Conscious possession is a necessary element for an offense under Section 25 of the Arms Act.

1. The present petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') has been filed by the petitioner for quashing of FIR No.178/2016, under Section 25 of the Arms Act, 1959 registered at Police Station – IGI Airport, New Delhi .

2. The case of the prosecution is that on 15.05.2015 a complaint was received at P.S. IGI Airport, Delhi from the Security Shift Incharge/Dhananjay, alleging that during screening 8 live cartridges of 7.65 GFL were detected and recovered from the check-in baggage of the petitioner. On that day, the petitioner was departing for Lucknow from New Delhi, via Jet Airways Flight No.9W2637. During interrogation, the petitioner failed to produce a valid arms license or any authorization regarding possession of the live cartridges in his registered bag. Hence, on the said complaint, the case vide FIR No.178/2016 dated 15.05.016 under Section 25 of Arms Act, 1959 was registered. However, the petitioner was not arrested in the present case as his arrest was deferred and was relieved on a written undertaking that he would join the investigation as and when required.

3. During the course of investigation, the ammunitions recovered from the petitioner's bag were sent to FSL, Rohini, Delhi for Ballistic examination and expert opinion. The FSL report revealed that the cartridges recovered from the accused were 7.65mm standard cartridges and the same were live ones which can be fired through a 7.65mm bore firearm. The exhibits were stated to be ''ammunition'' as defined in Arms Act, 1959. Hence charge-sheet was prepared against the petitioner under Section 25/54/59 of the Arms Act, 1959 and filed in the Court of ACMM, Patiala House Court, New Delhi.

4. Learned counsel for the petitioner contended that the bag containing the 8 live cartridges belonged to the brother-in-law of the petitioner/Parminder Teotia, who holds a valid Arms License bearing number 1602, Police Station - Daurala, Meerut, UP and as the petitioner was in a hurry, he inadvertently forgot to check the said bag thoroughly before packing his clothes in it. Also, as the petitioner was unaware of the possession of said cartridges in the bag he did not declare the same at security check and was informed about the same by the Officials only. Therefore, the petitioner seeks exemption under Section 45(d) of Arms Act, 1959 as he bonafidely remained oblivious of the presence of live cartridges in his baggage.

5. It was further submitted that despite the physical possession of the live cartridges being with the petitioner, the constructive possession of the said cartridges still continued with his brother in law who held a valid arms license for the same. Learned counsel for the petitioner also argued that though the articles seized and subsequently tested in this case are live cartridges and therefore constitutes “ammunition”, nevertheless, the long line of authorities have held that mere possession without any consciousness of such possession would not constitute an offence. Therefore, as the possession in the present case was neither 'conscious' nor 'intended', offence under the Arms Act, 1959 could not be made out.

6. Per contra, Akshai Malik APP for the State opposed the present petition on the ground that on interrogation, the petitioner-herein failed to produce any valid arms license to authenticate the possession of the ammunition as legal and thus prima facie an offence under Section 25 of the Arms Act, 1959 was made out. He further argued that during the course of investigation, the accused on interrogation admitted his guilt of carrying live ammunition with him in his bag without a valid arms license. Further, the ballistic expert has opined in the FSL report that the cartridges sent for examination are live and covered under 'ammunition' as defined in the Arms Act, 1959.

7. I have heard the submissions of the learned counsel for the parties and perused the material available on record.

8. At the outset, i