Mere possession of ammunition does not constitute an offense under Section 25 of the Arms Act if there is no evidence of conscious possession.

1. Both these cases have given rise to identical questions for consideration, the prayer made invoking Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) being similar, in almost identical set of facts and circumstances. They have been heard together and are being decided through this common order.

2. The petitioner in the first above mentioned case is a citizen of United Kingdom (UK) who had travelled to India on British passport on valid visa and was returning to London via Abu-Dhabi by Etihad airways flight No.EY-229 on 18.04.2017. She had checked in baggage which was discovered upon x-ray scrutiny in to contain a live cartridge of 5.6 cm with diameter of 0.9 cm. On the report of Airport Operation Manager of the airlines, First Information Report (FIR) No.130/2017 under the Section 25 of the Arms Act, 1959 was registered in Police Station IGI Airport, New Delhi.

3. The petitioner in the second captioned matter is a Kenyan national who had travelled to India on valid passport issued by the authorities of Republic of Kenya on valid visa and was returning from India on 10.03.2017 by flight No.EK-517 and upon screening of his baggage it was found that it contained one live cartridge of the caliber 9 x 19 mm. On report of Sub Inspector of Central Industrial Security Force (CISF), case FIR No.84/2017 was registered in Police Station IGI Airport for offence under Section 25 of the Arms Act, 1959.

4. Both the petitioners have approached this court, through the respective petitions at hand, seeking quashing of the aforesaid FIRs, inter alia, submitting that the cartridges in question found in their respective baggage were not in their conscious possession and, therefore, there are no intentional acts of commission or omission committed by them as would constitute an offence under Section 25 of the Arms Act.

5. It has been submitted that the petitioner in the first captioned case is a 23 years’ old native of England, who has been actively involved in charity work in India, having volunteered to work on International Development Programme in a large number of countries, coming to India to work with an Indian organization named Pravah in association with its sister concern, it being Voluntary Service Overseas (VSO), a charity registered in England and Wales in U.K. (the second petitioner) and during her stay, on valid visa, here she having rendered assistance in a village in the State of Rajasthan in the areas of sanitization, education, etc. It is explained by her that she had come to India on 23.01.2017 after having travelled to Australia on a work visa, having worked at a cattle ranch there with a group of people who were co-workers and used to carry fire-arms, as permitted by the local laws in that country, and that during said engagement, her bag had been used by her said co-workers for carrying food and equipment. She states that from Australia, she had returned to UK and then had travelled to India but she was never stopped nor informed about the presence of any such article in her bag and the discovery of the live cartridge was made only after she had handed over the baggage to the airlines staff on the date the case was registered.

6. The other petitioner, in the second matter, has explained that he had come to India, on a valid visa, with his wife with the object of arranging her medical treatment in hospital in Gurgaon (Haryana) and that, in his native State, he holds a valid license for fire arm and that the cartridge had come in his baggage by mistake, there being no intention nor he being aware of its presence in the baggage during travel. His passport was withheld by the local police, and therefore, he was constrained to move an application before the Additional Chief Metropolitan Magistrate (ACMM) for permission to leave the country which was allowed but conditions were imposed wherein he has been obliged to deposit amount in the sum of Rs.1 lac for return