1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 19TH DAY OF AUGUST, 2015
BEFORE
THE HONBLE MR. JUSTICE A.N.VENUGOPALA GOWDA
CRIMINAL PETITION NO.3219/2015
BETWEEN:

THOMAS JEFFREY KIDD

S/O. ARTHUR JACKSON KIDD
AGED ABOUT 43 YEARS
PERMANENTLY RESIDING AT
1001 GRASSVIEW CT
APEX, NC 27502
C/O. CISCO SYSTEMS
BENGALURU 560 087.

... PETITIONER
(BY SRI RAVI B. NAIK, SENIOR ADV. FOR
SRI H.N. VASUDEVAN, ADV.)

AND:

1.

STATE OF KARNATAKA
BY INTERNATIONAL AIRPORT POLICE STATION
DEVANAHALLI
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
Dr. B.R. AMBEDKAR VEEDHI
BENGALURU 560 001.

2.

THE ASSISTANT SUB INSPECTOR

CENTRAL INDUSTRIAL SECURITY FORCE

KEMPEGOWDA INTERNATIONAL AIRPORT

BENGALURU 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 TO
QUASH THE COMPLAINT AND THE FIR DTED 23.4.2015
REGISTERED IN CRIME NO.57/2015 REGISTERED BY THE
AIRPORT POLICE STATION, DEVANAHALLI, BENGALURU RURAL
DISTRICT FOR THE OFFENCE UNDER S.25(1-B)(a)(b) OF THE
ARMS ACT, 1959 PENDING ON THE FILE OF CIVIL JUDGE AND
JMFC, DEVANAHALLI.
THIS CRL.P. HAVING BEEN RESERVED, THIS DAY, THE
COURT MADE THE FOLLOWING:

ORDER

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

`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

23.04.2015.

As per the travel schedule, the petitioner

arrived

Kempegowda

at

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
professionally

concealed handgun and he is also

authorized

to

teach

basic

courses

in

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.
same

handbag

The petitioner having carried the

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

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.
respondents,

the

petitioner

has

According to the

committed

offences

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

with S.10 of the Aircraft Act, 1934.
benefited

by

his

able

assistance

I was immensely
which

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.

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

possession, would not constitute an offence.

of

such

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
decided

Singh

on

Vs

State,

01.12.2014,

W.P.(Crl)

(iii)

No.1169/2014,

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

another and that of the Bombay High Court in Nurit Toker

Vs.

State

of

BomCR(Cri)154. He

Maharashtra
submitted

and
that

others,
the

long

2012
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.

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

10

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

11

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

12

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

petitioners

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 petitioners 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

13

possession

of

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 petitioners

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

petitioners 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

14

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

15

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

16

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:

17

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.

18

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 Ct
Apex, 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.
entered Bangalore on15.04.2015.
23.04.2015.
The Leela Palace

Deporting Bangalore on

19

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

20

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

21

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*