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IN THE HIGH COURT OF DELHI AT NEW DELHI
Rajnish Bhatnagar, J.
Dinesh – Appellant
Versus
State of NCT of Delhi – Respondent
W.P.(Cr) 813 of 2023
Decided On : 04-09-2023
Arms Act - Conscious Possession - Section 30 - [Section 30 Arms Act 1959] - The court discussed the concept of 'conscious possession' as a necessary element of the statutory offence under the Arms Act. It referred to various judgments to establish that possession must be backed with the requisite mental element, and mere custody without awareness of such possession does not constitute an offence under the Arms Act. The court found that the petitioner's lack of awareness of the live cartridges in his baggage and the absence of evidence of conscious possession led to the quashing of the FIR under Section 30 of the Arms Act 1959.
Fact of the Case:
The petitioner was found with ammunitions in his baggage during a security check at the airport. The FIR was registered under Section 30 of the Arms Act 1959. The petitioner claimed lack of awareness and argued that he was not in 'conscious possession' of the ammunitions.
Finding of the Court:
The court found that the petitioner's lack of awareness of the live cartridges in his baggage and the absence of evidence of conscious possession led to the quashing of the FIR under Section 30 of the Arms Act 1959.
Issues: Whether the petitioner was in 'conscious possession' of the ammunitions recovered from him and if the necessary ingredients to constitute the offence under Section 30 of the Arms Act 1959 were present.
Ratio Decidendi: The concept of 'conscious possession' as a necessary element of the statutory offence under the Arms Act and the requirement of possession backed with the requisite mental element.
Final Decision: The petition was allowed, subject to costs, and the FIR under Section 30 Arms Act 1959 and the proceedings emanating therefrom were quashed.
JUDGMENT
Rajnish Bhatnagar, J. The present petition has been filed under Article 226 of the Constitution of India read with Section 482 Cr.P.C. by the petitioner for quashing of FIR No. 1/2023 registered under Section 30 Arms Act 1959 registered at Police Station IGI Airport.
2. In brief, the facts of the case are that the petitioner was travelling from Delhi to Kolkata by Air India Airlines, Flight number A1-762 on 31.12.2022 and during the security check, ammunitions like articles were detected in the baggage of the petitioner. While searching his baggage, three (03) ammunition shaped articles were recovered from the same. As a result, a complaint at Police Station IGI Airport was received on 01.01.2023 by complainant Ms. Dolly, Sr. Associate, DIAL Security and Vigilance, IGI Airport. On the basis of the said complaint, the FIR No. 01/2023 was registered against the petitioner.
3. I have heard the learned counsel for the petitioner as well as learned APP for the State. I have also perused the status report filed by the State.
4. It is submitted by learned counsel for the petitioner that the petitioner was completely unaware about the articles recovered from his baggage. It is further submitted that petitioner was travelling with his wife and it is very hard to believe that the petitioner would take such a huge risk of getting arrested. It is further submitted by the learned 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. In support of his contentions, learned counsel for the petitioner has placed reliance on following judgments:
6. On the contrary, it is submitted by learned APP, while vehemently opposing the present petition, that the petitioner was in fact in "conscious possession" of the above mentioned seized ammunitions and while having so, he did not have any valid documents for carrying those ammunition shaped articles, however, during the course of investigation, the petitioner produced a copy of Arms Licence bearing No. 822/X/R issued by District Magistrate Rohtak, Haryana. It is further submitted that the arms licence that the petitioner was holding was sent for verification and upon verification, it was found that the said licence was valid only in Haryana till the year 2026. It is further submitted that the said ammunitions were sent to FSL and the FSL report revealed that the Exhibits are live ammunitions as defined in the Arms Act 1959.
7. In the instant case, the question which is to be considered is that whether the petitioner was in `conscious possession' of the ammunitions allegedly recovered from him or not' A perusal of Section 25 of the Arms Act 1959 shows that the term `possession' refers to possession backed with the requisite mental element, i.e. conscious possession, therefore, mere custody, without the awareness of such possession, does not constitute an offence under the Arms Act 1959.
8. The question of the term `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 control over that weapon so that his possession thereon continues besides physical
AI
The concept of 'conscious possession' as a necessary element of the statutory offence under the Arms Act and the requirement of possession backed with the requisite mental element.
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 a....
Conscious possession of firearms is a necessary requirement for establishing guilt under the Arms Act; mere custody without knowledge does not constitute an offence.
The main legal point established in the judgment is that 'possession' under the Arms Act must have the element of consciousness or knowledge, and even if the factum of physical possession is made out....
Conscious possession under the Arms Act requires awareness and intent; mere physical possession does not constitute an offense if the possessor lacks knowledge of the contraband's presence.
The absence of mala fides or mal-intention and the lack of evidence supporting conscious possession can lead to the quashing of FIR and proceedings under Section 482 Cr.P.C.
The central legal point established in the judgment is the requirement of 'conscious possession' under the Arms Act, emphasizing the need for intention, consciousness, or knowledge of possession.
A person is not liable under Section 25 of the Arms Act if not consciously in possession of ammunition, without any firearm or threat present.
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