CRL.M.C./4020/2017 of S A SAMPATH KUMAR Vs STATE NCT OF DELHI

*IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.M.C. 4020/2017

S SAMPATH KUMAR

..... Petitioner

ThroughMr. Krishna K Singh, Advversus

STATE NCT OF DELHI

..... Respondent

ThroughMr. Amit Gupta, APP for StateSI Mukesh, PS IGI Airport

CORAM:

HON'BLE MR. JUSTICE A.K. PATHAKO R R%26.10.2017

By this petition under Section 482 Cr.P.C., petitioner has prayed thatFIR No. 347/2015 under Sections 25/54/59 of the Arms Act, 1959 (‘theAct’, for short) registered at police station IGI Airport on the complaint ofDuty Manager (Security), IGI Airport may be quashed.

Petitioner is an Indian citizen and is Member of Legislative Assemblyof State of Telengana. He is resident of District Mehboob Nagar, State ofTelengana. Petitioner holds valid licence for possession of arms within theState of Telengana, issued by competent authority located at Hyderabad.Petitioner could have carried arms and ammunitions within the State ofTelengana, but could not have possessed the same within the NationalCapital Territory of Delhi.

Brief facts of the case are that petitioner was boarding flight fromNew Delhi to Hyderabad by Flight No.AI-839 of Air India on 9[th]August,

2015. He had checked in his baggage. On the X-ray belt five live cartridgeswere detected in the bag. The bag was offloaded and on opening the samefive live cartridges of 0.32 bore were found in the bag. Consequently, theaforesaid FIR was registered.

Learned counsel for the petitioner has contended that petitioner hadno knowledge of the presence of live cartridges present in his bag when hecommenced his journey. The live cartridges inadvertently remained lying inhis bag which he could not notice when he kept his clothes etc in the bag.Petitioner was not in ‘conscious possession’ of the recovered live cartridges,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, 2012Bom CR (Cri) 154, William Michael Hurtubise vs. The State of Odisha andOrs. MANU/OR/0016/2014, Gunwantlal vs. The State of Madhya Pradesh,MANU/SC/0130/1972andGaganjotSinghvs.State,MANU/DE/3227/2014.

The plea taken by the petitioner is plausible plea that when hestarted his journey from Hyderabad, he did not notice the live cartridges,inhis bag.In order to attract the ingredient of Section 25 of the Act, it isnecessary that accused is in ‘conscious possession’ of the recovered armsand ammunition. In this case, there is nothing to indicate that petitioner wasin ‘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. Even

though 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. 347/2015 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 26, 2017sm

A.K. PATHAK, J