Delhi District Court
The Present Case Pertains To ... vs . on 31 January, 2023
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE09 SOUTHWEST
DISTRICT, DWARKA COURTS, NEW DELHI
FIR No. 44/19
Police Station Domestic Airport
Under Section(s) 25 Arms Act
Cr. Case no. 13079/2021
CNR no. DLSW020497912021
IN THE MATTER OF:
State ...........Prosecution
Vs.
Rahul Pratap Singh
S/o Rajveer Singh
R/o H. no.53, Chandrapgupta Puram,
Pilibhit Bypass Road Bareilly, U. P. ..............Accused
1. Name of complainant : SI Manohar Kumar
2. Name of accused : Rahul Pratap Singh
3. Offences complained of : Under Section 25, The Arms
Act 1959
4. Plea of accused : Not guilty
5. Date of commission of offence : 04.04.2019
6. Date of institution of case : 16.10.2021
7. Date of reserving judgment : 03.01.2023
8. Date of pronouncement : 31.01.2023
9. Final judgment : Acquitted
State Vs. Rahul Pratap Singh CNR no DLSW020497912021 Page no.1/13
Digitally signed
by BHARTI
BHARTI GARG
Date:
GARG 2023.01.31
15:32:54
JUDGMENT:
1. The present case pertains to prosecution of accused in respect of offence punishable under Section 25 of The Arms Act, 1959 (hereinafter referred to as 'Act' for brevity).
2. Shorn of unnecessary details, the case of prosecution is that the accused was scheduled to travel from Terminal 1D, Domestic Airport, New Delhi to Ahmedabad by Indigo flight no.6E625 on 04.04.2019. As he approached for preembarkation security check at XBIS machine, during the screening of his hand baggage, two live ammunitions of 65/30 mm caliber were found in his hand baggage. Upon inquiry, he failed to produce any valid document or licence in that regard. 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. Upon inspection, the ammunitions were found to be live and sketch thereof was prepared. The length and diameter of the ammunition was noted to be 6.1 cm and 2.3 cm respectively and further, '12 KF' was engraved on its base. These were then sealed with the seal of '10 DOM AIRPORT' and FIR was registered on the basis of complaint. During the course of further investigation, IO seized the two live ammunitions and interrogated the accused. The accused could not produce any valid arms licence. Statements of witnesses under Section 161 Cr. P. C. were recorded and the FSL report was collected according to which the ammunitions were opined to be an ammunitions as defined in the Act. Upon the culmination of investigation, permission under Section 39 of Act was obtained from DCP, IGI Airport whereafter, chargesheet was State Vs. Rahul Pratap Singh CNR no DLSW020497912021 Page no.2/13 Digitally signed by BHARTI BHARTI GARG Date: GARG 2023.01.31 15:33:05 +0530 filed against the accused in court.
3. Cognizance was taken of offence u/S 25 of the Act and the accused was summoned to face trial for said offence. On his appearance, the copy of chargesheet was supplied to him 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 u/S 25(1B)(a) of Act to which he pleaded not guilty and claimed trial. The accused admitted the genuineness of FIR no.44/19 dated 05.04.2019 PS Domestic Airport along with certificate under Section 65B IEA as Ex.A1, DD no.2A dated 05.04.2019 as Ex.A2, FSL report along with forwarding letter as Ex.A3 (colly), road certificate as Ex.A4 and sanction under Section 39 of the Act as Ex.A5, under Section 294 of Cr. P. C.
5. To demonstrate the guilt of accused, the prosecution examined four witnesses in all. PW1 SI Manohar Kumar Gupta (complainant) deposed that on 04.04.2019, he was on duty as Screening Officer at Security Hold Area (SHA) on 'I'XBIS Machine, Terminal1D. At about 10:26 pm, during preembarkation security check, he detected two live ammunitions of 65/30 mm from the carry bag/handbag of the passenger who disclosed his name as Rahul Pratap Singh for which he could not produce any valid licence or document. Thereafter, he took the accused along with the recovered live ammunitions to police station and lodged his complaint as Ex.PW1/A. The IO prepared the sketch vide Ex.PW1/B and seized the recovered cartridges after sealing the same with the seal of '10 DOM AIRPORT' State Vs. Rahul Pratap Singh CNR no DLSW020497912021 Page no.3/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.01.31 15:33:13 +0530 vide seizure memo Ex.PW1/C. IO also seized the plastic box in which the belongings of accused were kept at the Security Hold Area, from which the cartridges were recovered, vide seizure memo Ex.PW1/D. He further handed over the cancelled boarding pass Ex.PW1/F, ID proof of the accused Mark A and XBIS Machine image Ex.PW1/E along with his complaint. He correctly identified the cartridges as Ex.P1 (colly) and plastic box as Ex.P2. In his crossexamination, PW1 stated that he was on duty along with four other CISF officials at Security Holding Area on the date of incident but he did not remember the names of those CISF officers.
6. PW2 ASI Mahender MHC (M), proved that the case property was deposited in Malkhana vide entry no.243 in register no.19 tendered as Ex.PW2/A (OSR). PW3 Inspector Kedar Yadav (second IO) deposed that during further investigation, FSL report and sanction under Section 39 of the Act were obtained. PW4 Inspector Vipin Kumar (first IO) deposed regarding the investigation conducted by him. He further tendered rukka as Ex.PW4/A. In his cross examination, PW4 stated that he did not visit the spot of incident. He further stated that the handbag of the accused from which the cartridges was recovered was not seized by him.
7. On account of the admission made by accused under Section 294 Cr.P.C qua the FIR no.44/19 dated 05.04.2019 PS Domestic Airport along with certificate under Section 65B IEA as Ex.A1, DD no.2A dated 05.04.2019 as Ex.A2, FSL report along with forwarding letter as Ex.A3 (colly), road certificate as Ex.A4 and sanction under State Vs. Rahul Pratap Singh CNR no DLSW020497912021 Page no.4/13 Digitally signed by BHARTI BHARTI GARG Date: GARG 2023.01.31 15:33:20 +0530 Section 39 of the Act as Ex.A5, PWs V. R. Anand (Assistant Director Ballistics), Ct. Sandeep, ASI Sukhbir Singh and Vikram Porwal (DCP) were dropped from the list of prosecution witnesses and their examination in that regard was dispensed with.
8. Thereafter, the prosecution evidence was closed and statement of accused was recorded under Section 281 read with 313 Cr. P. C. All the incriminating circumstances appearing against the accused in evidence were put to him. The accused controverted all the allegations levelled against him and stated that he has been falsely implicated. He additionally stated that the cartridges belonged to his uncle and he was not aware that those were kept in his bag. The accused opted to lead evidence in his defence.
9. DW1 Rahul Pratap Singh (accused) deposed that he was going to Dubai by flight on 04.04.2019 and was carrying the bag of his uncle Devender Pal Singh. During scanning, two cartridges were recovered from the said bag but he was not aware of the same. The arms licence belonging to his uncle was also kept in the bag. Thereafter, he called up his uncle and informed him about the incident. In his crossexamination, DW1 admitted that he did not have any proof to show that Devender Pal Singh was his uncle or that the bag had belonged to him.
10. DW2 Devender Pal Singh (uncle of accused) deposed that was he was working with Intelligence Bureau, Ministry of Home Affairs. On 04.04.2018, he received a call from his nephew i.e the accused, that two cartridges had been recovered from his baggage State Vs. Rahul Pratap Singh CNR no DLSW020497912021 Page no.5/13 Digitally signed by BHARTI BHARTI GARG Date: GARG 2023.01.31 15:33:30 +0530 which was being carried by the accused. He then went to Police Station and told the IO that the cartridges and bag belonged to him and the accused had borrowed his bag for travelling to Dubai. He was holding a valid arms licence having validity till 05.01.2021 throughout India except J&K and handed over the copy of same to IO. He tendered the copy of his arms licence as Mark A as the original licence was deposited at the concerned DM office for renewal. In his cross examination, the witness admitted that he did not have a valid arms licence as on the date of incident. He further admitted that he did not have any proof to show that he was the uncle of accused or that the bag belonged to him.
11. Thereafter, defence evidence was closed and the matter was taken up for final arguments. 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 the fact of recovery of ammunitions from the baggage of accused. It is further corroborated by the documentary evidence on record. Therefore, it is prayed that the accused be convicted of alleged offence.
12. Per contra, the Ld. Counsel for accused has strenuously urged for acquittal of accused primarily on the ground that the prosecution has failed to prove the element of conscious possession on the part of accused. In that regard, the Ld. Counsel for accused has relied upon the judgments of Hon'ble High Court of Delhi in Hari Kishan Vs. State (NCT of Delhi) dated 31.05.2018 in CRL. M. C. State Vs. Rahul Pratap Singh CNR no DLSW020497912021 Page no.6/13 Digitally signed by BHARTI BHARTI GARG Date:
GARG 2023.01.31
15:33:39
3856/2016; Jaswinder Singh Vs. State (NCT of Delhi) & Anr. dated 11.08.2015 in CRL. M. C. 4207/2014; Rajesh Singh Vs. State & Anr. dated 30.01.2020 in CRL. M. C. 509/2020.
13. Arguments heard. Record perused. Considered.
14. At the outset, it is 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."
15. 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.
State Vs. Rahul Pratap Singh CNR no DLSW020497912021 Page no.7/13
Digitally signed
by BHARTI
BHARTI GARG
GARG Date:
2023.01.31
15:33:47 +0530
(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.
16. 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."
17. First and foremost, the fact that two live cartridges were recovered from the bag of accused on 04.04.2019 is not disputed by the accused. As per the prosecution case, the recovery was effected from accused by PW1 who was deputed to screen the bags on XBIS Machine at the preembarkation security check. His testimony has remained unshaken on material facts as nothing substantially adverse could be elicited in his crossexamination. His deposition is further State Vs. Rahul Pratap Singh CNR no DLSW020497912021 Page no.8/13 Digitally signed by BHARTI BHARTI GARG Date:
GARG 2023.01.31
15:33:57
+0530
corroborated by the testimony of accused himself as he stated that those cartridges were detected in his bag when it was scanned. Furthermore, it is proved by FSL report that those cartridges are 'ammunition' as defined under the Act. The genuineness of said report is also not questioned by the accused, as such. Likewise, it is not in dispute that the accused did not hold any valid arms licence for possessing the cartridges on the date of incident.
18. Now, the crucial point falling for determination is whether the accused can be said to have had 'conscious' possession of those ammunitions. The core ingredient of the offence qua which the accused has been charged is 'possession'. The possession of firearm or ammunition under the Act has been explained by the Constitution Bench of 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 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 (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"
State Vs. Rahul Pratap Singh CNR no DLSW020497912021 Page no.9/13
Digitally
signed by
BHARTI BHARTI GARG
Date:
GARG 2023.01.31
15:34:05
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 de facto 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 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."
19. Essentially, the possession of arms or ammunitions under the Act must be accompanied with the requisite criminal intention and ipso facto recovery without the mental element does not attract the rigours of the Act. Coming to the facts of present case, the accused has consistently maintained the stance in his statement u/S 281 r/w 313 Cr.P.C and defence evidence that the cartridges and the bag from which those were recovered belonged to his uncle Devender Pal Singh and further that he was not aware that the bag had contained those cartridges.
20. The ocular evidence of accused is further corroborated by his uncle/DW2, as he stated that the bag in question was borrowed from him by the accused in respect of his travel to Dubai and also that the cartridges had belonged to him qua which he had held a valid arms licence. No material contradiction could be elicited in the statements of both DW1 and DW2 on that aspect by the prosecution and hence, this State Vs. Rahul Pratap Singh CNR no DLSW020497912021 Page no.10/13 Digitally signed by BHARTI BHARTI GARG Date:
GARG 2023.01.31
15:34:15
Court finds no reason to doubt their credibility. DW2 adduced the photocopy of his arms licence as he stated that the original documents were in the possession of concerned DM for the purpose of renewal. Not even once the veracity of the said document or the ground raised by DW2 for inability to produce the original was disputed by Ld. APP.
21. Now, it is evident from the perusal of copy of arms licence on record that DW2 had held a valid arms licence at one point in time. While he admitted in his crossexamination that his licence was not valid as on the date of incident, nevertheless, the mere fact that he once possessed an arms licence strengthens the possibility that the recovered cartridges belonged to him and not the accused. In fact, the IO stated in his crossexamination that he did not seize the handbag of accused from which the cartridges were recovered and also never visited the spot of incident. In other words, the IO did not make sincere efforts to ascertain as to how the cartridges ended up in the bag of accused.
22. In the catena of judgments, including the ones relied upon by the accused, the Hon'ble High Court of Delhi has quashed FIRs in similar facts where live cartridges were found in the bag of passengers at the airport about which they were not aware as the said cartridges belonged to their close friend or relative who held valid arms licences. It would be pertinent to refer to the following observations of Hon'ble High Court of Delhi in one such matter in Sonam Chaudhary & Ors. Vs. The State (Govt. of NCT of Delhi) & Ors (2016) 226 DLT 638: "Therefore, applying the said principles of law, as discussed above, and considering the fact that the petitioners had left behind the live cartridge/cartridges in State Vs. Rahul Pratap Singh CNR no DLSW020497912021 Page no.11/13 Digitally signed by BHARTI BHARTI GARG Date:
GARG 2023.01.31
15:34:22
+0530
their luggage by mistake and/or inadvertent oversight, when they started their respective journeys and that the petitioners were not aware of the presence of the live cartridge/cartridges in their handbags till the same were detected by the security personnel during screening of the baggages at the concerned places, it can be safely inferred that the said possession does not fall within the ambit of 'conscious possession'. Admittedly, no firearm or weapon has been recovered from any of the petitioner and they have not extended any threat to any person or police official, hence, no offence under Section 25 of the Act is made out against any of the petitioner. Therefore, allowing continuance of the criminal proceedings against them would be an abuse of the process of Court."
23. Viewed through that lens, it was imperative for the IO to undertake fair investigation and reveal the nature of possession of accused in the chargesheet. The failure to do so necessarily sheds doubts over the veracity of prosecution case. The case of accused in present case is squarely covered under the abovesaid judgments. Admittedly, the accused did not possess any firearm at any point. It is not the case where he threatened any person or official at the airport. The value of two cartridges in the market is also not much substantive. These factors indicate the absence of criminal intention on the part of accused to possess the ammunitions. The burden was on prosecution to prove the conscious nature of possession which it failed to discharge beyond all reasonable doubts.
24. The upshot of the foregoing discussion is that reasonable doubts have emerged in the case of prosecution regarding the intention of accused to possess the ammunitions, the benefit of which must accrue to the accused. The prosecution has failed to establish that the accused was in conscious possession of the ammunitions and thus, the charge of Section 25 (1B) (a) of The Arms Act, 1959 is not proved.
State Vs. Rahul Pratap Singh CNR no DLSW020497912021 Page no.12/13
Digitally
signed by
BHARTI BHARTI GARG
Date:
GARG 2023.01.31
15:34:31
Resultantly, the accused Rahul Pratap Singh S/o Rajveer Singh R/o H. no.53, Chandrapgupta Puram, Pilibhit Bypass Road Bareilly, U. P., is held not guilty and hereby acquitted of the offence punishable under Section 25 (1B) (a) of The Arms Act, 1959.
Pronounced in open court in the Digitally signed
by BHARTI
presence of accused (through VC) BHARTI GARG
GARG Date:
on 31.01.2023. 2023.01.31
15:34:38 +0530
(Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/31.01.2023
It is certified that this judgment contains thirteen pages and each page has been signed by the undersigned. Digitally signed by BHARTI BHARTI Date:
GARG GARG 2023.01.31 15:34:45 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/31.01.2023 State Vs. Rahul Pratap Singh CNR no DLSW020497912021 Page no.13/13