Karnataka High Court

Smt. Ruchi Mishra vs The State Of Karnataka on 10 March, 2023

Bench: K.Natarajan

                           1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 10TH DAY OF MARCH 2023

                          BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

            CRIMINAL PETITION NO.310 OF 2023
BETWEEN

SMT. RUCHI MISHRA
W/O SRI. SANJAYA MISHRA
AGED ABOUT 45 YEARS
R/A NO.1404, B-BLOCK,
SUMADURA SIKA RAM
KADUGODI ROAD
BANGALORE-560067                       ... PETITIONER

(BY SRI VENKATESH S. ARBATTI , ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      REPRESENTED BY THE STATION HOUSE OFFICER
      KEMPEGOWDA INTERNTIONAL AIRPORT POLICE STATION
      DEVANHALLI
      BANGALAORE-562110

      REPRESENTED BY HCGP
      HIGH COURT OF KARNATAKA BUILDING
      BENGALURU-560001

2.     MR SHAJIMON
       AGED ABOUT 47 YEARS
       DEPUTY MANAGER -SECURITY
       KEMPEGOWDA INTERNATIONAL AIRPORT
       DEVANAHALLI
       BANGALORE-562110
                                      ... RESPONDENTS
(BY SRI ROHITH B.J., HCGP FOR R1
 R2 IS SERVED)
                                2


      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C PRAYING TO QUASH THE ENTIRE CRIMINAL
PROCEEDINGS INITIATED AGAINST THE PETITIONER IN
C.C.NO.7418/2021 BEFORE THE PRL.CIVIL JUDGE AND J.M.F.C,
DEVANAHALLI FOR ALLEGED OFFENCE PUNISHABLE UNDER
SECTION 10(1) OF THE AIRCRAFT ACT FILED BY RESPONDENT
NO.1 BASED ON THE COMPLAINT OF RESPONDENT NO.2.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 07.02.2023, THIS DAY, THE COURT
MADE THE FOLLOWING:
                            ORDER

This petition is filed by the petitioner-accused No.1

under Section 482 of Cr.P.C. for quashing the criminal

proceedings in C.C.No.7418/2021 (registered by the

Kempegowda International Airport Police Station

Bangalore, in Crime No.54/2020) pending on the file of

Principal Civil Judge and JMFC, Devanahalli, and charge

sheeted for the offences punishable under Sections 25(1B)

(A) and (B) of Arms Act and Section 10(1) of Aircraft Act.

2. Heard the arguments of learned counsel for the

petitioner and the learned High Court Government Pleader

for respondent No.1. respondent No.2 is served and

unrepresented.

3. The case of prosecution is that on the

complaint of respondent No.2, filed on 11.10.2020, the

Airport Police registered an FIR against the petitioner for

the offences punishable under Section 25(1B) (A) and (B)

of Arms Act and Section 10(1) of Aircraft Act.

Subsequently, they filed charge sheet for the offences

under Section 10(1) of the Aircraft Act, which is under

challenge.

4. It is the further case of prosecution that the

petitioner said to be travelled from Bengaluru to her native

place on 11.10.2020, she has given the baggage to the

airport authority and the said bag was containing a

revolver and live bullets. Therefore, she has been stopped

and a case was registered against her.

5. Learned counsel appearing for the petitioner has

contended that the petitioner, while she was walking on

the road, found a bag, which was containing bullets and a

gun. In fact, she wanted to hand over the same to the

police but kept it in the house. She was about to travel to

her native place, and therefore, she hurriedly packed the

luggage. At that time, her husband kept the said bag

containing the gun and bullets and then, she has no

knowledge or intention that she is carrying the gun and

bullets in the bag. The learned counsel further contended

that without any knowledge or intention, if any arms is

carried in the bag, that cannot constitute an offence under

Section 10(1) of the Aircrafts Act. Hence, prayed for

quashing the criminal proceedings.

In support of his arguments, the learned counsel for

the petitioner has relied upon the judgment of the Hon'ble

Supreme Court in case of SANJAY DUTT VS. STATE

THROUGH CBI, BOMBAY reported in (1994) 5 SCC

410, and the judgments of this Court in case of MR.

THOMAS JEFFREY KIDD Vs. STATE OF KARNATAKA

AND ANOTHER passed in Criminal Petition No.3219/2019

decided on 19.08.2015, in case of MR. JOSEPH KEVIN

SHAY VS. STATE OF KARNATAKA AND ANOTHER

passed in Criminal Petition No.5448/2015 decided on

15.10.2015 and in case of SRI YAHANAN BAMNOLKAR

Vs. STATE OF KARNATAKA AND ANOTHER passed in

Criminal Petition No.1522/2016 decided on 25.04.2016

and also in case of SRI ARJUN PURUSHAN VS. THE

STATE THROUGH THE INVESTIGATING SUB

INSPECTOR OF POLICE AND ANOTHER passed in

Criminal Petition No.734/2017 decided on 22.11.2019.

6. Per contra, learned High Court Government

Pleader has objected the petition and contended that the

petitioner has willfully carried the gun and bullets in the

airport in order to go to Gorakhpur. If she has no

knowledge, it has to be established before the trial Court

and therefore, prayed for dismissal of the petition.

7. Having heard the learned counsel for the parties,

perused the records. Admittedly, the petitioner, though

carried the gun and bullets in the check-in baggage, it was

checked and dropped by the airport police. The statement

of husband of the petitioner was recorded, where he has

not made any allegation regarding the intention or

knowledge of the petitioner in carrying the gun and bullets

in the bag.

8. Perusal of Section 10(1) of the Aircraft Act, reads

as under:

Section 10:

Penalty for act in contravention of rule made under this Act. --

(1) If any person contravenes any provisions of any rule made under clause (l) of sub-section (2) of section 5 prohibiting or regulating the carriage in aircraft of arms, explosives or other dangerous goods, or when required under the rules made under that clause to give information in relation to any such goods gives information which is false and which he either knows or believes to be false or does not believe to be true he, and if he is not the owner, the owner also (unless the owner proves that the offence was committed without his knowledge, consent or connivance) shall be punishable with imprisonment which may extend to two years and shall also be liable to 59 [fine which may extend to ten lakh rupees.]

60 [(1A) If any person contravenes any provision of any rule made under clause (qq) of sub-section (2) of section 5 prohibiting the slaughter and flaying of animals and of depositing rubbish, filth and other polluted and obnoxious matter within a radius of ten kilometres from the aerodrome reference point, he shall be punishable with imprisonment which may extend to 61 [three years, or with fine which may extend to ten lakh rupees], or with both.]

60 [(1B) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence referred to in sub-section (1A) shall be cognizable.]

9. On reading of the FIR and charge sheet

averments, it reveals that there is no intention, motive or

knowledge of the petitioner in carrying the gun and bullets.

The Hon'ble Supreme Court in Sanjay Dutt's case (supra)

has accepted the contention and observed that mere

possession is not an offence and there must be without

conscious possession in order to attract Section 5 of

Terrorist and Disruptive Activities (Prevention), Act, 1987.

Paragraph 19 of the judgment in Sanjay Dutt's case

(supra), the Hon'ble Supreme Court has held as under:

19. The meaning of the first ingredient of 'possession' of any such arms etc. is not disputed. Even though the word 'possession' is not preceded by any adjective like 'knowingly', yet it is common ground that in the context the word 'possession' must mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is a mental element in the concept of possession. Accordingly, the ingredient of 'possession' in Section 5 of the TADA Act means conscious possession. This is how the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an unauthorised substance has been understood. (See Warner v. Metropolitan Police Commissioner [(1969) 2 AC 256 : (1968) 2 All ER 356] and Sambasivam v.

Public Prosecutor, Federation of Malaya [1950 AC 458] .)

10. The Co-ordinate Bench in Mr. Thomas Jeffrey

Kidd's case (supra) and Mr. Joseph Kevin Shay's case

(supra) has also taken a similar view and quashed the

criminal proceedings. Therefore, considering the facts and

circumstances of the case, absolutely, there is no material

placed on record in order to say that the petitioner carried

the gun and bullets in the baggage while traveling to

Gorakhpur. Therefore, continuing the proceedings against

the petitioner is nothing but abuse of process of law and

therefore, liable to be quashed.

Accordingly, criminal petition is allowed. The