Vihar Rajubhai Shah vs State Of Maharashtra
2023 Latest Caselaw 7 Bom

                                                                            15-WP-2671-2022.doc


                    Shailaja


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION
                                WRIT PETITION NO.2671 OF 2022


                    Vihar Rajubhai Shah                         ]     Petitioner
                          Vs.
                    State of Maharashtra                        ]     Respondent

                                               .....

Mr. Aditya Khandeparkar a/w Ms. Aekta Patel and Ms. Sayali Nikam i/b Khandeparkar Law Office, for Petitioner.

Mr. J.P. Yagnik, A.P.P, for Respondent-State.

.....

CORAM : REVATI MOHITE DERE & PRITHVIRAJ K. CHAVAN, J.J.

DATE : 2nd January, 2023.

(In Chambers)

ORDER: [Per Prithviraj K. Chavan, J.]:

1. Heard.

2. Rule.

3. Rule is made returnable forthwith. With the consent of

the parties, petition is taken up for final disposal.

                      Digitally signed by SHAILAJA
SHAILAJA SHRIKANT     SHRIKANT HALKUDE
HALKUDE               Date: 2023.01.06 15:23:04 +0530                                     1 of 13
                                                  15-WP-2671-2022.doc

4. Learned A.P.P waives notice on behalf of respondent-

State.

5. By this petition under Article 226 of the Constitution of

India and under section 482 of the Code of Criminal

Procedure,1973 (for short 'Cr. P.C'), the petitioner seeks

quashing of the First Information Report i.e Special L.A.C No.03

of 2019 registered with the Sahar Police Station, Mumbai for

the offences punishable under sections 3 and 25 of the Arms Act,

1959 and consequently, Charge-sheet bearing No.3002/PW/2022

pending before the Metropolitan Magistrate 63rd Court,

Andheri, Mumbai.

6. A few facts germane for disposal of this petition are

summarized as follows.

7. The petitioner is an Associate Manager of Modtech

Machines Private Limited having its office at New Ahmedabad

Industrial Estate, Moraiya, Ahmedabad. The said company deals

with the business of providing cutting edge investment casting

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products in the field of robotics and industrial automation. As

an Associate Manager of the aforesaid company, the petitioner

has to travel extensively across various countries to meet the

requirements of the clients situated therein.

8. In the month of January, 2019, the petitioner's employer

(Modtech Machines Private Limited) required the petitioner to

travel to Frankfurt (Germany) to install newly supplied wax

injection machine at Delupa Turbotechnik GmbH.

9. On 2nd January, 2019, the petitioner reached Ahmedabad

Airport and checked in one bag in AI-614 flight from

Ahmedabad to Mumbai. The said check-in bag was locked by

the petitioner with a lock and key. He had kept the key with

him.

10. The said check-in bag had an outer compartment with a

zip. The said outer compartment did not have a locking

mechanism nor was it capable of being locked at all. Conscious

of this fact, the petitioner had not kept anything in the outer zip.

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11. The Air India flight-AI-614 from Ahmedabad to Mumbai

took off around 7.45 a.m. The petitioner, thereafter, boarded the

connecting Air India Flight AI-125 from Mumbai to Frankfurt

which departed around 10.00 a.m on the same day from

Mumbai.

12. The petitioner was given a "thorough check-in" by Air

India at Ahmedabad. As such, the first airport of departure for

the petitioner was Ahmedabad where his bag was checked in and

the final destination was Frankfurt in Germany. Thus, there was

no question of any physical contact between the petitioner and

his check-in bag at Bombay Airport, at all.

13. At the time of boarding Flight No. AI-614 from

Ahemdabad Air Port, after the security check and scan, the

petitioner was handed a baggage tag by Air India bearing

No.AI754070. Nothing objectionable or suspicious article was

found in the outer compartment or anywhere in the said check-

in bag of the petitioner at Ahmedabad while being checked-in

and, therefore, the bag was loaded on the aircraft flight AI-614.

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14. On 2nd January, 2019, the petitioner landed at Frankfurt

Airport around 2.00 p.m local time. He proceeded to the

conveyor belt at Frankfurt Airport to collect his check-in bag,

but to his dismay, the bag did not turn up on the belt. Upon

inquiry at the Air India counter at Frankfurt, he was shocked to

learn that his check-in bag, after reaching Bombay by AI-614 had

not been loaded abroad flight AI - 125 at all. The petitioner was

informed that the Mumbai International Airport Security had

found an objectionable item in petitioner's check-in bag prior to

being loaded in Flight AI-125. It later transpired that the said

object suspected to be a live cartridge in the outer zip

compartment of the petitioner's bag.

15. Post his return from Frankfurt on 16th January, 2019, the

petitioner went to Mumbai Airport to collect his bag as advised

by Air India. The Air India staff, however, took the petitioner to

Sahar Police Station at about 10.30 a.m. After reaching the

Police Station, the Police examined his bag and took out one

cartridge from the outer zip compartment of the said bag. The

main compartment of the bag remained locked as the petitioner

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had locked it after packing his bag and it was not opened at all.

16. Meanwhile, the petitioner moved an application seeking

pre-arrest bail in the Court of Additional Sessions Judge at

Dindoshi. The learned Additional Sessions Judge conditionally

allowed his application by an order dated 25th August, 2021.

17. As a result of investigation, a charge-sheet has been laid

against the petitioner, as stated above, alleging that he was found

in possession of an unauthorized 9 MM live Pistol cartridge

which is a prohibited ammunition.

18. We have extensively heard Mr. Khandeparkar, learned

Counsel for the petitioner and Mr. Yagnik, the learned A.P.P.

19. At the outset, learned Counsel for the petitioner would

argue that ingredients of the offence under section 3 and 25 of

the Arms Act are conspicuously absent in the present case, for,

there is absolutely no iota of evidence or material on record

indicating that the petitioner was in conscious possession of a

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live cartridge in the zip of outer compartment of his check-in

bag. He submits that the petitioner had absolutely no

knowledge as to how the said cartridge was found in the outer

zip of his bag, which had been duly checked in post a security

scan at Ahmedabad Airport.

20. Learned A.P.P is fair enough to submit that there is no

material on record indicating conscious possession of the said

live cartridge in the outer compartment of the check-in bag of

the petitioner.

21. We have meticulously perused the charge-sheet,

panchanama and the statements of various witnesses recorded by

the Investigating Officer. The law on the point of conscious

possession is no more res integra as it has been decided in a

catena of decisions of this Court. The underline principle laid

down by this Court as well as various High Courts in identical

facts is that mere possession of fire arm or ammunition would

not constitute an offence under section 3 and 25 of the Arms

Act. Essential ingredient is the knowledge of possession or

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power of control over the arm or ammunition when not in

actual possession. This has been observed by a Division Bench

of this Court in case of Rachelle Joel Oseran Vs. The State of

Maharashtra and another,1. The Division Bench has placed

reliance on the earlier pronouncement in case of Nurit Toker Vs.

State of Maharashtra,2 and upon an unreported decision in case

of Pallavi d/o Santgprasad Satsangi Vs. The State of

Maharashtra3.

22. In view of the said legal position which has been

consistently enumerated by this Court in the aforesaid

judgments, we have perused the charge-sheet and found it to be

a fit case which needs to be quashed by exercising our inherent

powers under Section 482 of the Cr. P.C. We say so for the

reasons to follow.

23. The complainant is one Dipak Vishwanath Kadam. He

was working as an Assistant Manager (Security) at Mumbai

International Airport Limited at the relevant time. On 2nd

1 2018 SCC Online Bom. 1047 2 2012 ALL Mr (Cri) 942 3 Criminal Writ petition No.2912 of 2016 decided on 29th November, 2016

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January, 2019 around 9.26 a.m while Auto Screening Machines

for the baggage which were to be loaded in AI 125 flight for

Frankfurt, Security Officer Mr. Naresh Ainapure found some

suspicious article at Level -2 in the check-in bag of the petitioner.

He forwarded the said bag to Level - 3 where, another officer

Ms. Laxmi Ghati forwarded it to Level - 4 for it's physical

checking. An officer namely Hujefa Kachwala had suspected a

live cartridge in the said check-in bag and, therefore, he directed

the Office of Air India to call the said passenger (petitioner) to

Level-4, however, by that time, Flight AI-125 had already left

for Frankfurt.

24. It is surprising and equally shocking to note as to how the

Security at Ahemedabad Airport could not notice any

objectionable article in the check-in bag of the petitioner, when

admittedly, it was a 'thorough checked-in bag'? The bag must

have been scanned and screened at Ahmedabad Airport for the

simple reason that it would be loaded directly in the connecting

flight from Bombay to Frankfurt without the petitioner coming

into physical contact with it. It is even more surprising as to why

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the said check-in bag had not been physically checked at Level -

4 by Mr. Hujefa Kachwala when it was sent for that purpose?

25. It reveals from the charge-sheet that from 2nd January,

2019 till 16th January, 2019 bag was lying with the Air India

Officer - Girish Bhide Senior Manager and R.S. Sonawane - Air

India Security, till it was taken to the Police Station.

26. At the Police Station in the presence of panch witnesses

and the petitioner, when zip of the outer compartment of the

check-in bag was opened, a live 9MM P SBP cartridge was

found. No doubt, it was a live cartridge which is evident from

the report of the Ballistic Expert indicating that it was a 9MM

pistol cartridge which was successfully test fired through a 9 mm

caliber pistol from Laboratory stock.

27. There is nothing on record to indicate as to why the

petitioner was allowed to board the flight AI-125 for Frankfurt

when his bag was found with some suspicious/objectionable

article. Without completing the check-in, the Airport Authorities

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permitted the petitioner to board the flight for Frankfurt. It is,

therefore, difficult to accept the prosecution's case that the

petitioner was in conscious possession of a live cartridge in his

check-in bag. Had it been so, they would not have allowed the

petitioner to board the flight for his further journey to Frankfurt.

28. Considering the fact that there was no lock to the outer

compartment of the check-in bag, possibility of planting a live

cartridge in the zip of outer compartment of the check-in bag

cannot be ruled out in light of the fact that nothing objectionable

could be noticed at Ahmedabad Air Port when the said bag was

"thoroughly checked in". It is not even the case of the

prosecution that the petitioner possesses a licence to carry a fire

arm or ammunition, especially when a prohibited ammunition of

9MM is found in the check-in bag of the petitioner. As a matter

of fact, civilians are not permitted to carry, possess or acquire

prohibited ammunition. It is unfathomable why a civilian like

the petitioner would carry a 9 MM live prohibited ammunition

in his check-in bag incurring such a high risk? It is especially in

light of the fact that the petitioner had extensively travelled to

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various countries viz; United Kingdom, U.S.A, New Zealand,

China, Belgium, Germany, Hungary, South Africa, France,

Sweden, Italy, Czech Republic, Tunisia, Spain, Poland, Mexico,

Cambodia, Singapore by virtue of his employment, which is

evident from the photostat copies of Visa's of aforesaid countries

tendered on record.

29. The allegations made in the charge-sheet, even if are

taken at their face value and accepted in their entirety do not

prima facie constitute any offence, much less, under sections 3

and 25 of the Arms Act against the petitioner. Even the

uncontroverted allegations in the charge-sheet and the material

collected in support of the same, do not disclose the commission

of any offence or make out a case against the petitioner.

30. Considering the peculiar facts of the present case, there is

no impediment in allowing the petition.

31. The petition is accordingly allowed. The FIR i.e Spl LAC

No.03 of 2019 registered with Sahar Police Station, Mumbai, as

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against the petitioner and consequently, the charge-sheet bearing

No.3002/PW/2022 pending before the learned Metropolitan

Magistrate's 63rd Court, Andheri, is quashed and set aside.

32. Rule is made absolute. Petition is disposed of accordingly.

33. Seized cartridge shall be disposed of in accordance with

the provisions of Chapter VIII of the Arms Rules, 2016.

34. All concerned to act on the authenticated copy of this

order.

[PRITHVIRAJ K. CHAVAN, J.] [REVATI MOHITE DERE, J.]

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