W.P.(CRL)/1364/2017 of DAVINDER SINGH CHUNG @ DAVINDER SINGH RANIA Vs STATE OF NCT OF DELHI

IN THE HIGH COURT OF DELHI AT NEW DELHI

+W.P.(CRL) 1364/2017DAVINDER SINGH CHUNG@ DAVINDER SINGH RANIADAVINDER SINGH CHUNG@ DAVINDER SINGH RANIA

..... Petitioner

Through:Mr.Harish Sharma, Adv.

versus

STATE OF NCT OF DELHI

..... Respondent

Through:Ms.Nandita Rao, ASC.SI Anuj Kumar, P.S.IGI Airport.

CORAM:

HON'BLE MR. JUSTICE ASHUTOSH KUMAR

O R R%05.05.2017

The petitioner has sought quashing of the FIR No.308/2016 dated22.08.2016 (P.S. IGI Airport) instituted for offences under Section 25/54/59of the Arms Act, 1959.

On 21.08.2016, while the petitioner was enroute to Melbourne,Australia from IGI Airport, Terminal III, in his check-in baggage, from thepocket of his jacket two live bullets/cartridges of 0.32 mm were recovered.Despite the petitioner making the authorities know that it must have been amistake, FIR was registered.

The petitioner submits that he has valid license. The petitioner is aNRI, residing for most of the times in California, USA since 19.09.1997. Hehas permanent resident card of USA but keeps visiting his village in thedistrict of Faridkot, Punjab. He is also said to be active in politics and is afrequent traveller. It has been submitted that the petitioner was not at all

aware of the two live cartridges in his check-in-bag and cannot even make aguess as to how those cartridges found its way in the pocket of his jacket.Had there been any intention to carry the cartridges or use it for any purpose,an attempt would have been made to take his weapon as well.

Ms.Nandita Rao, learned Additional Standing Counsel opposed thequashing of the FIR on the ground that the petitioner has been reckless andhas not taken care of his weapon, cartridges and has thus violated the termsof the conditions of license, rendering him liable for prosecution underSection 30 of the Arms Act and also for revocation/suspension/cancellationof his license to hold firearms.

The circumstances of the case make it very clear that mere possessionof two live cartridges without any knowledge of the same being in thepocket of the jacket in the check-in-bag, is not sufficient for proving anycharge against the petitioner. Two live cartridges cannot be used for anypurpose in the absence of the firearm.

On enquiry, it has been duly proved that the cartridges belonged to thepetitioner and that petitioner is valid license holder. The petitioner mayhave been reckless and his license may be revoked/suspended or cancelledbut that by itself would not render the petitioner liable for being prosecutedin the present case as there is no intention/consciousness of the presence oftwo live cartridges in his check-in-bag.

For prosecution regarding possession of fire arm under the arms act, itneeds to be proved the accused had knowledge or consciousness of thepossession. "Possession", for the purposes of prosecution must meanpossession with the requisite mental element, i.e., conscious possession andnot mere custody without awareness (refer to Gunwantalal vs. The State of

Madhya Pradesh, AIR 1972 SC 1756; Sanjay Dutt vs. State through CBI,Bombay (II), (1994) 5 SCC 410).

It is settled law that the Courts can interfere at any stage forpreventing the abuse of the process of the Court and the only safe-guardagainst such use of power is that legitimate prosecution may not be stifled.True it is that this Court cannot inquire into the reliability of the evidenceand sustainability of accusation but from the circumstances of this case, itwould only be futile exercise to keep the investigation of this case pendingwhen the petitioner has clean background.

The learned counsel appearing for the petitioner has relied uponvarious orders passed by this Court in several other cases of similar nature.

Having regard to the facts and circumstances of this case, this Court isof the opinion that the possession of two live cartridges, without the firearm,the petitioner cannot be said to be in conscious possession of the same.There does not appear to be even remote possibility of the police bringingin any further evidence regarding the intention of the petitioner. Consideringthe aforesaid facts, this court is of the view that no useful purpose would beserved in continuing with the investigation in this case.

Considering the aforesaid facts, FIR No.308/2016 dated 22.08.2016(P.S. IGI Airport) for the offence under Section 25/54/59 of the Arms Act,1959 and all the emanating proceedings therefrom are quashed.

The petition is disposed of.

Dasti.

MAY 05, 2017k

ASHUTOSH KUMAR, J