MOLDIN ALIAS MOLIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS criminal appeal under Section 374 Cr. P. C. arises out of the judgment dated 31. 7. 2002 passed by the learned sessions Judge, Jaipur City, Jaipur whereby the learned Sessions Judge has convicted the appellant for offence under Section 3/9 of the Official Secrets Act, 1923 and sentenced him to undergo rigorous imprisonment for five years.

(2.) SUCCINCTLY stated the facts of the case are that the Station House Officer, Special Police Station, Rajasthan, Jaipur filed a complaint Ex. P. 49 in the court of Chief Judicial Magistrate, Jaipur City, Jaipur alleging therein that on 7. 6. 1994, Additional S. P. , CID, Border Intelligence (Seema Pragyan), Jaisalmer received a secret information to the effect that one Moldin is involved in espionage (Jasoosi) and sending important information concerning Indian Army, Field Firing Range, Air Force, Canal and Roads etc. to the officials of Pakistan Intelligence. He is present at Thaiyat Fanta and intends to leave for Pakistan. Having received the above information, Additional Superintendent of Police along with his staff reached the pointed place and found present a person of the description as stated by the informant. He was caught with the help of the staff and on being asked, he disclosed his identity as Moldin @ Moliya @ Molla Bux S/o Kasam by caste Kalar Musalman, resident of Rugeri, Police Station Kotwali, Jaisalmer. Thereupon, he was searched in the presence of two witnesses and in the course of search some documents rolled in `tehmad' tied on his waist were found. On seeing the papers recovered, it was found that one of the papers was a photo copy of booklet of Army, three hand written ruled sheets which contained secret information about the Indian Defence Force and important secret informations pertaining to military. The accused was arrested. The Additional S. P. then submitted a written report at Police Station Kotwali, produced the accused and submitted recovered documents. Thereupon, an FIR without number came to be registered for offence under Sections 3 and 3/9 of the Official Secret Act. On the same day, the SHO, Police Station, Kotwali transmitted the above report and the recovered documents along with the accused to Special Police Station, Rajasthan Jaipur. Thereupon a case No. 2/94 for offence under Sections 3, 3/9 of the Official Secret Act and Section 120- B IPC was registered at Special Police Station, Jaipur and investigation commenced. In the course of investigation, the statement of witnesses were recorded and site plan was prepared.

(3.) IN assailing the conviction, Mr. Goyal, learned counsel for the appellant has strenuously contended that according to the prosecution case the accused was arrested on 7. 6. 1994 and recovery as alleged by the prosecution was made from him. IN fact, the accused was detained by the police on4. 6. 1994 and was kept in police custody. To strengthen the above argument, learned counsel has relied upon the statements of DW1 Diney Khan and DW2 Mithe Khan. DW1 Dinne Khan who happened to be present at the Bus stand on 4. 6. 94 has categorically stated that accused appellant was arrested by the police on 4. 6. 94 and he was taken away in a police vehicle. DW2 Dinne Khan was informed of the arrest of the accused on 4. 6. 94 itself and that it has come in the statement of Dinne Khan that he served food to accused when he was behind the bars at Jaisalmer. He has also relied upon the news paper cutting Ex. D1, which has published the news of arrest of the accused. On these premises, learned counsel argued that the prosecution case, from its very inception is based on baseless allegations and wrong facts. Neither he was arrested on 7. 6. 94 nor anything was recovered from his possession. n this view of the matter, the learned trial Court has committed serious error in disbelieving the defence evidence, which is wholly reliable and trustworthy.