SAMA RAYEB SAHEB Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Criminal Appeal No. 230 of 1990 filed by the original accused No. 2 in Sessions Case No. 66 of 1989 and Criminal Appeals Nos. 377, 378, 379 and 380 of 1990 filed by the State of Gujarat, arise from the judgment and order of the learned Sessions Judge, Kutch at Bhuj, convicting the accused No. 2 for committing an offence under Sec. 3(l)(c) of the Official Secrets Act, 1923, and sentencing him to suffer R. I. for five years only.

(2.) Criminal Appeal No. 230 of 1990 preferred by the original accused No. 2 is directed against his conviction and the aforesaid sentence. It appears from the record that the proceeding in Sessions Case No. 14 of 1989 was initiated when only accused No. 1 Raima Alimohmed Hothi, resident of Pakistan was arrested in connection with the offence under Sec. 3(l)(a)(d)(c) and Secs. 9 and 10 of the Official Secrets Act, 1923 (hereinafter referred to as 'the Act') and the proceeding of Sessions Case No. 66 of 1989 was intiated against both the accused after accused No. 2 - Sama Rayab Saheb of the village Nana Dinara, Tal. Khavada, Dist. Kutch, was arrested in connection with the same offence. As both the proceedings were in respect of the same offence, coming to light on 4-7-1986, common evidence was recorded and both the cases were decided by a common judgment. In fact, it was not necessary to proceed with the Sessions Case No. 14 of 1989 initiated against only accused No. 1, after the Sessions Case No. 66 of 1989 was filed against both the accused in respect of the very offence. Criminal Appeal No. 377 of 1990 and Criminal Appeal No. 378 of 1990 filed by the State of Gujarat, are directed against the acquittal of accused No. 1-Alimohmed Hothi in Sessions Case No. 66 of 1989 and Sessions Case No. 14 of 1989 respectively. Criminal Appeal No. 379 of 1990 and Criminal Appeal No. 380 of 1990 have been filed by the State of Gujarat for enhancement of the sentence imposed on the original accused No. 2-Rayab Saheb in Sessions Case No. 14 of 1989 and Sessions Case No. 66 of 1989 respectively. As there is common charge against both the accused and common evidence was recorded by the Sessions Court, in both the Sessions Cases, all the five appeals are now disposed of by this common judgment.

(3.) The facts of the prosecution case are the following : Accused No. 2-Rayab Saheb is an inhabitant of the village Nana Dinara of Khavada Taluka in Kutch District. The village Nana Dinara is on the border of Bharat. Accused No. 1, Alimohmed Hothi, is a Pakistani national. On 2-6-1986, accused No. 1 along with another Pakistani national and an Indian citizen were arrested by the Border Security Forces near Dharmashala Chowky. They were thereafter produced before their Commander and then in Bhuj. It was learnt that accused No. 2 had kept in his possession a sketch or Map of Bhuj Air Force Field and a Mariner's Compass for furnishing secret information to Foreign Powers. On 4-7-1986 a search was made in the house of accused No. 2 under the warrant Exh. 10 issued by D. S. P. During his search in the presence of accused No. 2 a copy of the Map of the Air Field of Bhuj and a Mariner's Compass were found and seized from his house. Thereafter the complaint Exh. 50 was field in Khavda Police Station. It appears from the record that the Government of India authorised the Police Inspector Shri C. P. Rathod to prosecute the aforesaid two accused along with others under Sec. 13(3) of the Act.