Bombay HC: Mere Possession of Arms without Knowledge is Not punishable u/Arms Act

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May 08, 2018

Case name: Rachelle Joel Oseran v. The State of Maharashtra and Ors.

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In the case, the Division Bench of Bombay High Court has reiterated the settled legal proposition that mere possession of arms without knowledge does not amount to an offence punishable under the Arms Act.

In the case, the petitioner who was travelling to India was found in possession of one live cartridge while her baggage was getting scanned at the Mumbai Air Port. Subsequently, a FIR had been registered against the Petitioner under Sections 3 and 25 of the Indian Arms Act.

Section 3 of the Arms Act prohibits any person from possessing an ammunition without acquiring a license for the same. Section 25 of the Act is a penal provision and states that a person who carries ammunition in contravention of Section 3 is liable to be punished under the Act.

Here it would be relevant to mention that one Mrs. Hillary Weiss had lent the bag to the Petitioner in which the live cartridge was found. Mrs. Weiss informed that the bag was previously used by her husband Mr. Dani Weiss who had served in the Israeli Army. The said statement was also affirmed on an affidavit by Mrs. Weiss.

The Petitioner has alleged that the Investigation Agency ignored the aforesaid affidavit and filed a charge sheet against the Petitioner for offences under the Arms Act. Aggrieved by the same, the Petitioner the Bombay High Court for quashing of the proceedings on the ground that the ingredients of the offences under Sections 3 and 25 of the Indian Arms Act were conspicuously absent in the present case.

High Court’s Verdict:

The High Court allowed the Petitioner’s plea by relying on precedents bearing similar facts and serving as a stare decicis:

  • The Court opined that the sine qua non for an offence under Sections 3 and 25 of the Indian Arms Act is the conscious possession of ammunition.
  • That no useful purpose would be served in proceeding with the case in question registered for the offences punishable under Sections 3 and 25 of the Indian Arms Act. The Court stated that in the instant case, the Petitioner cannot be said to have consciously possessed the cartridge in question and that the cartridge has remained in the bag which the Petitioner was carrying without her knowledge.
  • That no fire arm or weapon has been recovered from the Petitioner. The Petitioner had not concealed the bullet, the Petitioner on being questioned had immediately given her explanation. The charge sheet filed by the Sahar Police does not disclose any incriminatory material against the Petitioner.
  • The Court also relied on the Apex Court’s judgment in the case of Sanjay Dutt v/s State through C.B.I., Bombay[1], wherein the Apex Court whilst construing the word “possession” occurring in the said provision held that it would mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession.

Other cases relied on:

Nurit Toker v/s. State of Maharashtra and others.

M.A. Latif Shahrear Zahedee v/s. The State of Maharashtra and ors.

Ms. Pallavi d/o Santprasad Satsangi v/s. The State of Maharashtra and anr.

The underlying principle laid down in the aforesaid judgments is that mere possession of the fire arm or ammunition would not constitute offence under Sections 3 and 25 of the Indian Arms Act and that the essential ingredient is the knowledge of possession or power or control over the arm or ammunition when not in actual possession. 

 

[1] (1994) 5 SCC 410