ABBAS ALI KHAN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This appeal under Section 374(2) of the Code of Criminal Procedure 1973 preferred by the appellant/accused is directed against a judgment dated 28th May 2008 rendered in Sessions Trial No. 145/06 by the Sixth Additional Sessions Judge Gwalior, convicting and sentencing the accused for commission of offences punishable under section 419 of I.P.C. for three year's R.I., under Section 420 read with 120-B of I.P.C. for five year's R.I., under section 467 read with 120-B of I.P.C. for 10 year's R.I., under Section 471 read with 120-B of I.P.C. for 2 year's R.I., as well as under sections 3 (1)(a) (b)(c) & 9 of the Official Secrets Act 1923 for 14 year's R.I., and lastly under Section 14 of the Foreign Act for five year's R.I.

(2.) The prosecution version, in short, for deciding this appeal is that the appellant/accused was a resident of Satellite Town Colony, Police Station City, district Rahimyar- khan, Punjab (Pakistan) having valid Passport No. K224602 dated 22nd May 2001 issued by Pakistan entered in India under valid Visa No. P 391103 dated 26th April 2005 till dated 26th August 2005 through Wagha Out Post India. After entering India, Residential Permit (Under Para 7 of The Foreigners Order 1948) was issued. He had to deport India on or before 26th August 2005. It is alleged that after expiry of said period of valid stay, the accused/appellant did not return back to Pakistan through same way and by hiding himself he visited various places in India. Lastly, he resided in Gwalior using fake name as Madho Singh, son of Ved Prakash and by making forged mark-sheet of examination with regard to Educational Institute, he obtained the driving licence in his above fake name. He also obtained the Rashan card. He resided using the aforesaid fake name in the house of Barkhoo Dhobi. Being the spy of country Pakisthan, he drew certain pictures of prohibited Defence Organizations of Gwalior and also transmitted them to Pakisthan. On reliable information of informer and under direction and permission from higher officers, Town Inspector A.R. Sharma of Police Station Inderganj Gwalior alongwith other superior officers and police force conducted raid in the house of Barkhoo Dhobi at Daliyawala Mohalla, Nai Sarak Gwalior and accused/appellant was arrested on the spot. Thereafter on enquiry, the Investigating Officer searched the part of the house where the accused Abbas Ali Khan was residing. The incriminating articles as per seizure memos were seized. After arrest and seizure, the FIR was lodged against accused Abbas Ali. The investigation was set into motion. During investigation, the search was done in presence of accused Abbas Ali Khan of the house of Mohammad Shahid at Nazeer Buland Sahar U.P. On search, the passport and visa papers were seized. A confidential map of Defence Organization and other papers were seized from residence of accused Abbas Ali Khan. Forged mark-sheet, driving licence and Rashan Card issued in the fake name of Madho Singh son of Ved Prakash which were used by the accused Abbas Ali Khan were also seized. After getting permission for prosecution of accused Abbas Ali Khan, the charge sheet was filed before the competent ant criminal court. On sessions trial, after recording evidence of the prosecution evidence as well as defence, the learned trial Judge convicted and sentenced the accused/appellant for the alleged offences as mentioned above, hence, this appeal.

(3.) The contentions put forth on behalf of the accused/appellant are that the appellant who is Pakistani national entered in the month of July 2005 in India by railway through Bagha International Post under valid permission to travel in India on passport and visa which was for a prescribed period. It is submitted by the learned counsel that the allegation against the appellant is only that much that after expiry of his valid period of stay, he continued his living in India and did not return back to his country. It is contended that he is an honest person without any criminal past against him. He was not involved in any spy activities in India. It is submitted that during trial, no proper opportunity to defend the appellant was provided and therefore, the impugned judgment of conviction and sentence which was recorded in the absence of proper opportunity of hearing to the accused is liable to be set aside. It is thus, prayed that by allowing the appeal, the sentence as imposed against the appellant by the trial Judge may be set aside or in alternative, some leniency may be adopted in awarding sentence to the appellant after considering the circumstances and in view of the fact that he is national of Pakistan who had spent a considerable period in Indian prison and now wishes to leave India and to go to his country for spending rest period with his family.