Ahmad Vs. State of Delhi  INSC 93 (24 March 1999)
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.
is his appeal under Section 19 of the TADAA.
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.
he was asked to produce the travel documents he produced Ext.P-3 - Passport
(issued by Pakistan authorities).
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.
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
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
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:
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.
12 deals with offences and penalties. Sub-section (1) alone is material in this
case and it is extracted below:
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.
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.
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;
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 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.
that is no concern under the Passports Act in force in India.
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.
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.
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.
a constable who assisted PW-8 in the search also said the same fact.
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
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.
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.
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.
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:
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
following observation made by the Bench is apposite in this context:
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.
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.
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.