karnataka hc lets off a gun enthusiast us engineer charged for carrying ‘bullets’

7/23/2019 Karnataka HC Lets Off a Gun Enthusiast US Engineer Charged for Carrying ‘Bullets’

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 19TH DAY OF AUGUST, 2015

BEFORE

THE HON’BLE MR. JUSTICE A.N.VENUGOPALA GOWDA

CRIMINAL PETITION NO.3219/2015

BETWEEN:

THOMAS JEFFREY KIDDS/O. ARTHUR JACKSON KIDDAGED ABOUT 43 YEARSPERMANENTLY RESIDING AT1001 GRASSVIEW CTAPEX, NC 27502C/O. CISCO SYSTEMSBENGALURU – 560 087.

... PETITIONER

(BY SRI RAVI B. NAIK, SENIOR ADV. FOR

SRI H.N. VASUDEVAN, ADV.)

AND:

1. STATE OF KARNATAKABY INTERNATIONAL AIRPORT POLICE STATIONDEVANAHALLIREPRESENTED BY ITSSTATE PUBLIC PROSECUTOR

HIGH COURT BUILDINGDr. B.R. AMBEDKAR VEEDHIBENGALURU – 560 001.

2. THE ASSISTANT SUB INSPECTORCENTRAL INDUSTRIAL SECURITY FORCE



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KEMPEGOWDA INTERNATIONAL AIRPORTBENGALURU – 560 300.

... RESPONDENTS

(BY SRI B. VISWESWARAIAH, HCGP FOR R1;SRI ASHOK NAIK, ADV. FOR R2;SRI KRISHNA S. DIXIT, AMICUS CURIAE)

THIS CRL.P. IS FILED UNDER S.482 CR.P.C., PRAYING TOQUASH THE COMPLAINT AND THE FIR DTED 23.4.2015REGISTERED IN CRIME NO.57/2015 REGISTERED BY THE

AIRPORT POLICE STATION, DEVANAHALLI, BENGALURU RURALDISTRICT FOR THE OFFENCE UNDER S.25(1-B)(a)(b) OF THEARMS ACT, 1959 PENDING ON THE FILE OF CIVIL JUDGE AND

JMFC, DEVANAHALLI.

THIS CRL.P. HAVING BEEN RESERVED, THIS DAY, THECOURT MADE THE FOLLOWING:

O R D E R

This petition under S.482 of Cr.P.C., was filed for

quashing of the FIR dated 23.04.2015, registered in Crime

No.57/2015, by the Airport Police Station, Devanahalli,

Bengaluru Rural District, in respect of an offence under

S.25 (1-B) (a) and (b) of the Arms Act, 1959 (for short

‘the Act’) pending on the file of the Civil Judge and JMFC,

Devanahalli and to refund cash security of ` 10,000/-

deposited by the petitioner, as a condition for grant of bail

and also for cancellation of personal bond executed for



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` 20,000/- by the petitioner and entire proceedings pending

thereon.

2. The case of the petitioner is that he is an

American national and issued with an American Passport

and employed on the rolls of M/s. CISCO Systems, a large

multinational enterprise, for the past thirteen years. His

function in the said organization includes imparting of

training in EMC storage area and is working on HP-UX11

Certified Systems Administrator. The petitioner was

entrusted with the task of imparting certain training to

their employees in Bengaluru from 15.04.2015 to

23.04.2015 and as per the itinerary, he arrived in

Bengaluru on 14.04.2015, accompanied with his regular

baggage, including the bag used to keep his sporting

accessories and the entire bag was checked from the time.

He boarded the aircraft at Releigh, USA upto Bengaluru via

Toranto in Canada and Frankfurt in Germany. He stayed in

Bengaluru, at Leela Palace Hotel, from 15.04.2015 till

23.04.2015 and was scheduled to fly back to USA on



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23.04.2015. As per the travel schedule, the petitioner

arrived at Kempegowda International Airport on

23.04.2015 in order to travel back to USA and at

Kempegowda International Airport, his travel baggage was

screened through X-ray machine at the security checking

counter and was detained by the Central Industrial

Security Force Officers by alleging that a live bullet was

detected in the handbag, which he was carrying as his

cabin baggage. Respondent No.2 seized the passport of

the petitioner and lodged a complaint with respondent

No.1, whereupon, the petitioner was arrested and was

produced before the JMFC., Devanahalli. The petitioner

was enlarged on bail on 23.04.2015, subject to execution

of a personal bond for ` 20,000/- and cash security of

` 10,000/- apart from other conditions.

3. The petitioner contends that he possesses a

valid license/permit issued by the State of North Carolina,

USA to hold a concealed handgun and he is also

professionally authorized to teach basic courses in



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‘certified muzzle loading rifle, certified pistol, certified rifle

and certified short gun’. He holds a certificate to train NRA

Safety Officers. The case of the petitioner is that while in

USA, he being a gun enthusiast and a trainer in handling

weapons, frequently visited the rifle association in his

hometown to teach and practice handling arms and

ammunition and while visiting the rifle range and the

association, he routinely used to carry his bag containing

sporting accessories. The petitioner having carried the

same handbag while traveling to India-Bangalore,

genuinely believed he had emptied all the materials in the

bag before packing it in the check in baggage during the

onward journey to India. During his onward journey to

India, the said handbag was checked at several checking

counters at different international airports at Releigh,

Toranto, Frankfurt and Kempegowda International Airport,

Benglauru without the said bullet being detected from the

handbag. The petitioner contends that he was neither

conscious nor did have knowledge about the presence of a



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live cartridge in his hand bag and that no offence is made

out.

4. A requisition having been submitted by the

Investigating Officer on 29.06.2015 seeking permission to

conduct the investigation in respect of the offence under

S.10 of the Aircraft Act, 1934, the learned Magistrate

accorded permission on 30.06.2015. According to the

respondents, the petitioner has committed offences

punishable under S.25(1-B)(a) and (b) of the Act, read

with S.10 of the Aircraft Act, 1934. I was immensely

benefited by his able assistance which I thankfully

acknowledge.

5. Heard Sri Ravi B.Naik, learned Senior Counsel,

on behalf of the petitioner and Sri B.Visweswaraiah,

learned HCGP and Sri Ashok Naik, learned advocate for

respondent No.2. Sri Krishna S.Dixit, advocate was

requested to appear as Amicus Curiae, to assist the Court

in deciding the case.



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6. Sri Ravi B.Naik, learned Senior Advocate,

contended that though the article seized and subsequently

tested in this case is a live cartridge and, therefore,

constitutes “ammunition”, nevertheless, in the long line of

decisions, the Apex Court and High Courts having held that

mere possession without any consciousness of such

possession, would not constitute an offence. He relied

upon the decisions of the Apex Court in (i) Gunwantlal Vs.

State of Madhya Pradesh, AIR 1972 SC 1756, (ii) Sanjay

Dutt Vs. State through CBI, Bombay (II), (1994) 5 SCC

410. He also relied upon the decisions of the Delhi High

Court in the cases of (i) Chan Hong Saik through SPA:

Arvinder Singh Vs. State and another,

Crl.M.C.No.3576/2011, decided on 02.07.2012, (ii) Sri

Gaganjoth Singh Vs State, W.P.(Crl) No.1169/2014,

decided on 01.12.2014, (iii) Crl.M.C.No.1455/2014,

decided on 22.05.2014, (iv) Manuel R. Encarnacion Vs.

State through NCT of Delhi and another,

Crl.M.C.No.2642/2014 decided on 29.04.2015 and (v) Juan

Manuel Sanchez Rosas Vs. State through NCT Delhi and



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another and that of the Bombay High Court in Nurit Toker

Vs. State of Maharashtra and others, 2012

BomCR(Cri)154. He submitted that the long line of

decisions have emphasized that possession must mean

possession with requisite mental element i.e.,

consciousness possession and not mere custody without

awareness. He submitted that the Apex Court in the two

decisions, noticed supra, has been held that mere

possession of a live cartridge is insufficient, to even to

proceed for framing of charge. Learned Counsel

submitted, that keeping in view the point that the

petitioner is a US citizen and was on his return journey to

go back, investigation being complete and no material

having been gathered, indicating any culpability, other

than the fact that the cartridge which was recovered from

the bag carried by the petitioner, in the interest of justice,

entire proceedings is liable to be quashed. He submitted

that in the circumstances of the case, relegating the

petitioner to a full trial, would cause undue hardship and

would subject him to uncertainty.



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7. Learned advocates appearing for the

respondents were unable to show any material from the

investigation record, which point towards awareness or

consciousness about the fact that the petitioner was in

possession of a live cartridge in the hand bag carried by

him. Learned counsel submitted that S.45(d) of the Act

has no application to the present case.

8. Learned Amicus Curiae, submitted that it is

well settled position of law that conscious possession is the

core ingredient to establish the guilt for the offence under

S.25 of the Arms Act, 1959 and that the Apex Court in the

case of Sanjay Dutt (supra), while dealing with the case

under S.5 of the Terrorist and Disruptive Activities

(Prevention) Act, 1987 having held that the expression

“possession” occurring in S.5 of the said Act, must mean

possession with the requisite mental element i.e.,

conscious possession and not mere custody without the

awareness of the nature of the such possession, the

present case being identical to the decision in William



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Michael Hurtubise Vs. State and Odisha and others,

Crl.M.C.No.3358/2013, decided on 17.01.2014 by the

Orissa High Court, the petition has merit.

9. In the case of Gunwantlal (supra), Apex Court

has emphasized the necessity for the prosecution to prove

the possession of the arm or ammunition as conscious one.

The relevant portion reads thus:

“5…..The possession of a firearm under the Arms Act in our

view must have, firstly the element of consciousness or

knowledge of that possession in the person charged with

such offence.”

10. In the case of Sanjay Dutt (supra), the

aforesaid position of law has been reiterated and the

relevant portion reads thus:

“22. 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 objective 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



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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 A.C. 256 and Sambasivam V. Public Prosecutor,

Federation of Malaya, 1950 AC 458).”

11. In Nurit Toker (supra), the petitioner was a

citizen of Israel and was detained at Mumbai International

Airport for carrying 2 live cartridges (bullets ) of 0.1 MM

and 0.5 MM. She had purchased air-tickets to visit for

Kathmandu, Bangkok and back to Israel. She had traveled

with the luggage and was preparing to leave Kathmandu

as per her preplanned travel itinerary. The petitioner was

found to be carrying 2 live cartridges when she was at

Mumbai in India and therefore, she was detained at

Mumbai International Airport for carrying live cartridge and

hence, she was charged with offence under Ss.3 and 25 of

the Arms Act. The Division Bench, relying upon the

decision of the Apex Court in the case of Sanjay Dutt

(supra), has held, that merely because the petitioner was

found to be carrying 2 live cartridges when she was at



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Mumbai in India, the same cannot constitute conscious

possession or establishes the guilt for commission of the

offence under Ss.3 and 25 of the Act.

12. In Gaganjot Singh (supra), the petition was

filed for quashing of FIR registered by Police Station, Indira

Gandhi (IGI) Air Port, for an offence allegedly committed

under S. 25, 54 and 59 of the Arms Act, 1959. FIR was

registered on account of the petitioner’s conceded

possession of an 8 mm KF live cartridge when he tried to

board China Eastern Airlines – Flight No.MU-564. The

petitioner therein was a US citizen and holding passport.

At the time of examination of his baggage, the Police

discovered live cartridge, consequently, after interrogation,

lodged FIR. After considering the rival contentions, it was

held that the petitioner’s claim for quashing is merited

having regard to the fact that the petitioner expressed his

lack of awareness of the solitary live cartridge and the final

report of the Police did not indicate his awareness and

there is no material to show that he was conscious of his



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possession of a cartridge, despite ballistic report

conforming it to be a cartridge and consequently, it is an

‘ammunition’ by itself, i.e., 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. Finding that there

is no such material and the offence cannot be proved even

after trial, on the interpretation in the decision in

Gunwantlal and Sanjay Dutt (supra), it was held that the

petitioner’s claim for quashing is merited. As a result, the

petition was allowed and the impugned proceeding was

quashed.

13. In the case of Manuel R. Encarnacion (supra),

the petitioner, holder of U.S. Passport was called for

checking his baggage and when the physical check was

done in his presence, three live cartridges were found and

FIR was registered. When the FIR was assailed in the

Delhi High Court, on the ground that even if the

prosecution version is taken as it is, still the offence in



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question is not made out against the petitioner, as he was

not in conscious possession of the three live cartridges

recovered and so, to secure the ends of justice, the

proceeding arising out of the FIR in question be quashed,

while allowing the petition, following the dictum of law in

the case of Sanjay Dutt (supra), it was held as follows:

“Upon hearing both the sides and on perusal of the FIR of this

case, the status report, the material on record and the decision cited, I

find that even if the prosecution case is taken as it is, still it cannot be

said that petitioner was in conscious possession of the recovered three

live cartridges.”

14. In the case of Juan Manuel Sanchez Rosas,

(supra), the petitioner was a Lt. Colonel in the Armed

Forces of Columbia and on 18.02.2010, had gone to IGI

Airport, Delhi to take return flight to his country and on

checking of his baggage two live bullets of 9 mm were

found. Hence, FIR under Ss. 25, 54 and 59 of the Act, was

registered at Police Station, IGI Airport, Delhi against him.

The quashing of the FIR was sought on the ground that he

was not in conscious possession of the two live bullets of 9

mm. During the pendency of the case, charge sheet was



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also filed. The respondent – State filed status report, upon

notice of the petition being filed, which discloses that as

per the FSL report, two cartridges recovered were live and

could be fired through 9 mm caliber fire arm. Considering

the rival contentions and while allowing the petition and

quashing the impugned proceedings, it was held as

follows:

“Upon hearing and on perusal of the FIR of this case, copy of the

charge-sheet filed, status report and the decision cites, I find that it

cannot be said that petitioner was in conscious possession of the two live

cartridges. When petitioner, a serving Lt. Colonel in Armed Forces of

Columbia asserts that recovered cartridges were of his service revolver,

there is no reason to discard his stand.”

15. In the case of William Michael Hurtubise

(supra), the petitioner was a citizen of USA and was

employed in the State of Texas, as Field Service Engineer.

He was deployed with two other engineers and one

technician to attend offshore drillship. The petitioner along

with his colleagues, had left Houston in the State of Texas

in USA and via Amsterdam, arrived in New Delhi. From

there, they boarded a flight to Bhubaneshwar and arrived



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at Biju Pattanaik Airport in Bhubaneshwar on 18.09.2013.

While the petitioner and his colleagues were about to

board an helicopter to proceed to the place of work in

Paradeep, he was detained by the CISF personnel and was

informed that during screening of his baggage, 8 nos., of

0.22 mm bullets have been found in his handbag. Though

the petitioner explained to the CISF personnel at the

Airport that the bullets may have been left behind in his

handbag due to oversight and that he is possessing a Arms

Licence issued by the State of Florida in USA and if he is

given some time, he can obtain copy of the said Arms

Licence by fax and pleading that 0.22 mm bullets are

harmless and is only used for sporting purpose in a

sporting rifle, the CISF personnel did not heed to the

request and plea and instead, handed over the petitioner

to the Airfield Police Station, Bhubaneshwar, who

registered the FIR for the offence under S.25 of the Act.

To quash the said proceedings, a petition under S.482 was

filed. Considering the rival contentions and while allowing

the petition, it has been held as follows:



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“16. The law is well settled that conscious possession is a

core ingredient to establish the guilt for the offence under Section

25 of the Act and the apex Court in Sanjay Dutt (supra), while

dealing with a case under Section 5 of the Terrorist and Disruptive

Activities (Prevention) Act, 1987, has held that the expression

‘possession’ occurring in the Section 5 of the said Act 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, which means that the possession must be

conscious possession. The apex Court has held that only then the

ingredient of possession in similar context of a statutory offence

importing strict liability on account of mere possession of an

unauthorized substance has to be understood.

17. Applying the said principles, as discussed above, to the

facts of the present case and considering the attending

circumstances, it can be safely said that the petitioner had left

behind 8 nos. of 0.22 mm bullets in his handbag by mistake

and/or inadvertent oversight, when he started his journey from

USA. He was not aware of its presence in his handbag till it was

detected by the security personnel during screening of his baggage

at the Bhubaneswar Airport and therefore, it was not a conscious

possession. Further, the petitioner holds a valid licence for

possessing such bullets, issued by the State of Florida in USA and

admittedly no fire arm or weapon has been recovered from him.

Therefore, no offence under Section 25 of the Act is made out

against the petitioner and allowing continuance of criminal

proceeding against him would be an abuse of the process of

Court”.



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16. In the present case, respondent No.1 had

made a reference to the FSL on 01.06.2015 with regard to

the seized live bullet. The FSL, in its report dated

23.06.2015, has opined that the cartridge is a live 0.22

calibre cartridge and legally manufactured, which can be

fired through 0.22 calibre rifle and the effective range of

the 0.22 rifle is about 100 yards.

17. The petitioner has stated before the

respondents, on 23.04.2015, as follows:

“Statement

Thomas Jaffery Kidd, S/o.Arthur Jackson Kidd

43, 919-606-3201

1001 Grassview CtApex, NC 27502

USA.

System Administrator

I came to Bangalor to teach new team Members for Cisco

Systems.

The one bullet was in the bottom of my bag from the US

without my knowledge. It came with me on accident. I

entered Bangalore on15.04.2015. Deporting Bangalore on

23.04.2015.

The Leela Palace



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Cisco Systems

Salarpuria Hallmark Bldg., A.No.133,

Panatoor Gram Panchayat, Outer Ring Rd.,

Bangalore, Karnataka 560 037.”

(underlining is by me)

18. Undisputedly, the petitioner is a citizen of USA

and has come to India for one week, commencing from

13.04.2015 for the purpose of imparting training to new

team at Bengaluru. He has stayed from 14.04.2015 to

23.04.2015 at Leela Palace Hotel, Old Airport Road,

Bengaluru. After completing the training program, he

went to Kempegowda International Airport on 23.04.2015

to emplane back to USA, as per his itinerary. The said

bullet, during screening of his bag, was found in his cabin

baggage. The petitioner 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 oversignt 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



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evade detection. The handbag of the petitioner has passed

through several security checks in different airports from

13.04.2015 to 23.04.2015 and nowhere, the said bullet

was detected. Carrying of the bullet in the handbag into

the aerodrome though is a mistake, appears to be

inadvertent oversight, when he has started his journey

from USA.

19. I am convinced that the petitioner was not

conscious/aware of the presence of the bullet in his

handbag till it was detected by the security personnel

during screening of the handbag at Kempegowda

International Airport, Bengaluru and therefore, it was not a

conscious possession.

20. Applying the principles, in the decisions noticed

supra, to the facts of the present case and considering the

attending circumstances, in my opinion, no offence is

made out against the petitioner under S.25(1-B)(a) and

(b) of the Arms Act, 1959 read with S. 10 of the Aircraft

Act, 1934. Hence, allowing continuance of the criminal



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proceeding against the petitioner would be an abuse of

process of law and that the ends of justice require that the

impugned proceeding be quashed.

In the result, petition is allowed and FIR in Crime

No.57/2015 registered on 23.04.2015 by the first

respondent and pending on the file of Civil Judge and

JMFC, Devanahalli, is quashed. Security amount of

` 10,000/- deposited by the petitioner, as a condition for

grant of bail, shall be refunded to him. If any documents

have been seized from the petitioner or deposited with the

respondent, the same shall be returned to the petitioner.

Sd/-JUDGE

sac*

karnataka hc lets off a gun enthusiast us engineer charged for carrying ‘bullets’

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