W.P.(CRL)/2023/2017 of ANTON GOLYSHEV Vs THE STATE NCT OF DELHI

IN THE HIGH COURT OF DELHI AT NEW DELHI

+W.P.(CRL) 2023/2017

ANTON GOLYSHEV..... PetitionerThrough:Ms. Anu Sura & Mr. Sameer Jain,Advs.

versus

THE STATE NCT OF DELHI

..... Respondent

Through:Mr. R.S. Kundu, ASC with Mr.Peeyush Bhatia & Mr. Ankit Malik,Advs.

CORAM:

HON'BLE MR. JUSTICE ASHUTOSH KUMARO R R%01.08.2017

The petitioner seeks quashing of the FIR No.203/2017 dated26.05.2017 (P.S. I.G.I. Airport) instituted for the offences under sections 25,54 and 59 of the Arms Act.

The petitioner is Russian citizen, who was arrested while travellingas he was found to be in possession of two live cartridges.

Learned counsel for the petitioner has submitted that on his visit toKhajurao, he had been gifted with “weaver’s nest” which he had kept as asouvenir in bag without realising that it contained the two empty cartridges.He could learn about the cartridges only when his luggage was put toscrutiny at the airport.

It has further been stated that without the consciousness of possession,the petitioner cannot be attributed with the knowledge of possessing firearm.That apart, in the absence of any firearm or intention of the petitioner which

is the pre-requisite for him to be prosecuted under any of the provisions ofthe Arms Act, the possession of ammunition by itself would not attract anyoffence. In Gunwatlal vs. The State of Madhya Pradesh: (1972) 2 SCC194, the Supreme Court has held as under:

“The possession of firearm under the Arms Act in our viewmust have, firstly the element of consciousness or knowledge ofthat possession in the person charged with such offence andsecondly where he has not the actual physical possession, hehas nonetheless power or control over that weapon so that hispossession thereon continues despite physical possession beingin someone else..... “As we said earlier, the first preconditionfor an offence under Section 25(1)(a)is the element of intention,consciousness or knowledge with which person possessed thefirearm before it can be said to constitute an offence andsecondly that possession need not be physical possession butcan be constructive, having power and control over the gun,while the person to whom physical possession is given holds itsubject to that power and control.”

Taking into account the aforesaid facts, this court is of the view thatthe petitioner need not be prosecuted or investigated with respect to theaforesaid case.

Mr. R.S. Kundu, learned Additional Standing Counsel on the strengthof the status report submitted that the petitioner is not required to bedetained for any other offence in this country and that he has validpassport and visa for travelling to and in India.

Considering the aforesaid facts, the FIR No. 203/2017 dated26.05.2017 (P.S. I.G.I. Airport) instituted for the offences under sections 25,54 and 59 of the Arms Act along with all the proceedings emanatingtherefrom, is quashed.

The petition is allowed and disposed of accordingly.

Dasti.

ASHUTOSH KUMAR, J

AUGUST 01, 2017ns