Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 04.03.2020
Judgment Pronounced On: 16.03.2020
+ W.P.( CRL) 337/2020
GURPREET SINGH MANGAT ..... Petitioner
Through Mr. Rajender Yadav & Mr.
Aamir Choudhary, Advocates
versus
STATE OF NCT OF DELHI & ANR. ..... Respondents
Through Mr. Kamna Vohra, Ld. ASC
for the State.
HON'BLE MR. JUSTICE BRIJESH SETHI
J U D G M E N T
BRIJESH SETHI, J
1. This is a writ petition under Article 226 and 227 of the
Constitution of India r/w Section 482 Cr.P.C. filed by the petitioner
for quashing of FIR No.56/2020, u/S. 25 Arms Act, registered with
PS IGI Airport, Delhi.
2. The brief facts of the prosecution case are that on 28.01.2020,
a case FIR bearing no. 56/2020, u/S 25 Arms Act was registered at
PS IGI Airport on the complaint of SI/Exe Ajay Pal, CISF, IGI
Airport, New Delhi against the petitioner alleging that on
W.P.(Crl. 337/2020 Page 1 of 6
27.01.2020, one passenger namely Gurpeet Singh Mangat was
travelling from New Delhi to Toronto by flight no. AC-043 dated
27.01.2020. On security check, one cartridge was detected from the
jacket worn by him. Hence, the aforesaid FIR was registered
against the petitioner.
3. Feeling aggrieved by the aforesaid FIR, the petitioner
preferred the present petition for quashing of FIR no. 56/2020 u/S.
25 Arms Act.
4. While praying for quashing of FIR and the criminal
proceedings emanating there from, Ld. Counsel for the petitioner
has pleaded that petitioner is innocent and he was completely
unaware that there was a live cartridge in the jacket which belonged
to the petitioner’s brother Sh. Jagtehal Singh who owns a valid arms
license issued by the competent authority of State of Punjab. It is
further submitted that petitioner had no intention to carry live
cartridge and the recovered live cartridge cannot be used for any
threat purpose without fire arms and it does not attract any offence
in the absence of any knowledge of conscious possession.
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5. Ld. APP for the State has opposed the quashing petition of the
petitioner. It was submitted that during the course of investigation,
petitioner had produced the license of the recovered arms licence.
The same has been sent to the office of District Magistrate,
Ludhiana for verification but the report is still awaited. It is further
submitted that seized cartridge was also sent to FSL, Rohini, New
Delhi for expert opinion and FSL result/report is also still awaited.
It is lastly submitted that the IGI Airport is a sensitive area from the
threat perception and the petitioner was in the conscious possession
of the said cartridge and, therefore, it is not a fit case for quashing of
FIR under Section 482 Cr.P.C.
6. I have considered the rival submissions and also gone through
the record.
7. The Constitutional Bench of the Hon'ble Supreme Court in
the case of Gunwantlal v. The State of Madhya Pradesh, (1972) 2
SCC 194 has explained the meaning of possession in the context
of Section 25 of the Arms Act, 1959 and held 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
W.P.(Crl. 337/2020 Page 3 of 6
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. 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"
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
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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."
8. The above proposition of law was reiterated by the Hon’ble
Apex Court in Sanjay Dutt v. State Through CBI Bombay (II),
Crimes 1994 (3) 344 (SC) and held as under:
"20. 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.
9. In the present case, there is nothing on record to suggest that
petitioner was in conscious possession of the cartridge and he was
aware of the said fact. Mere recovery of cartridge itself is not
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sufficient to prove the offence in the absence of any intention. It is
contended by Ld. Counsel for the petitioner that by mistake brother-
in-law of the petitioner kept his jacket between the trolley bags of
the petitioner. Petitioner was unaware of the said jacket and entered
the airport with the said jacket. It is also a matter of record that no
weapon was recovered from the petitioner to connect him with the
intention to use the recovered cartridge for committing any offence.
10. In view of the above discussion, this court is of the opinion
that no offence is made out against the petitioner under Section 25
Arms Act. This court is further of the view that allowing
continuation of criminal proceedings against the petitioner will be
an abuse of process of law. The writ petition is, therefore, allowed
and proceedings emanating from FIR bearing no. 56/2020, u/s. 25
Arms Act, registered with PS IGI Airport, Delhi are hereby quashed.
The petition stands disposed of accordingly.
BRIJESH SETHI, J
MARCH 16, 2020
AK
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