Delhi High Court
Sh. Anjum Asgar Zaidi vs State on 20 May, 2019
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 20.05.2019
+ CRL.REV.P. 150/2019 & Crl. M.A. 7697/2019
SH. ANJUM ASGAR ZAIDI ..... Petitioner
versus
STATE ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Ms. Aishwarya Dobhal and Mr. Hilal Haider, Advs
For the Respondent : Mr. Hirein Sharma, Addl. PP for the State
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner impugns order on charge dated 01.11.2017 whereby
the petitioner has been charged for having committed an offence
punishable under Section 30 of the Arms Act.
2. The allegations in the FIR are that during screening of the hand
baggage at the Airport, in the bag of the petitioner, one live
ammunition of .32 bore was found. FIR was registered against the
petitioner alleging violation of Sections 25/54/59 of the Arms Act.
3. At the time of framing of charge after hearing arguments, the
trial court was of the view that a charge under Section 30 of the Arms
Act was liable to be framed.
4. Learned counsel for the petitioner submits that the petitioner
had a valid arms licence and since he was enroute to Lucknow and the
closest Airport from Noida was IGI Airport at Delhi, he had to catch
his flight from Delhi. He submits that the petitioner was not aware
that there was a live cartridge in the trolley bag which was carried in
the hand-baggage. The fact that the petitioner was not conscious of the
presence of the live cartridge is borne out from the fact that there was
no attempt by the petitioner to conceal the same at the time of putting
the bag for x-ray screening.
5. Learned counsel further submits that mens rea would be
required for constituting an offence under Section 30 of the Arms Act
and relies the judgment of this Court in Crl. M.C No. 854/2018
'Jasbir Chahal Vs. State' dated 07.05.2018 (2018 SCC OnLine Del
8839) and as also judgments of the 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 Choudhary 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 Gunwant lal
Vs. State of Madhya Pradesh (1972) 2 SCC 194 and Abdul Nasir
Barich Vs. State (NCT of Delhi), 2014 (1) JCC 168.
6. The petitioner is a permanent resident of Noida (UP) and was
catching a flight from Indira Gandhi International Airport, Delhi (in
short 'IGI Airport') enroute to Lucknow. The petitioner has a valid
arms licence, however, the licence was valid only for the State of
Uttar Pradesh.
7. FIR was initially registered against the petitioner under Section
25 of the Arms Act which entails punishment of not less than three
years and which may extend upto seven years besides fine. Section 30
of the Arms Act is a punishment of contravention of any condition of
a licence or the rule and entails punishment for a term which may
extend to six months or with fine which may extend to Rs. 2500/- or
with both.
8. The allegations against the petitioner is that the petitioner
contravened the condition of a licence, in as much as, carried a live
cartridge beyond the State of Uttar Pradesh.
9. It is 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. In the
absence of conscious possession of the live cartridge, which cannot be
used for any purpose, Section 45(d) of the Arms Act would be
applicable and it would be justified to end all such proceedings to
secure the ends of justice. 1
Jasbir Chahal versus State 2018 SCC OnLine Del 8839
Gunwant lal Vs. State of Madhya Pradesh (1972) 2 SCC 194
10. In the subject case, petitioner did not make any attempt to
conceal the live cartridge in the bag and had handed over the bag for
x-ray screening. It is common knowledge that in case any arms or
ammunition are present in a bag which is screened by X-ray, the arm
and ammunition would be easily detected unless attempt is made to
conceal the same. It is not the case of the prosecution that any attempt
was made by the petitioner to conceal the same so as to avoid
detection. Clearly petitioner did not have the conscious possession.
Further the record does not show any material to suggest any
reasonable ground for suspicion to even 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 cartridges.
11. From the perusal of the record it can be safely inferred that the
presence of live cartridge in the hand bag was not within the
knowledge of the petitioner and petitioner did not have the requisite
mens rea for committing the said offence.
12. The impugned order further shows that the trial court was also
conscious of the fact that the petitioner could not have had the
requisite mens rea and that appears to be the reason that charge was
not framed under Section 25 (under which the FIR and Charge Sheet
was filed) and was framed only under Section 30 of the Arms Act.
13. The case of the petitioner is squarely covered by the decisions
of this Court and also the judgment of the Supreme Court in
Gunwantlal Vs. State of Madhya Pradesh; (1972) 2 SCC 194.
14. In view of the above, the impugned order on charge is clearly
not sustainable and is accordingly set aside. The petitioner is
accordingly discharged.
15. The petition is allowed in the above terms.
16. Order dasti under signatures of the Court Master.
MAY 20, 2019 SANJEEV SACHDEVA, J
'rs'
