http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: AKMAL AHMAD

       Vs.

RESPONDENT: STATE OF DELHI

DATE OF JUDGMENT:       24/03/1999

BENCH: K.T.Thomas, D.P.Mohapatra

JUDGMENT:

THOMAS,J.

               Appellant has two passports, one  issued  by  the authorities in India and the other by Pakistan authorities.  When he  was  caught  and  searched at the New Delhi Railway Station a revolver studded with live cartridges was recovered from him.  He was charged and tried  for  offences  under  Section  12  of  the Passport  Act,  1967  and  under  Section  5 of the Terrorist and Disruptive Activities (Prevention) Act (for short  the  TADAA). The Designated Court, before which he was tried, convicted him of the  said  offences  and  sentenced him to imprisonment for three months on the first count and for 5 years on  the  second  count. This is his appeal under Section 19 of the TADAA.

               Facts are   too   simple   for   narration.    On 13.3.1990, the Sub-Inspector  of  Police,  Sultanpuri(Delhi)  had source  information that two persons carrying lethal weapons were on the move towards New Delhi Railway Station.    He  immediately organised a raiding party and waited near the gate of the Railway Station.   Around  noon  appellant  was  spotted as the suspected person while he was  stepping  out  of  Railway  Station  with  a suit-case and  a  handbag.    He  was  intercepted  and  on being questioned he revealed his name as Sheik Mohammad Irfan, resident of Karachi in Pakistan.  When his handbag was searched a revolver (0.32 bore) loaded with 6 live cartridges was found  out.    They were seized and sealed.

               When he was asked to produce the travel documents he  produced Ext.P-3 - Passport (issued by Pakistan authorities). The photo of the appellant was affixed in  the  passport  as  its holder and the  name  is  shown  as  S.M.   Irfan.  When he was subjected  to  further  interrogation  he  brought  out   another passport from  a  coat  which  was  kept  in the suit-case.  That passport showed that it was issued from New Delhi and  the  photo of the  appellant  was affixed therein.  The name of the passport holder was shown as  K.M.    Akmal  Ahmad,  resident  of  Kolar District in  Karnataka.    That passport was marked as Ext.P-4 in this case.

               Appellant was arrested and the material  articles were  taken  into  custody  under  seizure  memo  prepared by the Sub-Inspector of Police.  Appellant was later challaned  for  the two offences mentioned above and after trial he was convicted and sentenced as aforesaid.

               The  first contention raised was that the offence

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

under Section 12 of the  Passports  Act  is  not  sustainable  as neither  of the passports seized from him was shown to be forged. The charge made against him as for the said offence is  that  he was  found  to  be  in  unauthorized  possession  of  a Pakistani passport and he failed to furnish the correct information at  the time  of  issue  of  the  said  passport.  The  finding  of  the Designated Court against him on that score is that since his name was shown as Akmal Ahmad in all other  documents  he  obtained  a passport describing himself  as S.M.  Irfan.  The trial judge has stated the following while arriving at the finding against him:

"All these documents therefore, reveal that accused is known  as Akmal Ahmad.    Still  he  obtained Pakistani passport describing himself as S.M.  Irfan.  He also got the entry permit  Ext.P8  of Attari Border  on  the strength of said passport.  All these acts of accused clearly attracts Section 12 of the Passports Act  read with Section 3 thereof inasmuch as he contravened clauses (a) and (b) of  the  said  section.   Section 12 also covers Passport and travel  documents  issued  by  or  under  the  authority  of  the Government of foreign countries as per Section 3."

"Passprot"  is  defined in Section 2(b) of the Passports Act as a passport issued or deemed to have been issued under this Act. Section 12 deals with offences and penalties.    Sub-section  (1) alone is material in this case and it is extracted below:

"12.  Offences and penalties- (1)Whoever-  (a)  contravenes  the provisions  of  section  3;  or (b) knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport or travel document under this Act or without lawful authority alters or attempts to alter or causes  to  alter the  entries made in a passport or travel document; or © fails to produce for inspection his passport or travel  document  (whether issued  under  this  Act or not) when called upon to do so by the prescribed authority; or (d) knowingly uses a passport or  travel document  issued  to  another  person;  or  (e)  knowingly allows another person to use a passport or  travel  document  issued  to him;  shall  be punishable with imprisonment for a term which may extend to two years  or  with  fine  which  may  extend  to  five thousand rupees or with both."

               The only clause in Section 12(1) which is said to be  used  against  the  appellant  is  clause (a) which refers to contravention of Section 3.  Hence it  is  necessary  to  extract Section 3.

"3.   Passport  or  travel document for departure from India- No person shall depart from, or attempt to depart from, India unless he holds in this behalf a  valid  passport  or  travel  document.

Explanation- For the purposes  of  this  section,-  (a)passport includes  a  passport  which  having  been issued by or under the authority of the Government of a foreign  country  satisfies  the conditions  prescribed under the Passport (Entry into India) Act, 1920 (34 of 1920), in respect of the class of passports to  which it belongs;

(b)  travel  document  includes  a travel document which having been issued by or under the authority  of  the  Government  of  a foreign country satisfies the conditions prescribed."

               Departure  from  India  is  the  point  of   time envisaged in Section 3.  Unless there is departure or at least an attempt  to  depart  from India, there is no question of invoking

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

Section 3 of the  Passports  Act.    It  is  nobodys  case  that appellant was  trying  to depart from India.  On the contrary the prosecution case is that appellant had just entered the territory of India with Ext.P3-passport and Ext.P10  visa.    He  obtained Ext.P3   Pakistan  passport  describing  himself as S.M.  Irfan. But that is no concern under the Passports Act in force in India.

               Shri Altaf  Ahmad,  learned  Addl.      Solicitor General  contended  that  appellant  could  have  applied  for  a passport in Pakistan only if he had showed himself as  a  citizen of  Pakistan  and in such a case he must be deemed to have ceased his citizenship of India.  In support  of  his  argument  learned Addl.  Solicitor General referred to Section 9 of the Citizenship Act, 1955.

               It  may be so and we do not think it necessary to advert to that aspect for considering whether he has  contravened Section 3  of  the  Passports  Act.   By holding Ext.P3-passport, appellant has not committed any offence under Section 12  of  the Passports Act.    Hence the conviction of the appellant under the above count is unsustainable.           Shri  Salman   Khursheed, learned  senior  counsel assailed the conviction of the appellant under Section 5 of the TADAA from the two premise.  First is that the evidence of the police officers that appellant was  found  in possession of the revolver is not corroborated by any independent witness.    Second  is  that  even  if  appellant  was  found  in possession of the revolver he could have been convicted under the Arms Act for possession of a firearm  without  licence  in  which case  the  sentence could be reduced to the period he has already undergone.

               Regarding  the  first  point,  it  is  true  that evidence  of PW-8 Sub Inspector of Police is not supported by any witness other than police personnel.  It is now well settled that evidence of search or seizure made by the police will not  become vitiated solely for the reason that the evidence is not supported by independent  witness.   PW-8 Sub Inspector of Police said that he, in fact, tried to get some person from the locality to remain present for witnessing the search but none obliged him to do  so. PW-7  - a constable who assisted PW-8 in the search also said the same fact.

               We have no reason to disbelieve the testimony  of PW-8  and PW-7 regarding the factum of seizure of revolver loaded with live cartridges.  The Forensic Sciences Laboratory, to which the said firearm and cartridges were sent for testing,  sent  the report after conducting necessary tests that the articles were in working condition.

               On  the second contention, three admitted factual features cannot be gainsaid.   First  is  that  New  Delhi  is  a notified area  as contemplated in Section 5 of the TADAA.  Second is that the revolver and the cartridges seized from the appellant fall within the ambit of  arms  and  ammunitions  specified  in Columns  2 and 3 of Category III of Schedule I to the Arms Rules, 1962.   Third  is  that  appellant  had  no  licence   or   other authorisation for  possessing  them.  Possession of such arms and ammunitions within the notified area attracts the  offence  under Section 5 of the TADAA.

               The  contention  made  is that when possession of such arms, without licence is punishable under the Arms Act,  the court  shall not bypass Section 25 of the Arms Act in quest for a much  more  serious  offence  like  Section  5  of   the   TADAA, particularly in view of Section 12(2) thereof.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

               The  said  contention  cannot be accepted for two reasons.   First  is  that  possession  of  such  arms  would  be punishable under Section 25 of the Arms Act without any reference to the  area  notified  under  Section 5 of the TADAA.  Second is that, such possession shall be presumed to be for the purpose  of perpetration of   a   terrorist   or  disruptive  act.    If  the presumption is rebutted the accused  cannot  be  convicted  under Section  5 of the TADAA, though he may be convicted under Section 25 of the Arms Act.  In other words, Section 5 of the TADAA is  a more aggravated offence than Section 25 of the Arms Act.

               In the above context reference to the decision of the Constitution  Bench  in  Sanjay  Dutt  vs.  State (1994 5 SCC 410), has to be made.    The  five-Judge  Bench  considered  the proper construction  of Section 5 of the TADAA.  In paragraph 25 of the judgment it has been observed thus:

"The  significance  of  unauthorised possession of any such arms and ammunition etc.  in a  notified  area  is  that  a  statutory presumption  arises  that  the  weapon was meant to be used for a terrorist or  disruptive  act.    This  is  so,  because  of  the proneness of the area to terrorist and disruptive activities, the lethal  and  hazardous  nature of the weapon and its unauthorised possession with this awareness, within a  notified  area.    This statutory  presumption  is the essence of the third ingredient of the offence created by Section 5 of the TADA Act.   The  question now is about the nature of this statutory presumption."

While  considering  the  nature  and ambit of the presumptions in TADAA the Constitution Bench made reference to Section 21 of  the TADAA which speaks of presumption as to the offence under Section 3.   The  following  observation made by the Bench is apposite in this context:

"On  proof  of  possession  alone  and  not  also  its  use, the statutory presumption which arises is of the lesser offence under Section 5 and that too when the possession is unauthorised within notified area, which is more prone  to  terrorist  or  disruptive activities.   The  presumption  arising  of  the commission of an offence under Section 3 by virtue of Section 21 is expressly made rebuttable and the accused can even then prove the  non-existence of  a  fact  essential to constitute an ingredient of the offence under Section  3.    On  the  same   principle,   the   statutory presumption  arising  of  the  lesser  offence under Section 5 on proof of the fact of unauthorised possession in a  notified  area would  be  rebuttable  presumption  enabling the accused to prove that the weapon was not  meant  for  use  for  any  terrorist  or disruptive act."

Hence,  the  offence  is  not  merely  that  appellant  possessed firearms which fall within the ambit of Schedule I  to  the  Arms Rules,  1962, but that he possessed them within the notified area which raises a presumption that  such  possession  was  with  the intention  to  use  them  for  a  terrorist  or  disruptive  act. Appellant did not choose to rebut the said  presumption,  nor  is there any  material  on  record for such rebuttal.  The corollary thereof is that appellant cannot  escape  from  conviction  under Section 25 of the TADAA.

In  the  result  we partly allow this appeal by setting aside the conviction and sentence passed by the  Designated  Court  on  the appellant  under Section 12 of the Passports Act, but confirm the conviction and sentence passed  on  him  for  the  offence  under Section 5 of the TADAA.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5