June 05, 2019:

The Delhi High Court quashed the FIR of the petitioner after it concluded that 'Conscious Possession' which is a core ingredient to establish guilt for offence punishable under Sec 25 of Arms Act was missing in the case filed.

 

The petitioner cited reference to a number of Supreme Court and High Court judgements which were duly examined and studied in effect to the concerned case.

The petitioner has been charge-sheeted in for the alleged possession of a live round (8MM KF-91) at the Saket Metro Station (South Side X- BIS machine) when the same was detected by Ct. R.K.Rout (sitting on the machine) and Ct. Ghatage Sahas M. who was conducting the baggage checking and has thus been chargesheeted for the alleged commission of an offence punishable under Section 25 of the Arms Act, 1959.

The petitioner sought quashing of the FIR submitting to the effect that the he has a clean record, does his job peacefully, has a diploma in Electronics and works as a marketing executive and on 25.2.2014 at 11:15 a.m. he had started from his house at Sangam Vihar for Kashmiri Gate through a Gramin Sewa auto rickshaw and reached the Malviya Nagar Metro Station. He further states that there were 9 to 11 passengers seated in that auto and that when the DMRC officials informed him about the live cartridge, he was shocked and surprised in as much as he did not have any knowledge about the presence of one live cartridge in the side pocket of his bag which side pocket of his bag was half transparent (which was half made with jaali fabric) and did not have any zip or lock.

The petitioner has further submitted that the final report i.e. the report under Section 173 of the Code of Criminal Procedure, 1973 brings forth that there was no fire arm or any weapon of any kind recovered from the possession of the petitioner apart from the alleged recovery of that one live cartridge from the outside pocket of the bag of the petitioner. The petitioner further submits that there is not a whisper of an averment in the charge sheet that he had conscious possession of the alleged cartridge. The petitioner has submitted that the charges against him have been framed and that the trial would take time and he seeks the quashing of the FIR, the quashing of the summoning order and the quashing of the charge sheet as he did not have any conscious knowledge of the presence of any live cartridge in the said pocket of his bag which was half transparent, unlocked and unzipped.

He established the fact that it is settled law that the expression ‘possession’ occurring in Section 25 of the Arms Act, 1959, means possession of the requisite element i.e. conscious possession and that mere custody without the awareness of the nature of such possession doesn't amount to any offence under the Arms Act, 1959.

The petitioner further submits that the provisions of the Arms Act, 1959 do not apply in certain cases where the acquisition, possession or carrying by a person of minor parts of arms or ammunition which are not intended to be used along with complementary parts acquired or possessed by them of any other person.

As per the FIR, the live cartridge had a length of 7.8.cm, with width of 1.1 cm and with the width of the painda being 1.5 cm. The certified copy of the charge sheet on the record filed in the instant case indicates that the requisite sanction under Section 39 of the Arms Act, 1959 was also obtained before the institution of the charge sheet. It has been submitted on behalf of the petitioner that there is not an iota of an evidence in the final report filed by the investigating officer which can suggest conscious possession of the live cartridge recovered from the side pocket of the bag of the petitioner.

As far as the reference of Section 45 of the Arms Act, 1959 given by the petitioner is concerned, it looses ground as structure of Section 45(d)states that it is only "minor parts of arms or ammunition" that are "not intended to be used along with complementary parts" which can be excluded from the application of the Act. There cannot be any question as to which category a live cartridge falls into; it is clearly whole or entire or "ammunition", given the inclusive nature of the definition under Section 2(d) of Arms Act”

The Court added that it cannot be overlooked that in the present case, the quashing of the petition under the Arms Act, 1959, is not sought on the ground that there had been any resolution of the entire dispute between the petitioner and the respondent in the present case so the therefore the ratio of the verdict of the Hon’ble Supreme Court in the State of Madhya Pradesh v. Laxmi Narayan and Others (supra)would not apply to the facts of the instant case (as reference given by petitioner).

The Court though concluded, "In view of the verdict of the Hon’ble Division Bench of this Court in Gaganjot Singh (supra) and the catena of verdicts relied upon on behalf of the petitioner which are in facts pari materia to the instant case which cases have been adjudicated by the learned Co-ordinate Benches of this Court, and taking into account that there is not a whisper of an averment in the FIR as averred in the charge sheet that the petitioner was aware of being in alleged conscious and knowledgeable possession of the ammunition in question, the FIR against the petitioner is hereby quashed and thus the proceedings emanating therefrom against the petitioner are also quashed."

The Order was delivered by HON'BLE MS. JUSTICE ANU MALHOTRA on 31-05-2019.

Read the Order here:

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