The main legal point established in the judgment is that the possession of firearms or ammunition under the Arms Act must be conscious possession with the knowledge and requisite mental element, and mere custody without awareness of the nature of such possession does not constitute an offence.

SHALINI PHANSALKAR-JOSHI, J.

1. Rule. Rule made returnable forthwith. Heard finally with consent of learned counsel for both the parties.

2. This writ petition is filed under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure, for quashing the proceeding in C.C. No. 301/PW/2015, pending on the file of the Metropolitan Magistrate, 66th Court, Andheri, Mumbai, arising out of C.R. No. 16 of 2015, registered with Airport Police Station, Mumbai.

3. It is the case of the petitioner that he is permanent resident of Bangladesh and for the purpose of his business, he has travelled to India on several occasions. On 25-9-2013, he left Dhaka, by Jet Airways 9W0273 Flight to Kolkata, for the purpose of business. From Kolkata, he boarded Jet Airways 9W2364 Flight to Pune. Thereafter he travelled from Pune to Goa by road and after completing his work in Goa, he came to Ahmedahad by Spiece Jet Airways Flight No. 138. From Ahmedabad, he flew to Mumbai by Air India Flight No. AI191.

4. On 29-9-2013, the petitioner booked his ticket to Dhaka via Mumbai Kolkata by Jet Airways 9W615. The petitioner checked in his baggage and completed his security check. While on his way to board the flight by Air Coach, a Jet Airways employee contacted the petitioner and informed that there was some problem with his luggage. The petitioner was taken to Luggage Screening Room. At that time, the other jet Airways as well as CISF employees were present near the scanner machine. The petitioner was asked to identify his bag and open it. In the said bag, there was toilet kit pouch. When the petitioner was asked to open the pouch, in that toilet kit pouch, along with regular toilet articles, five live cartridges and one empty was found.

5. On enquiry by CISF staff, the petitioner Immediately disclosed that the said live cartridges and empty belong to his brother Md Nasser. They were inadvertently carried by him as the travel kit pouch was common between him and his brother. From the Airport itself, the petitioner called upon his brother Md. Nasser to send fax copy of his licences to hold arm as well as live cartridges and empty. By fax said copies were received from the petitioner’s brother. The petitioner handed them over to the CISF officer.

6. However, at the instance of CISF officer, C.R.No. 16 of 2013 came to be registered against the petitioner for the offences punishable under sections 3 and 25 of the Arms Act. The petitioner was arrested in pursuance of the said C.R. and thereafter remanded to police custody and then to Magisterial Custody. After investigation, police filed charge-sheet against the petitioner bearing C.C. No. 301/PW/2015 in the Court of Metropolitan Magistrate, 66th Court, Andheri Mumbai.

7. The submission of learned counsel for the petitioner is that the petitioner has offered valid explanation for the five live cartridges and the one empty found in his toilet kit pouch. The petitioner has also produced on record Arm Licence issued to his brother and in such situation, as such the possession of the petitioner cannot be called as conscious possession as required under section 3 and 25 of the Arms Act. Hence the criminal prosecution launched against the petitioner needs to be quashed and set aside.

8. In support of his submission, learned counsel for the petitioner has relied upon the judgment of the Constitution Bench of the Hon’ble Supreme Court, in case of Sanjay Dutt vs. State through CBI Bombay, (1994) 5 SCC 410 and the judgment of Division Bench of this Court in Nurit Toker vs. State of Maharashtra, 2012 (2) Bom. C.R (Cri) 154.

9. Learned APP appearing on behalf of the State, on the other hand, has submitted that the issue as to whether the possession was conscious or not would be decided at the stage of trial and this Court, therefore, while exercising its jurisdiction under Article 226 of the Constitution of India, should not decide the issue and interfere with and set aside the F.I.R or the