CRL.M.C./3790/2017 of NYAGRONGTSANG TSCHENZIG Vs THE STATE GNCT OF DELHI

IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.M.C. 3790/2017NYAGRONGTSANG TSCHENZIG..... PetitionerNYAGRONGTSANG TSCHENZIG..... Petitioner

Through:Mr. L. Ojha, Adv.versusversus

THE STATE GNCT OF DELHI..... Respondent

Through:Ms. Meenakshi Chauhan, APP.

CORAM:

HON'BLE MR. JUSTICE A.K. PATHAKO R RO R R%23.10.2017

By this petition under Section 482 Cr.P.C., petitioner has prayed thatFIR No. 29/2017 under Sections 25/54/59 of the Arms Act, 1959 (‘the Act’,for short) registered at police station IGI Airport on the complaint of Ms.Inderjeet Kaur, Customer Service Agent in Swiss International Airlines maybe quashed.

Brief facts of the case are that petitioner was travelling from Delhi toZurich by Flight No. LX-147 of Swiss International Air Lines on 29[th]January, 2017. From the check in baggage of petitioner, one live cartridgewas detected on the X-ray Machine. The said baggage was offloaded and onopening the same one live cartridge of 7.2 mm was found in the pocket ofthe bag. Petitioner failed to produce the valid arms licence.

Learned counsel for the petitioner has contended that petitioner is

Tibetannational.Now,petitionerhasobtainedpoliticalasyluminSwitzerland.Petitioner has been issued residential identity certificatebearing no. A25027622 by the concerned authority in Switzerland.Petitioner came to India to attend “Kalachakra Teachings”held at BodhGaya, Bihar. While petitioner was going back to Zurich, his baggage waschecked at the airport when one live cartridge was recovered. Petitioner hadno knowledge of this live cartridge when he commenced his journey. Thelive cartridge remained lying in Khau (Religious Box), kept in the bag,inadvertently. Petitioner does not possess any arm. The live cartridge isvery old. Petitioner was not in ‘conscious possession’ of the live cartridge,therefore, ingredients of offence under Section 25 of the Arms Act were notattracted.

He has placed reliance on Sanjay Dutt vs. State through CBI,Bombay, MANU/SC/0554/1994, Nurit Toker vs. The State of Maharashtra,2012 Bom CR (Cri) 154, William Michael Hurtubise vs. The State ofOdisha and Ors. MANU/OR/0016/2014, Gunwantlal vs. The State ofMadhya Pradesh, MANU/SC/0130/1972 and Gaganjot Singh vs. State,MANU/DE/3227/2014 to contend that ingredients of offence under Section25 of the Arms Act are not attracted in absence of the ‘conscious possession’

of the cartridges.

The plea taken by the petitioner is plausible plea that when hestarted his journey, he did not notice the live cartridge, which was there inthe ‘Khau’. In order to attract the ingredient of Section 25 of the Act, it isnecessary that accused is in ‘conscious possession’ of the arms andammunition. In this case, there is nothing to indicate that petitioner was in‘conscious possession’ of solitary live cartridge, which was recovered atthe IGI Airport from his checked-in baggage.

In Sanjay Dutt (supra), Supreme Court held, thus, “the meaning of thefirst ingredient of ‘possession’ of any such arms etc. is not disputed. Eventhough the word ‘possession’ is not preceded by any adjective like‘knowingly’, yet it is common ground that in the context the word‘possession’ must mean possession with the requisite mental element, thatis, conscious possession and not mere custody without the awareness of thenature of such possession.There is mental element in the concept ofpossession.”

During the investigation, no material could be collected by theInvestigating Officer to show that the petitioner was in ‘consciouspossession’ of the live cartridge.

For the foregoing reasons, FIR No. 29/2017 under Sections 25/54/59of the Arms Act, 1959 registered at police station IGI Airport and theconsequent proceedings emanating therefrom are quashed.

Petition is disposed of in the above terms.

Dasti.

OCTOBER 23, 2017ga

A.K. PATHAK, J.