Delhi High Court
Nitin Sharma vs State (Govt Of Nct Of Delhi) & Anr. on 1 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 1st August, 2018
+ W.P.(CRL) 87/2018
NITIN SHARMA ..... Petitioner
Represented by: Mr. J.K.Sharma, Mr. Siddharth
Pandit and Mr. Atul Bansal,
Advocates with petitioner in
person.
versus
STATE (GOVT OF NCT OF DELHI) & ANR. ..... Respondents
Represented by: Mr. Avi Singh, ASC for State
with Ms. Purnima, Advocate.
SI Anuj Kumar, PS IGI
Airport.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. By the present petition, the petitioner seeks quashing of FIR No.
306/2015 registered at PS IGI Airport, New Delhi under Section 25/54/59
Arms Act and the proceedings emanating therefrom.
2. The allegations against the petitioner are that on 17 th July, 2015 one
live cartridge was detected in the check in baggage during DIAL security
check at level-04 while he was travelling to Bangkok by flight no. TG-
316/16. Kaushik Chatterjee, Manager, Thai Airways, IGI Airport,
complainant herein, handed over the recovered ammunition and the check in
baggage. Since the petitioner could not produce any authorization or Arms
Licence to validate his possession, the case was registered. The cartridge
was sent to FSL, Delhi for Ballistic examination and a report was received
that the recovered cartridge was live and was ammunition as defined under
the Arms Act, 1959.
3. During the course of investigation, the petitioner disclosed that he
holds a valid arms license issued by the Commissioner of Police, Jalandhar
with area validity in Punjab only and the ammunition recovered belongs to
his licensed weapon. He further disclosed that he did not have the
knowledge that there was ammunition in the check in baggage. Genuineness
of Arms license No. CP/Jal/Arm/D3/1210/014 was verified and it was found
to be issued to the petitioner for NPB pistol with area validity of Punjab
only. It was further verified that 45 cartridges were sold to the petitioner on
22nd December, 2011 against the aforesaid Arms License.
4. The Supreme Court in its decision reported as (1972) 2 SCC 194
Gunwantlal v. State of Madhya Pradesh 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. v. Golconda Linga Swamy & Anr. (2004) 6 SCC 522]
6. The Division Bench of this Court in Gaganjot Singh v. State
W.P.(CRL.) 1169/2014 decided on 1st December, 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 v. State through NCT Delhi & Anr., Crl.M.C.2642/2014; Jaswinder
Singh v. State Govt. of NCT of Delhi & Anr., Crl.M.C. 4207/2014 and
Sonam Chaudhary v. The State (Govt. of NCT Delhi) Crl.M.C.471/2015.
8. As is evident from the charge-sheet, the petitioner holds a valid Arms
license and he was not in conscious possession of the cartridge. 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.
9. In view of the discussion aforesaid, FIR No. 306/2015 under Section
25/54/59 Arms Act registered at PS IGI Airport, New Delhi and the
proceedings emanating therefrom are hereby quashed subject to the
petitioner depositing a cost of ₹50,000/- with Juvenile Justice Board within
four weeks.
10. Petition is disposed of.
(MUKTA GUPTA)
JUDGE
AUGUST 01, 2018
'vn'
