A 22-year-old Israeli woman, who was arrested for possession of two live cartridges when she was intercepted by the CISF at the Mumbai international airport in October last year, was discharged by the Bombay high court.
The court cited the Constitutional judgement by the Apex court in actor Sanjay Dutt’s case (1993 serial blast wherein Dutt had been accused of possession of arms and ammunitions), which held that possession has to be with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession.
Additional public prosecutor Aruna Kamat Pai had said the investigating officer had filed a report before the magistrate’s court saying that Nurit Toker can be discharged since the bullets were left in her bag by mistake.
A magistrate, however, had earlier rejected the report saying it does not state if there is insufficient evidence or reasonable ground of suspicion to justify the discharge.
A division bench of justice A M Khanwilkar and justice Rajesh Ketkar held that even though the magistrate might be right technically, it is a well-established position in law that conscious possession is essential to establish the guilt for an offence under the Arms Act.
The court further held that the magistrate erred in observing that section 3 of the Arms Act requires a person to be punished even if he or she is in possession of the arms or ammunitions without having a valid licence. This is completely contrary to the judgement by the Constitution bench in the Sanjay Dutt case, the court observed, while discharging Toker.
Toker had moved court seeking to quash the FIR filed against her by the Sahar police station. Toker said she had come to India for a holiday after completing her three-year military training on October 10 last year and that she had unknowingly carried the M-16 assault rifle cartridges acquired during her training.
Following court directions earlier, the Israeli authorities also confirmed that the cartridges were issued for military training.
The court observed that the arms were taken out by a police officer from her bag and there was nothing to suggest that she had concealed them.