom, if any, are hereby quashed.
12.0 The petition is disposed of, accordingly.
POONAM A. BAMBA, J SEPTEMBER 21, 2022/chandan Click here to check corrigendum, if any Signature Not Verified Digitally Signed W.P. (Crl.) 1007/2022 Page 7 of 7 By:GEETA JOSHI Signing Date:13.10.2022 15:43:01