Telangana HC Discharges Student Who Was Gifted 380 Rounds Of Live Ammunition To Make Necklace, Says Possession Was Not 'Conscious'

The Telangana High Court has discharged a student of alleged offences under Section 25 of the Arms Act, 1959. Section 25 prescribes the penalty for manufacturing, selling, transferring, converting, repairing, testing or possessing any firearm or ammunition.

The petitioner/accused was caught at the Rajiv Gandhi International Airport at Hyderabad, having in his possession live ammunition. According to him, a friend of his had given him the ammunition for the purpose of making a necklace.

Justice Juvvadi Sridevi, before whom the matter was placed, noted that possession under the Arms Act means conscious possession and without the requisite mens rea, the provisions of the Act would not apply.

“In view of the foregoing discussion, this Court is of the considered opinion that the mere recovery of live ammunition, in the absence of any cogent evidence establishing conscious possession or the requisite mens rea, is insufficient to attract the penal provisions of the Arms Act. Without any foundational material to substantiate that the petitioner was in conscious and knowing possession of the ammunition, the continuation of criminal proceedings would amount to an abuse of the process of law.”

Background:

According to the petitioner's narration, in 2011, a friend gifted him 380 live rounds of ammunition as a birthday present for the purpose of making a necklace. The petitioner kept the ammunition in his bag and came to Hyderabad to attend a wedding. While returning back, the luggage of the petitioner was stopped at the airport security check in Hyderabad, and the live ammunition was confiscated from the petitioner.

A FIR was registered and a charge sheet was filed before the Magistrate. The petitioner herein filed a discharge petition before the trial court. The same was dismissed, giving rise to the present review.

The petitioner argued that there was no material on record to show that the ammunition was confiscated from the petitioner's possession and that no proper investigation was conducted to establish mens rea.

The counsel for the petitioner relied on Birendra Shukla v. The State (Govt. of NCT of Delhi) and another and Manohar Singh Dasauni v. State of Goa, Through Verna Police Station in furtherance of his argument.

On the other hand, the prosecution contended that the matter was a triable issue.

After hearing the arguments of both sides, the Bench conceded that the prosecution failed to establish any misuse of unlawful intent associated with the possession.

“A bare perusal of Section 25 of the Arms Act, 1959 clearly indicates that the term “possession” as used therein contemplates conscious possession, and not mere inadvertent or unconscious possession. Mere physical custody of a firearm or ammunition, without the requisite 10 mental element, does not attract the penal provisions of Section 25 of the Act. The essential requirement to constitute an offence under this provision is the existence of mens rea, i.e., knowledge of such possession or control over the firearm or ammunition, even in the absence of actual physical possession. The term “possession” under Section 25 encompasses both physical control and conscious awareness. Thus, mere custody without mens rea would not amount to an offence under the Act,” the Bench concluded.

Thus, in view of the above discussion, the review was allowed and the petitioner/accused was discharged of the offences alleged against him.

KARAN SAJNANI WEST BENGAL vs. State of TG

Counsel for petitioner: Zainab Khan, appearing on behalf of T. Bala Mohan Reddy

Counsel for respondents: APP

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