The concept of 'conscious possession' is a necessary ingredient for the statutory offence under Section 25 of the Arms Act, 1959, and lack of evidence to establish 'conscious possession' can lead to the quashing of proceedings.

SANGITA DHINGRA SEHGAL, J.

1. The present petition under Article 226 of Constitution of India read with Section 482 of the Code of Criminal Procedure has been filed by the petitioner for quashing of FIR No. 0196/2018, under Section 25 of the Arms Act, 1959 registered at Police Station - IGI Airport, New Delhi.

2. The brief facts of the case are that on 18.04.2018 the petitioner along with his wife, son and sister was travelling from New Delhi to Canada; by China Southern Airlines bearing flight No. CZ-360 and during the course of screening, One cartridge bearing mark "KF 325 & W.L" was detected inside his check in baggage by the security personnel at IGI Airport, New Delhi. Pursuant to the same, FIR No. 0196/2018 dated 19.04.2018 u/s 25 of the Arms Act 1959 was registered at P.S. IGI Airport, Delhi.

3. Learned counsel for the petitioner submitted that the petitioner is Arms License holder bearing No. DM/SNG/ARM/AMAR/0218/17 valid till 01.02.2021 issued at Sangrur, Punjab by the District Magistrate, Sangrur on 02.02.2018.

4. It was added that the petitioner, packed his jacket in his check in baggage and failed to notice that one cartridge had been left in the jacket and was detected during the baggage check at the Airport.

5. Per contra, Mr. Rajesh Mahajan, Additional Standing Counsel for the State opposed the present petition on the ground that prima facie it is clear that the petitioner was in 'conscious possession' of the seized catridge, moreover, the exhibited catridge was sent to FSL and it was opined by the expert that the recovered bullet was a live ammunition as defined in the Arms Act, 1959.

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

7. From the persual of the record, it transpires that the petitioner is having a valid arms License bearing No. DM/SNG/ARM/AMAR/0218/17 valid for Punjab only issued by District Magistrate, Sangrur, Punjab which was verified from District Magistrate, Sangrur, Punjab and the same was found to be genuine and valid upto 01.02.2021.

8. With respect to the issue of 'conscious possession', it is settled law that the expression 'possession' under Section 25 of the Arms Act, 1959 refers to possession backed with the requisite mental element, that is, 'conscious possession'. Mere custody without the awareness of the nature of such possession does not constitute an offence under the Arms Act, 1959.

9. In the case of Sanjay Dutt Vs. State, (1994) 5 SCC 410 the Supreme Court inter alia observed that:

"The meaning of the first ingredient of 'possession' of any such arms etc. is not disputed. Even though the word 'possession' is not preceded by any adjective like 'knowingly', yet it is common ground that in the context the word 'possession' must mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is a mental element in the concept of possession. Accordingly, the ingredient of 'possession' in Section 5 of the TADA Act means conscious possession. This is how the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an unauthorised substance has been understood. Therefore 'conscious possession' of any fire arm/ammunition is a necessary ingredient of the statutory offence, entailing strict liability on the offender.

10. Further, the question of conscious possession has been elaborately dealt with by the Constitution Bench of the Supreme Court in the case of Gunwantlal Vs. State of Madhya Pradesh, (1972) 2 SCC 194, wherein it was observed as under:

"the possession of a firearm under the Arms Act must have, firstly the element of consciousness or knowledge of that possession in the person charged with such offence and secondly, where he has not the actual physical possession, he has nonetheless a power or control over that weapon so that his possession ther