Understanding Conscious Possession: A Key Element in Establishing Guilt under the Arms Act – Insights from Delhi HC’s FIR Quash Decision in Namanpret S Dhillon v. State (IGI Airport case)”

Introduction:

In a significant ruling, the Delhi High Court recently quashed an FIR registered against a US citizen at the Indira Gandhi International Airport in New Delhi for possessing live ammunition without a valid license. Justice Jasmeet Singh, presiding over the case, emphasized that ‘conscious possession’ stands as a vital element in determining guilt for offences under the Arms Act, 1959. The court’s ruling sheds light on the importance of awareness and knowledge in establishing criminal liability in such cases.

The Case Background:

The petitioner, a US citizen, was returning to Chicago after visiting his relatives when he was found in possession of a bullet in his baggage at the IGI Airport. He vehemently denied any awareness of the cartridge, claiming it belonged to his uncle, who had used a licensed weapon during Diwali celebrations. It was a case of inadvertent retention in his pocket. The court verified the license of the petitioner’s paternal uncle, reinforcing the claim.

The Verdict:

The court referred the following judicial precedents:

In Adhiraj Singh Yadav Vs. State, decided on 31.12.2020 in
W.P.(CRL) 754/2020, this Court held that:
“12. In view of the above, it is well settled that an offence under
Section 25 of the Arms Act would not be made out in cases
where the suspect was not conscious that he was in possession
of live ammunition.

14. This Court has in several cases held that unconscious
    possession would not attract the rigours of the said Act. [See:
    Surender Kumar @ Surender Kumar Singh v. The State (GNCT
    of Delhi) &Anr.: W.P. (Crl) 2143/2019 decided on 27.09.2019;
    Aruna Chaudhary v. State &Ors.: W.P. (Crl.) 1975/2019
    decided on 25.09.2019 and Paramdeep Singh Sran v. The State
    (NCT of Delhi) W.P.: (Crl) 152/2019 decided on
    29.08.2019)].”

While deciding a similar matter titled ‘Mitali Singh v. NCT of

CRL.M.C. 1530/2022 Page 4 of 8
Delhi & Anr., decided 15.12.2020, W.P.(CRL) No. 2095/2020,
this court made the following observation:
“8. The courts have in a number of decisions held that
the conscious possession of an ammunition is sine qua non
to prosecute the possessor under the Arms Act, 1959.”

9. In Gunwant Lal v. The State of Madhya Pradesh : (1972)
   2 SCC 194, the Constitution Bench of the Supreme Court
   has held as under:-
   “The possession of a firearm under the Arms Act in
   our view must have, firstly the element of
   consciousness or knowledge of that possession in
   the person charged with such offence and secondly
   where he has not the actual physical possession, he
   has none-the-less a power or control over that
   weapon so that his possession thereon continues
   despite physical possession being in someone else. If
   this were not so, then an owner of a house who
   leaves an unlicensed gun in that house but is not
   present when it was recovered by the police can
   plead that he was not in possession of it even though
   he had himself consciously kept it there when he
   went out. Similarly, if he goes out of the house
   during the day and in the meantime someone
   conceals a pistol in his house and during his
   absence, the police arrives and discovers the pistol
   he cannot be charged with the offence unless it can
   be shown that he had knowledge of the weapon
   being placed in his house. And yet again, if a gun or
   firearm is given to his servant in the house to clean
   it, though the physical possession is with him
   nonetheless possession of, it will be that of the
   owner. The concept of possession is not easy to
   comprehend as writers of (sic) have had occasions
   to point out. In some cases under Section 19(1)(f) of
   the Arms Act, 1878 it has been held that the word

“possession” means exclusive possession and the
word “control” means effective control but this does,
not solve the problem. As we said earlier, the first
precondition for an offence under Section 25(1)(a)
is the clement of intention, consciousness or
knowledge with which a person possessed the
firearm before it can be said to constitute an offence
and secondly that possession need not be physical
possession but can be constructive, having power
and control over the gun, while the person to whom
physical possession is given holds it subject to that
power and control.”

10.In Sanjay Dutt v. State through CBI Bombay (II), Crimes
1994 (3) 344 (SC) the Supreme Court has observed as
under:-
“20. The meaning of the first ingredient of
“possession’ of any such arms etc. is not disputed.
Even though the word ‘possession’ is not preceded
by any adjective like ‘knowingly’, yet it is common
ground that in the context the word ‘possession’
must mean possession with the requisite mental
clement, that is, conscious possession and not mere
custody without the awareness of the nature of such
possession. There is a mental element in the concept
of possession. Accordingly, the ingredient of
‘possession’ in Section 5 of the TADA Act means
conscious possession. This is how the ingredient of
possession in similar context of a statutory offence
importing strict liability on account of mere
possession of an unauthorized substance has been
understood.”

Relying on various judicial precedents, the court emphasized that the offence under Section 25 of the Arms Act would not be established if the suspect lacked consciousness of being in possession of live ammunition. Thus, the court concluded that ‘conscious possession’ is a crucial element in establishing guilt for offences punishable under the Arms Act. It highlighted that mere possession without awareness does not render the accused liable for the offence.

The Role of Awareness in Establishing Guilt:

The court’s decision underscores the significance of ‘conscious possession’ as a core ingredient in arms-related cases. Mere possession of a prohibited item does not automatically make an individual culpable. The accused must have the knowledge and intent to possess such items knowingly. In the absence of this element, establishing guilt becomes challenging, and the accused may be acquitted.

Protective Clauses in the Arms Act:

The court also referred to the judgment of Chan Hong Saik Thr. SPA: Arvinder Singh v. State & Anr., which established that recovery of a single cartridge without any firearm falls under the category of minor ammunition, protected by clause (d) of Section 45 of the Arms Act. In the present case, as only a single cartridge was recovered from the petitioner, and no other firearm was found, it was evident that the petitioner lacked ‘conscious possession’ of the live cartridge.

Social Responsibility:

Although the court quashed the FIR against the petitioner, it ordered him to perform a social good as a measure of accountability. The court directed the petitioner to provide a kit of Mosquito Repellent and Hand Sanitizer to each student of a primary school. This decision aimed to make the petitioner contribute positively to society in light of the misdirection of police resources towards the case.