Delhi High Court
Rahul Dhir vs State (Nct Of Delhi) & Anr. on 9 October, 2015
Author: P. S. Teji
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.C. No.3435/2015
Date of Decision: October 09th, 2015
RAHUL DHIR ..... Petitioner
Through Mr.Mohit Mathur, Sr. Adv. with
Mr.Shyam S .Sharma, Adv.,
Mr.Sanjeev K. Baliyan, Adv.,
Ms.Swati Malik, Adv. &
Mr.Pranav Rishi, Adv.
versus
STATE (NCT OF DELHI) & ANR. ..... Respondent
Through Mr.Ashish Dutta, APP for the State
with SI Kazambir Singh.
Mr.Anil Soni, CGSC with
Mr.Naginder Banipal, Adv. for R2.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S. TEJI, J
1. The present petition has been filed by the petitioner under
Section 482 of the Code of Criminal Procedure, 1973 praying for
quashing of FIR No.40/2014 dated 28th May, 2014 under Section
25 of the Arms Act, 1959 registered at Police Station Domestic
Airport, Delhi and the Sanction Order dated 16th January, 2015
passed by the DCP, IGI Airport.
2. The facts giving rise to the present petition are within the
narrow compass. The petitioner was travelling to Bengaluru with
his mother & wife on 28th May, 2014 via flight no.6E 107
Economy of Indigo Airlines and that during the security checking,
two live cartridges one being 7.65 MM and the other's bore being
unclear, were recovered from his hand bag at Terminal 1D,
Domestic, IGI Airport, Delhi without a valid Arms Licence. An
FIR No.40/2014 dated 28th May, 2014 under Section 25 of the
Arms Act, 1959 at Police Station Domestic Airport was registered
against the petitioner. It is stated that the petitioner was thoroughly
interrogated by the police officials on the day of the alleged
incident but he was never arrested in the present case and his arrest
was deferred.
3. It is stated that a sanction order dated 16 th January, 2015 was
passed by the DCP, IGI Airport which was illegal being passed by
an authority not competent to do so under the Arms Act, 1959.
4. A charge-sheet was filed in the Court of learned
Metropolitan Magistrate, Dwarka Courts, Delhi.
5. It is stated by learned counsel for the petitioner that the
petitioner was unaware of the possession of the alleged two
cartridges in his handbag which he was using for a long time and
had taken the same with him during numerous occasions on which
he travelled across India. It is further contended that the petitioner
himself was surprise and shocked to see the presence of the two
live cartridges in his handbag which belonged to his deceased
father's old revolver. It is stated that no incriminating material was
recovered from the petitioner in addition to the alleged cartridges.
6. Learned counsel for the petitioner relies on the judgment of
the Supreme Court in Gunwantlal v. State of Madhya
Pradesh(1972) 2 SCC 194 wherein it was held thus:-
"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
secondly where he has not the actual physical
possession, he has nonetheless a power or
control over that weapon so that his possession
thereon continues despite physical possession
being in someone else."
7. It is further submitted by learned counsel for the petitioner
that the aforesaid observation was reiterated by Hon'ble the
Supreme Court in Sanjay Dutt v. State through CBI, Bombay
1994 (5) SCC 410. It is submitted on behalf of the petitioner that
this Court in Crl.M.C. No. 1455/2014 Manuel R. Encarnacion v.
State through NCT of Delhi & Anr. had ruled on 22nd May, 2014
that possession of 3 live cartridges by Police Officer of New York
Police Department was not the conscious one and had quashed the
FIR.
8. It is contended by learned counsel for the petitioner that the
learned Metropolitan Magistrate has wrongly taken cognizance of
a defective charge-sheet as the same was without the requisite
sanction of the District Magistrate which was a pre-requisite for
filing the charge-sheet/challan.
9. I have heard learned counsel for the parties at length.
10. The main contention of the learned counsel of the petitioner
is that the petitioner had no knowledge of the two live cartridges
found in his handbag and that there are no allegations of any
firearm being discovered/recovered from him or any allegation of
"conscious possession" of the cartridges, therefore the petitioner
bonafidely remained oblivious of their presence in his
luggage/handbag. He further stated that, as a matter of fact, no
other incriminating material was found or recovered from the
petitioner besides the alleged cartridges. He further argued that
though the articles seized and subsequently tested in this case are
live cartridges and, therefore, constitutes "ammunition",
nevertheless, the long line of authorities have held that mere
possession without any consciousness of such possession would
not constitute an offence.
11. In the present case, it is alleged against the petitioner that
two cartridges were recovered from his baggage. This Court is of
the considered opinion that mere recovery of cartridges itself is
insufficient to prove the offence in the absence of any intention. It
was contended by the petitioner that he was having the said
cartridges since long as it belonged to his deceased father and he
was keeping the same as antique item. It is also matter of record
that no weapon was recovered from the petitioner to connect him
with the intention to use the recovered cartridges for committing
any criminal act. So, there cannot be any intention on the part of
the petitioner to carry the recovered cartridges to use them in any
offence.
12. On the other hand, the learned APP for the State has opposed
the present petition on the ground that on interrogation, the
petitioner-herein failed to produce any Valid Arms Licence to
authenticate the possession of the ammunition as legal and thus
prima facie an offence under Section 25 of the Arms Act, 1959 was
made out. He further argued that during the course of
investigation, the accused was interrogated who admitted his guilt
of carrying live ammunition with him in his hang bag without a
valid arms licence. Further, the ballistic expert has opined that the
cartridges sent for examination are live and covered under
ammunition as defined in the Arms Act, 1959. He further argued
that, there is sufficient evidence on record against the
accused/petitioner to prosecute him under Section 25 of the Arms
Act, 1959 and subsequent upon, the sanction order under Section
39 Arms Act, 1959 was obtained.
13. As noticed above, two cartridges, which on examination by
expert has been confirmed to be live in nature were seized by the
authority. The petitioner, no doubt, was in possession of them.
However, he expressed his lack of awareness of those articles.
There is no material on record to indicate that his statement is
groundless. There is no material to show that he was conscious of
his possession of the cartridges. Though the ballistic report
confirms them to be cartridges and consequently it is
"ammunition", by itself that is insufficient to point to suspicion-
much less reasonable suspicion of petitioner's involvement in an
offence which, necessarily had to be based on proven conscious
possession.
14. Applying the dictum of the Hon'ble Apex Court in
Guruwantlal (supra) reiterated in Sanjay Dutt (supra) to the facts
of the instant case, this Court finds that continuance of proceedings
would be an exercise in futility as the necessary ingredients to
constitute the offence in question are lacking.
15. Consequently, this petition is allowed. FIR No.40/2014
dated 28th May, 2014 under Section 25 of the Arms Act, 1959
registered at Police Station Domestic Airport, Delhi and
proceedings emanating therefrom are hereby quashed.
(P.S.TEJI)
JUDGE
OCTOBER 09, 2015
aa
