ORDER
S. Muralidhar, J.
1. This petition under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) is directed against an order dated 14th February, 1995 passed by the learned Additional Sessions Judge, Delhi (ASJ) whereby the revision petition filed by the Respondent State was allowed and an order dated 9th February, 1989 passed by the learned Additional Chief Metropolitan Magistrate, Delhi (ACMM) discharging the Petitioner Brigadier Jagir Singh in FIR No. 93 of 1984 under Section 26 of the Arms Act was set aside.
Background Facts
2. On 20th July, 1984 the Petitioner arrived at Delhi airport by an Air India flight from Bombay. He had earlier arrived in Bombay by a Lufthansa flight from Frankfurt. In his own words, in para 9 of this petition he states that when he picked up the baggages at the Delhi airport he put them into “red channel.” He proceeds to state that he was intercepted by the custom officials to whom he made the declaration, but “on opening a hand bag one stereo cassette recorder was recovered and it was found to contain three revolvers and some cartridges.” The version of the prosecution is not very different. According to the prosecution, the Petitioner was found in the possession of three Smith and Wason .32 revolvers along with 450 cartridges concealed in the speaker of a music system which had not been declared by him before the Customs Authorities when he arrived at the Delhi Airport. Two separate cases were registered against the Petitioner. One was under Section 132/135 of the Customs Act, 1962 and the other under Section 26 of the Arms Act.
3. The Petitioner is admittedly a resident of Chandigarh. He is a retired Brigadier from the Indian army. He is stated to have a valid license for running business of an arms dealer in Chandigarh. On the same day when he arrived at Delhi airport, i.e. on 20th July, 1984 simultaneously a raid was taking place in his residence in Chandigarh pursuant to a telephonic message received by the police there from the Inspector of Customs. His residence at 1004 Sector No. 27-B, Chandigarh was searched and certain arms and ammunitions, forged license etc. were recovered. On the basis of the search in Chandigarh, FIR No. 366 of 1984 was registered at Police Station East Chandigarh and the Petitioner along with his wife were sent up for trial under Sections 25/27 of the Arms Act. In that case on 31st July, 1987 the learned Judicial Magistrate, First Class, Chandigarh delivered a judgment acquitting the Petitioner and his wife on the ground that the arms recovered from their residence were covered by the arms license issued to the Petitioner and for which he had sought renewal.
4. On the basis of the acquittal by the Court in Chandigarh, the Petitioner filed an application on 1st September, 1988 before the learned ACMM seeking discharge in terms of Section 245(2) CrPC. The Petitioner pleaded “issue estoppel” contending that the arms that were recovered from his residence at Chandigarh and the arms that were recovered at the Delhi airport on the same date were both covered by the same arms license. In other words, it was contended that if the Petitioner could have validly possessed the arms that were recovered from his residence in Chandigarh on account of the arms license issued to him, then by the same yardstick he could also have validly possessed the arms that were seized from him at the Delhi Airport. The learned ACMM accepted this plea of issue estoppel and by an order dated 9th February, 1989 discharged the Petitioner.
5. The State then filed a revision petition before the learned ASJ which came to be allowed by the impugned order dated 14th February, 1995. The learned ASJ observed that the case at Chandigarh was different from the case of recovery of arms from the Petitioner at the Delhi Airport. He further observed that the learned MM had to proceed only in terms of Section 239 IPC and not under Section 245(2). The learned ASJ formed the opinion that there was sufficient prima facie evidence to frame a charge against the Petitioner for the offence under Section 26 of the Arms Act. Accordingly the order passed by the learned ACMM discharging the Petitioner was set aside and the Petitioner was directed to be summoned afresh.
6. While directing notice to issue in this petition on 19th November 1996, this Court stayed the proceedings before the trial court and that stay has continued till date.
Submissions of counsel
7. Mr. Jayant Sud, learned Counsel appearing for the Petitioner submitted that the learned ACMM was right in accepting the plea of issue estoppel. Referring to Sections 3 and 26 of the Arms Act, Mr. Sud submitted that as long as the Petitioner is able to show that the arms that were recovered from him at the Delhi Airport could be validly possessed by him in terms of the arms license issued to him there was no question of charging him for an offence under Section 26 of the Arms Act. He submits that the Petitioner in fact had suffered a lot and is over 80 years of age today. It would be unfair and unjust if he is sent up for trial now and required to prove the validity of his possession of the arms in question. According to him a bare perusal of the license issued to the Petitioner was enough to explain the valid possession of the arms that were recovered from him. He then submitted that the learned ASJ failed to consider the plea of double jeopardy i.e. having already undergone the adjudication proceedings under the Customs Act, the petitioner ought not to be made to face prosecution under the Arms Act as well. Alternatively, Mr. Sud pleaded that this petition should be treated as a mercy petition and taking a sympathetic view of the matter, this Court should discharge the Petitioner.
8. The plea of Mr. Sud is vehemently opposed by Mr. Dudeja, learned APP for the State. He pointed out that the case in Chandigarh was in relation to a different incident although on the same date. There is no question of issue estoppel in regard to a separate incident. The Petitioner would have to show in each of the cases separately that the arms which were recovered were validly possessed by the Petitioner in terms of the arms license issued to him. He further submitted that the arms license would have to be further examined to determine whether the quality and quantity of the arms found in the possession of the Petitioner were in fact covered by the license. Also if the place of its possession was permissible under the license. He made a reference to the relevant forms under the Arms Act for this purpose. Mr. Dudeja submits that any defense that the Petitioner may have to show that the license which was issued to him covered the arms recovered from him can at best be examined only by the trial court. According to him the Petitioner cannot take advantage of the fact that there has been a stay of the trial for the last eleven years at his instance and plead age as a factor for dropping the proceedings.
Double Jeopardy
9. This Court finds that the Petitioner has not made out sufficient grounds to persuade this Court to interfere in exercise its powers under Section 482 CrPC to quash the criminal proceedings and discharge the Petitioner. The facts speak for themselves. What appears to be the basis for launching the prosecution against the Petitioner under Arms Act is that he brought into India arms concealed in the speaker of a music system. That is why Section 26 of the Arms Act was employed to charge the Petitioner. Section 26(1) talks of a situation where a license would be required under Section 3 to possess the arms in question and Sub-section (2) of Section 26 of a situation where a license would be required in terms of Section 5 of the Arms Act vis–vis the arms possessed. It must straightaway be noticed that the act of brining arms into India, without declaring such import, can attract the provision of the Customs Act, 1962 with attendant civil and criminal liability. Independently, such act of brining arms into India without license can also attract the offence under the Arms Act. These are independent legal consequences unaffected by any principle of double jeopardy.
Issue Estoppel
10. The submission that the prosecution of the Petitioner is barred by issue estoppel is wholly misconceived. In the first place it must be noticed that the doctrine cannot have application at a stage where even the trial of a case is yet to begin. Moreover, the doctrine itself is not a bar to a trial of a different offence but only precludes reception of evidence to disturb the finding of fact when the accused is tried subsequently even for a different offence. In Masud Khan v. State of West Bengal the Supreme Court explained the doctrine thus (para 4 p.30):
4. The principle of issue estoppel is simply this: that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favor of an accused such a finding would constitute an estoppels or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law.
11. It is obvious therefore that the above doctrine has no application to the present case where the Petitioner is asked to face trial for a distinct and different offence which is bringing arms in a concealed manner through Delhi Airport, for which he did not face trial earlier. Even the point whether he can take advantage of the finding of the Chandigarh Court that he possessed a valid license, can be examined only at the stage of arguments at the trial after all the evidence has come on record. The learned MM was in error in discharging the Petitioner by applying the doctrine of issue estoppel. No fault can be found with the impugned order of the learned ASJ reversing the learned MM and directing fresh summons to the Petitioner.
12. The various defenses that the Petitioner may have including his submission that he had a valid license which covered the arms which were recovered from him at the Delhi airport, and that they answered the description as to quality, quantity and location, are all matters which would involve detailed examination of the evidence and can at best be performed only in the course of a trial. It is impossible for this Court to be determining these questions in a petition under Section 482 CrPC. It is not possible to accept the submission of the Petitioner that these are all self-evident facts and that a mere perusal of the arms license is sufficient for this Court to pronounce on the innocence of the Petitioner of the charge offence under Section 26 of the Arms Act.
Limitation
13. As regards the plea of limitation, the impugned order of the learned ASJ, does not indicate that such objection was raised before him by the Petitioner. Be that as it may, given the gravity of the offence and the possible miscarriage of justice that would ensue if the order of the learned MM discharging the Petitioner were allowed to remain, it would be in interests of justice for the delay, if any, in the State preferring the revision petition before the learned ASJ to be condoned. The delay, if any, in filing the revision petition cannot be held to be unconscionable in the peculiar facts and circumstances of the case.
Can Age be a factor?
14. This Court is also not able to countenance the plea that the age of the Petitioner should be a factor to be considered in discharging the Petitioner for offence under Section 26 of the Arms Act. Given the fact that the trial has been stalled at the instance of the Petitioner, and given the gravity of the offence, this is an unacceptable plea. At best it could be a justification for directing expeditious completion of the trial.
15. At this stage it was contended by Mr. Sud that after these many years, the Petitioner had not remained in touch and he was not even sure if the Petitioner was in a physical condition fit to stand trial. These are questions or factors that will be addressed by the trial court hereafter in accordance with law.
Conclusion and directions
16. For all of the above reasons, this Court finds no reason to interfere with the order of the learned ASJ. The petition is dismissed with no order as to costs. The interim order stands vacated.
17. Any observation made in this order is only for the purpose of examining the validity of the impugned order of the learned ASJ and is not intended to influence the ultimate verdict that may be delivered by the trial court after all the evidence has come on record.
18. The trial court record be sent back immediately. The Petitioner will appear before the Court of the learned ACMM, Patiala House Courts, New Delhi on 25th February, 2008 at 11am. Notice will issue to the Petitioner to this effect, without process fee, by the Registry. Notice will also be served through the concerned IO.
19. A certified copy of this order be sent to the learned ACMM, Patiala House Courts, New Delhi within five days.