Rajvir Kaur vs State Of NCT Of Delhi

REKHA PALLI, J (ORAL)

The present petition under section 482 of the Cr.P.C seeks quashing of F.I.R No. 0136/2016 under Section 25 of the Arms Act, 1959 registered at

PS IGI Airport, New Delhi and all criminal proceedings emanating therefrom.

The facts emerging from the record are that the petitioner who is the wife of one Mr. Jaswant Singh, was travelling to Canada via Hong Kong by

Cathay Pacific Airlines Flight No. CX-694 on 09.04.2016, when during the screening of her baggage, it transpired that the same contained some live

ammunition. A physical search of the petitioner’s baggage was carried out and one 0.38 mm live cartridge was found therein. As the petitioner

was unable to produce any legal document or license in respect of the recovered ammunition at the time of seizure, the captioned FIR was registered

against her on 10.04.2016.

It is claimed by the learned counsel for the petitioner that when the aforementioned cartridge was recovered from her baggage, the petitioner had

informed the Investigating Officer that she had borrowed the said bag from her father-in-law, Sh. Ajit Singh, who possessed a valid arms license for

the cartridge and she was not at all aware that a single cartridge had been inadvertently left behind in his bag. During the course of investigation, the

petitioner had also submitted a photocopy of the arms license in the name of her father-in-law.

On the last date, this Court had issued notice and the learned APP, while accepting notice, had submitted that the aforesaid arms licence had been

verified and the same belongs to the petitioner’s father-in-law. Today, he reiterates the same position.

Learned counsel for the petitioner submits that the petitioner’s husband is a Permanent Resident of Canada and has been residing there for

the last many years, as a result of which she has a multiple-entry visa for Canada that is valid till 26.03.2019. In fact, he submits, even the

petitioner’s daughters are currently married and settled in Canada. However, although her entire family resides in Canada, the petitioner lives in a

small village in Tehsil Dasuya, Hoshiarpur, Punjab alongwith her father-in-law, in support of which contention learned counsel for the petitioner places

reliance on a copy of the ration card issued in the name of the petitioner’s father-in-law.

Learned counsel for the petitioner further submits that after the petitioner had borrowed the bag from her father-in-law for the purposes of her

impending travel to Canada to visit her daughters and husband, she was not at all aware of the fact that it contained any ammunition and she had

carried the same to the airport without any knowledge of the fact that a single live cartridge belonging to her father-in-law had inadvertently remained

inside her baggage. By placing reliance on Section 45(d) of the Arms Act, he further submits that nothing in the Act applies to situations like the

present case where the petitioner was found to be in possession, and that too unknowingly, of ammunition which was not intended to be used with the

complementary parts of any arms or other such ammunition possessed by any person. He submits that in view of the admitted position that there is

nothing to show that the petitioner was in conscious possession of the single live cartridge recovered from her baggage, the FIR and consequential

proceedings are liable to be quashed. In support of his aforesaid contentions, learned counsel for the petitioner also relies on the decision of this court

in Sonam Chaudhary v. State (Govt. of NCT of Delhi) and Anr. [2018 SCC OnLine Del 10218].

I have considered the submissions of the learned counsel for the parties and perused the records. The undisputed position that emerges is that while

the petitioner’s husband is a Permanent Resident of Canada and has been residing there for the last 20 years, she herself has been residing in a

small village in Punjab alongwith her father-in-law, Mr. Ajit Singh, who has an arms license that is valid till 31.12.2018. When the petitioner was

travelling to Canada on 09.04.2016 to meet her daughters and husband, only a single live cartridge was recovered from her baggage, which she had

borrowed from her father-in-law for the purposes of her impending travel. In fact, a perusal of the status report filed by the Investigating Officer

reveals that when the statement of the petitioner’s father-in-law was recorded during investigation, he categorically stated that he had given his

own bag to the petitioner for travelling purposes.

When the aforesaid facts are considered in the light of the explanation given by the petitioner that she was unaware that a single cartridge was kept

in her baggage which she had borrowed from her father-in-law for the purpose of travelling to Canada, it becomes evident that there is nothing to

show that the petitioner was in conscious possession of the said ammunition. There is every reason to believe the explanation offered by the petitioner,

especially in the light of the admitted position that the ammunition was recovered from a bag which she had been borrowed from her father-in-law,

who has a valid arms license. Reliance may be placed on the decision of this court in Sonam Chaudhary (supra), the relevant paragraph 23 of which

reads as under:-

“23. With respect to the second issue of “conscious possessionâ€, it is settled law that the expression “possession†occurring in Section 25

of the Act, means possession with the requisite mental element i.e., “conscious possessionâ€, however, mere custody without the awareness of the

nature of such possession does not amount to any offence of the Arms Act. The possession of any fire arm/ammunition must be conscious

possession.â€​

Reliance may also be placed on the decision of this Court in Jaswinder Singh vs. State ( Govt. of NCT of Delhi),[2015 SCC Online Del 10894], the

relevant paragraphs 10 and 11 of which read as under:-

“10. It is settled law that the expression “possession†occurring in the Section 25 of the Arms Act, 1959 means possession with the requisite

mental element, that is, conscious possession and mere custody without the awareness of the nature of such possession does not amount to any

offence of the Arms Act. The possession of any fire arm/ammunition must be a conscious possession, and only then will the ingredient of possession

in similar context of a statutory offence, importing strict liability, on account of mere possession of an unauthorized substance be understood. 11. The

Constitutional Bench of the Supreme Court in Sanjay Dutt v. State, (1994) 5 SCC 410 held in para 19 that, ““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

“knowinglyâ€, 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 unauthorized substance has been

understood.â€​

When I consider the present case in the backdrop of the settled legal position that the core ingredient for imposing strict liability on a person under

the Arms Act is conscious possession of the arms/ammunition in question, it becomes evident that no offence under the Arms Act can be made out

against the petitioner as she cannot at all be stated to have been in conscious possession of the ammunition recovered from her baggage.

In the light of my aforesaid conclusion, this Court finds that the continuation of criminal proceedings in a case like this where the petitioner was not

found to be in conscious possession of ammunition belonging to her father-in-law, would be wholly unwarranted. In my view, the ends of justice

demand that the aforesaid FIR and all consequential proceedings be quashed.

Accordingly, the petition is allowed and the captioned FIR is quashed, subject to the petitioner depositing a sum of Rs. 50,000/- with the Delhi High

Court Lawyers Welfare Trust, within two weeks from today. The receipt of deposit of costs shall be handed over to the Investigating Officer.

The petition is disposed of alongwith the pending application in the aforesaid terms.