Pon a d cision rendered bY the High Court of Delhi at New Delhi v. The State

Counsel for the Petitioner SRI. T BA Counsel for the Respondent.l: ASSISTA Counsel for the Respondent.2: NONE MOHAN REDDY T PUBLTC PROSECUTOR (TG) The Court made the following: ORDER THE HONOURABLE SMT JUSTICE JUWADI SRIDEVI CRIMINAL REVISION CASE No.2309 OF 2015 ORDER: This Criminal Revision Case is filed by the petitioner- accused No.1 seeking to set aside the impugned Order dated

08.09.2015 in Criminal Miscellaneous Petition No.3408 of 2014 in C.C No 299 of 2014 passed by the learned Vlll Metropolitan Magistrate, Cyberabad at Rajendranagar, presently pending on the file of the learned XXV Additional Judicial [\/agistrate of First Class, Rangareddy District at Rajendranagar (for short 'the learned trial Court'), registered for the offence under Section 25(1)(A) of the Arms Act, 1959, (for short 'the Act'). 02 Heard Ms. Zainab Khan, learned counsel, representing Sri T.Bala Mohan Reddy, learned counsel for the petilioner and Smt.S.Madhavi, learned Assistant public Prosecutor for the State-respondents. Perused the record.

03. Brief facts of the case are that the petitioner- accused No.1 and accused No.2 are friends. On21 .01 .2011, the petitioner-accused No 1 celebrated his birthday at 2 F=l Calcutta, during which accused No.2 gifted one 380 live ammunition to the Petitioner-acc sed No.1 for the PurPose of using the same as a locket for a neck chain. The Petitioner- accused No.l kePt the said live ammunitiotr in his bag and subsequentlY travelled to HYd abad by train to attend a marnage Afler attending the arriage, on 13.02.2011 at around 10:00 hours, the Petitio er-accused No.1 arrived at Rajiv Gandhi lnternational AirP rt, Shamshabad, along with his luggage, intending to retu securitY check at the airPo n to Calcutta. During the the aforementioned live ammunition was found in his ag. For which, a case was registered against the Petitione -accused No.1 in FIR/Crime No.51 of 2011 fot the offen punishable under Section 25(1XA) of the Act

04. UPon comPletion the investigation, the charge sheet was filed before the lea ed Magistrate. Aggrieved bY the allegations leveled agains petitioner-accused No 1 fil him in the charge sheet, the d an aPPlication seeklng discharge. However, the lea ned Magistrate dismissed the said discharge Petition bY wa of the imPugned Order dated

08.09.2015. 3

05. Aggrieved by the said dismissal of the discharge application, the petitioner-accused No.1 preferred the present Criminal Revision Case.

06. Learned counsel for the petitioner-accused No.'l submitted that the petitioner has no connection whatsoever with the alleged offences. The learned l\Iagistrate failed to appreciate that there is no record or material to show that the alleged live ammunition was seized from the possession of the petitioner. lt is further.submitted that there is no element of intention, knowledge., or conscious possession on the part of the petitioner so as to attract the provisions of the Arms Act. Mere custody or possession of live ammunition, does not constitute an offence under the said Act. lt is contended that the charge sheet has been filed by the police without conducting proper investigation, and no incriminating material has been collected during the course of investigation to implicate the petitioner. The contents of the charge sheet, even if taken at face value, do not disclose the essential ingredients necessary to make out the alleged offence against the petitioner. 4

07. With the above submissi ns, the learned counsel for the petitioner-accused No.1 while raying to set aside the impugned order, he relied uPon a d cision rendered bY the High Court of Delhi at New Delhi in irendra Shukla v. The State (Govt. of NCT of Delhi) and notherl , wherein it was held at ParagraPh Nos.7, 9, 10 that: "7. lt is a settled ProPosition of under Section 25 of the Arms A physical possesslon but also t, element i.e. mens rea of conscio custody without mens rea woul offence under the Arms Act. Con a fire arm/ammunition is a neces statutory offence entailing st. offender. w thal possesston t refers to not onlY e requisite mental s possession. Mere not constitute an cious possession of ary ingredient of the t liability on the !. ln the absence of the conscio caftridge, which cannot be u Secllon 45(d) of the Arms Act wo and it woutd be iustified to end a secure the ends of iustice s possession of /i ve for any purqose, ld not be aPPlicable such proceedings to

10. Perusal of the record shows is clearly covered bY the dec and the PrinciPle of law laid Courl. There isn't sufficient evi ground of susPicion to iustifY co the live caftidges recovered fro petitioner. There is no material o the petitioner was conscious of live cartidge." hat the subiect case s referred to above wn by the SuPreme nce or reasonable cious possession of the baggage of the record to show that e possesslon of fhe t 2018 SCC Online Del 10218 -/ ,, I I 5 08 Further, he relied upon a decision rendered by the High Court of Bombay at Goa in Manohar Singh Dasauni v. Stafe of Goa, Through Verna Police Stationz wherein at Paragraph No 11 held that: "1 1 ln the case of M.A. Latif Shahrear Zahedee v. State Of Maharashtra, (supra), the Division Bench of this Courl again dealt with a similar question wherein the petitioner therein was found in possesslon ol /ive caftridges and was prosecuted for the offence under Secfions 3 and 25 of the Arms Ac| The contention of the petitioner was that he has offered vatid explanation for the five live caftridges and one empty caftridge found in his toilet kit pouch. He produced arms licence rssued lo his brother. The Courl observed that such possesslon cannot be calted as consclous possesslon as required under Sections 3 and 25 of the Arms Act. lt was also observed that bare perusal of Sectlons 3 and 25 of the Arms Act clearly reveals that the lerm 'possess ion" used therein refers fo consclous possesslon ancl not unconscious possession or inadveftent possesslon. Mere possesslo n of the firearm or ammunition woutd not constitute offence under Secllons 3 and 25 of the Arms Act. The essential requirement is the knowtedge of possesslon or power or control over the ann or ammunttion when not in aclual possesslon. "

09. On the other hand, learned Assistant public Prosecutor appearing for the State-respondents contended that there are triable issues in the matter and there is no illegality or irregularity committed by the learned Magistrate in '? zo2: sCC Online Bom 177s 6 dismissing the discharge applicatio accused No.'1 . Hence, there are n filed by the petitioner- grounds to interfere with the impugned Order passed by th learned Magistrate and prayed to dismiss this Criminal Revi ion Case '10. A bare perusal of the contents of the charge sheet reveals that the Police ha e mechanically invoked Sections 25(1Xa) and 25(1-A) of t e Act, the former being cited on the first page and the latte on the concluding page However, the sole allegation again t the pet ition er-accu sed No.1 is that he was found in poss ssion of live ammunition, which was allegedly recovered fro his bag during security checking at Rajiv Gandhi lnternati nal Airport, Shamshabad There is no further material indicati g any misuse or unlawful intent associated with such posses ion. ln view of facts and circumstances of the case, it is re evant to extract Sections 25(1Xa) and 25(1-A) of the Act, whi h reads as under "25fi)h) Whoever (a) [m procures,] sells, transfers, con proves, or exposes or offers has in his possession for sale repair, test or proof, any a contravention of section 5, or nufactures, obtains, erts, repairs, tests or r sale or transfer, or transfer, conversion, s or ammunition in 25fi-N Whoever acquires, ha carries any prohibited arms or in his possession or rohibited ammunition 7 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 fourteen years] flnserted by Act 42 of 1988, Section 5 (wef' 27 5.1988.,t and shall also be liable to fine.''

11. A plain reading of the aforesaid provisions of the Act, indicates that Section 25(1Xa) prescribes the penalty for manufacturing, selling, transferring, converting, repairing, testing, or possessing any firearm or ammunition in contravention of the provisions of Section 5 of the Act ln essence, this provision pertains to unauthorized dealings in arms and ammunition. On the other hand, Section 25(1-A) specifically relates to the illegal possession, acquisition, or carrying of prohibited arms or ammunition in violation of Section 7 of the Act. lt mandates a minimum punishment of seven years' rigorous imprisonment, which may extend to fourteen years. thereby reflecting the gravity of offences involving prohibited arms or ammunition.

12. A bare perusal of Section 25 of the Arms Act, 1959 clearly indicates that the term "possession" as used therein contemplates consclous possession, and not mere inadvertent or unconscious possession. Mere physical custody of a firearm or ammunition, without the requisite B .- \ \ ^-*^.1 mental element, does not attrac the penal provisions of Section 25 of the Act. The essenti I requirement to constitute an offence under this provision is he existence of mens rea, i.e., knowledge of such possessio or control over the firearm or ammunition, even in the ab ence of actual physical possession. The term posses under Section 25 encompasses both physical control and conscious awareness Thus, mere custody thout mens rea would not amount to an offence under the A Conscious possession is a necessary ingredient to establis criminal liability under this statutory provision. ln the present case, there is no material on record to indicate that the pe itioner-accused No.1 had consctous knowledge of the ossession of the live ammunition. Further, there is o sufficient evidence or reasonable ground to suspect th t the petitioner knowingly carried the said ammunition with th requisite mental intent

13. Furthermore, a car ful examination of the impugned order reveals that the I arned lVlagistrate failed to consider whether the allegations, as stated in the charge sheet, prima facie constituted the lleged offence or not. The impugned order does not refle any proper or cogent reasoning for rejecting the discharge application filed by the petitioner. The learned Magistrate appears to have passed the order in a mechanical manner without applying judicial

14. ln view of the foregoing discussion, this Court is of the considered opinion that the mere recovery of live ammunition, in the absence of any cogent evidence establishing conscious possession or the requisite mens rea, is insufficient to attract the.penal provisions of the Arms Act. Without any foundational material to substantiate that the petitioner was in conscious and knowing possession of the ammunition, the continuation of criminal proceedings would amount to an abuse of the process of law. [\4oreover, the learned trial Court failed to properly assess whether the allegations in the charge sheet, even if .taken at face value, disclose the commission of any cognizable offence, thereby / committing a manifest illegality and procedural irregularity. ln that view of the matter, the impugned order passed by the learned Magistrate is unsustainable in law and is liable to be set aside. 10

15. Accordingly, this Cri inal Revision Case is allowed setting aside the impugne Order dated 08.09.2015 in Criminal [Vliscellaneous Petiti n No.3408 of 2014 in C.C.No.299 ot 2014 Passed bY th learned Vlll Metropolitan Magistrate, Cyberabad at Rajendr nagar, presently pending on the file of the learned XXV Addit nal Judicial Magistrate of First Class, RangareddY Dis ct at Rajendranagar. Consequently, the petitioner-accu No.'1 is discharged from the alleged offence. All Proceedi s arising therefrom shall stand quashed. As a sequel, pending miscell neous applications, if anY, shall stand qlose{ Sd/. A. PRATHIMA EPUTY REGISTRAR /TTRUE CO Yll a r Gopv to he HoNoU RAB E S MT For Hef ordsh p s k n Pe L L d t ( SECTION OFFICER ADI SRIDEVI USTTCE JU sal) e B UP c M etro po an Mas S o S R T BALA MoHAN R L C P to S S STANT Th C C C Two C S 11 LR CoPies ffre finOer Secretary, Union of lndia Affairs. New Delhi ih" S""t"trw, Telangana Advocates iir't"-"ir"rr"gana, High court Buildi Two CD CoPies ybe bad at Rajenderanagar dVO ca e o P t t E D T( R S E UT ) l o R G at H yd eIa a o Tl b d CU C U inistry of Law, Justice and ComPanY sociation Library, High Court for the gs at HYderabad I I I I l I i i It\l\It I I I I I I I F To,

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4. 5 6 7 TL/kam ir47 ( c o o 12 AIJE 206 -A',-// t D€so HIGH COURT DATED:2510712025 ORDER CRLRC.No.2309 of 2015 ALLOWING THE CRIMINAL R.C.