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2019 Supreme(Del) 843
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANGITA DHINGRA SEHGAL, J.
Jagroop Singh Gill - Appellant
Versus
State (NCT of Delhi) and others - Respondent
Writ Petition (Criminal) No. 570 of 2019
Decided on : 25-03-2019
Advocate Appeared:
Satvinder Singh, Adv., Iti Pandey, Adv.
The central legal point established in the judgment is that possession under the Arms Act, 1959 must be conscious and backed with the requisite mental element, and mere custody without awareness of the nature of possession does not constitute an offence.
Headnote:
Arms Act - Possession - Section 25/54/59 - The court discussed the concept of 'conscious possession' under the Arms Act, 1959 and referred to key legal provisions and interpretations from the cases of Sanjay Dutt Vs. State, Gunwantlal Vs. State of Madhya Pradesh, and Gaganjot Singh vs. State. The court emphasized that possession must be conscious and backed with the requisite mental element, and mere custody without awareness of the nature of possession does not constitute an offence under the Arms Act, 1959.
Fact of the Case:
The petitioner was found with a cartridge in his check-in baggage during airport screening. The petitioner held a valid arms license and claimed lack of awareness of the cartridge in his bag.
Finding of the Court:
The court found that the petitioner's possession did not constitute 'conscious possession' as required by the Arms Act, 1959. The court quashed the FIR and proceedings, stating that the necessary ingredients to constitute the offence were lacking.
Issues: The key issue was whether the petitioner's possession of the cartridge constituted 'conscious possession' as required by the Arms Act, 1959.
Ratio Decidendi: The court relied on the concept of 'conscious possession' as interpreted in previous cases and emphasized the requirement of possession backed with the requisite mental element.
Final Decision: The court quashed the FIR and proceedings, concluding that the necessary ingredients to constitute the offence were lacking.
Sangita Dhingra Sehgal, J.
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. 168/2018, under Section 25/54/59 of the Arms Act, 1959 registered at Police Station - IGI Airport, New Delhi.
2. The brief facts of the case are that on 03.04.2018 the petitioner was travelling from Delhi to Toronto, by Air Canada flight No. AC-043 and during the course of screening, 01 cartridge was detected inside his check in baggage by the security personnel at IGI Airport, New Delhi. Pursuant to the same, FIR No. 168/2018 dated 04.04.2018 u/s 25/54/59 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/MOGA/PS BAGHA PURANA/APRIL 1980 valid till 31.12.2019 issued at Moga, Punjab by the District Magistrate, Moga in April 1980.
4. It was added that the petitioner was in a hurry to catch a flight to Canada from Delhi and in a haste, without checking the contents of the bag which was generally used to keep the Revolver etc, failed to notice that one cartridge had been left in the bag and was detected during the baggage check at the Airport.
5. Per contra, 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 cartridge, moreover, the exhibited cartridge was sent to FSL and it was opined by the expert that the recovered bullet mark- 'A1' 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 perusal of the record, it transpires that the petitioner was having a valid arms License No. 2079/DM/Moga/PS Bagha Purana/Apr 1980 valid for Punjab only issued by District Magistrate, Moga, Punjab was verified from District Magistrate, Moga, Punjab and the same was found to be genuine and valid upto 31.12.2019.
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 t
