Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1391/2021 and CRL.M.A. 8712/2021
Date of Decision 15.09.2021
IN THE MATTER OF:
ABID QURESHI ..... Petitioner
Through: Mr. Nitin Jain, Advocate with
petitioner in person.
versus
STATE (GOVT. OF N.C.T. OF DELHI) & ANR. ..... Respondents
Through: Ms. Meenakshi Dahiya, APP for
State with SI Rajiv Gulati, PS IGI
Airport.
Mr. Vishal Chauhan, Mr. K.P.
Singh and Mr. Rajesh Kumar,
Advocates for Respondent No.2.
(VIA VIDEO CONFERENCING)
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
MANOJ KUMAR OHRI, J. (ORAL)
1. The present petition has been filed under Section 482 Cr.P.C. on
behalf of the petitioner seeking quashing of FIR No. 04/2016 registered
under Sections 25/54/59 of the Arms Act at Police Station IGI Airport,
Delhi.
CRL. M.C.1391-2021 Page 1 of 7
2. As per the allegations levelled in the FIR, the present incident
occurred on 03.01.2016 when the petitioner was in the process of
departure from Delhi to Dubai via Flight No. 9W546 of Jet Airways from
the Indira Gandhi International Airport, New Delhi. It is alleged that
during the luggage checking, two live cartridges were found in a jacket
which was kept in the applicant‟s luggage bag.
3. Mr. Nitin Jain, learned counsel for the petitioner, has contended
that the petitioner is not the owner of the aforesaid jacket and had
borrowed it from his friend namely Rav Gayyur @ Gayub i.e.,
respondent No. 2, as he was going aboard. It is submitted that the
applicant had kept the jacket in his luggage bag without checking it. It is
further submitted that at the time of handing over the jacket to the
petitioner, even respondent No. 2 was not aware about the same
containing live cartridges. Along with the petition, an affidavit of
respondent No. 2 has also been placed on record as per which, the
petitioner‟s version stands corroborated. It is stated in this affidavit that
the bag and the jacket containing cartridges, seized from the petitioner,
belonged to respondent No. 2. It is further stated that respondent No. 2
possessed a valid License to possess arms and cartridges at the time of
alleged discovery from the petitioner.
4. The Status Report has been forwarded through e-mail, which is
taken on record.
5. At the outset, Ms. Meenakshi Dahiya, learned APP for the State,
submitted that the verification of the Arms Licence of respondent No. 2
has been carried out. During investigation, it has been found that an
Arms Licence dated 07.12.2014 had been issued to respondent No. 2
CRL. M.C.1391-2021 Page 2 of 7
which remained valid till 07.09.2017. She submits that, inadvertently, the
year „2017‟ instead of „2014‟ has been incorrectly mentioned in the
Status Report. It is further submitted that during the investigation, the
aforesaid two live cartridges were sent to the FSL and as per the FSL
Report, the same have been opined to be „ammunition‟ as defined in
Section 2(b) of the Arms Act, 1959. She lastly submits that the charge
sheet in the present case has already been filed.
6. I have heard the learned counsels for the parties and the learned
APP for the State as well as perused the materials placed on record.
7. As per the allegations in the FIR, two live cartridges were found in
a jacket kept in the petitioner‟s luggage bag, however, no fire arm was
recovered. The petitioner‟s case is that he had no knowledge of the two
live cartridges being present in the jacket as the same belonged to
respondent No. 2, from whom it was borrowed for travelling purposes
without checking. Upon discovery effected from the petitioner, the
present case came to be registered on 03.01.2016, on which date the
aforesaid Arms Licence in the name of respondent No. 2 was valid and
subsisting. The affidavit of respondent No. 2, confirming the same, has
been placed on record.
8. Whether the word „possession‟ as mentioned in Section 25 of the
Arms Act, 1959 would simply mean physical/constructive possession or
„conscious possession‟ has already been the subject matter of many
judicial decisions and the law on the subject is no longer res integra.
This Court deems it profitable to refer to the decision of the Supreme
Court in Gunwantlal v . State of Madhya Pradesh reported as (1972) 2
SCC 194 , wherein while reading into the word „possession‟, the
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Constitution Bench has held there has to be an element of intention,
consciousness or knowledge. It was further held:-
“5. …The possession of a firearm under the Arms Act in
our view must have, firstly the element of consciousness
or knowledge of that possession in the person charged
with such offence and secondly where he has not the
actual physical possession, he has nonetheless a power
or control over that weapon so that his possession
thereon continues despite physical possession being in
someone else. If this were not so, then an owner of a
house who leaves an unlicensed gun in that house but is
not present when it was recovered by the police can
plead that he was not in possession of it even though he
had himself consciously kept it there when he went out.
Similarly, if he goes out of the house during the day and
in the meantime some one conceals a pistol in his house
and during his absence, the police arrives and discovers
the pistol, he cannot be charged with the offence unless it
can be shown that he had knowledge of the weapon
being placed in his house. And yet again if a gun or
firearm is given to his servant in the house to clean it,
though the physical possession is with him nonetheless
possession of it will be that of the owner. The concept of
possession is not easy to comprehend as writers of
Jurisprudence have had occasions to point out. In some
cases under Section 19(1)(f) of the Arms Act, 1878 it has
been held that the word „possession‟ means exclusive
possession and the word „control‟ means effective
control but this does not solve the problem. As we said
earlier, the first precondition for an offence under
Section 25(1)(a) is the element of intention,
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
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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….”
9. Subsequently, in Sanjay Dutt v. State through C.B.I., Bombay (II)
reported as (1994) 5 SCC 410 , the Supreme Court observed as under:-
“19. The meaning of the first ingredient of „possession‟ of
any such arms etc. is not disputed. Even though the word
„possession‟ is not preceded by any adjective like
„knowingly‟, yet it is common ground that in the context
the word „possession‟ must mean possession with the
requisite mental element, that is, conscious possession
and not mere custody without the awareness of the nature
of such possession. There is a mental element in the
concept of possession. Accordingly, the ingredient of
„possession‟ in Section 5 of the TADA Act means
conscious possession. This is how the ingredient of
possession in similar context of a statutory offence
importing strict liability on account of mere possession of
an unauthorised substance has been understood.
7
(See Warner v. Metropolitan Police Commissioner
and Sambasivam v. Public Prosecutor, Federation of
8
Malaya .)”
10. Apart from the aforementioned, there are several decisions of this
Court which reiterate that unconscious possession would not attract the
rigours of the Arms Act [Refer: Sh. Gaganjot Singh v. State reported as
2014 SCC OnLine Del 6885 ; Sonam Chaudhary v. The State (Govt. of
NCT Delhi) reported as 2016 SCC OnLine Del 47 ; Hari Kishan v. State
(NCT of Delhi) reported as 2019 SCC OnLine Del 8829 ; Surender
Kumar @ Surender Kumar Singh v. The State (GNCT of Delhi) and
CRL. M.C.1391-2021 Page 5 of 7
Anr., W.P. (Crl.) 2143/2019 ; Aruna Chaudhary v. State & Ors., W.P.
(Crl.) 1975/2019 ; Paramdeep Singh Sran v. The State (NCT of Delhi),
W.P. (Crl.) 152/2019 ; Davinder Singh Dhindsa v. State (NCT of Delhi)
reported as 2019 SCC OnLine Del 7895 and Adhiraj Singh Yadav v .
State, W.P. (Crl.) 754/2020 .
11. On a combined reading, it becomes apparent that if the factum of
physical possession is made out against a person charged under the Arms
Act, it remains for the Court to enquire if a mental element was also
present. A search for mental element would include discovering whether
or not the person accused was vested with an intention, knowledge or
consciousness in regard to the „ammunition‟ recovered from his
possession. In the present case, barring the allegation of being found in
possession of two live cartridges in a jacket which was in his luggage
bag, and the results contained in the FSL Report, there is no other
material on record to show that the petitioner was in “conscious
possession” of the two live cartridges.
12. Keeping in view the exposition of law propounded by the Supreme
Court extracted hereinabove and followed by the Co-ordinate Benches of
this Court, the petitioner in the present case cannot be held to have been
in „conscious possession‟ of the two live cartridges. On a holistic reading
of the facts and the material placed on record, this Court is of the opinion
that the necessary ingredients for the offence under Section 25 of the
Arms Act, 1959 are not made out against the petitioner. The continuance
of proceedings would in fact, be an exercise in futility and accordingly,
for the reasons stated above, the aforesaid FIR and the proceedings
emanating therefrom are quashed.
CRL. M.C.1391-2021 Page 6 of 7
13. The petition is disposed of in the above terms. Miscellaneous
application is disposed of as infructuous.
( MANOJ KUMAR OHRI)
JUDGE
SEPTEMBER 15, 2021
ga
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