Bombay HC Quashes FIR Against B’desh Citizen Booked Under Arms Act As He Was Not In Conscious Possession [Read Judgment]

The Bombay High Court recently quashed an FIR against a citizen of Bangladesh booked under sections 3 and 25 of the Arms Act.

After hearing the writ petition filed by the accused, MA Latif Shahrear Zahedee, the bench of Justice Ranjit More and Justice Shalini Phansalkar Joshi held that the accused was not in conscious possession of the live cartridges that were recovered from his luggage at Mumbai airport, hence the charges could not be sustained.

Case Background

The petitioner is permanent resident of Bangladesh and has travelled to India for business purposes on several occasions. He left Dhaka for India on September 25, 2013, and after travelling from Kolkata to Pune, then Goa and Ahmedabad, he finally flew to Mumbai and booked a flight back to Dhaka on September 29, 2013.

After completing his security check, the petitioner proceeded to board the flight, but was informed by the airline that there was some problem with his luggage.

Then the petitioner was taken to the luggage screening room and asked to open his bag. In this bag, there was a toilet kit pouch which had five live cartridges and one empty cartridge in it.

Upon enquiry by CISF officials at the airport, the petitioner immediately disclosed that the said belong to his brother Md Nasser. The petitioner said the same was inadvertently carried by him as he shared the travel kit pouch with his brother.

From the airport itself, the petitioner called upon his brother Md. Nasser to send fax copy of his licences to hold arm as well as cartridges. After receiving the copies on fax, the petitioner handed them over to the CISF officer.

However, an FIR was registered against the petitioner by a CISF officer under sections 3 and 25 of the Arms Act.

Thereafter, the petitioner was remanded to the police custody and then to magisterial custody.

Submissions and Judgement

Senior advocate Niteen Pradhan appeared for the petitioner. He submitted that his client had given a valid explanation for carrying the cartridges and also produced a valid arms licence issued to his brother. Thus, the possession of the petitioner cannot be called as ‘conscious possession’ as required under sections 3 and 25 of the Arms Act.

He relied upon the judgment of the constitution bench of the Supreme Court, in Sanjay Dutt vs State through CBI Bombay (1994) and the judgment of division bench of the Bombay High Court in Nurit Toker vs State of Maharashtra, 2012.

The court said:

“After having heard learned counsel for the parties, we are of the view that the facts of this case clearly reveal that the possession of the petitioner was obviously not conscious.

Live cartridges and empty recovered from the luggage of the petitioner tallies completely with the description of the rounds mentioned in the arm licences of the petitioner's brother. It is not in dispute that the petitioner was not carrying any weapon such as revolver or a pistol. Therefore, it is obvious that these live cartridges and the empty remained in the petitioner's baggage inadvertently on account of carrying the toilet kit pouch of his brother with him.”

Referring to the law laid down by the Supreme Court in the case Sanjay Dutt vs State through CBI, the court noted:

“It is, thus clear that the mere possession of the fire arm or ammunition would not constitute offence under Section 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.”

Therefore, the FIR was quashed and set aside.