Final Order 10

Order Details: COPY OF ORDER
Pdf Text: 34 Cr Cases 7820/2023
STATE Vs. SANDEEP GUPTA
FIR No. 15/2018
26.05.2025
O R D E R
1 Succinctly put, the allegations leveled against the accused as set
forth in the chargesheet are that on 10.12.2018 at Indraprastha
Metro Station (now Supreme court metro station), during the
screening of the baggage/ articles belonging to the accused through
the X-Ray Machine, one live cartridge/ammunition of 0.32 mm was
found in possession of the accused. It has been further alleged in the
chargesheet that though a license of a firearm was also found in
possession of the accused however the same was valid only for the
state of Uttar Pradesh. Subsequently, the live cartridge was sent to
the Forensic Science Laboratory for the ballistic analysis. After
receipt of the report and obtaining sanction under section 39 Arms
Act, chargesheet was filed u/s 25/54/59 Arms Act.
2 Upon perusal of the chargesheet, the cognizance was taken and
summons were issued to the accused. Upon his appearance, copy of
the chargesheet was supplied to him who subsequently addressed
arguments on the point of discharge.
3 Ld. Counsel for the accused vehemently argued that the accused
was in possession of valid license on the date of the alleged offence,
i.e. 10.12.2018. The accused further produced in the court his
original license wherein the validity mentioned was till 18.17.2020.
A copy of the same was also placed on record. It has been further
argued by the Ld. Counsel for the accused that the copy of the
license annexed with the chargesheet is incomplete and the page
-- 1 of 8 --
-2-
that shows the exact date of the validity has not been annexed.
Clarification on the same was also sought from the IO who stated
that he had filed the copy of the license as found/provided to him by
the accused. Be that as it may, it was further submitted by the IO
the license pertains to the State of U.P and was thus not valid within
the territories of Delhi.
4 The Ld. Counsel for the accused thereafter in support of his
contention has relied upon the following judgements:
Anjum
Asghar Zaidi v. State Crl.Rev.P. 150/2019, Namanpreet Dhillon v.
State Crl.M.C.1530/2022, Adhiraj Singh Yadav v. State W.P.(Crl)
754/2020 and Chan Hong Saik v. State & Anr Crl.M.C. 3756/2011.
5 Ld. APP for the state on the other hand submitted that applicant or
accused was found in possession of live cartridge in his handbag at
the time of security checking as such
prime facie offence u/s 25 of
Arms Act is clearly made out as the license of the accused was valid
at Agra, Uttar Pradesh whereas the Accused was apprehended with
the live catridge within the jurisdiction of this Court.
6 The law with regard to framing of charge is well-settled. In the case
of
Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4,
Hon’ble Apex Court laid down broad contours on the point of
framing of charge. The same are reproduced as under:
"…10.(1) That the Judge while considering
the question of framing the charges under
Section 227 of the Code has the undoubted
power to sift and weigh the evidence for the
limited purpose of finding out whether or not a
prima facie case against the accused has been
made out.
-- 2 of 8 --
-3-
1.
Where the materials placed before the Court
disclose grave suspicion against the accused
which has not been properly explained the Court
will be fully justified in framing a charge and
proceeding with the trial.
2.
The test to determine a prima facie case
would naturally depend upon the facts of each
case and it is difficult to lay down a rule of
universal application. By and large however if
two views are equally possible and the Judge is
satisfied that the evidence produced before him
while giving rise to some suspicion but not grave
suspicion against the accused, he will be fully
within his right to discharge the accused.
(4) That in exercising his jurisdiction under
Section 227 of the Code the Judge which under
the present Code is a senior and experienced
court cannot act merely as a Post Office or a
mouthpiece of the prosecution, but has to
consider the broad probabilities of the case, the
total effect of the evidence and the documents
produced before the Court, any basic infirmities
appearing in the case and so on. This however
does not mean that the Judge should make a
roving enquiry into the pros and cons of the
-- 3 of 8 --
-4-
matter and weigh the evidence as if he was
conducting a trial…”
7 Similar opinion was expressed in the case of State of
Orissa v.
Debendra Nath Padhi, (2005) 1 SCC 568
, wherein it was held that
"…6. At the stage of framing charge, the trial
court is required to consider whether there are
sufficient grounds to proceed against the
accused. Section 227 of the Code provides for
the eventuality when the accused shall be
discharged. If not discharged, the charge against
the accused is required to be framed under
Section 228…”
8 Suffice it to say, in terms of ratio of aforesaid judgments, the Court,
while exercising its jurisdiction under Section 227 or Section 239 of the
Code of Criminal Procedure, is not to function merely as a post office or a
mouthpiece of the prosecution. Rather, the Court is duty-bound to consider
the broad probabilities of the case, the cumulative effect of the evidence,
and the documents placed on record. Where two views are reasonably
possible, and the court is of the considered opinion that, although the
material on record may give rise to some suspicion, it does not disclose a
grave suspicion warranting the framing of charge, the Court would be fully
justified in directing the discharge of the accused.
9 It is a well-settled proposition of law that the term 'possession'
under Section 25 of the Arms Act encompasses not merely physical
possession but also the requisite mental element, i.e., the mens rea of
-- 4 of 8 --
-5-
conscious possession. In the absence of such conscious possession,
prosecution under the said provision cannot be sustained. Moreover, the
possession of a single live cartridge, in the absence of any accompanying
firearm, has consistently been regarded as a minor form of ammunition and
is protected under the exception carved out in
Section 45(d) of the Act. In
other words, the mere possession of a solitary cartridge, does not attract the
penal provisions of the Arms Act. In such circumstances, the continuation
of criminal proceedings would amount to an abuse of the process of law.
10 In the present case, it is relevant to note that the accused made no
attempt to conceal the live cartridge found in the bag. On the contrary, the
bag was voluntarily handed over for x-ray screening at the security
checkpoint, where detection of arms or ammunition is inevitable unless a
conscious attempt is made to conceal them. Importantly, there is no
allegation from the prosecution that any such attempt at concealment was
made by the accused. This fact alone militates against the inference of
conscious possession. Moreover, the prosecution record is devoid of any
material that could establish even a reasonable ground to suspect that the
accused had knowledge of the presence of the cartridge. In the absence of
this essential mental element (
mens rea), the requirement of conscious
possession under Section 25 of the Arms Act is not satisfied.
11 The judgment of Hon’ble High Court of Delhi in
Anjum Asgar
Zaidi (supra) assumes significance in the case at hand; where in the
similar facts, the impugned order of framing of charge u/s 30 of the
Arms Act had been set aside. The relevant expert of the judgement
are reproduced as under-
-- 5 of 8 --
-6-
“9… It is settled proposition of law that
possession under Section 25 of the Arms Act
refers to not only physical possession but also
the requisite mental element i.e. mens rea of
conscious possession. In the absence of
conscious possession of the live cartridge, which
cannot be used for any purpose, Section 45(d) of
the Arms Act would be applicable and it would
be justified to end all such proceedings to secure
the ends of justice.
10. In the subject case, petitioner did not make
any attempt to conceal the live cartridge in the
bag and had handed over the bag for x-ray
screening. It is common knowledge that in case
any arms or ammunition are present in a bag
which is screened by X-ray, the arm and
ammunition would be easily detected unless
attempt is made to conceal the same. It is not the
case of the prosecution that any attempt was
made by the petitioner to conceal the same so as
to avoid detection. Clearly petitioner did not
have the conscious possession. Further the
record does not show any material to suggest any
reasonable ground for suspicion to even justify
conscious possession of the live cartridges
recovered from the baggage of the petitioner.
There is no material on record to show that the
-- 6 of 8 --
-7-
petitioner was conscious of the possession of the
live cartridges.
11. From the perusal of the record it can be
safely inferred that the presence of live cartridge
in the hand bag was not within the knowledge of
the petitioner and petitioner did not have the
requisite mens rea for committing the said
offence…”
12 In the present case, it is evident that the applicant/accused made no
attempt to conceal the live cartridges found in his bag at the time it was
submitted for x-ray screening. The chargesheet contains no allegations that
the applicant/accused endeavored to hide the cartridges or attempted to
evade the security personnel. Furthermore, the live cartridges recovered
from the accused’s possession fall within the ambit of his valid arms
license, which was duly verified for the relevant period. Therefore, it
cannot be held that the accused had conscious possession of the live
cartridges allegedly recovered from his bag. Additionally, the investigation
has failed to establish that the ammunition in question was procured
illegally.
13 In view of the foregoing, proceeding with the trial would serve no
meaningful purpose, as there exists no likelihood of conviction based on
the material presently on record. Conscious possession, which constitutes
an essential ingredient of the offence under Section 25 of the Arms Act, is
wholly absent in the present case. Consequently, the foundational
requirement for attracting Section 25 of the Arms Act is not satisfied, and
-- 7 of 8 --
-8-
no offence under the said provision can be said to have been made out
against the accused.
14 In view of the above discussion, the accused Sandeep Gupta S/O
Kishan Bihari Gupta is hereby discharged in terms of section 239 CrPc for
the offences u/s 25/54/59 Arms Act.
15 Order be given Dasti as prayed for.
16 File will be consigned to the record room after due compliance.
(Hala Quamar)
Relieving JMFC/PHC/ND
26.05.2025
-- 8 of 8 --