SAFI MOHAMMED Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These three appeals have been filed by the appellants Shaft Mohammed, Chhottu Khan and Chand Khan against the judgment dated March 9, 2004 of Sessions Judge Jaipur City Jaipur in Sessions Case No. 196 of 1992 whereby the appellants were convicted under Section 3(l)(c) of the Official Secrets Act, 1923 and sentenced to seven years rigorous imprisonment. Accused appellant Safi Mohammed was acquitted of the offence under Section 5 of the Official Secrets Act.

(2.) Brief facts of the case are that on March 6, 1990 Bhoormal Jain, Superintendent of Police CID Zone Jodhpur lodged an FIR for the offence under Sections 3, 3/9 of the Official Secrets Act read with Section 120B IPC with the Special Police Station Rajasthan Jaipur which is numbered as FIR No. 1/1990. On the basis of the said report after investigation complaint Ex. P/20 was filed before the Chief Judicial Magistrate Jaipur City Jaipur by Dan Chand Sharma (PW.10), wherein it was stated that on March 6, 1990 Bhoormal Jain SP CID Zone Jodhpur was informed by an informant that one suspected person was seen going in AIR Force Area Jodhpur. After receiving information one Veer Singh Inspector of Police CID was given instructions to keep a vigil on the suspected person. Veer Singh after keeping Vigil on suspected Road Jodhpur, where suspected person was staying. When Veer Singh asked the name of suspected person he has disclosed his name as Anil Sindhi son of Bhagwandas Sindhi resident of Jamnagar (Gujrat) and he came to Jodhpur for some work of tailoring. Veer Singh further enquired from him regarding Gujrati Language and Hindu religion, but he was not able to explain anything about Gujrati language and Hindu religion. A doubt was created by the suspected person in the mind of Veer Singh. Veer Singh further enquired about his whereabouts then the suspected person disclosed his actual name as Mohammed Isfaq son of Mukram Khan resident of Karanchi (Pakistan). Veer Singh sent the information about the suspected person to Bhoormal Jain, SP CID, On this Bhoormal Jain reached at Rathi Guest House accompanied by N.K. Atrey Deputy Superintendent of Police. They further interrogated the suspected person and searched his baggage. They recovered one bound copy containing five pages. Some writing was there in Urdu language. They also found a small written piece of paper in the bound copy. On tearing the air baggage they found one restricted sheet 45 "A" Phalodi, inside map two papers of bound copy containing sketches of important places of Airforce and also certain notes in Urdu language were also found. Because the recovered documents were secret, in presence of Om Prakash Rathi and Ramdas, the said documents were seized. It was also stated in the complaint that on further enquiry from the suspected person Mohammed Isfaq disclosed that when he was sent by Pak F.l.U. Intelligence Agency to India on Feb. 5, 1990 he came through Pak Post Kekdi and Indian post B.K.D. Bakkhasar with the help of Jawahra Koli of Bakhasar and illegally crossed Boundary and reached Jodhpur and Jethachanana where ASM Safi Mohammed was posted and delivered Rs. 6500 (Indian currency notes) sent by Pak Intelligence to him and asked him about the work done. On this Safi Mohammed informed him that work is yet to be completed and the same would be completed upto 7 ad 8 March, 1990. On the basis of aforesaid information Mohd. Isfaq and Safi Mohammed were found to be Pak spies and they have sent the report through special messenger Navnit Kumar, CID Special Zone Jodhpur and the same was received by the Special Police Station SHO, Yadram Tewari, who lodged the FIR and started for Jodhpur for investigation and he went there and arrested Mohammed Isfaq. He further interrogated Mohammed Isfaq then he disclosed that Pak agency asked him to give money to Safi Mohammed, posted as ASM for the information to be supplied to them. Yadram Tewari along with him reached Jetha Chanana and asked Safi Mohammed to call Mohammed Isfaq at his quarter and asked him about the work. He was told that if he stated for completion of work then he may keep his right hand on his head and give signal to them. On this Mohammed Isfaq reached at the Officers quarters of Railway Station Jetha Channa at quarter No. T-4/1967 from west side entrance and called Safi Mohammed. On this Safi Mohammed opened the door and Mohammed Isfaq asked him about completion of work on which he kept his right hand on head. Safi Mohammed was arrested in presence of Umed Singh and Bhoop Singh and his quarter was searched. On searching, south wall of room in the fixed almirah one diary was found. One trace map was also found. All these documents were seized in presence of witnesses. In the complaint it was further stated that on the information given by Mohammed Isfaq the investigating officer for searching Chhotu Khan reached Kuchaman City. Chhotu Khan was arrested and on searching his pant one restricted chart of organisation mountain division Deu Headquarter was found. The same was sealed by the police. During investigation Chhotu Khan revealed about Chand Khan to reach on March 17, 1990 at Bakhasar, who was to be contacted by Jawahara Koli for going back to Pak. On this investigating officer along with staff reached Bakhasar and Dheemaram Vishnoi Dy. SP CID Banner was also informed. Informant informed that from Ghadhav to Bakhasar Bus some passengers are coming in which one of them is Chand Khan and on receiving signal Chand Khan was stopped and he informed that he is resident of Kuchaman City on which he was arrested and on searching his pant one black Purse of Ragjin was recovered. On Opening purse 33 U.S. U through 56 APO, one Newspaper cutting and one belt, and Sanik Samachar of Feb. 14, 88 were found. Seized articles were sealed by the police. All these persons entered into a conspiracy for collection and communication of information concerning defence matters which could be prejudicial to the safety or security or interests of the State, which created problem to the peace of Country, hence they were apprehending to be enemy of Indian, were arrested. After detailed investigation the police submitted challan before the Court of Chief Judicial Magistrate under Section 3 read with Section 9 of the Official Secrets Act and Section 120 B IPC. The CJM committed the case to the Court of Sessions and the Sessions Judge Jaipur City Jaipur vide order dated July 26, 1994 framed charge under Section 3/9 against Mohammed Isfaq, 3/5 against Mohammed Safi, 3/9 against accused Chhotu Khan, 3/9 against accused Chand Khan, and against accused Safi Mohammed under Sections 3/0 & 5 of the Official Secrets Act. The accused appellants denied the same and claimed to be tried. The prosecution examined 33 witnesses and got exhibited some documents thereafter examined accused under Sections 313 Cr.P.C. In defence one witness Kamruddin was examined as DW1. After hearing both the sides the learned Sessions Judge convicted and sentenced the accused appellants as indicated above vide judgment dated March 9, 2004. Against this judgment of the Sessions Judge the appellants have filed these three appeals for quashing the judgment of conviction and sentence.

(3.) M.S.R. Surana, learned counsel for the appellant Shafi Mohammed, placing reliance on the cases of Khudeswar Dutta vs. State of Assam (1998) 4 SCC 492, Ram Ratan vs. State of Punjab (1979 Cr.LJ. 791) Hanuman Das vs. Union of India (2004 (3) RCC 1480 = RLW 2005(1) Raj. 180, Stya Narayan vs. Union of India (2002(2) RCC 728, State (NCT of Delhi) vs. Navjot Sandhu (2005) 11 SCC 600, Sans Pal Singh vs. State of Delhi (1999 Cr.LJ. 19) Narsi vs. Slate of Haryana (1999 Cr.L.J. 271) Mousam. Singha Roy and others vs. State of W.B. (2003) 13 SCC 377, Lalli vs. State of Rajasthan (2003) 12 SCC 666, Aslam Parwez vs. Govt, of NCT of Delhi (2003 Cr.LJ. 2525. Ser AJi vs. State of Rajasthan 1992 RCC 389, and Pratap Singh and another vs. Slate of MP. (2005) 13 SCC 624 = RLW 2006(1) SC 676, and contended that the prosecution failed to prove case against the accused appellant beyond reasonable doubt and he has been unnecessarily involved in the case. He has drawn attention of this Court on Ex. P/22, P/35. Ex. P.22 was Khana Talasi and seizure memo of restricted documents in the presence of two witnesses Umed Singh and Khoob Singh. The learned counsel contended that out of these two witnesses, one witness was declared hostile and other witness Umed Singh was not produced by the prosecution. The learned counsel argued that the defence witness produced by the defence was not taken into consideration by the trial Court and no discussion about him was done in the judgment of the trial Court. The trial court erred in law in placing reliance on PW.2 Om Prakash Rathi, who is an independent witness. From his statement it is revealed that Ex.D.3 was recovered on March 6, 1990 at Rathi Guest House and there is no question of recovering Ex. P. 22 on March 7,' 1990. The learned counsel averred that appellant Safi Mohammed was ASM at Police Station Jetha Chanana and in this connection two witnesses PW.7 Narain Ram and PW.8 Mohan Singh were produced by the prosecution. The prosecution has failed to put any question in relation to quarter of accused appellant from these witnesses. In this manner the prosecution failed to prove the possession of the accused appellant on the quarter from which material was seized. The learned counsel also contended that the trial Court erred in relying on documents Ex. P. 33 and P. 34. The learned counsel argued that in item No. C it is clear that in relation to it, it has been mentioned that this is not part of the airforce range. In relation to Ex.D.3 no opinion was given. The learned counsel also averred about the material seized was kept in sealed condition or not in the Malkhana. No witness in this respect was examined by the prosecution. The learned counsel argued that the appellant is in no way concerned with the crime and he has been falsely implicated, he should be acquitted.