Ahmad Vs. State of Delhi  INSC 99 (24 March 1999)
has two passports, one issued by the authorities in India and the other by Pakistan authorities.
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.
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). 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.
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
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:
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.
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
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.
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.
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;
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
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
obtained Ext.P3 Pakistan passport describing himself as S.M. Irfan. But that is
no concern under the Passports Act in force in India.
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.
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
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.
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
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.
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.
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.
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.
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.
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 3. The 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.
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.
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.