The concept of 'conscious possession' under the Arms Act, 1959 requires the requisite mental element of awareness, and mere custody without awareness of the nature of possession does not constitute an offence.

JUDGMENT

Rajnish Bhatnagar, J. - The present petition has been filed by the petitioner under article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure seeking following prayers :-

(i) Quash the FIR No. 044/2019 dated 06.02.2019 P.S. IGI airport, Delhi, u/s 30 arms act 1959 qua the Petitioner/accused person named in the FIR along with all the proceedings emanating there from

(ii) Pass such other and further orders, as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

2. The brief facts of the case are that on 06.02.2019, the petitioner was departing from New Delhi to Raipur, via GoIndigo flight No. 6E-2757, seat No. 7F. It is alleged that during screening of the petitioner's hand baggage 15 live cartridges were recovered. On questioning, the petitioner could not produce any arms licence but he stated that those catridges were related to him and he possesses the licence but the same was not carried by him at that time. He only produced the deposition slip of his licenced weapon. Hence, the present FIR bearing No 044/2019 under Section 30 arms act, 1959 was registered.

3. I have heard the learned counsel for the petitioner, learned aPP for the State. I have also perused the status report filed by the State.

4. It is submitted by counsel for petitioner that the question of recovery of alleged ammunitions from the baggage of the petitioner though, not in dispute, but the petitioner holds a valid arms license bearing no. 538/GIV/PS-KICHa/USN/2009 issued by District Magistrate, Udham Singh Nagar. It is further submitted that the petitioner had no knowledge of the said cartridges in his baggage and the same came to light at the time of security check. It is further submitted by the learned counsel for the petitioner that the petitioner was not in 'conscious possession' of the alleged recoveries, hence, no offence under the arms act, 1959 is made out.

5. On the other hand, learned aPP for the State opposed the present petition and submitted that the petitioner was in 'conscious possession' of the seized ammunitions, though he admitted that the ammunition found in the hand baggage has no ability to be used without a firearm. It is further submitted by learned aPP that the ammonition recovered was sent to FSL and the FSL report vide No. SFSL(DLH)3632/BaL/617/16, dated 19.10.2020 has been received from Ballistics Division and it has been verified that the fifteen .32 cartridges are live and can be fired through the .32 caliber firearms. It is further submitted that a letter was sent to District Magistrate, Udham Singh Nagar, Uttarakhand for verification of accused/petitioner arms License No 538/GIV/PS/Kichha/USN/09 vide letter No. 5240/R/SHO/IGIa dated 19.12.2020 and same has been verified and issued to Ritesh Taneja S/o Sh. Kashmir Lal Taneja R/o Ward No. 11 PS-Kichaa Udham Singh Nagar, Uttrakhand of .32 caliber revolver No. N-3657 along with cartridges No. 10/25 and valid only in the state of Uttrakhand.

6. Now, in the instant case, the question which is to be considered is whether the petitioner was in conscious possession of the ammunitions allegedly recovered from him or not. 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.

7. 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, reported in (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