Mere Custody of Firearm without knowledge not an offence under Arms Act, Bombay HC

Mere possession of firearms without the knowledge of or control over the same does not constitute an offence under the Arms Act, 1959 ruled Bombay High Court..The judgment was delivered in April this year by a Bench comprising Justices RM Savant and Sarang V Kotwal in a Criminal Writ petition in the case of Rachelle Joel Oseran v. State of Maharashtra..What the case was.The petitioner in this case was an Israeli national who was travelling to India in 2015 for a seminar that she had arranged. She was working in the field of childbirth education and yoga, among other things, for over 30 years and often brought tourists from Israel and other parts of the world to India for the “mindful India” seminars..A criminal case was filed against the petitioner in the year 2015 when while entering India on a tourist visa, a live cartridge was found in one of her bags by the Central Industrial Security Force (CISF) at the Mumbai Airport..The petitioner was travelling with one of her tourist groups and claimed that she was carrying sweets and toys for children in an orphanage. The live cartridge was found in the same bag as the sweets and the gifts..According to the petitioner, she was unaware of the presence of the live cartridge in the bag and claimed that she had borrowed that bag from a friend cum travel agent, Hillary Weiss, whose husband had used that bag before it was lent to the petitioner. Weiss’s husband had served in the Israeli Army and had used the bag in question during his service. No other firearm or ammunition was found in any other baggage carried by the petitioner..A criminal case under the Arms Act, 1959 came to be filed against the petitioner for possession of the live cartridge and her statements were also recorded..‘Absence of knowledge’ an essential ingredient:.The case presented for the petitioner by her Counsel was that she was merely found to be in possession of the cartridge but had no knowledge of it or did not exercise any control over it and therefore, Sections 3 and 25 of the Arms Act cannot be invoked to hold her guilty..The Court, after examining all the material evidence and statements, placed reliance on a number of judgements passed by the Bombay High Court and the Supreme Court. Relying on Sanjay Dutt v. State through CBI, Bombay the Court determined what the term “possession” would construe in a case like this. In Sanjay Dutt’s case, the Supreme Court had said,.“[T]he word ‘possession’ occurring in the said provision (of Arms Act) 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.”.The principle laid down in the previous judgements stressed on the requirement of the element of knowledge and awareness of such a possession. These judgements stated that a mere custody without the element of knowledge would not amount to the offence under Sections 3 and 25 of the Arms Act..In this case, the Court observed that besides the cartridge in question, no other firearm or weapon was recovered from the petitioner and the petitioner had furnished her explanation before all the authorities. The Court also observed that the investigating authorities found no other incriminating material against the petitioner..The Court held,.“[M]ere possession of the firearm or ammunition would not constitute offence under Section 3 and 25 of the 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.”.The Court, therefore, allowed the petition and quashed the criminal proceedings against the petitioner owing to the absence of the “essential ingredient” of “knowledge of possession”..The petitioner was represented by advocate Jatin P Shah along with advocates Mudit Gupta, Snehankita Munj, Tushar Patel, KM Jhangiani and Siddharth Mehta. Additional Public Prosecutor SV Sonawane appeared on behalf of the State..Read Judgement: