Sukhpreet Singh v. The State Of NCT Of Delhi Through Sho, P. S. Igi Airport

$~54 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(CRL) 3927/2024 SUKHPREET SINGH .....Petitioner Through:

Mr. Vikas Nain, Adv.

versus THE STATE OF NCT OF DELHI THROUGH SHO, P. S. IGI AIRPORT .....Respondent Through:

Mr. Sanjay Lao, SC for State with SI Amit Kumar, PS. IGI Airport.

CORAM:

HON'BLE MR. JUSTICE VIKAS MAHAJAN

O R D E R

% 17.12.2024 1.

The present petition has been filed under Article 226 of the Constitution of India read with Section 528 BNSS, 2023 seeking quashing of FIR No. 870/2024 registered under Section 25 of the Arms Act, 1959 at Police Station IGI Airport, and all proceedings emanating therefrom. 2.

The case of the prosecution is that the petitioner was travelling from New Delhi to Vancouver, Canada by Air India Flight (AI-185). During the routine security screening of his baggage one live cartridge was detected in his bag. This led to the registration of aforesaid FIR. 3.

The learned counsel for the petitioner submits that the petitioner is a citizen of India, who is studying and residing in Canada. He submits that the petitioner was not aware of the cartridge in his bag. He submits that the possession of the cartridge was unconscious.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.

4.

He further submits that since the live cartridge was seized from the bag of the petitioner during security check-up without any corresponding arms, this itself shows that the petitioner was not in conscious possession of the live cartridge.

5.

He further submits that the live cartridge belongs to Bhupinder Sharma who is residing in Vancouver, Canada and holds legal fire arms licence. The petitioner would accompany Bhupinder Sharma to the shooting range and inadvertently the cartridge seems to have been left in the petitioner's bag, which petitioner would carry to the shooting range. 6.

The learned counsel for the petitioner submits that the petitioner, however, does not possess any arms license.

7.

Issue notice. The learned Standing Counsel for the State accepts notice. 8.

He submits that verification has been done by the I.O concerned from the friend of the petitioner namely, Bhupinder Sharma who is residing in Vancouver, Canada. He submits that Mr. Bhupinder Sharma has confirmed to the I.O through email that the cartridge (9 mm cartridge), the details of which have been shared with him belongs to him as he regularly practices at the shooting range in Canada. Mr. Sharma has further confirmed that he is a legal fire arms license holder in Canada.

9.

I have heard the learned counsel for the petitioner, as well as, the learned Standing Counsel for the State and have perused a copy of the statement of Mr. Bhupinder Sharma, which the I.O has received through an email.

10.

A Coordinate Bench of this Court in W.P (Crl) 1681/2020 "Baljit Fantu vs. Govt. of NCT Delhi and Ors., 2021 SCC OnLine Del 3705, relying upon the earlier decisions of this Court quashed the FIR under Section 25 of The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.

the Arms Act that was registered on similar facts viz. recovery of live cartridge during the scanning of baggage at Delhi Airport. The relevant part of the said judgment reads as under:-

4. The question as to whether a cartridge, which is capable of being fired, is a complete ammunition within the meaning of Section 2(b) of Arms Act or a minor part of ammunition as referred to in Section 45(d) of the Arms Act and whether a person can be proceeded against under the Arms Act was referred to a Division Bench of this Court in Sh. Gaganjot Singh v. State, [W.P.(Crl).1169/2014]. The Division Bench by an order dated 01.12.2014, observed as under: "13. So far as the specific point referred to this Court is concerned, we may straightaway set out the definition of "ammunition" as in Section 2(b) of the Arms Act: (b) "ammunition" means ammunition for any firearm, and includes- (i) rockets, bombs, grenades, shells [and other missiles] (ii) articles, designed for torpedo service and submarine mining.

(iii) other articles containing, or designed or adapted to contain, explosive fulminating or fissionable material or noxious liquid, gas or other such thing, whether capable of use with firearms or not,- (iv) charges for firearms and accessories for such charges, (v) fuses and friction tubes, (vi) parts of, and machinery for manufacturing ammunition, and (vii) such ingredients of ammunition as the Central Government may, by notification in the Official Gazette, specify in this behalf;

It would be immediately apparent that there can be even parts of ammunition. The question which the Court would have to consider in a given case is whether the article seized is an "arm" or "ammunition". The expression "arms" are defined in Section 2(c) as:

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"arms" means articles of any description designed or adapted as weapons for offence or defence, and includes firearms, sharpedged and other deadly weapons, and parts of, and machinery for manufacturing, arms....................."

14. Section 45 excepts certain classes of arms or ammunition from the rigors of the Act. Section 45(d) reads as follows: "45. Nothing in this Act shall apply toxxxx xxxx xxxxx xxxxx (d) 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 that or any other person."

15. In Chang Hong Saik (supra), like in the present case, a single live cartridge was found from the possession of the alleged offender. The learned Single Judge proceeded to quash the criminal proceedings. The discussion in that judgment was that there were no suspicious circumstances other than the mere recovery of the live cartridge from the possession of the charged individual. In para 43, learned Single Judge was of the opinion that the single live cartridge "cannot be used for the purpose without fire arms" and then proceeded to state "though the petitioner has not admitted recovery of the cartridge and claimed trial, however, if it is admitted, in my considered view, he cannot be punished for the charge framed against him because a single cartridge without firearm is a minor ammunition which is protected under clause (d) of Section 5 of the Arms Act."

(emphasis supplied)

16. The structure of Section 45(d)- is 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 The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.

Section 2(d). The reasoning in Chang Hong Saik (supra), in this Court's opinion, has proceeded without appreciation of Section 2(b) and the fact that there is no term as "minor ammunition" in that provision. A single whole cartridge is not a part of an ammunition; it is a whole ammunition, nor can it be called a "minor ammunition". Having regard to the facts of Chang Hong Saik (supra), the Court is of the opinion that the interpretation placed upon the expression "ammunition", i.e. that the whole live cartridge is a minor ammunition falling within Section 45(d), is plainly contrary to the Act and erroneous. The said view is accordingly overruled. The conclusion, however, in the facts of that case appears to have been warranted, since the police could not disclose any intention on the part of the alleged offender in that case. The reference made to the Division Bench is answered accordingly.

17. The above discussion would ordinarily have resulted in this Court relegating the matter after answering the questions referred to - in the manner indicated above. However, having regard to the circumstances, all that remains to be seen is whether the petitioner's claim for quashing is merited. Having regard to the earlier conclusion recorded, as far as the facts of this case go, an on an application of the law declared by Supreme Court in State of Bihar v. Ramesh Singh (1977) 4 SCC 39 : AIR 1977 SC 2018 and State of Andhra Pradesh v. Golconda Linga Swamy (2004) 6 SCC 522 : AIR 2004 SC 3967 that the charges can be framed only when there is "reasonable suspicion" or sufficient material of the alleged offender having committed the offence-which is entirely absent in the circumstances of the present case - the impugned FIR (FIR No. 158/2014) and all proceeding emanating from it deserve to be and is, accordingly, quashed."

(emphasis added)

5. The Division Bench had quashed the FIR in the above mentioned case.

6. Similarly, in Dhanwant Kaur v. State, (Crl.M.C. No. 3593/2016), this Court observed as under:

"5. It is trite law that the power of the High Court under Section The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.

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 (2004) 6 SCC 522]

6. The Division Bench of this Court Gaganjot Singh (supra) 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 Crl.M.C.2642/2014; Chan Hong Saik Thr. SPA : Arvinder Singh v. State Crl.M.C. 3576/2011; Jaswinder Singh v. State Govt. of NCT of Delhi Crl.M.C. 4207/2014 and Sonam Chaudhary v. The State (Govt. of NCT Delhi) Crl.M.C.471/2015.

8. As verified and forms part of the charge-sheet, the husband of the petitioner is holder of an arms license and was also entitled to possess ammunition for the two weapons. The case of the petitioner is that inadvertently she did not check the pouch in which she kept her artificial jewellery which also contained live cartridges and carried it with her. Thus there was no material before the Court to come to a prima facie opinion that the petitioner was in conscious possession of 5 live cartridges. Moreover, the constructive possession of the 5 cartridges was that of the husband of the petitioner, whose possession is not illegal attracting Section 25 Arms Act as he held a valid Arms license." (emphasis added) The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.

7.

In Narinderjit Kaur Singh v.

State (NCT of Delhi), [W.P.(Crl).1669/2017], this Court observed as under: "For prosecution under the Arms Act, it needs to be proved that the accused had the knowledge or consciousness of possession. "Possession", for the purposes of prosecution must mean possession with the requisite mental element, i.e. conscious possession and not mere custody without awareness (refer to Gunwantlal v. The State of Madhya Pradesh, (1972) 2 SCC 194 : AIR 1972 SC 1756; Sanjay Dutt v. State through CBI, Bombay (II), (1994) 5 SCC 410)."

(emphasis added)

8. In Nimesh Kumar v. State NCT of Delhi, [W.P.(Crl) 3540/2017], this Court observed as under:

"8. In the present case, the petitioner was carrying a handbag which contained one live cartridge inside it. He has claimed that the bag belongs to his brother, who has a valid firearm licence, the latter fact has been confirmed by the police. The petitioner's claim of ignorance of the presence of this cartridge in the bag removes the element of "conscious or knowing possession". The petitioner claims that he was in a hurry to catch his flight, therefore, he quickly stuffed his belongings in the handbag borrowed from his brother. This version is plausible and there is no reason why a rational person would carry a live firearm cartridge in his handbag on a flight, unless it was inadvertently. Apart from the cartridge being in the handbag, there is no incriminating material against the petitioner. Ex facie there is insufficient material to frame charges against the petitioner and to subject him to the rigours of a trial.

9. Charges can be framed only when there is reasonable suspicion or sufficient material to indicate that the alleged offender had committed the offence. A perusal of the records show that the elements satisfying "reasonable suspicion" are entirely absent in the present circumstances. The case would have to be based and proven on "conscious possession". However, since there is no such material, apart from the mere recovery of a live cartridge in the The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.

bag of the petitioner, the offence cannot be proved even after a trial."

11.

The aforesaid decision clearly lays down that where the accused is not in a conscious possession of the ammunition/live cartridge, he cannot be proceeded for the offence under Section 25 of the Arms Act, 1959. 12.

In the present case, only a single live cartridge was recovered from the baggage of the petitioner without any corresponding arms. Further, no suspicious circumstances have been pointed out in the FIR which would indicate that the possession of cartridge was conscious. 13.

Besides that the I.O has also verified from Mr. Bhupinder Sharma, a resident of Vancouver, Canada, who has stated that the cartridge which was recovered from the petitioner belongs to him and he holds a legal fire arms license in Canada.

14.

In the given circumstances and regard being had to the aforesaid legal position, it can be said that the petitioner was not in conscious possession of the ammunition. Accordingly, he cannot be prosecuted for the offence under Section 25 of the Arms Act, 1959. This being the position, the FIR No. 870/2024 under Section 25 of the Arms Act, 1959 registered at Police Station IGI Airport along with all other proceedings emanating therefrom, is quashed. 15.

The petition stands disposed of in the above terms. VIKAS MAHAJAN, J DECEMBER 17, 2024/dss The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.