Delhi High Court
Isha Rashid vs State & Anr. on 8 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 8th May, 2017
+ CRL.M.C. 304/2017 & Crl.M.A. 1367/2017 (stay)
ISHA RASHID ..... Petitioner
Represented by: Mr. G. Saikumar, Mr. Varun
Pathak, Ms. Pooja Nuwal, Ms.
Soumya Saikumar.
versus
STATE & ANR. ..... Respondent
Represented by: Mr. Hirein Sharma, APP.
Mr. Dushyant Manocha, Mr.
Anish Gupta, Advs. for R-2.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. By the present petition the petitioner seeks quashing of FIR No.
34/2016 registered at PS Domestic Airport, New Delhi under Section 25
Arms Act and the proceedings emanating therefrom.
2. The allegations against the petitioner are that on 29 th March, 2016
while boarding Indigo Airlines in the check-in baggage of the petitioner one
7.65 MM cartridge was recovered. Since the petitioner did not possess any
valid license for the ammunition, the case was registered. The cartridge was
sent to FSL and a report was received that the exhibit was ammunition as
defined under the Arms Act, 1959.
3. During investigation it was also revealed that the father of the
petitioner was holding a valid arms license for All India for carrying a NP
Bore Revolver since 26th June, 2002. Investigation was conducted from the
father of the petitioner who revealed that to ensure safe custody he has kept
the revolver along with its bullets hidden in the baggage and when his
daughter i.e. the petitioner shifted from Jammu to Delhi to pursue her studies
at Jamia University, he gave her bag after taking out the revolver and the
bullets, however inadvertently one bullet remained stuck in one of the
corners of the bag which was detected at the Airport when she was coming
back from Delhi.
4. The Supreme Court in its decision reported as Gunwantlal Vs. State of
Madhya Pradesh (1972) 2 SCC 194 held:
"The possession of a firearm under the Arms Act 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 besides physical possession being
in someone else. The first pre-condition for an offence under
Section 25(1)(a) is the element of intention, consciousness or
knowledge with which a person possessed the firearm before it
can be said to constitute an offence and secondly that
possession need not be physical possession but can be
constructive, having power and control over the gun, while the
person to whom physical possession is given holds it subject to
that power and control. In any disputed question of possession,
specific facts admitted or proved alone will establish the
existence of the de facto relation of control or the dominion of
the person over it necessary to determine whether that person
was or was not in possession of the thing in question. In this
view it is difficult to postulate as to what the evidence will be. If
the possession of the appellant includes the constructive
possession of the firearm in question then even though he had
parted with physical possession on the date when it was
recovered, he will nonetheless be deemed to be in possession of
that firearm. If so, the charge that he was in possession of the
revolver does not suffer from any defect particularly when he is
definitely informed in that charge that he had control over that
revolver"
5. It is trite law that the power of the High Court under Section 482
Cr.P.C. is required to be exercised ex debito justitiae to prevent abuse of
process of the Court but should not be exercised to stifle legitimate
prosecution and the High Court cannot assume the role of a Trial Court and
embark upon an enquiry as to the reliability of evidence and sustainability of
accusation on a reasonable appreciation of such evidence. However, if on
the face of the charge-sheet the ingredients of the offences are not disclosed,
the High Court would be within its power to quash a frivolous proceedings.
[See State of A.P. Vs. Golconda Linga Swamy & Anr. (2004) 6 SCC 522]
6. The Division Bench of this Court in Gaganjot Singh Vs. State
W.P.(CRL.) 1169/2014 decided on 01.12.2014 in a case of recovery of a
solitary live cartridge found from the possession of the petitioner therein
expressed his lack of awareness as the bag recovered belonged to his uncle
and held that the possession of the petitioner therein was not conscious and
quashed the proceedings.
7. Similar view was expressed by this Court in Juan Manuel Sanchez
Rosas Vs. State through NCT Delhi & Anr. Crl.M.C.2642/2014; Jaswinder
Singh Vs. State Govt. of NCT of Delhi & Anr. Crl.M.C. 4207/2014 and
Sonam Chaudhary Vs. The State (Govt. of NCT Delhi) Crl.M.C.471/2015.
8. As is evident from the charge-sheet the father of the petitioner holds a
valid Arms license and the bag which the petitioner was carrying was of her
father wherein advertently one bullet was left out. Thus, there is no material
in the charge-sheet to form a prima-facie opinion that the petitioner was in
conscious possession of one live cartridge. Moreover, the constructive
possession of the live cartridge was that of the father of the petitioner, whose
possession is not illegal attracting Section 25 Arms Act as he held a valid
Arms license.
9. In view of the discussion aforesaid, FIR No. 34/2016 under Section 25
Arms Act registered at PS Domestic Airport, New Delhi and the proceedings
emanating therefrom are hereby quashed.
10. Petition and application are disposed of.
(MUKTA GUPTA)
JUDGE
MAY 08, 2017
'ga'
