June 05, 2019:
The Delhi High Court set aside the impugned order of Trial Court in which the petitioner was charged under Section 30 of Arms Act after examining that Court had enough reasons to not charge him under Section 25 of Arms Act which provides a strong argument to not to charge him under the former as well.
The petitioner herein has been charged for having committed an offence punishable under Section 30 of the Arms Act. after arguments in Court. Although, the FIR was registered against the petitioner alleging violation of Sections 25/54/59 of the Arms Act.
Learned Counsel for the petitioner submits that the petitioner had a valid arms licence and since he was en-route to Lucknow and the closest Airport from Noida was IGI Airport at Delhi, he had to catch his flight from Delhi.
He submits that the petitioner was not aware that there was a live cartridge in the trolley bag which was carried in the hand-baggage. The fact that the petitioner was not conscious of the presence of the live cartridge is borne out from the fact that there was no attempt by the petitioner to conceal the same at the time of putting the bag for x-ray screening.
He further submits that mens rea would be required for constituting an offence under Section 30 of the Arms Act and relies on various Supreme Court judgement.
The petitioner is a permanent resident of Noida (UP) and was catching a flight from Indira Gandhi International Airport, Delhi (in short ‘IGI Airport’) enroute to Lucknow. The petitioner has a valid arms licence, however, the licence was valid only for the State of Uttar Pradesh.
The allegations against the petitioner is that the petitioner contravened the condition of a licence, in as much as, carried a live cartridge beyond the State of Uttar Pradesh.
It is settled proposition of law that possession under Section 25 of the Arms Act refers to not only physical possession but also the requisite mental element i.e. mens rea of conscious possession. In the absence of conscious possession of the live cartridge, which cannot be used for any purpose, Section 45(d) of the Arms Act would be applicable and it would be justified to end all such proceedings to secure the ends of justice.
The Court observed, "In the subject case, petitioner did not make any attempt to conceal the live cartridge in the bag and had handed over the bag for x-ray screening. It is common knowledge that in case any arms or ammunition are present in a bag which is screened by X-ray, the arm and ammunition would be easily detected unless attempt is made to conceal the same. It is not the case of the prosecution that any attempt was made by the petitioner to conceal the same so as to avoid detection. Clearly petitioner did not have the conscious possession.
Further the record does not show any material to suggest any reasonable ground for suspicion to even justify conscious possession of the live cartridges recovered from the baggage of the petitioner. There is no material on record to show that the petitioner was conscious of the possession of the live cartridges."
It added, "From the perusal of the record it can be safely inferred that the presence of live cartridge in the hand bag was not within the knowledge of the petitioner and petitioner did not have the requisite mens rea for committing the said offence."
The High Court concluded, "The impugned order further shows that the trial court was also conscious of the fact that the petitioner could not have had the requisite mens rea and that appears to be the reason that charge was not framed under Section 25 (under which the FIR and Charge Sheet was filed) and was framed only under Section 30 of the Arms Act."
It thus set aside the Trial Court's order and freed the petitioner from any charges whatsoever.
The order was passed by HON'BLE MR. JUSTICE SANJEEV SACHDEVA on 20-05-2019.
Read the Order here:
