Mere possession of a gun or cartridges is not a crime, Bombay high court ruled, while coming to the rescue of a 39-year-old Bangladeshi businessman who was arrested in 2013 at the airport as live cartridges were found in his bag during a security check. A division bench of Justices Ranjit More and Shalini Phansalkar-Joshi ruled that to constitute a crime under the Arms Act, it will have to be shown that the accused had knowledge or was consciously carrying these arms or ammunition. The court struck down an FIR lodged by the Airport police station against Jhenaidah Sadar resident Latif Zahedee.
"A bare perusal of (the provisions of) the Arms Act clearly reveals that the term 'possession' used therein refers to 'conscious possession' and 'not unconscious possession' or 'inadvertent possession'," said the judges, and cited Supreme Court and high court judgments on the issue. "It is thus clear that mere possession of the firearm or ammunition would not constitute an offence (under law)," the bench said.
Zahedee was on a four-day business trip to various parts of India and was returning to Dhaka from Mumbai airport on September 29, 2013. The airlines informed him that there was a problem with his luggage and he was taken to the screening room by CISF personnel. When his bags were checked, CISF recovered five live cartridges and an empty one from his toilet pouch. He informed police that the cartridges belonged to his brother, who had a license for the German-made revolver and live cartridges. Since he shared the travel pouch with his brother, the cartridges could have been left behind without his knowledge. He got his brother to fax the licence but police lodged an FIR and booked Zahedee for illegally bringing out or taking out arms or ammunition from India under the Arms Act, which prescribes a minimum three-year and maximum seven-year prison term.
The prosecution opposed Zahedee's plea and said he should face trial where it could be proved whether he was in conscious possession of the arms. "It is not in dispute that Zahedee was not carrying any weapon, such as revolver or a pistol. Therefore, it is obvious that these live cartridges and the empty one remained in his baggage inadvertently on account of carrying the toilet kit pouch of his brother with him," observed the judges.
12/12/17 Times of India
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"A bare perusal of (the provisions of) the Arms Act clearly reveals that the term 'possession' used therein refers to 'conscious possession' and 'not unconscious possession' or 'inadvertent possession'," said the judges, and cited Supreme Court and high court judgments on the issue. "It is thus clear that mere possession of the firearm or ammunition would not constitute an offence (under law)," the bench said.
Zahedee was on a four-day business trip to various parts of India and was returning to Dhaka from Mumbai airport on September 29, 2013. The airlines informed him that there was a problem with his luggage and he was taken to the screening room by CISF personnel. When his bags were checked, CISF recovered five live cartridges and an empty one from his toilet pouch. He informed police that the cartridges belonged to his brother, who had a license for the German-made revolver and live cartridges. Since he shared the travel pouch with his brother, the cartridges could have been left behind without his knowledge. He got his brother to fax the licence but police lodged an FIR and booked Zahedee for illegally bringing out or taking out arms or ammunition from India under the Arms Act, which prescribes a minimum three-year and maximum seven-year prison term.
The prosecution opposed Zahedee's plea and said he should face trial where it could be proved whether he was in conscious possession of the arms. "It is not in dispute that Zahedee was not carrying any weapon, such as revolver or a pistol. Therefore, it is obvious that these live cartridges and the empty one remained in his baggage inadvertently on account of carrying the toilet kit pouch of his brother with him," observed the judges.
12/12/17 Times of India
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