IMPORTANT POINT
Where admitted allegations in final report do not make out an offence, continuance of prosecution against accused amounts to abuse of process of court and inherent jurisdiction can be exercised to quash proceedings.

ORDER

Bechu Kurian Thomas, J.—Would a live cartridge seized from the bag of a passenger during the security check at the airport without seizure of any corresponding fire-arm amount to an offence under the Arms Act, 1959 (for short ‘the Act’) arises for determination in this case.

2. Petitioner is a businessman from Maharashtra. He possesses a license to possess arms within his State. His daughter is a Commandant Pilot, serving in Air India stationed at Kannur in Kerala. On 04.04.2019, while waiting to board the flight from Kannur Airport to return to his home State after spending time with his daughter, his baggage, when subjected to screening was detected with a live cartridge of 0.32 calibre. Though petitioner claimed ignorance of the live cartridge and how it came to be in his bag, an FIR was registered as Crime No.6 of 2019 of Airport Police Station, Mattannur, alleging offences punishable under sections 3 and 25(1B)(a) of the Act. After the final report was filed, the Judicial First Class Magistrate’s Court, Mattannur, took cognizance of the offence as C.C. No.236 of 2021.

3. Petitioner alleges that he has an unblemished track record and has never been involved in any criminal case in his entire life, and is also holding an arms licence valid within the State of Maharashtra. Petitioner contends that he was not in conscious possession of the ammunition for attracting the offence under section 25 of the Act. It was also contended that a single live cartridge without a corresponding fire-arm is a minor ammunition which is protected under clause (d) of section 45 of the Act, and hence an offence is not at all made out. Petitioner also contended that even if it is assumed that there was any recovery of a live cartridge, the same was not within the knowledge of the petitioner, and it must have remained in the bag, inadvertently.

4. I have heard Sri. Asif Ali, learned counsel for the petitioner and Sri. Vipin Narayanan learned Public Prosecutor.

5. For the purpose of reference, Section 2(b) and Section 25(1B)(a) of the Act are extracted below:—

“2. Definitions and interpretation.—(1) In this Act, unless the context otherwise requires,—

(a) xxx

(b) “ammunition” means ammunition for any fire-arm, 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 fire-arms or not,

(iv) charges for fire-arms 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.”

“25. Punishment for certain offences.—

(1B) Whoever—

(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or

......(other sub-clauses omitted as not relevant) shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to five years and shall also be liable to fine:

Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than two years.

(1C) Notwithstanding anything contained in subsection

(1B) whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Explanation.—For the purposes of this subsection, disturbed area means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and inc