Delhi High Court
Birendra Shukla vs The State Govt. Of Nct Of Delhi & ... on 30 July, 2018
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 30.07.2018
+ CRL.M.C. 117/2018
BIRENDRA SHUKLA ..... Petitioner
versus
THE STATE GOVT OF NCT OF DELHI & ANR ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Suman Thakur with Mr. Praveen
Raj Singh, Advocates.
For the Respondent : Mr. Panna Lal Sharma, APP for State.
SI Dinesh Kumar, PS IGI Airport.
Mr. Manu Beri, Advocate for R-2.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
30.07.2018
SANJEEV SACHDEVA, J. (ORAL)
CRL.M.C. 117/2018 & Crl.M.A.495 /2018(stay)
1. The petitioner seeks quashing of FIR No.250/2014 under
Section 30 Arms Act, Police Station IGI Airport as also Order on
Charge dated 17.09.2016.
2. The allegations in the FIR are that the petitioner was travelling
to Hongkong from New Delhi. During screening one live cartridge of
0.32 bore was found in his Check-in Baggage.
3. The contention of learned counsel for the petitioner is that the
petitioner was travelling to Hongkong for the purposes of his business
and was not aware that the baggage contained a live cartridge. It is
contended that at the time when the petitioner was apprehended, the
petitioner immediately informed that he was not aware that the
baggage contained live cartridge. He submits that the petitioner is
having a valid arms licence of a revolver of 0.32 bore, the bore of
which live cartridge was found in his baggage.
4. The arms licence of the petitioner has been submitted to the
Investigating Officer and the bore of the live cartridge tallies with the
weapon, which is registered in favour of the petitioner.
5. Learned counsel for the petitioner submits that it is not only
mere presence of live cartridge, which is to be established, what is
necessary to be established is conscious possession. He submits that
there is no evidence to show that the petitioner was conscious of the
presence of live cartridge in his baggage and, as such, since, there is
absence of mens rea, the petitioner could not be charged with such
offence.
6. Learned counsel for the petitioner submits that further it is
apparent that if the petitioner had any mens rea or mala fide intention,
he would not have carried the live cartridge in his baggage without
being concealed.
7. It is a settled proposition of law that possession under Section
25 of the Arms Act refers to not only physical possession but also the
requisite mental element i.e. mens rea of conscious possession. Mere
custody without mens rea would not constitute an offence under the
Arms Act. Conscious possession of a fire arm/ammunition is a
necessary ingredient of the statutory offence entailing strict liability
on the offender.
8. Reference may also be had to the decisions of Coordinate
Benches of this court in Gaganjot Singh vs. State (Govt. of NCT of
Delhi), 2014 SCC Online Del 6885; Jaswinder Singh Vs. State (Govt
of NCT of Delhi), 2015 SCC Online Del 10894 ; Sonam Chaudhary
vs. State: 2016 SCC Online Del 47; Mandeep Lambs vs. State (Govt.
of NCT of Delhi): 2017 SCC Online Del 9885 and of the Supreme
Court in Gunwantlal vs. State of Madhya Pradesh: (1972) 2 SCC 194
and Abdul Nasir Barich versus State(NCT of Delhi) , 2017(1) JCC
168.
9. In the absence of the conscious possession of live cartridge,
which cannot be used for any purpose, Section 45(d) of the Arms Act
would not be applicable and it would be justified to end all such
proceedings to secure the ends of justice.
10. Perusal of the record shows that the subject case is clearly
covered by the decisions referred to above and the principle of law
laid down by the Supreme Court. There isn't sufficient evidence or
reasonable ground of suspicion to justify conscious possession of the
live cartridges recovered from the baggage of the petitioner. There is
no material on record to show that the petitioner was conscious of the
possession of the live cartridge.
11. From the perusal of the record, it can be safely interpreted that
the said possession of the live cartridge does not fall within the ambit
of conscious possession, which is a basic ingredient to establish guilt
for an offence under Section 25 of the Arms Act.
12. In view of the above, the petition is allowed.
13. FIR No.250/2014 under Section 30 Arms Act, Police Station
IGI Airport and the consequent proceedings emanating therefrom are
accordingly quashed.
14. Order Dasti under the signatures of the Court Master.
SANJEEV SACHDEVA, J
JULY 30, 2018
st
