Allowed

Anirudh Changkakoti v. the State of Karnataka

Karnataka HC13 Jan 2017CRL.P/426/2017

Case brief

AI extract

What is this about?

In a criminal petition under Section 482 CrPC, the Karnataka High Court quashed the FIR against a Canadian tabla player found carrying live bullets in his hand baggage. The court held that since the petitioner had no knowledge of the bullets, there was no 'conscious possession' as required under the Arms Act, 1959.

What did the court decide?

The Criminal Petition is allowed; the FIR and subsequent proceedings against the petitioner are quashed.

Anirudh Changkakoti Vs the State of Karnataka — Cheque Dishonour | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JANUARY 2017

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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CRIMINAL PETITION No.426 OF 2017

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BETWEEN:

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Anirudh Changkakoti, Aged 22 years, Son of Rupak Changkakoti, Residing at 5693, Caribbean Court, Haymarket, Virginia, USA – 20169.

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…PETITIONER

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(By Shri Sandesh J. Chouta, Advocate)

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AND:

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The State of Karnataka,

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Bengaluru International Airport Police Station, Devanahalli, Bengaluru Rural 562 110. Through the State Public Prosecutor,

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High Court Building, Bangalore – 560 001.

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The Inspector,

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Central Industrial Security Forces, Kempegowda International Airport, Bengaluru Rural – 562 110.

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…RESPONDENTS

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(By Shri B. Visweswaraiah, Government Pleader)

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This Criminal Petition filed under Section 482 code of Criminal Procedure, 1973, praying to quash the FIR in Crime No.165/2016 registered by the respondent no.1 BIAL Police, which is now pending on the file of Civil Judge and Judicial Magistrate First Class, Devanahalli.

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This Criminal Petition coming on for Admission this day, the court made the following:

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O R D E R

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Heard the learned counsel for the petitioner. The learned

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Government Pleader is directed to take notice.

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The petitioner is said to be a Canadian citizen with a

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Canadian Passport. He is 22 and he has visited India on several occasions earlier. He is of an Indian origin. He had previously

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come to India to attend family functions, pilgrimage,

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pre-medical internship, research internship and on other such occasions. On the present occasion, he was visiting India to give a Tabla performance, as he is a Tabla player of some acclaim, since he has been practicing Tabla right from his childhood. He is presently residing in Virginia, USA. In December 2016, the petitioner was invited to give a Tabla performance along with his father, who was part of Sri Sathya Sai Institute of Higher Learning and the function was to be held on 19.12.2016 at Guwahati, Assam. The invitation of the programme is annexed to the petition. He was also keen on visiting other family friends and members and wanted to do a Premedical research internship in Chennai. His visit was scheduled from 26^th November 2016 to 22^nd December 2016. The petitioner left USA for India with his father heading towards Bangalore and also then proceeded to Chennai. He had traveled by Qatar Airways which had a stop over at Doha, Quatar and had arrived at Bangalore on 26.11.2016. His baggage was subjected to necessary checks at the airports on

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the way and there was no untoward incident. He had even travelled to Chennai on 28.11.2016 in the Shadabdi Express and after his research was complete, ha had he returned to Bangalore on 11.12.2016. It transpires that even during his travel to and fro to Chennai, his baggage was checked at the Railway Station and there was nothing incriminating found. The petitioner stayed at his brother’s residence in Yelahanka, Bangalore, and since he had to go to Guwahati to give Tabla performance on 19.12.2016, he intended to travel to Assam on 18.12.2016, so that he can be in Guwahati for the programme on 19.12.2016. He was to travel alone and join his parents who were already in Guwahati. He had planned to take a flight at 5.55 a.m at the Kempegowda International Airport. On entering the Airport, he had placed his baggage for screening, at which time the security personnel are said to have detected two live bullets in his hand baggage, which was the same hand baggage which the petitioner had carried throughout on his travel from USA to India and also during his travel to and fro to

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Chennai in India, which was subjected to similar scrutiny by X- Ray machines on more than one occasion. The petitioner was shocked at such a finding, as he was clueless as to how the bullets had got into his baggage. He does not hold a gun licence or does he own any firearm. He was hence not in a position to provide a proper explanation to the security personnel and therefore, they had no choice but to take further action, in accordance with law.

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All his pleas fell on deaf ears and the security personnel detained him and had seized the two live bullets and on a written complaint, a case was registered for offences punishable under Sections 25 (1B), 25-A and 25-B of the Arms Act, 1959. He was thereafter enlarged on bail and after further proceedings, the petitioner is now facing trial and his entire travel plans have been gone awry and he is not certain as to whether he would be able to return to the USA and in view of his innocence and helplessness, he is before this court seeking that the proceedings be quashed.

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The learned counsel for the petitioner would submit

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that the case law on the point having regard to the circumstances of the case and having regard to the background from which the petitioner hails, would be clearly covered on all fours and by several decisions of this court, following earlier decisions of the Supreme Court and other High Courts and seeks that the benefit of the same be given to him.

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It is also pointed out that there are no instances which are

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cited in seeking to prosecute the petitioner. It is also not the case of the prosecution that he had caused any harm or threatened anyone with any weapon or that he was carrying a weapon on which he could have used the live bullets. In this regard, there are indeed decisions of this court which have addressed similar circumstances and have held that the emphasis is on the circumstance that possession must mean possession with the requisite mental element, namely a ‘conscious possession’ and not mere custody without awareness, which is the core ingredient to establish the guilt

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under Section 25 of the Arms Act, 1959. This is the law laid down in the following decisions:

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i) Gunwantlal vs. State of Madhya Pradesh, AIR 1972 SC 1756;

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ii) Sanjay Dutt Vs. State through CBI, Bombay (II), (1994) 5 SCC 410;

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iii) Chan Hong Saik through SPA: Arvinder Singh Vs. State and another, Crl.M.C.No.3576/2011, decided on 2.7.2012;

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iv) Sri. Gaganjoth Singh vs. State, W.P. (Crl) No.1169/2014, decided on 1.12.2014;

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v) Crl.M.C.No.1455/2014, decided on 22.5.2014; vi) Manuel R. Encarnacion vs. State through NCT of Delhi and another, Crl.M.C.No.2642/2014 decided on 29.4.2015;

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vii) Juan Manuel Sanchez Rosas vs. State though NCT Delhi and another;

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and a judgment of the Bombay High Court in Nurit Toker vs. State of Maharashtra and other, 2012 Bom CR (Cri) 154).

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Given the circumstances of the present case, two issues

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would arise for consideration. Firstly, provisions of the Arms Act, 1959, do not apply in certain cases, where 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, as provided under Section 45 (d) of the Act. Secondly, as per the provisions of Section 25 of the Act, possession of any firearm or ammunition must be "conscious possession", meaning thereby possession with the requisite mental element and mere custody without the awareness of the nature of such possession does not amount to an offence under the Arms Act.

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As regards the first issue qua exemption under Section 45 (d) of the Act, the said issue is no longer res-integra . A Constitution Bench of the Apex Court in the case of Sanjay Dutt, supra, while reiterating the position as laid down in Gunwantlal v. The State of Madhya Pradesh, AIR 1972 SC 1756, has held thus :

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“The meaning of the first ingredient of ‘possession’ of any such arms etc. is not disputed. Even though the word ‘possession’ is not preceded by any adjective like ‘knowingly’, yet it is common ground that in the context the word ‘possession’ must mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is a mental element in the concept of possession. Accordingly, the ingredient of ‘possession’ in Section 5 of the TADA Act means conscious possession. This is how the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an unauthorized substance has been understood. (See Warner v. Metropolitan Police Commissioner 1969 (2) AC 256 and Sambasivam v. Public Prosecutor, Federation of Malaya, 1950 AC 458.)

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12. As noticed previously, a solitary cartridge - which on examination by expert has been confirmed to be a live one – was found by the police. The petitioner was in possession of it. However, he expressed his lack of awareness of that article; and also that the bag from which it was recovered belonged to his uncle. The Police,

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in the final report, does not indicate that his statement is groundless; there is no material to show that he was conscious of his possession of the cartridge. Though the ballistic report confirms it to be cartridge and consequently it is “ammunition”, by itself, that is insufficient to point to suspicion – much less reasonable suspicion of petitioner’s involvement in an offence which, necessarily, has to be based on proven conscious possession. Since there is no such material, the offence cannot be proved even after a trial, which would have to proceed, it at all, on the interpretation of the Act placed by the decisions in Gunwantal (supra) and Sanjay Dutt (supra).”

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With respect to the second issue of "conscious possession" , it is well settled that the possession of any fire arm or ammunition must be conscious possession. It is held thus by the Apex court in Sanjay Dutt, supra :

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“19. The meaning of the first ingredient of “possession’ of any such arms etc., is not disputed. Even though the word ‘possession’ is not preceded by any adjective like ‘knowingly’,

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yet it is common ground that in the context the word ‘possession’ must mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is a mental element in the concept of possession. Accordingly, the ingredient of ‘possession’ in Section 5 of the TADA Act means conscious possession. This is how the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an unauthorized substance has been understood.”

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Hence, applying the above principles and considering the fact that the petitioner was totally unaware of the presence of the bullets in his baggage till it was detected by the security personnel during the screening of the baggage at the airport, it can be safely inferred that the said possession does not fall within the ambit of “conscious possession”. Admittedly, no firearm or weapon was recovered from the petitioner and he has not extended any threat to the security personnel or any other

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person. Hence, no offence could be made out under the provisions of the Arms Act against the petitioner. Hence, allowing the continuance of the criminal proceedings against him would certainly result in a miscarriage of justice. Therefore, the petition is allowed. The FIR and the subsequent

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proceedings against the petitioner are hereby quashed.

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Sd/-

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JUDGE

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Anirudh Changkakoti v. the State of Karnataka

Case brief

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Anirudh Changkakoti v. the State of Karnataka

Case brief

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