In the High Court of Bombay
|Name of the case||Rachelle Joel Oseran v. The State of Maharashtra|
|Citation||Criminal Writ Petition No. 323 of 2017|
|Year of the case||2018|
|Appellant||Jatin P shah along with Mudit Gupta, Snehankita Munj, Tushar Patel, K.M. Jhangiani, Siddhartha Mehta, Advocates.|
|Respondent||S.V. Sonawane, APP|
|Judges/ bench||Justice R.M. Savant and Justice Sarang V. Kotwal|
|Acts of involved||Arms Act|
|Important Sections||Section 3 and 25 of the Arms Act,1959.|
This article is a case analysis of “Rachelle Joel Oseran v. The State of Maharashtra”. The case discusses Arms and Ammunition laws in India. The facts, the principle applied, judgements, concepts used are briefly discussed. It also discusses Section 3 and 25 of the Arms Act,1959. It talks about how Ammunition can be used or about the license of the same. It is an important case dealing with possession of Arms and the legal liability of the same.
This case “Rachelle Joel Oseran v. The State of Maharashtra” is a case related to possession of arms and ammunition. It relates to The Arms Act,1959. Arms Act,1959 is an Act of the parliament of India. It is made to consolidate and regulate the laws of arms to protect illegal weapons. It was replaced by the Indian Arms Act,1878. The earlier Act regulated the sale, possession, manufacture of the Arms.
The Indian Arms Act,1878 was necessary to be a law. It is because back in colonial times, after the revolt of 1857, Indians posed a threat to the Britishers after all, Britishers noticed that Indians with weapons will not let them rule the country. So, before Indians could start any revolt or anything, Britishers passed a law, named, Indian Arms Act,1878 which says that no Indian is allowed to own an Arm without permission or license. This act was opposed by many great leaders, then it was replaced by The Arms Act, 1962. The right to keep Arms is not Fundamental Right but is a legal right according to the new Arms Act,1959.
The main objective of the Act is said in the Preamble, which states, “An Act to consolidate and amend the law relating to arms and ammunition”. The main aim of the Act is to curb the use of illegal weapons and crimes. It is to ensure that weapons are not easily available to common people. It is to ensure that self-defence weapons are there but under license with a valid reason for the same. Citizens can acquire arms only according to the provisions of the Act. People possessing arms without a license for the same will be punished under the Act.
This is a writ petition filed to close the previous case no. 871/PW/2016, which was pending before Additional Chief Metropolitan Magistrate, 22nd court, Andheri, Mumbai. The first case was registered at the Sahar Police Station for punishment under Section 3 and Section 25 of the Arms Act,1959.
- The petitioner is a citizen of Israel. She came to India for an educational trip from “Mindful India Seminar”. She is also a Yoga and Pilates instructor.
- She came to India in January 2015 for a seminar, which was to be held from 02/03/2015 to 17/03/2015. She had a visa for 3 months from 14/01/2015 to 13/04/2015.
- She carried with her sweets, toys and other materials for the orphanage in Rishikesh. She planned to visit it during the Seminar.
- The petitioner was travelling to India with her friend and travel agent named Miss Hillary Weiss. The petitioner lent a bag from Miss Hillary to keep the stuff, and the bag she lent belonged to the latter’s husband, Mr Dani Weiss, who served in the Israeli Army.
- The petitioner along with her friends reached the Chatrapati Shivaji Airport, Mumbai on 01/03/2015, with all her luggage. The petitioner’s hand luggage was screened at the airport, but nothing was found. But when luggage underwent screening, a live cartridge (`5.56 mm rifle cartridge) was found.
- She was arrested and taken to the Sahar Police Station.
The learned Advocate reached the Court for quashing the present case because the grounds of offences under Section 3 and Section 25 of the Arms Act,1959 are completely absent here. Except for the said bullet, nothing as incriminating material has been recovered from the petitioner.
Section 3 of the Arms Act,1959
Section 3 of the Arms Act,1959 prohibits a person from possessing an arm without having a license for it. This means that any citizen of India can purchase, or keep arms, only if they have a license from the licensing authority.
Section 25 of the Arms Act,1959
This section of the Arms Act,1959 is an Indian Penal Code provision stating that if any person is found violating Section 3 of the Arms Act,1959, must be punished under the Act. An exception of the rule is that any person having a license under authority can carry it for repair, or use.
In the mentioned judgements, the principle was established that mere possession of the arms would not constitute offences under these Sections. The knowledge of the possession is an essential ingredient or control over the arms when not in actual possession.
- Nurit Toker v State of Maharashtra & Ors
In this case, the petitioner served as military service in the Israeli Army. She was travelling to Mumbai, who thereafter had to go to Kathmandu, Bangkok and then back to Israel. At the Mumbai Airport, during the screening of the luggage, 2 live cartridges were found, then it was submitted to the Sahar Police Station. She was released on bail. The petitioner replied that it was left by mistake in her bag. The court said that there was not sufficient evidence to present the petitioner before the magistrate and also this is not a case under conscious possession of cartridges. Therefore, the FIR was quashed and the report was rejected under Section 169 of the Criminal Procedure Code.
- M.A. Latif Shahrear Zahedee v The State of Maharashtra & Ors.
The petitioner was a resident of Bangladesh. He travelled to India, its various states and finally reached Mumbai Airport, whereupon screening, it was found that he possessed five live cartridges and one empty cartridge in his toilet kit. He further explained to the CISF that both the live cartridge and the empty cartridge belonged to his brother Md. Nasser. His brother was called immediately. Upon being asked, the petitioner said that he has valid reasons for carrying the cartridges.
The court held that the possession of the cartridges was not in conscious possession of the petitioner.
The HC relied on the similar facts of the precedents and gave the judgement in the Petitioner’s favour-
- The essential condition to be punished under Section 3 and Section 25 of the Arms Act,1959 is the conscious possession of the Arm.
- In the present case, the petitioner can’t be held liable for possessing the cartridge because it remained in her bag without her knowledge. Therefore, there can be no chances to continue the case under offences registered Under the aforementioned sections.
- The sheet made against the petitioner did not reveal any incriminatory material possessed by her. She immediately co-operated with police at Sahar Police Station.
- In the case of “Sanjay Dutt v/s State through C.B.I., Bombay, the court said possession means “possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession.”
The Bombay HC said that mere possession of arms without knowledge does not amount to an offence punishable under the Arms Act,1959.
An essential ingredient is the knowledge of possession or power over the Arms when not in the actual position.
Frequently Asked Questions
- What is Arms Act,1959?
Arms Act,1959 is an Act of the parliament of India. It is made to consolidate and regulate the laws of arms to protect illegal weapons thing. It was replaced by the Indian Arms Act,1959,1878
- Is section 25 of the Arms Act,1959 bailable?
Yes, the offence under Section 25 is bailable.
- Was the decision of the court in the case valid?
Yes, the judgement in the present case is justified with reasonable principles as stated.
- Which authority looks in the matter when found in possession of Arms?
The Authority named CISF (Central Industrial Security Force) looks not the same.
- Why was the petitioner not held guilty in the case? What was the principle?
The petitioner was not found guilty in the present instance because if the principle “mere possession of arms without knowledge does not amount to an offence punishable under the Arms Act,1959. An essential ingredient is the knowledge of possession or power over the Arms when not in the actual position.
-  https://en.wikipedia.org/wiki/Arms_Act,_1959
-  2012 All MR (Cri) 942
-  (1994) 5 SCC 410