KASAM LAKHA SAMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this appeal the appellant has challenged the judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Kutch at Bhuj in Sessions Case No. 75 of 1992 which was tried alongwith Sessions Case No. 89 of 1998. The appellant has been convicted for committing offence made punishable under Section 3 (1)(b)(c) of the Official Secrets Act and he has been sentenced to suffer rigorous imprisonment (RI) for a period of 14 years and to pay a fine of Rs.5,000.00, in default further RI for 3 years.

(2.) The case of the prosecution in short can be stated as under :-

(3.) Mr. Avinash Thakkar, the learned advocate for the appellant has raised before us several contentions. He has submitted that the entire prosecution is liable to be vitiated solely on the ground that the complaint which was filed by Mr. Mahida was not in accordance with the provisions of section 13 (3) of the Act and the learned trial Judge could not have taken cognizance of the offence involved in this case. According to him, by virtue of section 13 (3) of the Act, the complaint could be made only upon receiving the authority of the appropriate Government and making of complaint without such authority would clearly violate the provisions of section 13 (3) of the Act. He has submitted that admittedly in the present case Mr. Mahida did not have any authority of the appropriate Government to make complaint at the time when it was filed in the Court of the learned Magistrate i.e. on 23/06/1992 and the authority has been received much later i.e. on 11/01/1994. Such subsequent authority cannot cure the inherent defect which had already crept in for want of authority. He has also submitted that the evidence adduced by the prosecution is not at all satisfactory and there are number of discrepancies on vital aspects which may render the case of the prosecution very doubtful. According to him, no reliance can be placed on such evidence. He has also submitted that at the time when the raid was carried out, the appellant was not present in the house and, therefore, the prosecution had failed to prove that the appellant was in conscious possession of the incriminating articles that were found from his house. He has also submitted that the search warrant that was obtained by P.I. Mr. Mahida was not in accordance with the provisions of section 11 of the Act and the concerned P.I. had no valid authority to carry out search of the house of the appellant. He has also submitted that the prosecution has failed to adduce any evidence to the effect that the contents of the search warrant were duly explained to wife of the appellant, namely Havabai before the search was carried out and that factor also would vitiate the proceedings of the raid. Lastly he has submitted that two accused out of three have been acquitted by the learned trial Judge and on the same facts the appellant has bee convicted. The approach of the learned trial Judge is, therefore, absolutely erroneous and according to Mr. Thakkar, the learned trial Judge ought to have come to the conclusion that in respect of the present appellant also the evidence of the prosecution was not believable and he ought to have given the benefit of doubt to the appellant. On the question of sentence, Mr. Thakkar has submitted that the learned trial Judge has imposed a fine of Rs.5,000.00, but the penal provision does not envisage imposition of any fine. Therefore, the order regarding imposition of fine is illegal. He has also submitted that the event has taken place in the year 1991 and subsequently the appellant had remained on bail for more than 8 years and thereafter he has been convicted and has been awarded the maximum punishment, which according to him is totally out of proportion and considering the facts and circumstances of the case, the same is required to be reduced.