Possession under the Arms Act requires both physical presence and conscious knowledge; mere physical possession without awareness does not constitute an offence.

JUDGMENT

[VIA VIDEO CONFERENCING]

Manoj Kumar Ohri, J. (ORAL)--The present petition has been filed under Section 482 Cr.P.C. on behalf of the petitioner seeking quashing of FIR No. 04/2016 registered under Sections 25 /54/59 of the ARMS ACT at Police Station IGI Airport, Delhi.

2. As per the allegations levelled in the FIR, the present incident occurred on 03.01.2016 when the petitioner was in the process of departure from Delhi to Dubai via Flight No. 9W546 of Jet Airways from the Indira Gandhi International Airport, New Delhi. It is alleged that during the luggage checking, two live cartridges were found in a jacket which was kept in the applicant.s luggage bag.

3. Mr. Nitin Jain, learned counsel for the petitioner, has contended that the petitioner is not the owner of the aforesaid jacket and had borrowed it from his friend namely Rav Gayyur @ Gayub i.e., respondent No. 2, as he was going aboard. It is submitted that the applicant had kept the jacket in his luggage bag without checking it. It is further submitted that at the time of handing over the jacket to the petitioner, even respondent No. 2 was not aware about the same containing live cartridges. Along with the petition, an affidavit of respondent No. 2 has also been placed on record as per which, the petitioner.s version stands corroborated. It is stated in this affidavit that the bag and the jacket containing cartridges, seized from the petitioner, belonged to respondent No. 2. It is further stated that respondent No. 2 possessed a valid License to possess arms and cartridges at the time of alleged discovery from the petitioner.

4. The Status Report has been forwarded through e-mail, which is taken on record.

5. At the outset, Ms. Meenakshi Dahiya, learned APP for the State, submitted that the verification of the Arms Licence of respondent No. 2 has been carried out. During investigation, it has been found that an Arms Licence dated 07.12.2014 had been issued to respondent No. 2 which remained valid till 07.09.2017. She submits that, inadvertently, the year "2017" instead of "2014" has been incorrectly mentioned in the Status Report. It is further submitted that during the investigation, the aforesaid two live cartridges were sent to the FSL and as per the FSL Report, the same have been opined to be "ammunition" as defined in Section 2(b) of the ARMS ACT , 1959. She lastly submits that the charge sheet in the present case has already been filed.

6. I have heard the learned counsels for the parties and the learned APP for the State as well as perused the materials placed on record.

7. As per the allegations in the FIR, two live cartridges were found in a jacket kept in the petitioner.s luggage bag, however, no fire arm was recovered. The petitioner.s case is that he had no knowledge of the two live cartridges being present in the jacket as the same belonged to respondent No. 2, from whom it was borrowed for travelling purposes without checking. Upon discovery effected from the petitioner, the present case came to be registered on 03.01.2016, on which date the aforesaid Arms Licence in the name of respondent No. 2 was valid and subsisting. The affidavit of respondent No. 2, confirming the same, has been placed on record.

8. Whether the word "possession" as mentioned in Section 25 of the ARMS ACT , 1959 would simply mean physical/constructive possession or "conscious possession" has already been the subject matter of many judicial decisions and the law on the subject is no longer res integra. This Court deems it profitable to refer to the decision of the Supreme Court in Gunwantlal v. State of Madhya Pradesh reported as (1972) 2 SCC 194, wherein while readin