Holding

The conviction under Section 12 of the Passport Act is unsustainable and set aside, while the conviction under Section 5 of TADA is valid and affirmed.

Summary

The appellant was intercepted at New Delhi Railway Station with a loaded revolver and two passports – one Indian and one Pakistani – and was charged under Section 12 of the Passport Act, 1967 and Section 5 of the Terrorist and Disruptive Activities (Prevention) Act (TADA). The Supreme Court held that Section 12(1)(a) requires a contravention of Section 3, which pertains only to departure or attempted departure from India; since the appellant was not trying to leave India, the passport conviction could not stand. The Court affirmed that police seizure evidence need not be corroborated by an independent witness. It further held that unauthorised possession of a firearm in a notified area invokes the statutory presumption under Section 5 of TADA, making the offence more serious than the corresponding provision of the Arms Act, and the presumption was not rebutted. Consequently, the conviction under the Passport Act was set aside, while the conviction and sentence under Section 5 of TADA were upheld.

Issues considered

Whether the appellant's possession of a foreign passport, without attempting to depart India, constitutes an offence under Section 12 of the Passport Act, 1967 read with Section 3.
Whether police seizure evidence lacking an independent witness is admissible.
Whether possession of a revolver in a notified area attracts conviction under Section 5 of TADA or merely under Section 25 of the Arms Act.
Whether the statutory presumption under Section 5 of TADA is rebuttable and was rebutted in this case.

Legislation cited

Arms Act, 1959s. 25
Citizenship Act, 1955s. 9
Passport Act, 1967s. 12(1), s. 3
Terrorist and Disruptive Activities (Prevention) Acts. 21, s. 5

Subjects

passport possessiondual nationalityTADAterrorist activitiesunauthorised arms possessionnotified areastatutory presumptionevidence of seizure

Judgment

A AKMAL AHMAD
v.
STA TE OF DELHI

MARCH 24, 1999

B [K.T. THOMAS, D.P. MOHAPATRA, JJ.]

Passport Act, 1967 :

Sections 3 & 12 (1 )-Conviction under Section 3 ofperson in possession
C of two passports in different names of two different countries-Person not
trying to depart from India-Held, unless there is departure or at /edst an
attempt to depart from India, there is no question of invoking Section 3 of
the Passport Act.

Terrorist and Disruptive Activities (Prevention) Act Section 5 & 21-
D Applicability of-Person in unauthorised possession of revolver in a
notified area-Person also punishable under Section 25 of the Arms Act
for the said possession-Held, possession of such arms and ammunitions
within the notified area attracts the offence under Section 5 of TADAA.

Appellant was intercepted and searched by police at New Delhi
E Railway Station. A revolver loaded with 6 live cartridges was recovered
from him. The appellant had no licence or other authorisation for possessing
the revolver. It was seized and sealed. New Delhi is a notified area as
contemplated in Section 5 of T ADAA. The appellant was also found to be in
possession of two passports on which his photographs were affixed. One
passport issued by Pakistan authorities was in the name of 'S.M.' and the
F
other passport issued by Indian authorities was in the name of 'K.M.' resident
of Kolar District in Karnataka. On being questioned he revealed his name
as 'S.M.', resident of Karachi in Pakistan. Appellant was arrested and the
material articles were taken into custody.

G The appellant was charged and tried for offences under Section 12 of
the Passport Act, 1967 and under Section 5 of the Terrorist and Descriptive
Activities (Prevention) Act (T ADAA). The Designated Court, convicted him
of the said offences and sentenced him to imprisonment for 3 months on the -
first count and for 5 years on the second count The finding of the Designated
Court against the appellant was that since his name was shown as K.M. in
H all other documents and still he obtained a Pakistani passport describing
160
AKMAL AHMAD v. STATE OF DELHI 161
him as S.M. and had thus contravened clauses (a) & (b) of Section 12 read A
with Section 3. Against the conviction by the Designated Court, the appellant
has filed the present appeal under Section 19 of TADAA.

On behalf of the Appellant it was contended that the offence under
Sections 12 of the Passport Act was not sustainable as neither of the
passports seized from him was shown to be forged; that the evidence of the B
police officers that the appellant was found in possession of the revolver was
not corroborated by any independent witness; and that even if the appellant
was found in possession of the revolver he could have been convicted under
Section 25 of the Arms Act for possession of a fire arm without licence in
which case the sentence could be reduced to the period which he has already C
undergone instead of being convicted for a much more serious offence under
Section 5 of T ADAA.

Partly allowing the appeal, this Court

HELD: 1. The only clause in Section 12 (1) of the Passport Act, 1967 D
which is said to be used against the appellant is clause (a) which refers to
contravention of Section 3. Departure from India is the point of time envisaged
in Section 3. Unless there is departure or at last an attempt to depart from
India, there is no question of invoking Section 3 of the Passport Act. It is
nobody's 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 E
with the passport issued by Pakistan authorities and visa. He obtained the
Pakistani passport describing himself as 'S.M' . But that is no concern
under the Passport Act in force in India. By holding the Pakistani passport,
appellant has not committed any offence under Section 12 of the Passport
Act. Hence the conviction of the appellant under the above count is F
unsustainable. [165-D-G]

2. 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. [166-B]
G
3. The revolver and the cartridges seized from the appellant fall within
the ambit of "arms and ·ammunitions" specified in Columns 2 & 3 of Category
· III of Schedule I to the Arms Rules, 1962. Unauthorised possession of such
arms and ammunitions within the notified area attracts the offence under
Section 5 ofTADAA. [166-E] H
162 SUPREME COURT REPORTS [1999] 2 S.C.R.

A 4.1. It cannot be said that appell~nt could have been convicted under
Section 25 of the Arms Act. Unauthorised possession of arms would be
punishable under Section 25 of the Arms Act without any reference to the
area notified under Section 5 ofTADAA. Such possession shall be presumed
to be for the purpose of perpetration of a terrorist or disruptive act. If the
B presumption is rebutted the accused cannot be convicted under Section 5 of
T ADAA, though he may be convicted under Section 25 of the Arms Act. In
other words , Section 5 of T ADAA is a more aggravated offence than Section
25 of the Arms Act. [166-G-H)

Sanjay Dutt v. State, [1994) 5 SCC 410, followed
c 4.2. 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
D material on record for such rebuttal. The corollary thereof is that appellant
cannot escape conviction under Section 5 ofTADAA. [167-G-H)

5. The conviction and sentence passed by the Designated Court on the
appellant under Section 12 of the Passport Act is set aside, but the conviction
and sentence passed on him for the offence under Section 5 of T ADAA is
E confirmed. [168-B]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
71-72 of 1999.

From the Judgement and Order dated 27.11.98 of the Designated Court

---
of Delhi, in S.C. No. 91/97 and 96/97 F.l.R. Nos. 131 and 133of1990.
F
Salman Khurshid, Imtiaz Ahmad and Irshad Ahmad for the Appellant

Altaf Ahmad, Additional Solicitor General, A.K. Panda, (Y.P. Mahajan,)
for Shail Kumar Dwivedi for the Respondent

G The Judgment of the Court was delivered by

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
H under Section 12 of the Passport Act, 1967 and under Section 5 of the
AKMAL AHMAD v. STATE OF DELHI [THOMAS, J.] 163
Terrorist and Disruptive Activities (Prevention) Act (for short 'the TADAA'). A
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 B
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 C
intercepted and on being questioned he revealed his name as Sheik Mohammad
Irfan, resident at 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- D
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', E
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 F
later challaned for the two offences mentioned above and after trial he was
convicted and sentenced as aforesaid.

The first contention raised wa~ 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 G
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 : H
164 SUPREME COURT REPORTS [1999] 2 S.C.R.

A "All these documents therefore, reveal that accused is known as
Akmal Ahmad. Still he obtained Pakistani passport describing himself
as S.M. lrfan. He also got the entry permit Ext.P 8 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
B 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
C 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-

D (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
E document; or

(c) 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

F (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;

G 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
H necessary to extract Section 3.
AKMAL AHMAD v. STATE OF DELHI [THOMAS, J.] 165
"3. Passport or travel document for departure from India- No person A
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 B
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 C
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 nobody's case that D
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.P 3-
passport and Ext.PIO - visa. He obtained Ext.P 3 Pakistan passport describing
himself as S.M. Irfan. But that is no concern under the Passports Act in force
in India. E
Shri Altaf Ahmad, learned Addi. 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 Addi. Solicitor
General referred to Section 9 of the Citizenship Act, 1955. F

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.P 3-passport, appellant has not committed any offence under
Section 12 of the Passports Act. Hence the conviction of the appellant under G
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 f,mnd in
possession of the revolver is not corroborated by any independent witness. H
166 SUPREME COURT REPORTS [1999] 2 S.C.R.

A 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 qse 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
B 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
C 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
D 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
E 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.
F 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.

G 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
H be convicted under Section 25 of the Arms Act. In other words, Section 5 of
AKMAL AHMAD v. STATE OF DELHI [THOMAS, J.] 167

the TADAA is a more aggravated offence than Section 25 of the Arms Act. A
In the above context reference to the decision of the Constitution
Bench in Sanjay Dutt v/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 :
B
"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, bt:cause 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 C
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 rderence to Section 21 of the TADAA which D
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 E
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, F
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."'
G
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 H
168 SUPREME COURT REPORTS [1999] 2 S.C.R.

A cannot escape from conviction under Section 5 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.
B
A.T. Appeal Partly allowed.