Possession Of Live Cartridge Without Corresponding Weapon Not An Offence Under Arms Act: Kerala High Court

The Kerala High Court recently ruled that the presence of a live cartridge alone that had been seized from the bag of a passenger during the security check at the airport without seizure of any corresponding fire-arm would indicate that there was no 'conscious possession' by such passenger, and hence, would not amount to an offence under the Arms Act, 1959.

Elucidating Section 25 of the Act that pertains to 'possession of firearm', Justice Bechu Kurian Thomas, observed, 

"Possession of a fire-arm under section 25 of the Act means conscious possession involving a mental element. Mere custody, without any element of consciousness or knowledge of that possession, cannot amount to an offence under the Act. It is settled law that the possession of a fire-arm under the Arms Act must have the element of consciousness or knowledge of that possession on the person charged with such offence. Further, even if he has no actual physical possession, if he nonetheless has power or control over the weapon, his possession will amount to a conscious possession, even if the actual possession is with a third party." 

The petitioner in this case, who is a businessman from Maharashtra, possessed a license to possess arms within his State. While the petitioner was waiting to board a flight from Kannur Airport to return to his home State, a live cartridge of 0.32 calibre was discovered upon screening of petitioner's baggage. Although the petitioner claimed that he was unaware as to how the live cartridge came to be in his bag, an FIR was registered against him alleging offences punishable under Sections 3 (License for acquisition and possession of firearms and ammunition) and 25(1B)(a) (punishment for certain offences) of the Act, 1959.

It was averred by Advocates T. Asaf Ali and T.Y. Laliza that the petitioner had never been involved in any criminal case previously, and that he was holding an arms license that was valid within the State of Maharashtra. It was submitted that the petitioner was not in conscious possession of the ammunition for attracting the offence under Section 25 of the Act. It was also contended that a single live cartridge without a corresponding fire-arm was a minor ammunition which is protected under Section 45(d) of the Act, and an offence could thus, not be made out. 

The Court perused Section 2(1)(b) that defines 'ammunition', and Section 25(1B)(a) of the Act. It then proceeded to note that in Gunwantlal v. State of Madhya Pradesh (1972), the Constitution Bench of the Supreme Court had observed that the first pre-condition for an offence under Section 25(1)(a) is the element of intention, consciousness or knowledge with which a person possesses the fire-arm before it can be said to constitute an offence and secondly, that the possession need not be physical possession but could even be constructive possession.

It is in this context the Court ascertained that possession of a fire-arm under Section 25 of the Act would indicate possession involving a mental element. In the instant case, the Court noted that although a single live cartridge had been recovered from the petitioner's bag during security check, a corresponding fire-arm was not recovered.

"The absence of a fire-arm in any of the bags of the petitioner indicates that there was no conscious possession of the live cartridge. Absence of recovery of a fire-arm and the presence of a single live cartridge indicates that there was no intention to possess or, in other words, no animus possidendi. In the absence of any animus possidendi, an offence under section 25 of the Act cannot be made out," the Court held. 

It further noted that the statements of witnesses also did not indicate that the prosecution had a case that the petitioner possessed a live cartridge with the conscious intention to possess it, and that no fire arm had been recovered either from the petitioner, or from any other passenger. 

"In view of the above discussion, this court is of the opinion that the presence of the live cartridge alone recovered from the baggage of the petitioner without a corresponding fire-arm indicates that there was no conscious possession of a fire-arm by the petitioner. Hence prosecution of the petitioner in C.C. No.236 of 2021 on the files of the Judicial First Class Magistrate's Court, Mattannur, is an abuse of the process of court and is hereby quashed," the Court declared while quashing the prosecution case, and allowing the petition. 

Public Prosecutor Vipin Narayanan appeared on behalf of the respondents. 

Case Title: Shantanu Yadav Rao Hire v. State of Kerala & Anr. 

Citation: 2023 LiveLaw (Ker) 227 

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