IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE BETWEEN THE HON' BLE MR.JUSTICE R DEVDAS CRIMINAL PETITION NO.734/2017 MR. ARJUN PURUSHAN AGED ABOUT 19 YEARS, SON OF PRASHANTH V. PURUSHAN, RESIDING AT FLAT NO.303, HEIRTAGE APARTMENT, GANDHINAGAR, NEAR BARKE POLICE STATION, URVA, MANGALURU-6.
(BY SRI. P. P. HEGDE, ADVOCATE) ...PETITIONER AND 1 . THE STATE -THROUGH THE INVESTIGATING SUB INSPECTOR OF POLICE, OFFICER BAJPE POLICE STATION, BAJPE, MANGALURU, REP. BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA AT BENGALURU-560 001.
2 . DEVI PRASAD SHETTY SECURITY SUPERVISOR, JET AIRWAYS, MANGALORE INTERNATIONAL AIRPORT, MANGALORE-574142 …RESPONDENTS (BY SRI. MAHESH SHETTY, HCGP FOR R1 R2 SERVED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C TO QUASH THE FIR IN CR. NO.406/2016 OF BAJPE POLICE STATION, MANGALURU TALUK FOR THE OFFENCES P/U/S 3(1), 25(1-B)(a) OF ARMS ACT, PENDING ON THE FILE OF JMFC-(II COURT), MANGALURU.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R.DEVDAS J., (ORAL):
Though the matter is coming up for admission, with the consent of the learned counsel of the petitioner and the learned HCGP, who is appearing for respondent –State, the matter is taken up for final disposal. Though respondent No.2, the Security Supervisor of Jet Airways of Mangalore International Airport is served, he has remained unrepresented.
2. This case is a good example of how a careless act by a young person can lead to serious consequences. The petitioner, a student studying in 1st year of Engineering Course, was proceeding with his mother and brother to take a flight from Mangaluru to Rajkot via Mumbai to join his father, who was serving as a Project Manager of Reliance Petrochemical Industries, Jamnagar, Gujarat. During the security check, the security personnel found a bullet (7.6 mm) in the wallet of the petitioner. When enquired the petitioner has stated that about two years ago while he was playing near his house, he found the bullet in the debris of neighboring construction site and out of curiosity kept it in his pocket. In the subsequent statement recorded by the Jurisdictional police, the petitioner has repeated the same statement and in the statement of the petitioner’s mother, she too has stated the same thing. In fact the mother has stated that she asked her son to throw away the bullet and chided him that he should not keep it with him. The petitioner mischievously pretended as if he has thrown the bullet and later kept it in his pocket and he continued to keep the same in his personal wallet.
3. The jurisdictional Magistrate granted bail on 24.12.2016, while the incident had taken place on 23.12.2016.
4. The learned counsel for the petitioner submits that it is on record that the petitioner is a meritorious student having secured 296 marks out of 300 in Science subjects, in II Year Pre-University Course. The petitioner was rewarded with a merit seat in the prestigious, National Institute of Engineering (N.I.T), Mysuru. Therefore, the petitioner was staying in a Paying Guest accommodation in Mysuru, while the petitioner’s mother and younger brother continued to live in Mangalore. On the date of the incident, the petitioner along with his mother and brother proceeded to the Airport to travel to Gujarat and join the father for a vacation. The learned counsel for the petitioner submits that it is an unfortunate incident and the petitioner in the normal curiosity of a youth, did not listen to his mother and kept the bullet in the wallet.
5. The learned counsel while drawing the attention of this Court to the statement of the mother of the petitioner submits that it is an admitted fact that Barke Police station is situated at a distance of about 10 metres from the petitioner’s house and the petitioner or his family members are not aware as to how the bullet was found in the debris. The learned counsel while drawing the attention of this Court to two decisions of the Co-ordinate Benches of this Court in the case of Thomas Jeffrey Kidd Vs. State of Karnataka and another, in Crl.P.3219/2015, which was decided on 19.08.2015 and in the case of Mr.Joseph Kevin Shay Vs. State of Karnataka and another, in Crl.P.No.5448/2015, decided on 15.10.2015, submitted that so long as it is an established position that a person though carrying a single live bullet was not accompanied with any firearm, that takes away the matter from the purview of the Arms Act, 1959.
6. Per contra, learned HCGP submits that in the case of Thomas Jeffrey Kidd, (supra) cited by the learned counsel for the petitioner, it was a case where investigation was conducted and it was found that the accused therein was professionally authorized to teach basic courses in ‘certified muzzle loading rifle, certified pistol, certified rifle, and certified short gun’. Therefore, the facts and circumstances under which the proceedings were quashed in the case of Thomas Jeffrey Kidd (supra), is not same as in the present case. Learned HCGP further submits that the respondents may be permitted to proceed with the investigation and thereafter based on the final report, a decision may be taken in this regard.
7. Heard the learned counsel for the petitioner and learned HCGP for respondent-State and perused the petition papers.
8. In the case of Thomas Jeffrey Kidd (supra), the Co-ordinate bench has taken note of various decisions including the decisions of the Apex Court in the case of Gunwanthlal Vs. State of Madhya Pradesh, reported in AIR 1972 SC 1756, Sanjay Dutt Vs. State through CBI, Bombay, reported in (1994) 5 SCC 410 and various other decisions of High Courts. It was noticed that in the case of Sanjay Dutt (supra), while dealing with the case under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, the Apex Court having held that the expression “possession” must mean possession with the requisite mental element i.e., conscious possession and not mere custody without the awareness of the nature of such possession. In Gunwanthlal, the Apex Court held that the possession of firearm under Arms Act, must have firstly the element of consciousness or knowledge of that possession in the person charged with such offence.
9. In all those cases pertaining to the decisions of the High Courts, incidents of similar nature where live bullets were found during the security check made at the Airports, have been dealt with. Even in the cases of Thomas Jeffrey Kidd and Mr.Joseph Kevin Shay (supra) similar incidents have occurred and offence alleged against the accused therein is similar to the case on hand. While taking note of the legal position enumerated in the cited judgments, the Co-ordinate Bench came to the conclusion that the petitioner therein was not aware of the bullet lying in the hand bag and the same must have been left out in the bag due to inadvertent oversight and the same appears to be genuine bona fide, as no attempt was made by him to conceal the said bullet nor the said bullet was found hidden in a secret compartment of his baggage to evade detection. The hand bag of the petitioner therein had passed through several security checks in different airports from 13.04.2015 to 23.4.2015 and nowhere, the said bullet was detected. Applying the principles in the decisions noticed above, the Co-ordinate Bench came to a conclusion that no offence is made out against the petitioner therein under Section 25(1-B)(a) and (b) of the Arms Act, 1959 read with Section 10 of the Aircraft Act, 1934.
10. No doubt, in the case of Thomas Jeffrey Kidd (supra) the decision was rendered after investigation report was submitted. But, this Court cannot lose sight of the circumstances under which another Co-ordinate Bench decided the case of Mr.Joseph Kevin Shay (supra). In the case of Mr.Joseph Kevin (supra), the Criminal Petition under Section 482 of Cr.P.C., was filed seeking quashment of the FIR registered against the petitioner therein. There too, the Co-ordinate Bench, while taking note of the decision in the case of Thomas Jeffrey Kidd (supra) and other decisions, allowed the petition under Section 482 and quashed the FIR and further proceedings.
11. It is relevant to notice that Section 45 of the Arms Act, 1959, enumerated certain case where provisions of the Act are not applicable. Sub-Section (d) of the Section 45 provides that the acquisition, possession or carrying by a person of minor parts of arms or ammunition which are not intended to be used along with complementary parts acquired or possessed by that or any other person, shall not fall within the purview of the Act. Therefore, when admittedly the petitioner was not carrying any fire arm with which he could operate the bullet, then Section 45(d) is attracted.
12. Keeping in mind the decisions of the Co-ordinate Bench and for the reasons stated above, this Court is of the opinion that the petition requires to be allowed. Another reason why the Court need not wait for an investigation report, is the conduct and academic merit of the petitioner. By now, the petitioner would have completed Engineering course or may be in the final stages of completion of Engineering course. At this juncture, if the criminal proceeding is left to be lingering like a Damocles sword on the head of the student, it would cause irreparable harm to the petitioner in pursuing his studies and in his future prospects. Therefore, in the considered opinion of this Court, the petition requires to be allowed at this stage.
Accordingly, the petition is allowed.
The FIR in Cr.No.406/2016 of Bajpe Police Station, Mangaluru Taluk, for the offences punishable under Sections 3(1), 25(1-B)(a) of Arms Act, pending on the file of JMFC., (II- Court) Mangaluru and all further proceedings are hereby quashed and set aside. The passport surrendered by the petitioner as directed in the order dated 24.12.2016, passed by the Trial Court is directed to be released to the petitioner, forthwith.
It is ordered accordingly.
Sd/- JUDGE DL