Del HC | “Possession” under S. 25 Arms Act is to be backed by mental element to make it the requisite “conscious possession”

Delhi High Court: Sangita Dhingra Sehgal, J., quashed an FIR registered against the petitioner under Section 25 of the Arms Act, 1959 for being found in possession of a live cartridge at the Indira Gandhi International Airport, New Delhi.

The petitioner was travelling from New Delhi to Canada by China Southern Airlines. During the course of screening, one live cartridge was detected inside his check-in baggage. Pursuant to the same, the aforesaid FIR was registered. The petitioner prayed for quashing of the FIR.

The petitioner, represented by Siddhartha Shankar Ray, Abhik Kumar, Suryadeep Singh and Rinku Mathur, Advocates, submitted that he held a valid Arms License. Furthermore, while packing his jacket, the petitioner failed to notice that one cartridge had been left in it which was detected at the Airport. Per contra, Rajesh Mahajan, Additional Standing Counsel for the State opposed the present petition.

Relying, inter alia, on Gunwantlal v. State of M.P., (1972) 2 SCC 194 and Sanjay Dutt v. State, (1994) 5 SCC 410, the High Court stated: “With respect to the issue of ‘conscious possession’ , it is settled law that the expression ‘possession’ under Section 25 of the Arms Act, 1959 refers to possession backed with the requisite mental element, that is, ‘conscious possession’. Mere custody without the awareness of the nature of such possession does not constitute an offence under the Arms Act, 1959.”

Holding that the requisite mental element was not present in the present case, the Court quashed the FIR registered against the petitioner. However, costs of Rs 20, 000 was imposed on him for his casual attitude which set in motion the entire state machinery.[Davinder Singh Dhindsa v. State (NCT of Delhi), 2019 SCC OnLine Del 7895, decided on 01-04-2019]

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