2012 ALL MR (Cri) 942
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.M. KHANWILKAR AND R.G. KETKAR, JJ.

Nurit Toker Vs. State Of Maharashtra & Ors.

Criminal Writ Petition No.3569 of 2011

18th January, 2012

Petitioner Counsel: Mr.NITEEN PRADHAN, Mr.ABHIJEET SHINDE, Mr.AADITYA GORE & Ms.KHUSHBOO BALANI, HARESH JAGTIANI & Associates
Respondent Counsel: Mrs.A.S.PAI,
Other Counsel: Mr.DEEPAK JOSHI

Arms Act (1959), Ss.3, 25 - Ingredient of offences under Ss.3, 25 - Conscious possession is the core ingredient to establish the guilt for offences under Ss.3, 25 of the Arms Act.

(1994) 5 SCC 410 - Ref. to. (Para 9)

Cases Cited:
Sanjay Dutt Vs. State through C.B.I., Bombay (1994) 5 SCC 410 [Para 9]


JUDGMENT

A. M. KHANWILKAR, J. :- Heard Counsel for the parties.

2. Rule. Rule made returnable forthwith, by consent. Counsel waive notice for respective respondents. Mr.Deepak Joshi, Inspector/Esc., CISF Unit, Chattrapati Shivaji International Airport, Sahar Airport, Mumbai, who is present in Court has waived notice for and on behalf of respondent No.3 in his capacity as superior officer of respondent No.3 and having authority to waive this notice.

3. As short question is involved, Petition is taken up for final disposal forthwith, by consent.

4. Two principal reliefs have been claimed in this Petition. The first is to quash and set-aside FIR No.16/2011 dated 28th October, 2011 registered with Sahar Police Station, Mumbai for offence punishable under Sections 3, 25 of the Arms Act, 1959. The incidental relief claimed is to direct the respondents to return the petitioner's passport bearing No.14996376 issued on 20th September, 2011 at Jerusalem and valid till 19th September, 2021. The second relief is to set aside the order of the Metropolitan Magistrate, 22nd Court, Andheri, Mumbai dated 29th December, 2011 and to discharge the petitioner from the subject criminal case.

5. The petitioner does not have permanent place of residence in India. It is stated that the petitioner had to undergo compulsory military service in the Israeli Army irrespective of the gender. She was in service in the army from 22nd October, 2008 and the same was completed on 18th October, 2011. During this period, she served as an Officer in the education and youth corps. It is her case that during this military training, by virtue of a provision as an officer, she was allowed to go on weekend leaves with her personal sidearm, an M-16 assault rifle, along with her personal ammunition. She has stated on affidavit that she does not have any criminal record in Israel or in any other country. A Certificate issued by Israel Police Investigation Branch dated 30th October, 2011 to that effect has been placed on record. According to the petitioner, at the fag end of completing her military service, she decided to take a break and travel abroad. She purchased air-tickets to visit for Kathmandu, Bangkok and back to Israel. The Indian Embassy granted her a Visa vide No.AP 3505346211051011-051 for a period of two months i.e. from 5th October, 2011 to 5th December, 2011. On that basis, she left Israel on 26th October, 2011 and landed at Mumbai International Airport on 27th October, 2011. Notably, on the next date, she was scheduled to leave for Kathmandu as per her preplanned travel itinerary. On 28th October, 2011, she was complying with the formalities to board Jet Airways Flight No.9W 0266. However, during screening of her baggage, two live cartridges were found by Central Industrial Security Force (CISF) Personnel, having description - 0.1 M.M. TZZN and other being 0.5 M.M. IMI. These bullets are of the 5.56 kind, compatible with the M-16 assault rifle which the petitioner used during her compulsory military service. Admittedly, no arm or weapon has been recovered from the petitioner. After recovery of two live cartridges, the CISF Personnel (respondent No.3) handed over petitioner to Sahar Police Station by lodging a complaint against petitioner for offence which was registered as FIR for offence under Sections 3, 25 of the Arms Act, 1959. The petitioner was produced before the Vacation Court of Metropolitan Magistrate and after remaining for four days in police custody, she was granted bail on 31st October, 2011 on condition that she will not leave the city of Mumbai without permission of the Trial Court. In view of the pendency of the prosecution, the petitioner could not return back to her home country and her Visa was required to be extended to allow her to stay back in India in connection with the subject criminal case.

6. The sum and substance of the stand of the petitioner is that she was not aware of existence of two live cartridges in her baggage. In fact, she had travelled with the said baggage from Israel till Mumbai. She arrived in Mumbai on 27th October, 2011 and was preparing to leave for Kathmandu on 28th October, 2011 as per her pre-planned itinerary. The said two live cartridges may have remained in her baggage when she left Israel from her military camp due to mistake. The fact so asserted by the petitioner is reinforced from the report given by the Embassy of Israel. This report was given in response to the requisition sent by the Investigating Officer in the course of investigation. The report mentions that the arrested female accused was serving in the Israel Defence Force for three years i.e. from 22nd October, 2008 to 18th October, 2008 and her employee identification number was 201572849. It further records that during the service, the said Defence Force had given her MI-16 Rifle and the bullets for use. Further, the bullets were given in the course of the aforesaid duty. It is also noted that the two bullets recovered from her baggage were left with her by mistake. On receipt of the report, the Investigating Officer decided to submit his report to the Metropolitan Magistrate under Section 169 of the Code of Criminal Procedure, 1973 ('Cr.P.C.'). He accordingly proceeded to submit that report on 22nd December, 2011. The official translation thereof (Exhibit E1) reads thus :


 
“Outward No.11625/2011
Senior Police Inspector,
Sahar Police Station, Mumbai
Date: 22/12/2011
To,
Hon’ble Metropolitan Magistrate,
22nd Court,
Andheri (East), Mumbai,
Sub : Discharge of the arrested female accused, u/s 169 Criminal Procedure Code (Cr.PC)
Sahar Police Station Comp.No.16/2011 U/S. 3, 25 of the Indian Arms Act, 1959.
Sir,
      With reference to the aforementioned subject we hereby submit the following report. That a complaint being Comp.No.16/2011, u/s 3, 25 of the Indian Arms Act was registered with the Sahar Police Station on 28/10/2011 under which Miss.Nurit Toker, Age 23 years, (Israel National) was arrested.
      The brief facts pertaining to the offence are as follows. On 28/10/2011 the arrested female accused attempted to travel from Mumbai to Kathmandu via Jet Airways Flight No.9W-266 with 2 live bullets (0.1 MM TZZN & 0.5 MM IMI Ammunition) in her possession, illegally and without any license for the same. By doing so the arrested female accused violated the Indian Arms Act and therefore a complaint was registered against her as per the instructions given by the Complainant.
      The arrested female accused being an Israel National a report was procured from the Consulate which revealed that the arrested female accused was serving the Israel Defense Force for three years i.e. from 22/10/2008 to 18/10/2011 and her Employee Identification Number was 201572849. During the service the said Defense Force had given her MI-16 Rifle and the bullets for use. The bullets were given in the course of the aforesaid duty. It is clarified by the aforesaid report that that two bullets out of the same were left with her by mistake. A Xerox copy of the said report is annexed herewith.
      It is therefore prayed that the arrested female accused viz. Miss Nurit Toker, Age 23 years, (Israel National) be discharged U/S 169 of CrPC.
      Hence this report.
Yours faithfully,
Sd/-        
Senior Police Inspector,
Sahar Police Station, Mumbai.”

 

7. The Magistrate considered the report of the Investigating Officer. He was pleased to reject the same, vide impugned Judgment and order dated 29th December, 2011. The relevant discussion in his Judgment reads thus:

"Heard both the sides. It has been stated by the complainant that the accused was detained by him at the airport as she was found curving bullets. The ballistic examination report dtd. 7.12.2011 reveals that the two cartridges (bullets) found in possession of the accused were live. It is pertinent to note that the report U/sec 169 CRPC does not state that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, as required by Sec.169 of CRPC. On the contrary, the report discloses that there is sufficient material against the accused, for which she could be prosecuted. A letter from the Israel Consulate states that the accused had accidentally left bullets in her bag I wonder on what basis should the consulate have made such a statement. Whether the said statement need to be acted upon by this courts I believe no. Sec. 3 of the Arms Act requires a person to be punished even if he or she is only in possession or arms or ammunition, without having a valid licence as per the Act. There is no requirement of use or intention to use the arm or ammunition. Therefore, a conscious possession could, in a given case, fall within the ambit of Sec. 3 & Sec. 25 of the Arms Act. The contents of the application do not make out a case Under Sec. 169 CRPC and therefore, the application cannot be acted upon. The application deserves to be rejected, which I hereby do."

8. After the aforesaid order, the petitioner has amended the Writ Petition and asked for the second relief which has been reproduced earlier. The affidavit has been filed on behalf of respondent Nos.1 and 2 dated 17th January, 2012, sworn by Assistant Commissioner of Police, Airport Division, Mumbai which, in effect, supports the stand of the petitioner. It is asserted by respondent Nos.1 and 2 that filing of report under Section 169 of the Cr.P.C. was more than justified as there was no sufficient material to file charge-sheet against the petitioner since it was not a case of conscious possession of the two live cartridges found from her baggage. The fact that the petitioner was not in conscious possession of the two live cartridges recovered from her baggage is reinforced from the contents of the seizure memo dated 28th October, 2011, the statement of the respondent No.3 as also the handing over of two live cartridges recovered from her under panchnama dated 28th October, 2011.

9. Having considered the submissions made by the Counsel appearing for the parties, we find that the Metropolitan Magistrate may be technically right in observing that the Investigating Officer has not recorded his own satisfaction in the report submitted by him under Section 169 of Cr.P.C. stating that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. However, on a fair reading of the report submitted by the Senior Police Inspector dated 22nd December, 2011 under Section 169 of the Cr.P.C. and more particularly, the affidavit of Chandrahas Krishna Chavan, Assistant Commissioner of Police dated 17th January, 2012, there is no manner of doubt that the Investigating Officer has gone on record that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to the Magistrate. It is well established position, in law, that conscious possession is the core ingredient to establish the guilt for offence under Sections 3, 25 of the Arms Act. It will be useful to place reliance on the decision of the Constitution Bench in the case of Sanjay Dutt v. State through C.B.I., Bombay (II) reported in (1994) 5 SCC 410. The Apex Court has held that the expression 'possession' occurring in the aforesaid provision must mean possession with the requisite mental element, 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. That means that the possession must be conscious possession. The Apex Court has held that only then the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an unauthorised substance has to be understood. In the present case, from the material collected during the investigation in the form of seizure memo, statement and panchnama and more particularly, the report submitted by the Embassy of Israel, it became amply clear that the possession of two live cartridges found in the baggage of the petitioner were result of some mistake when the petitioner had started her journey from Israel as per her preplanned itinerary. It was not a case of conscious possession. In that view of the matter, in our considered opinion, the Investigating Officer was justified in moving the Court of Metropolitan Magistrate to exercise powers under Section 169 of Cr.P.C.

10. In the impugned decision, the Magistrate has committed manifest error in observing that Section 3 of the Arms Act requires a person to be punished even if he or she is in possession of the arms or ammunitions, without having a valid licence as per the Act. This is completely contrary to the dictum of the Constitution Bench of the Apex Court referred to above. Notably, in the present case, the possession is only of two live cartridges of the weapon, which, in fact, was entrusted to the petitioner during her military service in Israel. No arms were recovered from her at the Mumbai Airport. The petitioner had travelled from Israel and had passed through similar security check drills at other International Airports till she reached Mumbai on 27th October, 2011. She started her onward journey to Kathmandu on 28th January, 2012 and for the first time, two live cartridges were traced during the screening of the baggage belonging to the petitioner.

11. Considering all these aspects, there is no reason to doubt the opinion of the Investigating Officer that there was no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, as it was not a case of conscious possession of two live cartridges recovered from the baggage of the petitioner.

12. Accordingly, we have no hesitation in setting aside the impugned decision of the Metropolitan Magistrate dated 29th December, 2011 and instead, accept the report of the Senior Inspector of Police (Investigating Officer) dated 22nd December, 2011 submitted under Section 169 of Cr.P.C. As a result, the petitioner would stand discharged from all the charges levelled against her on the basis of FIR No.16/11 dated 28th October, 2011 registered with the Sahar Police Station, Mumbai.

13. The petitioner is also entitled for return of her passport bearing No. 14996376. The respondent No.2 shall cause to return her passport forthwith as the petitioner had to stay back in India due to fortuitous circumstances.

14. Accordingly, Rule is made absolute in terms of prayer clauses (a) and (ai) which read thus:

"(a) That this Hon'ble Court may call for necessary papers and proceedings pertaining to FIR No.16 of 2011 dated 28th October 2011 and after satisfying itself as to the illegality and impropriety of the same quash and set aside FIR No.16 of 2011 dated 28th October 2011, and the passport of Petitioner bearing No.14996376 be returned to Petitioner.

(a1) That this Hon'ble Court be pleased to quash and set aside the order dated 29th December 2011 passed by the Ld.Metropolitan Magistrate's 22nd Court, Andheri, Mumbai in Special LAC No.16 of 2011 with RA No.1577 of 2011 and accept the report dated 22nd December 2011 filed by the Police under section 169 of the Code of Criminal Procedure and accordingly discharge Petitioner from all the charges levelled against Petition in Special LAC No.16 of 2011 with RA No.1577 of 2011 before the Ld.Metropolitan Magistrate's 22nd Court, Andheri, Mumbai."

15. Petition disposed of on the above terms.

Petition allowed.