ABDULLA GAFUR SUMARA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The original accused in Sessions Case No. 70 of 1988 has invoked the appellate jurisdiction of this Court for questioning the correctness of the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge of kutch at Bhuj on 30th November 1991. Thereby the appellant has been convicted of the offence punishable under Section 3 of the Official Secrets Act 1923 (the OS Act fox brief).

(2.) The prosecution case may be summarised thus: One Police Sub-Inspector named Gurkha was working in the Khavda police station from 31st January 1986. He came to know that the present appellant was wanted with respect to some offences connected with the Passports Act 1967 The PSI also received some information that the present appellant was connected with certain anti-national activities. It appears that the present appellant could be found around 14th March 1986. A case against him was instituted under the Passports Act. It appears that he was released on bail on a condition that he should report to the police station at Khavda at the prescribed regular intervals. It appears that the PSI received some secret information that some offending materials for the purposes of the O.S. Act was kept in one hut (bhunga in the local parlance). The information further revealed that it belonged to one Rahimna Daud. This piece of information was received by the PSI some time on 8th May 1986 presumably during late hours. He immediately rushed to his superior officer for the purpose of obtaining an order for searching that hut as provided in Sec. 11(2) of the O.S. Act. The necessary written request in that regard from the PSI to his superior officer is at Exh. 144 on the record of the case. It appears that the addressee of the written request at Exh. 144 on the record of the case was camping at Nakhatrana. It appears that the PSI contacted him in the early hours of 9 May 1986. Looking to the urgency involved in the matter the concerned superior officer passed the necessary order under Sec. 11(2) of the O.S. Act. It is at Exh. 87 on the record of the case. The PSI appears to have rushed back to Khavda and reached home at 6.15 a.m. on that very day. He appears to have gone to the police station at Khavda around 9 a.m. on that day with a view to implementing the order at Exh. 87 on the record of the case. As aforesaid the present appellant was required to report to the police station at Khavda at the prescribed intervals. One such day fixed for his reporting to the police station at Khavda was 9th May 1986. He appears to have reported thereto around 9 am on that day. It appears that on some preliminary interrogation he showed his willingness to point out the offending material lying in the hut allegedly belonging to Rahimna Daud. Thereupon two panch witnesses were summoned. The order at Exh. 87 on the record of the case was read out to the present appellant as well as to the two panch witnesses. It appears that the present appellant showed his willingness in presence of the panch witnesses to point out the offending material lying in the hut in question. A preliminary panchnama to that effect was drawn in the police station between 9.30 am and 10 am on that day. Thereafter the PSI in the company of certain other police officials and in the company of present appellant as well as the two panch witnesses set out for the hut in question in a police jeep. It was situated in village Sumrapole. The jeep carrying the party went to the place after about an hours journey. They entered the hut in question. The present appellant pointed out from some shelf in the hut one bag containing one undeveloped film roll one map one-half portion of a Pakistani currency of Re. 1 2 empty and open cigarette packets of foreign make bearing some Urdu-like writing and some 4 sheets of paper containing certain names and addresses. All these articles were seized in presence of the panch witnesses after obtaining their signatures on the portion of the Pakistani currency note the empty open cigarette packets each sheet of paper and the slips attached to the packet in which the undeveloped film roll was placed and sealed. The necessary panchnama to that effect was drawn in continuation of the preliminary panchnama with respect to the search and seizure made in the hut in question. It appears to have consumed nearly 1 hour from 11.30 am. The panchnama was duly signed by both the panch witnesses and the PSI (that is Gurkha). The party came back to the police station at Khavda. The PSI also brought with him the seized articles. He made the necessary report to the District Superintendent of Police at Bhuj with respect to the manner in which the order at Exh. 87 on the record of the case was executed. The report made by the PSI to the DSP is at Exh. 145 on the record of the case. It appears that the DSP thereafter by his order passed on 19th May 1986 directed one Dwivedi to investigate into the matter. That order is at Exh. 34 on the record of the case. Pursuant thereto the investigating officer filed the necessary First Information Report (FIR for convenience) on 20th May 1986. It is at Exh. 130 on the record of the case. The investigating officer understood the investigation work. After recording the statements of certain witnesses the Urdu-like writing found on the empty cigarette packets was got translated. It turned out to be the writing in Sindhi. The undeveloped film roll was also got developed and the prints thereof were obtained. On completion of the investigation the papers were submitted to the concerned authority for launching prosecution against the present appellant. It appears that in the meantime the present appellant was apprehended on 4th August 1986. He was released on bail some time in January 1987. It transpires from the record that the alleged owner of the hut in question was not traceable in India. Thereupon the complaint with respect to the incident in question was required to be filed only against the present appellant before the Chief Judicial Magistrate of Kutch at Bhuj. The complaint is at Exh. 114 on the record of the case. It appears to have been registered as Criminal Case No. 27 of 1988. The learned Chief Judicial Magistrate committed the case to the Sessions Court for trial. It came to be registered as Sessions Case No. 70 of 1988 in the Sessions Court of Kutch at Bhuj. It appears that in the meantime the owner of the hut in question named Rahimna Daud was also traced out. He was also apprehended. Thereafter the necessary complaint against him was filed on 29 March 1990 before the Chief Judicial Magistrate of Kutch at Bhuj. It came to be registered as Criminal Case No. 18 of 1990. The learned Chief Judicial Magistrate of Kutch at Bhuj committed that case also to the Sessions Court for trial. It came to be registered as Sessions Case No. 38 of 1990 in the Sessions Court of Kutch at Bhuj. The complaint against the said Rahimna Daud is at Exh. 1 on the record of the Sessions Case. It appears that both Sessions Cases Nos. 70 of 1988 and 38 of 1990 were ordered to be heard together. It appears that both the cases were assigned to the learned Additional Sessions Judge for trial and disposal. The charge against both the accused was framed on 14th November 1990. Both of them pleaded not guilty to the charge. They were thereupon tried. After recording the prosecution evidence the further statement of each accused was taken under Sec. 313 of the Criminal Procedure Code 1973 (the Cr.P.C. for brief). The defence of the present appellant was that he was falsely implicated at the instance of one Musa Bhunger on account of enmity between the parties and with the police. The defence of the other accused was to the effect that the hut in question did not belong to him. Both of them filed their additional written statements under Sec. 313 of the Cr.P.C. They are at Exhs. 147 and 149 on the record of the case. After hearing arguments by his common judgment and order passed on 30th November 1991 in Sessions Cases Nos. 70 of 1988 and 38 of 1990 the learned Additional Sessions Judge of Kutch at Bhuj accquitted the accused of Sessions Case No. 38 of 1990 but convicted the accused of Sessions Case No. 70 of 1988 of the offence with which he was charged and sentenced him to rigorous imprisonment for 7 years and ordered to give set-off for the period he remained in jail. The aggrieved convict has thereupon preferred this appeal before this Court and has questioned the correctness of the judgment and order of conviction and sentence passed by the learned trial Judge.

(3.) Shri Barejia for the appellant has taken us through the entire evidence on record in support of his submission that the prosecution has failed to prove its case against the present appellant beyond any reasonable. Doubt. According to Shri Barejia for the appellant the present appellant has been able to probabilise his version to the effect that he was falsely implicated by PSI Gurkha on account of enmity between the two at the instance of one Musa Bhunger against whom the present appellant was required to give deposition. Shri Barejia has further urged that there is no evidence on record to connect the present appellant with the offending material. In that view of the matter runs the submission of Shri Barejia for the appellant the impugned judgment and order of conviction deserves to be set aside by this Court in this appeal. As against this Shri Shelat for the respondent-State has urged that the overwhelming evidence on record clearly points the finger of guilt towards the present appellant. Shri Shelat for the respondent State has further submitted that the present appellant has been rightly convicted and sentenced by the learned trial Judge as the case against the present appellant has been proved beyond any reasonable doubt. Shri Shelat has further urged that the learned trial Judge has rightly disbelieved the defence version propounded by the present appellant to the effect that he was falsely implicated by PSI Gurkha out of vengeance and vindictiveness at the instance of said Musa Bhunger.