(3) Riaz Ahmed no doubt joined that criminal conspiracy at Lahore and subsequently came to India to join Saleemuddin to assist him in his espionage activities.On August 10, 1968 he was introduced by M. A. Bajwa to Malik Salim, another Pakistan Intelligence Officer telling him that Riaz Ahmed was being sent to India under the assumed name of Asif.to contact Saleemuddin at Bareilly.The two Pakistan Intelligence Officers gave him the documents Exs.According to the confession, Riaz Ahmed was arrested by the police in front of the Railway Station, Delhi Main on August 13, 1968 at about 10.13 P.M. The confession showed that Riaz Ahmed was a party to the conspiracy hatched at Lahore by the Pakistan Intelligence for collecting information regarding the air-fields in India.The documents recovered from him at the time of his arrest also confirm his participation in the conspiracy.Ex. PL/3 is a typed brief captioned "mission" containing instructions as to the job which Riaz Ahmed was expected to perform.This further confirmed his participation in the conspiracy.Ex. PL/4 is a slip of paper containing two addresses of Lahore to which Riaz Ahmed was required to send his communications from India.He located the same around noon time.He then went back to the police station Killa, Bareilly and contacted the local Police there.Accompanied by the local police and the two witnesses Bhagwati Pershad (Public Witness 5 ) and Basheshwar Nath (Public Witness 7) he went to the house of Saleemuddin at about 4.15 P.M. He remained busy at that house until 8.00 P.M. From 9.00 P.M. to 10.30 P.M. he interrogated Saleemuddin at the police station and it was on some disclosures made by Saleemuddin that Bajaj organized another raid for the arrest of Mohd. Yunis and recovery of incriminating articles.Nirankar Sarup (Public Witness 9) and Har Pershad (Public Witness 10) were summoned by the Killa Police Bareilly.They arrived at the police station at about Ii P.M. Taking these persons with himself Bajaj and the raiding party went to the house of Mohd. Yunis at 33 Phoolwalan Bareilly.He saw that man sitting in that shop on 5 or 6 different occasions.One day that man whom he identified as Saleemuddin, requested him to take him to the Aerodrome as he had not seen an air-craft.He said he was sorry he could not do so because civilians were not allowed to enter the Aerodrome.During his subsequent visits Mohd. Atique introduced him to Mohd. Yunis.He told them of what he knew.They then asked him if he knew the name of any officer working at the air-port and whether there was any officer Gupta by name.The witness pleaded his ignorance.B. Lal (Public Witness 14) deposed that the writer of Ex. Pcc was the same person who had written the specimen writing Ex. Pq (S2).Ex. Pq contains an exact re-production of the contents of Ex. PCC.It was written in Ex. Pcc that on July 29 from 7.45 P.M. to 8.30 P.M. there was a black out in Bareilly.The name of the Wing Commander at Bareilly was also mentioned and it was stated that the writer had made friends with Ravi Kumar who was employed in the repairing station at the Izzat Nagar Air Port.It was further mentioned in this report that the area of the aerodrome was being extended and that a sketch of the air field was under preparation.There was also a reference to an under-ground air-field in the cantonment area and that the writer was trying to locate it.(52) EX.JUDGMENT Hardayal Hardy, J.(1) This judgment will dispose of two criminal appeals and one criminal revision.(2) The appellant Saleemuddin was being tried along with one Riaz Ahmed, a Pakistan national.Two other persons, Mohd. Atique and Mohd. Yunis were also being tried along with them.By a judgment dated October 31, 1969 delivered by the Additional Sessions Judge, Riaz Ahmed, Mohd. Atique and Mohd. Yunis were acquitted of the charge framed against them while Saleemuddin was convicted and sentenced to rigorous imprisonment for five years for an offence punishable under Section 120B Indian Penal Code read with Section 3 of the Indian Official Secrets Act. 1923 and also to rigorous imprisonment for five years under Section 3 In a judgment which but for the errors to which we shall presently refer, is extremely well written, the learned trial Judge has held that Riaz Ahmed being a foreign national could not be tried in this country for the offence of conspiracy which according to him was committed outside India.He was, however, arrested before he could contact Saleemuddin at Bareilly.Saleemuddin did commit acts of espionage at Bareilly by making a rough sketch and preparing an intelligence report relating to Izzat Nagar Air-port at Bareilly.He also sent some reports to the Pakistan Intelligence earlier and was therefore guilty of conspiracy and espionage.[After discussing the facts, the judgment proceeded.] (4) The case was tried by Shri K. S. Sidhu, Addl.Sessions Judge Delhi.who on a consideration of.The said confession was no doubt made after the accused had remained in police custody for nearly 13 days, but in the opinion of the learned trial Judge, this circumstance alone did not detract from the voluntary nature of the confession.The, letter was delivered to Riaz Ahmed for being delivered to Saleemuddin at Bareilly.In this letter Malik Salim was apparently telling Saleemuddin that instead of Riaz he was sending Asif because Riaz had to under-go 'some surgery.The word "Riaz" obviously has reference to another person bearing that name.But since the name of the accused was also Riaz he was being sent under the assumed name of Asif.Ex. PL/1 is a photograph of Saleemuddin bearing his signatures on its back.The offence was complete as soon as Riaz Ahmed who was a national of Pakistan, agreed to be a party to the conspiracy at Lahore.He was arrested in India before he could do any illegal act in this country in pursuance of the conspiracy and that is why no charge for an offence under Section 3 of the Indian Official Secrets Act, 1923 was framed against him.We were told that the State was satisfied about his death.The appeal against him, therefore, abates.(26) According to the learned Judge, the evidence produced by the prosecution relating to the alleged participation of Mohd. Yunis in the conspiracy, consisted of his confessional statement (Ex.PM/7), recovery of an incriminating document (Ex. FEE) from his possession, the oral testimony of Chander Pal (Public Witness 16) and Ravi Kumar (PW4) and the evidence of the handwriting expert.The said document.Mohd. Yunis was found present in the house.He made a disclosure statement (Ex. PUU) in consequence of which a sketch (Ex. PEE) indicating important places and buildings at the lzzat Nagar Air-field, Bareilly was recovered from his house.(30) Learned trial Judge has held that the house of Mohd. Yunis is not far away from the house of Saleemuddin.Although the exact distance was not mentioned, both the houses are within the jurisdiction of the same police station and Mohalla Phoolwalan is not far away from the house of Saleemuddin in Mohalla Phoota Darwaza.According to the learned Judge, if Mohd. Yunis who was living in a house close by and the proceedings for the search of the house of Saleemuddin continued from 4.30 P.M. to 8.00 P.M. he must have in all probability come to know that the house of Saleemuddin had been raided and would have taken steps, to remove the offending article.The evidence does not furnish any material in support of this particular observation of the learned Judge.Bajaj and other members of the raiding party were in plain clothes.There is no evidence on record to show that when the house of Saleemuddin was being searched from 4.30 to 8.00 P.M. any other persons besides the members of the raiding party and the occupants of the house were present.The search took place inside the house.Even while the police was waiting outside for 15 to 20 minutes before Saleemuddin arrived there, there is nothing to suggest that their presence was being marked by any members of the public.The two houses of Saleemuddin and Mohd. Yunis are no doubt within the jurisdiction of police station Killa but they are not in the same street.We were told that the house of Mohd. Yunis is at a distance of about 220 yards from the house of Saleemuddin and that they are in different streets.It is therefore not possible to agree with the trial Judge that Mohd. Yunis "must have in all probability come to know that the house of Saleem- ud-din had been raided" nor does it follow there from that Mohd. Yunis would have destroyed the incriminating document before the police raided his house.Nirankar Sarup does not belong to the locality of Mohalla Phoolwalan.His shop is very close to the police station.He also admitted that Bhagwati Pershad (PW. 5) who had earlier lent his services to the police at the time of its raid on the house of Saleemuddin, is one of his co-sharers in the rickshaw business.The learned Judge has also held that he had been specially called by the police through a constable from a paan shop at about 11.00 P.M. when the police was getting ready to go for the search of the house of the accused.We have looked into the evidence of this witness and since the observations of the learned Judge are not based on the impressions formed by him when the witness was under examination, it is open to us to look into his evidence.(32) Nirankar Sarup admitted in cross-examination that Bhagwati Pershad used to keep his rickshaws, 5 or 6 in number, in his stand and passed on the profits from those rickshaws to him.But assuming there was some kind of partnership between them in the rickshaw business, Bhagwati Pershad was not a witness in the case of raid on the house of Mohd. Yunis.If from the same locality the police summoned two persons who were co-sharers in their business and the services of one of them were utilised as an independent witness of search in one case, it does not follow that the other person whose services were utilised several hours thereafter for search in a different house, would cease to become reliable.It is only after Saleemuddin was taken to the police station and interrogated that the name of Mohd. Yunis was .revealed and thereafter Bajaj proceeded to the house of Mohd. Yunis.It has not been shown that Nirankar Sarup was known to Bajaj.He was called to the police station through a constable who according to the witness, was not even known to him.A suggestion was put to him in cross-examination that some one had lodged , report against him that he had kidnapped some one's daughter and that he had succeeded in getting the case dropped by using his influence with the police.He denied the suggestion and nothing has been placed on record to show that there is any truth in the allegation.If the evidence of Bhagwati Pershad has been believed by the learned trial Judge, there is no reason why the evidence of this witness who is apparently more respectable than Bhagwati Pershad.According to his statement, his house is at a distance of about 100 to 125 yards from Thana Killa whereas the distance from his house to the house of Mohd. Yunis would be between 3 to 4^ furlongs.Can it be said under these circumstances that he was not a witness from the locality ? The search was carried out sometime after 11.00 P.M. It was the month of August.There might have been quite a number of persons living near the house of Mohd. Yunis but if the police took with themselves some one whose house was half a mile away from that house, it cannot be said that the witness did not belong to the locality, particularly when no connection has been shown between Bajaj or any other police officer belonging to Police Station Killa at Bareilly.(33) The next witness of search is Har Pershad (Public Witness 10).' He actually belongs to Mohalla Phoolwalan, and is therefore a witness from the locality.He said that in his presence Mohd. Yunis had told the police that a map was.lying in almirah in his house and that he could produce it.The map Ex. Pee was produced from between two books lying in the almirah.The recovery memo Ex. Public Witness bears the signature of this witness.In cross-examination it was brought out that he had instituted a complaint against Fiaz-ud-din father of Saleemuddin and that showed his enmity against the accused.It however transpired that he had done so after this case, because the accused had harassed him a lot through thier friends and relations by trying to bring influence on him not to give evidence against them.Another ground urged by Mr. Anthony was that the witness had stated that he signed the sketch Ex. Fee and also the recovery memo Ex. Puu, and in fact he had signed only one of those documents.The other witness Nirankar Sarup had mentioned that he had signed only one of the two documents.If the witness made a slight mistake, it cannot be said that his evidence as such is not relevant or admisible.Both the witnesses of sketch have supported the prosecution case about the recovery of Ex. FEE.(36) Mr. Anthony lastly argued that Nirankar Sarup could not give the direction in which the main entrance of the house of Mohd, Yunis was situated.The witness gave a complete description of the inner apartments and merely because he could not say whether the main entrance was to the East or to the West or to the North or to the South, would hardly discredit his testimony.(37) We, therefore, hold that the prosecution evidence fully establishes the recovery of Ex. Fee from the house of Mohd. Yunis.There is also the evidence of the handwriting expert, Shri B. Lal (FW 14).According to that witness, the document Ex. Pee is entirely in the hand of Mohd. Yunis and all the writings in that document are in his hand.But there is one piece of writing (Ex. Q 11/1) which is encircled red and is in the handwriting of Saleem-ud- din.If there was no connection between Saleemuddin and Mohd. Yunis a document showing the building etc., in Izzat Nagar Air-port prepared by Mohd. Yunis could not contain the writing of Saleem-ud- din.The presence of this document, therefore, clearly establishes the association between Saleemuddin and Mohd. Yunis and the possession of Ex. Pee shows the common concert between them.The association between Saleemuddin and Mohd. Yunis is also amply proved by the oral testimony of Chander Pal (Public Witness 16) and Ravi Kumar (Public Witness 4).Ravi Kumar who was a leading Air-craftsman at the lzzat Nagar Air-port at Bareilly was living in a private accommodation.He and his wife used to go to Bara Bazar for shopping.They used to buy cosmetics etc. from a shop known as Citizens Centre.(38) MOHD.Atique was one of the salesman at that shop.In 1968 Mohd. Atique introduced him to another person whom he described as a compounder working with a doctor.He was told that Mohd. Yunis was a student of M.Sc.and was working in a rubber factory in Bareilly.He denied the suggestion that he had made the statement in court under the fear of dismissal on the allegations of mixing up with civilians.The police came to know about this witness from one of the documents found from the possession of Saleemuddin and, therefore, examined him as a witness.(39) The witness is a Maharashtrian.He has no animus against the accused.Nothing has been brought on record to show that he was making the statement in court under pressure from the police.No question was put to him about his acquaintance with Bajaj.The only outcome of his evidence is that the shop of Mohd. Atique was the rendezvous of Saleemuddin and Mohd. Yunis and that Saleemuddin was eager to visit Izzat Nagar Air-port.(40) Chander Pal was a cleaner in a truck which was employed to carry bricks from the kiln of Asa Nand to the Air-port for Bharat Builders who were doing construction work there.During that period two youngmen, Saleemuddin and Mohd. Yunis met him at the kiln and asked him about lzzat Nagar Air-port.(41) In cross-examination he stated that the two accused spent about 3 to 4 hours at the kiln and that he did not ask them why they were asking those questions.This evidence by itself is not of any importance but when read in conjunction with the sketch (Ex. PEE) which shows the various buildings and their location in the air-port and which bears the writings of Mohd. Yunis and Saleemuddin, it is apparent that these two persons must have been going round and meeting persons who had occasion to be inside the air-port.(51) The documents recovered from the possession of the accused and from the search of his house clearly implicate this accused.Apart from Ex. Pqq, Ex. Pcc is the intelligence report which had been prepared by the accused and had been kept ready by him for delivery to Riaz Ahmed who was expected to contact him at Bareilly.Ex. Pqq (S2) is a specimen writing of the accused made in the presence of a magistrate.Pz recovered from the possession of the accused is an incomplete rough sketch of the lzzat Nagar Air-port.B. Lal, the document expert, compared the writing in Ex. Pz with the specimen writing Ex.PQ/3 of Saleemuddin and deposed that the disputed words in Ex. Pz were written by Saleemuddin.The reference in the sketch to Ex. Pcc also goes to show that this sketch was prepared by the accused.The recovery of the typed brief Ex.PY and the handwritten brief in Urdu (Ex. PAA) from the possession of the accused further establishes that he was engaged in espionage activities at Bareilly in pursuance of a criminal conspiracy, in terms of these briefs.The pocket diary Ex. Pbb contains some nothings in his hand which further establish that he was engaged in espionage activities at Bareilly.This document shows that he had seen some movie on June 21, at Bareilly.In Ex. Pbb he made an entry thereof (Ex. Q8/5) giving the tail numbers of some aeroplanes which seem to have been shown in flight in the news reel.There is another entry dated June 20, showing that he had already dispatched one intelligence report (Ex. RPT) to the other conspirators in Pakistan.Ex. Pss is a post-card letter purported to have been written by one Anwar Nasim from Pakistan to Saleemuddin accused at Bareilly.In that letter Anwar Nasim was remonstrating with the accused and had inquired if Riaz Ahmed had met him.The confession (Ex. PK/1 ) made by Riaz Ahmed also lends assurance to the conclusion that Saleemuddin accused was a party to the criminal conspiracy.The documents recovered from Riaz Ahmed also fortify the conclusion that Saleemuddin was a party to the conspiracy for collecting information regarding defense installations in India.Ex. Pl, handed over to Riaz Ahmed by Malik Salim for onward delivery to Saleemuddin at Bareilly is another document incriminating the accused.In that letter the word "Sari" has been written.But according to the cipher code adopted by the conspirators the word "Sari" stood for "Intelligence Report." The documents recovered from Riaz Ahmed viz. PL/I, PL/2, and PL/3 are also incriminatory of Saleemuddin.These documents clearly establish the guilt of Saleemuddin in the charge of criminal conspiracy.(54) There is also evidence implicating the accused in an offence under Section 3 of the Indian Official Secrets Act. One of the counts relates to the rough sketch Ex. Pz and to the intelligence report Ex. PCC.(55) In their examination under Section 342 Criminal Procedure Code all the three accused denied their complicity in the offence alleged against them.Riaz Ahmed stated that he was a Pakistani national and had entered India on August 13, 1948 without any travel documents.He admitted that he had visited India on two occasions on the authority of travel documents.But this time it was on the advice of his maternal uncle who was residing at Amritsar that he came to India without any travel documents.He said that he had done so because he was advised by his maternal uncle that if he wanted to settle in India he should come without a pass-port.He denied having made a confession and added that he was arrested at Amritsar and that he had written on the Railway Time Table (Ex. PX) at Amritsar Railway Station the words Sohan Lal, because he wanted to settle down in India with Sohan Lal as his name.He said that he did not disclose to the police the name of his maternal uncle and that he did not know any of the other accused.(56) Saleemuddin and Mohd. Yunis also denied all connections with the conspiracy.As regards the photograph (Ex. PL/1), Saleem-ud- din admitted that it was his photograph and that he had also signed it at the back.He said he had sent it from Bareilly to his beloved Noor Bihar of Sialkot and that in the accompanying letter he had mentioned about his meeting with Capt. Shukla and that is why the letter was censored and retained.He denied having made the confession.Mohd. Yunis denied his connection with the conspirary.He also denied having made any confession.He admitted that he was identified by Chander Pal and Ravi Kumar at the identification parade, but being the tallest among all the participants in the parade and having been asked to put on the same clothes which he was wearing at the time of his admission to jail and with his glasses removed, he was made to join the parade.He stated that he was suffering from tuberculosis and heart trouble.(57) The statement of the accused is thus one of denial.There is clear evidence to support the case of conspiracy against all the three accused.There is also evidence of an offence under Section 3 of the Indian Official Secrets Act, 1923 against Saleemuddin and Mohd. Yunis.(58) The question that arises for consideration is what sentence should be inflicted on them.The maximum sentence provided for the offence under Section 3 of the Indian Official Secrets Act, 1923 is 14 years.The offences have been committed by the accused after great deliberation and planning both in Pakistan and in India.The information that the accused were collecting in India relates to military secrets of vital nature.The learned Addl.Sessions Judge has himself held that the offences being serious the accused deserved deterrent punishment.Supplying information about defense installations in this country to a country which has already been at war with this country.It imperils not only the security of the country but exposes its military equipment and people to destruction.We therefore convict Riaz Ahmed and Saleemuddin of the offence of conspiracy and give them the sentence of ten years' rigorous imprisonment each.The sentence of five years rigorous imprisonment awarded by the trial Court to Saleemuddin appears to us to be highly in-adequate.Both the sentences against him will.however, run concurrently.(59) The case against Mohd. Yunis stands on a different footing.He is a young college student reading for the M.Sc.The sentence awarded to him is.however, not to be treated as a precedent in such cases.It is the state of his health and want of evidence about his connections with foreign spies which impel us to treat his case with leniency.We are told that he is due to appear for his M.Sc. examination soon.The jail authorities may make arrangements for his taking the examination.(60) The result is that the appeal of Saleemuddin is dismissed while the appeal and Criminal revision filed by the State are allowed.The appeal against Mohd. Atique abates.

Cited provisions: Section 120B in The Indian Penal Code; Section 2 in The Indian Penal Code; Section 411 in The Indian Penal Code; Section 4 in The Indian Penal Code; Section 3 in The Indian Penal Code; Section 380 in The Indian Penal Code