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PETITIONER: AKMAL AHMAD

       Vs.

RESPONDENT: STATE OF DELHI

DATE OF JUDGMENT:       24/03/1999

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

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.

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     The first contention raised was that the offence 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.

     Passport 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

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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 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

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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.

     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

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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.