CRL.M.C./2836/2017 of KOMAL PREET MALLAHI Vs STATE OF DELHI

*IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.M.C. 2836/2017KOMAL PREET MALLAHI..... Petitioner

Through:Mr. Mohit Mathur, Sr. Adv. with Mr.Vikas Manchanda and Mr. AshishNayyar, Advs.

versus

STATE OF DELHI..... Respondent

Through:Ms. Meenakshi Chauhan, APP withSI Sunil Kumar, P.S. IGI Airport.

CORAM:HON'BLE MR. JUSTICE A.K. PATHAKO R R

%17.11.2017

By this petition under Section 482 of the Code of Criminal Procedure,

1973 petitioner has prayed for quashing of FIR No. 182/2015 under Sections25/54/59 of the Arms Act, 1959, registered at police station IGI Airport, onthe complaint of Chief Security Officer, British Airways, IGI, New Delhi.

Brief facts of the case are that petitioner is Canadian National ofIndian origin. Petitioner had come to India to meet her relatives. While shewas going back to Toronto by British Airline Flight No. BA256 on 6[th]May,2015, her checked in baggage was physically searched when 7 livecartridges of .30-06 bore were found. Petitioner was not aware about thelive cartridges in her bag. Her husband was having licenced weapon andhad kept the cartridges in the bag long ago which remained unnoticed whenpetitioner commenced her journey. FIR was registered.7 live cartridges

were seized.Petitioner was de-boarded, however, subsequently she wasallowed to leave on the next day.

Learned senior counsel for the petitioner has contended that 7 livecartridges belong to petitioner’s husband who was having an arms license.The live cartridges remained lying in the bag unnoticed by the petitionerwhen she commenced her journey along with her three minor children. Thecartridges were kept in bag long ago and remained lying in the baginadvertently. Petitioner was not in ‘conscious possession’ of the recoveredlive cartridges.Learned counsel for the petitioner has placed reliance onSandeep Mukherjee vs. State (NCT of Delhi) 2017 SCC OnLine Del 7888and Sonam Chaudhary vs. The State (Govt. of NCT of Delhi) 2016 SCCOnLine Del 47.

It is trite law that, to attract the ingredients of offence under Section25 of the Arms Act, it has to be demonstrated that accused was in ‘consciouspossession’ of the arm and ammunition. In Sanjay Dutt vs. State throughCBI, Bombay, MANU/SC/0554/1994, Supreme Court has held thus: “themeaning of the first ingredient of ‘possession’ of any such arms etc. is notdisputed.Even though the word ‘possession’ is not preceded by anyadjective 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 awarenessof the nature of such possession. There is mental element in the concept ofpossession.”

In the judgments, reliance whereof upon has been placed by thepetitioner, FIRs have been quashed where live cartridges were recovered atthe airport. It is held in these judgments that ‘conscious possession’ of therecovered cartridges is must for attracting the offence under Sections25/54/59 of the Arms Act. During the investigation, no material has beencollected by the respondent to show that petitioner was in ‘consciouspossession’ of the recovered live cartridges. The plea taken by the petitionerthat cartridges remained lying in the baggage inadvertently is possible andplausible plea.

Fortheforgoingreasons,aforesaidFIRandtheconsequentproceedings emanating thereform are quashed.

Petition is disposed of in the above terms.

NOVEMBER 17, 2017ga

A.K. PATHAK, J.