1999 Supreme(SC) 381

1999(3) Supreme 151
Supreme Court of India
(From Designated Court of Delhi)
K.T. Thomas and D.P. Mohaptra, JJ.
Akmal Ahmad -Appellant
versus
State of Delhi -Respondent
Criminal Appeal Nos. 71-72 of 1999
Decided on 24-3-1999
Counsel for the Parties :
For the Appellant : Salman Khurshid, Sr. Advocate, Imtiaz Ahmad, Irshad Ahmad, Advocates.
For the Respondent : Altaf Ahmad, Additional Solicitor General, A.K. Panda, Sr. Advocate (Y.P. Mahajan) Advocate for Shail Kumar Dwivedi, Advocate.

Important points
1. 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.
2. Mere possession of a foreign passport by an Indian passport holder in another name would not amount to contravention of Section 3 so as to attract penalty under Section 12 of the Passports Act.
3. 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.
4. Possession of unlicenced revolver within notified area under Section TADA shall be presumed to be for the purpose of perpetra­tion of a terrorist or disruptive act which presumption if unre­butter would lead to conviction under Section 5 of TADA though such an accused could be convicted under Section 25 of the Arms Act for a lesser offence.

Headnote:(i) Passport Act, 1967-Section 12(1) read with Section 3-Offences and penalties-Contra­ven­tion of Section 3-Condition precedent to invoke Section 3-Unless there is departure or atleast an attempt to depart from India there is no question of invoking Section 3-Indian Passport holder also holding Pakistan Passport in di­fferent name-By holding Pakistan Passport accused has not com­mitted any offence under Section 12.

       The appellant was intercepted at Railway Station and on being questioned his name as Sheik Mohammad Irfan, resident in Pakis­tan. 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. The trial Court held that the 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 and convicted him under Section 12. (Paras 3 & 5)

       Held : 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. 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 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 with Ext. P-3 - passport and Ext. P-10 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. (Paras 7 and 8)

       It was contended that the 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. P-3 - 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. (Paras 9 and 10)

       (ii) Terrorist and Disruptive Activities (Prevention) Act-Section 5 read with Section 25 of the Arms Act-On search of hand bag of accused a revolver loaded with 6 live cartridges was found and seized at New Delhi Railway Station, a notified area under TADA-Designated Court convicted him under TADA-Accused appel­lant’s plea that possession of revolver by accused not corrobo­rated by independent witness and further he could be convicted under Arms Act for lesser offence and not under Section 5 of TADA-Not tenable-Evidence of search and seizure made by police will not become vitiated solely for reason that evidence is not supported by independent witness-Offence under Section 25 of Arms Act is without any reference to area notified under Section 5 of TADA-Possession of revolver in notified area shall be presumed to be for purpose of perpetration of a terro­rist or disruptive Act-Presum­ption unrebutted nor any material on record for such rebuttal-Con­viction under Section 5 of TADA justified.

       Held : It is true that evidence of P.W. 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. P.W. 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. P.W. 7 - a constable who assisted P.W. 8 in the search also said the same fact. We have no reason to disbelieve the testimony of P.W. 8 and P.W. 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. (Paras 12 and 13)

       Possession of such arms and ammunitions within the notified area attracts the offence under Section 5 of the TADA. 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 TADA, 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 TADA. 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 TADA, though he may be convicted under Section 25 of the Arms Act. In other words, Section 5 of the TADA is a more aggravated offence than Section 25 of the Arms Act. (Paras 14, 15 and 16)

       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 5 of the TADA. (Para 19)