M A Latif Shahrear Zahedee vs The State Of Maharashtra And Ors
2017 Latest Caselaw 8670 Bom

                                                                                                                   RJ 2394 OF 2017.odt


vks
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                                    WRIT PETITION NO.2394 OF 2017.


M. A. Latif Shahrear Zahedee                                                        ]
age: 39 years, Occupation : Business                                                ] Petitioner
r/o 23 B. B. Road, Jhenaidah                                                        ] Ori.accused
Jhenaidah Sadar 7300                                                                ]
BANGLADESH                                                                          ]

                        V/s.

1. The State of Maharashtra                                                         ]
   Through                                                                          ]
   The Principal Secretary,                                                         ]
   Home Department, Mantralaya                                                      ]
   Mumbai 400 032                                                                   ]
                                                                                    ]
2. The Commissioner of Police                                                       ]
   Crawford Market                                                                  ] Respondents.
   Mumbai 400 001                                                                   ]
                                                                                    ]
3. The Senior Inspector of Police                                                   ]
   Airport Policee Station                                                          ]
   C.R.No.16 of 2013                                                                ]


Mr. Niteen Pradhan, Senior Advocate i/by Ms.
Shubhada Khot, for the Petitioner.
Mrs. Aruna Pai, APP for the Respondent State.


                        CORAM : RANJIT MORE &
                                DR.SHALINI PHANSALKAR-JOSHI, JJ.

DATE : 14 th NOVEMBER, 2017.

ORAL JUDGMENT : [PER: DR. SHALINI PHANSALKAR-JOSHI, J.]

1] Rule. Rule made returnable forthwith. Heard finally

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with consent of learned counsel for both the parties.

2] This writ petition is filed under Article 226 of the

Constitution of India read with Section 482 of the Code of Criminal

Procedure, for quashing the proceeding in C.C. NO.301/PW/2015,

pending on the file of the Metropolitan Magistrate, 66 th Court,

Andheri, Mumbai, arising out of C.R. No.16 of 2015, registered with

Airport Police Station, Mumbai.

3] It is the case of the petitioner that he is permanent

resident of Bangladesh and for the purpose of his business, he has

travelled to India on several occasions. On 25.9.2013, he left

Dhaka, by Jet Airways 9W0273 Flight to Kolkata, for the purpose

of business. From Kolkata, he boarded Jet Airways 9W2364 Flight

to Pune. Thereafter he travelled from Pune to Goa by road and

after completing his work in Goa, he came to Ahmedahad by Spiece

Jet Airways Flight No.138. From Ahmedabad, he flew to Mumbai

by Air India Flight No.AI191.

4] On 29.09.2013, the petitioner booked his ticket to

Dhaka via Mumbai Kolkata by Jet Airways 9W615. The petitioner

checked in his baggage and completed his security check. While on

his way to board the flight by Air Coach, a Jet Airways employee

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contacted the petitioner and informed that there was some

problem with his luggage. The petitioner was taken to Luggage

Screening Room. At that time, the other jet Airways as well as

CISF employees were present near the scanner machine. The

petitioner was asked to identify his bag and open it. In the said

bag, there was toilet kit pouch. When the petitioner was asked to

open the pouch, in that toilet kit pouch, alongwith regular toilet

articles, five live cartridges and one empty was found.

5] On enquiry by CISF staff, the petitioner Immediately

disclosed that the said live cartridges and empty belong to his

brother Md Nasser. They were inadvertently carried by him as the

travel kit pouch was common between him and his brother. From

the Airport itself, the petitioner called upon his brother Md. Nasser

to send fax copy of his licences to hold arm as well as live

cartridges and empty. By fax said copies were received from the

petitioner's brother. The petitioner handed them over to the CISF

officer.

6] However, at the instance of CISF officer, C.R.No.16 of

2013 came to be registered against the petitioner for the offences

punishable under Sections 3 and 25 of the Arms Act. The

petitioner was arrested in pursuance of the said C.R. and

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thereafter remanded to police custody and then to Magisterial

Custody. After investigation, police filed charge sheet against the

petitioner bearing C.C. No.301/PW/2015 in the Court of

Metropolitan Magistrate, 66th Court, Andheri Mumbai.

7] The submission of learned counsel for the petitioner is

that the petitioner has offered valid explanation for the five live

cartridges and the one empty found in his toilet kit pouch. The

petitioner has also produced on record Arm Licence issued to his

brother and in such situation, as such the possession of the

petitioner cannot be called as conscious possession as required

under Section 3 and 25 of the Arms Act. Hence the criminal

prosecution launched against the petitioner needs to be quashed

and set aside.

8] In support of his submission, learned counsel for the

petitioner has relied upon the judgment of the Constitution Bench

of the Hon'ble Supreme Court, in case of Sanjay Dutt -vs- State

through CBI Bombay (1994) 5 SCC 410 and the judgment of

Division Bench of this Court in Nurit Toker -vs- State of

Maharashtra, 2012 (2) Bom. C.R (Cri) 154.

9] Learned APP appearing on behalf of the State, on the

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other hand, has submitted that the issue as to whether the

possession was conscious or not would be decided at the stage of

trial and this Court, therefore, while exercising its jurisdiction

under Article 226 of the Constitution of India, should not decide

the issue and interfere with and set aside the F.I.R or the

chargesheet.

10] After having heard learned counsel for the parties, we

are of the view that the facts of this case clearly reveal that the

possession of the petitioner was obviously not conscious. The

petitioner has not only given immediate explanation as to how

five live cartridges and one empty were found in his luggage as

they were in the toilet kit pouch which was shared by him with his

brother; the petitioner has also called for the arm licences held by

his brother by fax and these arm licences were produced before

CISF authority and before this Court also. These arm licences go to

show that the petitioner's brother Md. Nasseir was holding N.PB.

Revolver No.1342194 made in Germany, '32 bore and 50 rounds of

bullets. He is also having arm licence of '22 bore Rifle No.A.355412

made in Germany with 100 rounds of bullets. Live cartridges and

empty recovered from the luggage of the petitioner tallies

completely with the description of the rounds mentioned in the

arm licences of the petitioner's brother. It is not in dispute that the

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petitioner was not carrying any weapon such as revolver or a

pistol. Therefore, it is obvious that these live cartridges and the

empty remained in the petitioner's baggage inadvertently on

account of carrying the toilet kit pouch of his brother with him.

11] A bare perusal of Section 3 and 25 of the Arms Act

clearly reveals that the term, 'possession' used therein refers to

'conscious possession' and 'not unconscious possession' or

'inadvertent possession''. As rightly submitted by learned counsel

for the petitioner, the Hon'ble Supreme Court has, in case of Sanjay

Dutt (supra), clearly held that the possession of fire arm under

Arms Act must be conscious possession with the knowledge and

requisite mental element. Mere custody without awareness of the

nature of such possession cannot fall under Sections 3 or 25 of the

Arms Act. The relevant observations of the Hon'ble Supreme Court

in the said judgment are as follows :-

"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

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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 authorised substance has been understood (See Warner v. Metropolitan Police Commissioner 1969 (2) AC 256 and Sambasivam v. Public Prosecutor, Federation of Malaya, 1950 AC 458".

12] It is, thus clear that the mere possession of the fire arm

or ammunition would not constitute offence under Section 3 and

25 of the Arms. The essential requirement is the knowledge of

possession or power or control over the arm or ammunition when

not in actual possession.

13] Similar view is taken by the Division Bench of this

Court also in case of Nurit Toker (supra); wherein two live

cartridges were found in the baggage of the petitioner at the time of

screening and hence the offence was registered against the

petitioner therein under Sections 3 and 25 of the Arms Act. As it

was pointed out that two live cartridges found in the baggage of

the petitioner were the result of some mistake when the petitioner

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started her journey; it was held that in the absence of the element

of possession being conscious, she was rightly discharged/released

by the police by filing report under Section 169 of the Code of

Criminal Procedure.

14] In the present case, it is to be noted that the petitioner

is permanent resident of Bangladesh. For the purpose of business,

he has come to India and travelled at various places in India.

Thereafter while he was returning, at the Airport, when in his

toilet kit pouch these live cartridges and one empty were found in

his luggage, he has called from his brother the copies of arm

licences. As stated above, the live cartridges and empty recovered

from his toilet kit pouch were tallying with the description of the

weapon of the rounds given in the arm licences of his brother.

15] The F. I.R. as well as other material collected in the

course of investigation reveals that apart from recovery of these

cartridges and empty, there is no other material to show that the

petitioner was in conscious possession thereof in his baggage. This

being a case, it cannot be said that the petitioner was in conscious

possession of those live cartridges or that he had control over the

same.

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16] Under the circumstances and in view of the legal

position set out above, we are of the considered view that there is

no sufficient material to proceed with the case against the

petitioner for the offences punishable under Sections 3 and 25 of

the Arms Act.

17] Thus, taking overall view of the matter, we are satisfied

that this is a fit case where this Court can exercise its jurisdiction

under Article 226 of the Constitution of India and also use its

inherent powers under Section 482 of the Code of Criminal

Procedure and quash the Criminal Case bearing No.301/PW/2015

pending against the petitioner in the Court of Metropolitan

Magisterial 66th Court, Andheri, Mumbai.

18] Writ Petition is, therefore, allowed and the rule is made

absolute in terms of prayer clause (a)

[DR.SHALINI PHANSALKAR-JOSHI, J.] [RANJIT MORE, J.]