WRIT PETITION 51 of 2024

$~95*INTHEHIGHCOURTOFDELHIATNEWDELHI+W.P.(CRL) 443/2025*INTHEHIGHCOURTOFDELHIATNEWDELHI+W.P.(CRL) 443/2025

CHANDER SAIN.....Petitioner

Through:Mr. Divanshu Virmani and Mr. AyushBodwal, Advs.

versus

STATE OF N.C.T. OF DELHI

.....Respondent

Through:Mr. Sanjay Lao, Standing Counsel

(Crl.) with Mr. Abhinav Kumar Aryaand Mr. Aryan Sachdeva, Advs. forState along with S.I. Jagdish Ram, P.S.Domestic Airport.and Mr. Aryan Sachdeva, Advs. forState along with S.I. Jagdish Ram, P.S.Domestic Airport.

CORAM:HON'BLE MR. JUSTICE VIKAS MAHAJANO R R

%10.02.2025

CRL.M.A. 4008/2025 (exemption)

1.Allowed, subject to all just exceptions.

2.The application stands disposed of.

W.P.(CRL) 443/2025

3.The present petition has been filed under Section 528 of BNSS, 2023seeking quashing of FIR No.51/2024 under Section 25 of Arms Act, 1959[hereinafter referred to as ‘Act’] registered at P.S. Domestic Airport and allconsequential proceedings emanating therefrom.

4.Issue notice. Mr. Sanjay Lao, the learned Standing Counsel (Criminal)appearing on behalf of the State accepts notice. He has handed over the statusreport dated 09.02.2025 at Bar, the same is taken on record.

5.With the consent of the learned counsel for the parties, the matter istaken up for disposal.

6.The aforementioned FIR was registered based on complaint by

ASI/Exe Vikas Puri, CISF No.130100650, CISF Unit, IGI Airport, NewDelhi. The complaint stated that on 18.11.2024 at approximately 15:30 hours,a passenger named Mr. Chander Sain, residing at Dharnia Road, Badopal(46), Fatehabad, Haryana, PIN 125048, intended to board Flight No.SG158,Seat No.11B, from Delhi to Guwahati. During pre-embarkation securitychecks at the ATR-02 SpiceJet X-BIS Machine of Terminal ID, IGI Airport,03 live rounds were detected in Mr. Chander Sain’s handbag. Upon inquiry,he failed to produce any legal documents for the carriage of above saidammunition. As per BCAS AVSEC Circular No.11/2024 dated 30.01.2024,this item is prohibited/banned in India. Consequently, the passenger and theseized ammunition were handed over to the police station, and the presentcase was registered.

7.The petitioner, during the course of inquiry, disclosed that he holds avalid arms license only for Haryana State bearing no.2013/AL/368/DM/FBD,issued by District Magistrate of Haryana, valid until 02.10.2027. The statusreport shows that the said license has been verified by the issuing authorityand found to be genuine.

8.The learned counsel appearing on behalf of the petitioner submits thatsince the petitioner holds valid license for .32 revolver, therefore, theammunition i.e. 03 live cartridges which were recovered from the petitioner’spossession at IGI Airport, Terminal -1 pertained to his licensed revolver. Hesubmits that, however, the petitioner was not aware that there are livecartridges in his handbag which seems to have been inadvertently kept in thesaid handbag.

9.He further submits that the live cartridges were seized from thepetitioner’s handbag during the security check-up without any corresponding

arms, which itself shows that the petitioner was not in conscious possession ofthe live cartridges.

10.The learned counsel for the petitioner places reliance on the decision ofthis court in Pritpal Singh v. State (2024) LiveLaw (Del) 556. The relevantpart of the said decision reads thus:

“In the present case, barring the allegations of the petitionerhaving been found in possession of 14 live cartridges in hisbaggage, there is no other material on record to show that thepetitionerwasinconsciouspossessionofthesaidliveammunition.”

11.The learned Standing Counsel for the State submits that the armslicense of the petitioner has been verified, but the same is valid only in theState of Haryana.

12.I have heard the learned counsel for the petitioner, as well as, learnedStanding Counsel for the State and have perused the record.

13.A Coordinate Bench of this Court in W.P (Crl) 1681/2020 “BaljitFantu vs. Govt. of NCT Delhi and Ors.” 2021 SCC OnLine Del 3705, relyingupon four other decisions of this court, quashed the FIR under Section 25 ofthe Arms Act that was registered on similar facts viz. recovery of livecartridge during scanning of baggage at Delhi Airport.The relevant part ofthe said judgment reads as under:

4. The question as to whether cartridge, which is capable ofbeing fired, is complete ammunition within the meaning ofSection 2(b) of Arms Act or minor part of ammunition asreferred to in Section 45(d) of the Arms Act and whether personcan be proceeded against under the Arms Act was referred to aDivision Bench of this Court in Sh. Gaganjot Singh v. State,[W.P.(Crl).1169/2014]. The Division Bench by an order dated01.12.2014, observed as under:

“13. So far as the specific point referred to this Court isconcerned, we may straightaway set out the definition of“ammunition” as in Section 2(b) of the Arms Act:

(b) “ammunition” means ammunition for any firearm, andincludes—

(i) rockets, bombs, grenades, shells [and other missiles]

(ii) articles, designed for torpedo service and submarinemining.

(iii) other articles containing, or designed or adapted tocontain, explosive fulminating or fissionable material ornoxious liquid, gas or other such thing, whether capable ofuse with firearms or not,-

(iv) charges for firearms and accessories for such charges,

(v) fuses and friction tubes,

(vi) parts of, and machinery for manufacturing ammunition,and

(vii) such ingredients of ammunition as the CentralGovernment may, by notification in the Official Gazette,specify in this behalf;

It would be immediately apparent that there can be evenparts of ammunition. The question which the Court wouldhave to consider in given case is whether the article seizedis an “arm” or “ammunition”. The expression “arms” aredefined in Section 2(c) as:

“arms” means articles of any description designed oradapted as weapons for offence or defence, and includesfirearms, sharpedged and other deadly weapons, and partsof,andmachineryformanufacturing,arms…………………”

14. Section 45 excepts certain classes of arms or ammunitionfrom the rigors of the Act. Section 45(d) reads as follows:“45. Nothing in this Act shall apply to—xxxxxxxxxxxxxxxxxx

(d) the acquisition, possession or carrying by person ofminor parts of arms or ammunition which are not intended tobe used along with complementary parts acquired orpossessed by that or any other person.”

15. In Chang Hong Saik (supra), like in the present case, asingle live cartridge was found from the possession of thealleged offender. The learned Single Judge proceeded toquash the criminal proceedings. The discussion in thatjudgment was that there were no suspicious circumstancesother than the mere recovery of the live cartridge from thepossession of the charged individual. In para 43, learnedSingle Judge was of the opinion that the single live cartridge“cannot be used for the purpose without fire arms” and thenproceeded to state “though the petitioner has not admittedrecovery of the cartridge and claimed trial, however, if it isadmitted, in my considered view, he cannot be punished forthe charge framed against him because single cartridgewithout firearm is minor ammunition which is protectedunder clause (d) of Section 5 of the Arms Act.”

(emphasis supplied)

16. The structure of Section 45(d)- is that it is only “minorparts of arms or ammunition” that are “not intended to beused along with complementary parts” which can beexcluded from the application of the Act. There cannot be anyquestion as to which category live cartridge falls into; it isclearly whole or entire or “ammunition”, given the inclusivenature of the definition under Section 2(d). The reasoningin Chang Hong Saik (supra), in this Court's opinion, hasproceeded without appreciation of Section 2(b) and the factthat there is no term as “minor ammunition” in thatprovision. single whole cartridge is not part of anammunition; it is whole ammunition, nor can it be called a“minor ammunition”. Having regard to the facts of ChangHong Saik (supra), the Court is of the opinion that theinterpretation placed upon the expression “ammunition”, i.e.

that the whole live cartridge is minor ammunition fallingwithin Section 45(d), is plainly contrary to the Act anderroneous. The said view is accordingly overruled. Theconclusion, however, in the facts of that case appears to havebeen warranted, since the police could not disclose anyintention on the part of the alleged offender in that case. ThereferencemadetotheDivisionBenchisansweredaccordingly.

17. The above discussion would ordinarily have resulted inthis Court relegating the matter after answering thequestions referred to - in the manner indicated above.However, having regard to the circumstances, all thatremains to be seen is whether the petitioner's claim forquashing is merited. Having regard to the earlier conclusionrecorded, as far as the facts of this case go, an on anapplication of the law declared by Supreme Court in State ofBihar v. Ramesh Singh (1977) 4 SCC 39 : AIR 1977 SC2018 and StateofAndhraPradesh v. GolcondaLingaSwamy (2004) 6 SCC 522 : AIR 2004 SC 3967 that thecharges can be framed only when there is “reasonablesuspicion” or sufficient material of the alleged offenderhaving committed the offence-which is entirely absent in thecircumstances of the present case - the impugned FIR (FIRNo. 158/2014) and all proceeding emanating from it deserveto be and is, accordingly, quashed.”

(emphasis added)

5. The Division Bench had quashed the FIR in the abovementioned case.

6. Similarly,in DhanwantKaur v. State,(Crl.M.C.No.3593/2016), this Court observed as under:

“5. It is trite law that the power of the High Court underSection 482 Cr.P.C. is required to be exercised ex debitojustitiae to prevent abuse of process of the Court but shouldnot be exercised to stifle legitimate prosecution and the High

Court cannot assume the role of Trial Court and embarkupon an enquiry as to the reliability of evidence andsustainability of accusation on reasonable appreciation ofsuch evidence. However, if on the face of the charge-sheet theingredients of the offences are not disclosed, the High Courtwould be within its power to quash frivolous proceedings.[See State of A.P. v. Golconda Linga Swamy (2004) 6 SCC522]

6. The Division Bench of this Court Gaganjot Singh (supra)in case of recovery of solitary live cartridge found fromthe possession of the petitioner therein expressed his lack ofawareness as the bag recovered belonged to his uncle andheld that the possession of the petitioner therein was notconscious and quashed the proceedings.

7. Similar view was expressed by this Court in Juan ManuelSanchezRosas v. StatethroughNCTDelhi Crl.M.C.2642/2014; Chan Hong Saik Thr. SPA :ArvinderSingh v. State Crl.M.C.3576/2011;JaswinderSingh v. State Govt. of NCT of Delhi Crl.M.C. 4207/2014and SonamChaudhary v. TheState(Govt.ofNCTDelhi) Crl.M.C.471/2015.

8. As verified and forms part of the charge-sheet, thehusband of the petitioner is holder of an arms license andwas also entitled to possess ammunition for the twoweapons. The case of the petitioner is that inadvertently shedid not check the pouch in which she kept her artificialjewellery which also contained live cartridges and carried itwith her. Thus there was no material before the Court tocome to prima facie opinion that the petitioner was inconscious possession of 5 live cartridges. Moreover, theconstructive possession of the 5 cartridges was that of thehusband of the petitioner, whose possession is not illegalattracting Section 25 Arms Act as he held valid Armslicense.”

(emphasis added)

7. In NarinderjitKaurSingh v. State(NCTofDelhi),[W.P.(Crl).1669/2017], this Court observed as under:

“For prosecution under the Arms Act, it needs to be proved thatthe accused had the knowledge or consciousness of possession.“Possession”, for the purposes of prosecution must meanpossession with the requisite mental element, i.e. consciouspossession and not mere custody without awareness (referto Gunwantlal v. The State of Madhya Pradesh, (1972) 2 SCC194 : AIR 1972 SC 1756; Sanjay Dutt v. State through CBI,Bombay (II), (1994) 5 SCC 410).”(emphasis added)

8. In NimeshKumar v. StateNCTofDelhi,[W.P.(Crl)3540/2017], this Court observed as under:

“8. In the present case, the petitioner was carrying handbagwhich contained one live cartridge inside it. He has claimed thatthe bag belongs to his brother, who has valid firearm licence,the latter fact has been confirmed by the police. The petitioner'sclaim of ignorance of the presence of this cartridge in the bagremoves the element of “conscious or knowing possession”. Thepetitioner claims that he was in hurry to catch his flight,therefore, he quickly stuffed his belongings in the handbagborrowed from his brother. This version is plausible and there isno reason why rational person would carry live firearmcartridge in his handbag on flight, unless it was inadvertently.Apart from the cartridge being in the handbag, there is noincriminating material against the petitioner. Ex facie there isinsufficient material to frame charges against the petitioner andto subject him to the rigours of trial.

9. Charges can be framed only when there is reasonablesuspicion or sufficient material to indicate that the allegedoffender had committed the offence. perusal of the recordsshow that the elements satisfying “reasonable suspicion” areentirely absent in the present circumstances. The case would

have to be based and proven on “conscious possession”.However, since there is no such material, apart from the mererecovery of live cartridge in the bag of the petitioner, theoffence cannot be proved even after trial.”

14.The aforesaid decisions lay down that where the accused is not in aconscious possession of the ammunition/live cartridges, he cannot beproceeded for the offence under Section 25 of the Act.

15.In the present case, only 03 live cartridges were recovered from thebaggage of the petitioner without any corresponding arms. The fact that thepetitioner holds valid license for .32 bore revolver to which the present livecartridges pertain has also been verified by the police.

16.Further, no suspicious circumstances have been pointed out in the FIRwhich would indicate that the possession of live cartridges was conscious.

17.In the given circumstances and regard being had to the aforesaid legalposition, it can be said that the petitioner was not in conscious possession ofthe ammunition. Accordingly, the petitioner cannot be prosecuted for theoffence under Section 25 of the Act. This being the position, the FIRNo.51/2024 under Section 25 of the Act registered at P.S. Domestic Airportalong with all consequential proceedings emanating therefrom is quashed.

18.The petition stands disposed of in the above terms.19.Order be uploaded on the website of this court.

FEBRUARY 10, 2025

VIKAS MAHAJAN, J