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2023 DIGILAW 1813 (BOM)

Manohar Singh Dasauni v. State of Goa

2023-08-28

PRAKASH D.NAIK

body2023
JUDGMENT/ORDER 1. The petitioner is charged for the offence under Sec. 3 read with Sec. 25 of the Arms Act. 2. The proceedings are pending before the Court of learned Judicial Magistrate First Class, 'A' Court, Vasco-da-Gama vide Criminal Case No.382/AOA/2020/A. 3. The prosecution case in short is that on 25/2/2019 the petitioner was to travel from Dabolim airport, Goa to Delhi by Air Asia flight. During security check two live standard ammunition of .22 calibre cartridges were found in his baggage without valid documents/licence to carry the same. FIR No.3/2019 was registered with Dabolim Airport Police Station for offence under Sec. 3 read with Sec. 25 of Arms Act. Applicant was arrested and granted bail. Statements of witnesses were recorded. The Dabolim Airport Police Station wrote letter to Station House Officer, Cyber Police Station, Dehradun, Uttarakhand dtd. 15/3/2019 and requested to provide information whether any criminal case is registered against the applicant. The Cyber Police Station, Uttarakhand forwarded reply dtd. 28/3/2019 stating that no case is registered against petitioner or his family members. Sealed packet containing two .22 calibre live ammunition, found in possession of accused were sent to the Director, Goa State Forensic Laboratory, Ballistic Division, Goa for examination. Examination was sought, whether the article is ammunition or not and if yes, whether it comes under the purview of Arms Act or otherwise. Whether the article is live ammunition or not and the calibre of the ammunition. The type of weapon with which the questioned article can be fired. The Report dtd. 30/5/2019 was forwarded by Forensic Science Laboratory opining that, the exhibits are standard ammunition of .22 calibre and it comes under purview of Indian Arms Act. The ammunition .22 cartridges were loaded and successfully test fired through .22 calibre regular rile. The ammunition can be fired through standard .22 calibre rifle. During investigation statement of Deepak Agarwal was recorded. Sanction under Sec. 39 of Arms Act was granted. Chargesheet was filed. Documents were collected. On completing investigation, chargesheet was filed. 4. The petitioner preferred an application for discharge before the trial Court. The application was rejected by the learned Chief Judicial Magistrate, Margao vide order dtd. 3/11/2022 on the ground that at this stage the Court cannot hold that the statement of one Deepak Agarwal is true or that the case of the prosecution is true. 4. The petitioner preferred an application for discharge before the trial Court. The application was rejected by the learned Chief Judicial Magistrate, Margao vide order dtd. 3/11/2022 on the ground that at this stage the Court cannot hold that the statement of one Deepak Agarwal is true or that the case of the prosecution is true. However, prima facie, there is case that the accused was in possession of live ammunition. The Goa Forensic Science Laboratory has submitted report which indicate that it is standard ammunition. Hence, the offences under Sec. 3 read with Sec. 25 of the Arms Act, 1959 are made out. 5. The order passed by the trial Court was challenged by the petitioner before the Sessions Court, South Goa, Margao by preferring Criminal Revision Application No.12/2023. Vide order dtd. 5/5/2023 the revision application was dismissed. 6. Learned advocate for the petitioner submitted that the Courts below have committed error in rejecting the applications preferred by the petitioner. On perusal of the material on record it is clear that the petitioner has not committed any offence. Though the FIR alleges that accused was found carrying two live standard ammunition of .22 calibre cartridges in his baggage without any valid licence to carry the same, statement of Deepak Agarwal shows that the same was belonging to him and he has valid documents, licence for the same and the cartridges were left in the handbag due to oversight when Mr Agarwal had borrowed and used the said bag from the petitioner. The statement of Deepak Agarwal shows that he had purchased 200 live ammunition which he was firing during festivals. He had borrowed handbag of the petitioner for business trip and at that time he was carrying his licenced gun along with ammunition for his safety. Report from the Cyber Crime Police Station, Dehradun show that the petitioner has no criminal antecedents and no case is registered against him. The Forensic Ballistics Division report dtd. 30/5/2019 confirms that cartridges were live ammunition before they were test fired in the laboratory and can be fired through standard .22 calibre ammunition. This report corroborates statements of Shri Agarwal who has a .22 licenced gun. The petitioner is a police officer and entitled to carry ammunition otherwise in official capacity and cannot be involved in committing crimes. Only two bullets were found. No gun was found. This report corroborates statements of Shri Agarwal who has a .22 licenced gun. The petitioner is a police officer and entitled to carry ammunition otherwise in official capacity and cannot be involved in committing crimes. Only two bullets were found. No gun was found. It can be safely concluded that the petitioner could not in any way use the bullets in committing any crime. Mere possession of two live ammunition does not constitute an offence. Investigation revealed that the bag was borrowed from applicant by Shri Deepak Agarwal who was holding a valid licence for the firearm ammunition and admitted that he had inadvertently by oversight left two bullets in the pocket of the bag. The petitioner had no knowledge about the firearm owned by Mr Agarwal and the bullets left in the bag. The charge could not be framed for alleged offences. The petitioner should have been discharged by subordinate Court. 7. Learned advocate for the petitioner relied upon the following decisions:- a) Rachella Joel Oseran v/s. State of Maharashtra and 2 Ors., [Criminal Writ Petition No.323 of 2017 High Court of Judicature at Bombay.] b) M A Latif Shahrear Zahedee v/s. State of Maharashtra and 2 Ors ., 2018 1 RCR (Cri) 370 c) Hari Kishan v/s. State (NCT of Delhi) ., 2019 261 DLT 236 8. Learned Additional Public Prosecutor submitted that prima face case is made out against the petitioner. The petitioner was travelling through airport at Dabolim. Two live ammunition were found in the bag of the petitioner. He was in possession of the bag and the live ammunition were found in the bag and thereby the petitioner was in conscious possession of the live ammunition. The forensic report confirms that it is standard ammunition. The defence of the petitioner that he was not in conscious possession of the ammunition cannot be accepted at this stage. At the stage of discharge the Court is required to see that prima facie case is made out against the accused and the Court does not enter into a detailed inquiry by considering the defence of the accused. 9. The petitioner was on his journey to Delhi via Dabolim airport on 25/2/2019. While he was at security check his bag was found containing two live ammunition. The case of the prosecution is that the petitioner had no licence or documents to possess the said articles. FIR was registered. 9. The petitioner was on his journey to Delhi via Dabolim airport on 25/2/2019. While he was at security check his bag was found containing two live ammunition. The case of the prosecution is that the petitioner had no licence or documents to possess the said articles. FIR was registered. Investigation proceeded. Statement of Deepak Agarwal was recorded on 9/6/2019. In the said statement he has stated that he is required to travel with huge amount of cash and he had purchased one .22 bore rifle on 5/6/2019. He had also purchased cartridges. He obtained arms licence from the concerned authority at Uttarakhand. From 2016 onward he purchased 200 live ammunition of 0.22mm for the said rifle as authorised by the concerned authority. He had fired ammunition from his rifle on festival occasions. He knows the petitioner who was attached to Kashipur Police Station at Uttarakhand. In January 2019 Mr Agarwal had made a request to the petitioner for one handbag as he wanted to travel to Mussoorie, Uttarakhand. Accordingly, the petitioner agreed for the same and handed over one of his handbag to him. He travelled for a business trip and returned back. He had kept some of his ammunition inside the bag. He returned the bag to the petitioner. However, due to oversight some of the ammunition remained in the bag. The live ammunition that was carried by him were legally authorised by the authority to possess the same in Udham Singh Nagar District, i.e. for himself and property protection. From the said statement it is apparent that it is not merely the defence of the petitioner that he was not in conscious possession of the ammunition. Except the recovery of two cartridges, there is no other incriminating material against the petitioner to make him liable for offence under Sec. 3 and 25 of the Arms Act. The said fact is fortified from the version of the aforesaid person whose statement is recorded by the investigating agency as a witness to the prosecution case. Thus, the prosecution case proceeded on the basis that the ammunition which was found in the bag of the petitioner belongs to Mr Deepak Agarwal. He is the prosecution witness. The Forensic report states that the ammunition found in the bag of the petitioner can be fired through standard .22 calibre rifle. Thus, the prosecution case proceeded on the basis that the ammunition which was found in the bag of the petitioner belongs to Mr Deepak Agarwal. He is the prosecution witness. The Forensic report states that the ammunition found in the bag of the petitioner can be fired through standard .22 calibre rifle. In these circumstances, the Courts below ought not to have rejected the application for discharge on the ground that the issues are required to be dealt with during the trial. It is also pertinent to note that only two live ammunition were found in the bag. Rifle or gun was not found in the bag. There was no question of utilising the live cartridges for committing any crime. The petitioner is a police officer. Mr Agarwal has all the documents to possess the arms and ammunition. 10. In the case of Rachelle Joel Oseran (supra), the contention of the petitioner therein was that sine qua non for the offence under Ss. 3 and 25 of the Indian Arms Act is the conscious possession of ammunition. It was also contended that the petitioner was unaware of the bag's contents. She landed in Mumbai for travelling from Mumbai to Delhi. One live cartridge was found in the bag. Affidavit was filed by the person who had lent the bag to the petitioner stating that the bag in which the live cartridge was found was given by her and the said bag in which the live cartridge was found was previously used by her husband who had served in Israeli Army. This Court referred to several decisions on the issue relating to conscious possession and it was held that the petitioner has not consciously possessed the cartridge in question and the same had remained in the bag which the petitioner was carrying without her knowledge. No firearm or weapon was recovered from the petitioner. The petitioner had not concealed the bullet. On being questioned, the petitioner had given her explanation immediately. Except the recovery of bullet, there is no other incriminating material which has been uncovered during investigation so as to make petitioner culpable under Sec. 3 and 25 of the Indian Arms Act. 11. No firearm or weapon was recovered from the petitioner. The petitioner had not concealed the bullet. On being questioned, the petitioner had given her explanation immediately. Except the recovery of bullet, there is no other incriminating material which has been uncovered during investigation so as to make petitioner culpable under Sec. 3 and 25 of the Indian Arms Act. 11. In the case of M. A. Latif Shahrear Zahedee v/s. State of Maharashtra, (supra), the Division Bench of this Court again dealt with a similar question wherein the petitioner therein was found in possession of live cartridges and was prosecuted for the offence under Ss. 3 and 25 of the Arms Act. The contention of the petitioner was that he has offered valid explanation for the five live cartridges and one empty cartridge found in his toilet kit pouch. He produced arms licence issued to his brother. The Court observed that such possession cannot be called as conscious possession as required under Ss. 3 and 25 of the Arms Act. It was also observed that bare perusal of Ss. 3 and 25 of the Arms Act clearly reveals that the term "possession" used therein refers to conscious possession and not unconscious possession or inadvertent possession. Mere possession of the firearm or ammunition would not constitute offence under Ss. 3 and 25 of the Arms Act. The essential requirement is the knowledge of possession or power or control over the arm or ammunition when not in actual possession. 12. The Apex Court in the case of Sanjay Dutt v/s. State, through CBI, Bombay., 1994 5 SCC 410 has observed as follows:- '[11].... "The meaning of the first 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, that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is a mental element in the concept of possession. Accordingly, the ingredient of 'possession' in Sec. 5 of the TADA Act means conscious possession. There is a mental element in the concept of possession. Accordingly, the ingredient of 'possession' in Sec. 5 of the TADA Act means conscious possession. This is how the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an authorised substance has been understood (See Warner v. Metropolitan Police Commissioner 1969 (2) AC 256 and Sambasivam v. Public Prosecutor, Federation of Malaya, 1950 AC 458". 13. Similar view is taken by the Division Bench of this Court also in case of Nurit Toker v/s. State of Maharashtra, 2012 All MR (Cri) 942 wherein two live cartridges were found in the baggage of the petitioner at the time of screening and hence the offence was registered against the petitioner therein under Ss. 3 and 25 of the Arms Act. As it was pointed out that two live cartridges found in the baggage of the petitioner were the result of some mistake when the petitioner started her journey; it was held that in the absence of the element of possession being conscious, she was rightly discharged/released by the police by filing report under Sec. 169 of the Code of Criminal Procedure. 14. In the case of Hari Kishan v/s. State (NCT of Delhi) (supra), the Delhi High Court quashed the FIR and the proceedings emanating therefrom. The petitioner was chargesheeted for alleged possession of live round in the bag during search conducted at Metro station. The petitioner pleaded that he did not have any knowledge about the presence of one live cartridge in the side pocket of his bag which was half transparent and it did not have any zip or lock. No firearm or any weapon is recovered from petitioner. There is not a whisper of an averment in the chargesheet that he had conscious possession of the alleged cartridge. It was held that, there is no material that the petitioner was aware of being in alleged conscious and knowledgeable possession of ammunition in question. The proceedings were quashed. 15. In this case no firearm was found in possession of petitioner. The petitioner did not try to hide the ammunition. The petitioner explained that cartridges belong to Shri Deepak Agarwal. Statement of Deepak Agarwal is recorded which forms part of chargesheet. There is no evidence to show that petitioner was in conscious possession of two ammunitions. 16. 15. In this case no firearm was found in possession of petitioner. The petitioner did not try to hide the ammunition. The petitioner explained that cartridges belong to Shri Deepak Agarwal. Statement of Deepak Agarwal is recorded which forms part of chargesheet. There is no evidence to show that petitioner was in conscious possession of two ammunitions. 16. From the ratio of various decisions, it is evident that mere possession of firearm or ammunition would not constitute offence under Sec. 3 and 25 of the Arms Act and that the essential ingredient is the knowledge or power or control over the arm or ammunition when not in actual possession. Conscious possession is the core ingredient to establish the guilt for the offence under Sec. 3 and 25 of the Arms Act. The expression 'possession' provided in Sec. 25 of the Arms Act, 1959 means possession of the requisite element i.e. conscious possession and that mere custody without the awareness of the nature of such possession does not amount to any offence under the Arms Act, 1959. 17. The ballistic report confirms the cartridge to be ammunition. However, that itself is not sufficient to indicate suspicion much less reasonable suspicion of petitioner involvement in an offence, which necessarily has to be based on conscious possession. In the absence of such material, the offence cannot be proved, even after trial. The petitioner cannot be subjected to prosecution, in the facts of this case. I am conscious of the fact that the petitioner has sought discharge which has been declined by trial Court and Sessions Court. However, in the present case there is no material to frame charge and proceed against the petitioner. 18. Applying principles enunciated in several decisions to the facts of this case, the petitioner cannot be prosecuted for the aforesaid offences and the proceedings are required to be dropped by setting aside impugned order. ORDER (i) Criminal Writ Petition No.483 of 2023(Filing) is allowed. (ii) Impugned order dtd. 3/11/2022 passed by the Chief Judicial Magistrate, Margao below Exhibit D8 and order dtd. 5/5/2023 passed by learned Sessions Judge, South Goa, Margao in Criminal Revision Application No.12/2023 are quashed and set aside and the petitioner is discharged from Criminal Case No.382/AOA/2020/A. (iii) Criminal Writ Petition stands disposed of.