The Delhi High Court has refused to quash an FIR registered against a Canadian citizen whose flight check-in baggage was found with 50 live cartridges. The Court observed that prima facie, there was commission ofoffence under the Arms Act, 1959.
Justice Subramaniom Prasad dismissed a petition filed seeking quashing of an FIR registered under sec. 25 of the Arms Act[1]. The petitioner being a Canadian citizen, held an Overseas Citizen of India card.
“ The instant writ petition filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 seeks quashing of FIR No. 46/2021 dated 10.02.2021, for an offence under Section 25 of the Arms Act, 1959”.
BRIEF FACTS
The petitioner, is a Canadian citizen, who also holds an Overseas Citizen of India card. He arrived in Delhi from Canada on February 9 ,2021 and was supposed to catch a connecting flight from New Delhi to Amritsar on February 10 , 2021.
It is stated that during the check-in at the Indra Gandhi Airport, New Delhi, the baggage of the petitioner was found with 50 live cartridges of .22 mm calibres. Thereafter, the petitioner was asked to produce a valid licence for the said ammunition, and he was unable to produce the same.On the said complaint, the instant FIR was registered , for an offence under Section 25 of the Arms Act, 1959 .
It is stated that the petitioner holds a valid arms licence in Canada. However, the petitioner has no registered firearm under his licence.
The petitioner was granted bail and he was permitted to go to Canada for a period of six months by the trial court .
ISSUE OF THE CASE
Whether the petitioner was in conscious possession of the 3 cartridges or not is an issue that must be decided during the trial.
CONTENTIONS ON THE BEHALF OF THE PETITIONER
Mr. Shreeyash U Lalit, learned counsel for the petitioner, contends that under the firearm licence issued at Canada, a licensee can have three classes of firearms (a) 2 non-restricted, (b) restricted, (c) prohibited. He contends that the non-restricted firearm need not be registered under a firearm licence. However, the restricted and prohibited firearm needs mandatory registration. He further states that since a nonrestricted firearm does not require any registration, there was no law in Canada for purchase of cartridges for such fire arms. The petitioner herein acquired a .22 LR (long rifle), which is predominantly used for target practice and hunting purposes. Since it is a non-restricted firearm, the licence does not indicate that the petitioner has the possession of the same.
Mr. Shreeyash U Lalit, further stated that the check-in for domestic flight commences only two hours prior to departure and again there is no possibility that the petitioner could have inserted the firearm in his baggage. He, therefore, states that this demonstrates that the petitioner was not in conscious possession of the firearm.
CONTENTIONS ON THE BEHALF OF THE STATE
On the other hand Per contra, Mr. Sanjay Lao, learned Standing Counsel for the State, contends that the petitioner has been found with 50 cartridges and he was travelling overseas into the country. He states that since it was a box full of cartridges weighing almost about 200 grams, the petitioner could not raise the bogey of unconscious possession.
Court placed reliance on the case of the Sh. Gaganjot Singh v. State, [2]has observed as under:-
“A single whole cartridge is not a part of an ammunition; it is a whole ammunition, nor can it be called a "minor ammunition". Having regard to the facts of Chang Hong Saik (supra), the Court is of the opinion that the interpretation placed upon the expression “ammunition”, i.e. that the whole live cartridge is a minor ammunition falling within Section 45(d), is plainly contrary to the Act and erroneous. The said view is accordingly overruled. The conclusion, however, in the facts of that case appears to have been warranted, since the police could not disclose any intention on the part of the alleged offender in that case. The reference made to the Division Bench is answered accordingly”.
After that Hon’ble Court also refer the case of Narinderjit Kaur Singh v. State (NCT of Delhi) & Anr[3],and held that :
“For prosecution under the Arms Act, it needs to be proved that the accused had the knowledge or consciousness of possession. “Possession”, for the purposes of prosecution must mean possession with the requisite mental element, i.e. conscious possession and not mere custody without awareness”.
The Hon’ble High Court said that
In most of these cases, a single live cartridge has been found in possession of the accused and this Court found that there was reasonable or sufficient material to indicate that the person carrying one live cartridge might not have been in conscious possession of the same. Furthermore, in all these cases, the accused or his near family members possessed a valid arms licence in India.
In the present case, the petitioner has been found with a box containing 50 cartridges and has an arms licence in Canada. It has to be established by the petitioner that he does not require a licence to purchase cartridges for .22 long range calibres rifle in Canada.
“It has also to be established by the petitioner that he can purchase any number of cartridges and ammunition in Canada. The reliance of the petitioner on the Baggage Rules, 2016 is of no consequence for the reason that the Baggage Rules. 2016 under the Customs Act is for the purpose of payment of duty, and this cannot absolve the petitioner of an offence under the Arms Act, 1959.”
A person of Indian origin is permitted to bring 50 cartridges into India and need not pay duty for the same. This cannot mean that the petitioner can be exonerated for an offence under the Arms Act, 1959 in India which prohibits a person from carrying arms and ammunition without a proper licence.
The Court agreed with the submission made on behalf that the box containing 50 cartridges weighing around 200 grams could not have been inadvertently kept in the bag.
JUDGEMENT
At last the Hon’ble High Court held that
“The petitioner could have assumed that he was permitted to carry these ammunitions in the country on the ground that he has a valid licence in Canada and that he would not have to pay duty on the same but that reason is not sufficient to quash the FIR. The petitioner would have to face trial and get himself exonerated in the trial by proving that he was not in conscious possession of the cartridge”.
Accordingly dismissed the petition.
Case Title: GURJIT SINGH SANDHU v. STATE OF NCT OF DELHI
W.P. (CRL) 2193/2021
[1] Section 25 in Arms Act 1959
25. Punishment for certain offences— 20 [
(1) Whoever—
(a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 21 [***]
(d) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
22 [(1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.
(1AA) Whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.]
23 [(1AAA) ] Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than 24 [three years, but which may extend to seven years] shall also be liable to fine.
(1B) Whoever—
(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or
(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or
(c) sells or transfers any firearm which does not bear the name of the maker, manufacturer’s number or other identification mark stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub-section (1) of that section; or
(d) being a person to whom sub-clause (ii) or sub-clause (iii) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or
(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub-section (1) of section 9; or
(f) brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or
(g) transports any arms or ammunition in contravention of section 12; or
(h) fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section 21; or
(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less than 25 [one year] but which may extend to three years and shall also be liable to fine: Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than 6[one year].
26 [(1C) Notwithstanding anything contained in sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation.—For the purposes of this sub-section, “disturbed area” means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.]
(2) Whoever being a person to whom sub-clause (i) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to one year, or with fine or with both.
27 [(3) Whoever sells or transfers any firearm, ammunition or other arms—
(i) without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of that firearm, ammunition or other arms; or
(ii) before the expiration of the period of forty-five days from the date of giving such information to such district magistrate or the officer in charge of the police station, in contravention of the provisions of clause (a) or clause (b) of the proviso to sub-section (2) of section 5, shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.]
(4) Whoever fails to deliver-up a licence when so required by the licensing authority under sub-section (1) of section 17 for the purpose of varying the conditions specified in the licence or fails to surrender a licence to the appropriate authority under sub-section (10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.
(5) Whoever, when required under section 19 to give his name and address, refuses to give such name and address or gives a name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both.
[2] W.P.(CRL).1169/2014
[3] W.P.(CRL).1669/2017
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