Crl.Appeal No.946-DB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of decision:14.11.2008 Masood Akhtar ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE UMA NATH SINGH. HON'BLE MR. JUSTICE A.N.JINDAL. Present: Mr.Vinod Ghai, Advocate, with Ms.Archana Sharma, Advocate, for the appellant. Ms.Ritu Punj, DAG, Haryana. ... UMA NATH SINGH, J. This appeal has been preferred against a judgment dated 31.7.2004 passed by Additional Sessions Judge (Ad-hoc), Fast Track Court, Ambala, in Criminal Case No. 4-SC dated 15.10.2003/8.4.2004, holding accused-appellant guilty of offence under Sections 3 and 5 of the Official Secrets Act, 1923 (for short `the Act'), and Section 14 of the Foreigners Act, 1946. Consequently, appellant Masood Akhtar was sentenced to undergo: (i) rigorous imprisonment for 14 years under Section 3 of the Act; (ii) rigorous imprisonment for 3 years with a fine of Rs.5,000/-; in default of payment of fine, to undergo further rigorous imprisonment for 1 month under Section 5 of the Act, and (iii) rigorous imprisonment for 5 years with a fine of Rs.5,000/-; in default of payment of fine, to further undergo rigorous imprisonment for 6 months under Section 14 of the Foreigners Act. As per prosecution case, on 26.3.2003, Inspector Ashok Kumar (PW14) of Police Station Ambala Cantt. received a secret information that Crl.Appeal No.946-DB of 2004 2 accused-appellant Masood Akhtar, a Pakistani National and agent of ISI (Secret Agency of Pakistan), was sitting in shop `Cyber Net' at Nicholson Road, Ambala Cantt. and sending secret informations about important army establishments situated in India to Pakistan. Accordingly, a raiding party, comprising of Inspector Ashok Kumar (PW14), ASI Baldev Singh (not examined), ASI Deepak Kumar (not examined), ASI Raghbir Singh (PW4), Head Constable Naresh Kumar (not examined), Head Constable Prem Singh (not examined), EHC Satyawan (not examined), EHC Jasmer Singh (not examined) and Constable Balkar Singh (not examined) was formed. They raided the Cyber Cafe. On seeing police party, one young man tried to run away from that shop. He was over-powered by police party, on the basis of suspicion. He disclosed his name as Masood Akhtar alias Haidar alias Ramu son of Zafar Haidar, resident of Bhuto Nagar, Nusrat Colony, Gali No. 9, P.S. Fatehsher, District Shaiwal, Punjab Province (Pakistan). On search of his person, he was found to be carrying one receipt bearing No.136 dated 26.3.2003 for Rs.50/-, relating to the shop of Cyber Net, for sending one E-Mail and taking one print out (Ex.P85). He was also carrying one printed paper `MSN Hot-Mail' composed of “salma washeed' salma-baby 88 @ hotmail.com to romo 997 @ hotmail.com (Ex.P87) in his left hand. He was also found holding a bag of `Action Shoes' (Ex.P88) in his right hand. Search of that bag led to the recovery of some further incriminating materials like: ( i ) one floppy on which IMATION02HD- 1BM-FORMATTED-1.44 MB was printed (Ex.P183); ( ii ) one camera reel placed in a plastic container of black colour; ( iii ) one key; (iv) one purse containing Rs.1500/- (Ex.P89); (v) one ATM card of Standard Bank (Ex.P90); (vi) one printed paper containing the details of deployment of Crl.Appeal No.946-DB of 2004 3 various units of army and its officers at Hisar, Ambala Cantt. and Dada Chandi under the head `Tau Ranjit Hisar' (Ex.P91); (vii) one printed paper like YMSG E-Mail relating to Salma-baby88 @ hotmail. com (Ex.P92); (viii) one printed paper bearing No.133 dated 25.3.2003 of `Cybre Net' for Rs.35/-; (ix) one E-Mail information to Salma-baby88 @ hotmail.com, and (x) one map of Haryana, Punjab and Rajasthan (Ex.P93). Accused-appellant was taken into custody and interrogated. On interrogation, accused- appellant Masood Akhtar admitted that he is involved in collecting secrets of Indian Army and sending them to Pakistan. This information was sent to police station on the basis of which, FIR bearing No.120 dated 26.3.2003 under Sections 3,5 and 7 of the Official Secrets Act, 1923, and Section 14 of the Foreigners Act, 1946, was registered. During the course of further interrogation, this accused-appellant made a further disclosure statement and pursuant thereto, there were more recoveries of incriminating articles. On conclusion of investigation, accused Masood Akhtar was given an option to choose a forum for his trial under the provisions of Section 13(2) of the Official Secrets Act. He selected the Court of Sessions, Ambala, as the forum for his trial. Accordingly, the Chief Judicial Magistrate, Ambala, committed his case to the court of Sessions, Ambala, vide an order dated 1.10.2003. Finally, the court of Additional Sessions Judge, Ambala, on being assigned this case, framed charges against the accused person under Sections 3, 5 and 7 of the Official Secrets Act, 1923, and under Section 14 of the Foreigners Act, 1946, to which he pleaded not guilty and claimed trial. It appears that during the course of trial, prosecution examined as many as 14 witnesses to substantiate the charges against accused-appellant Masood Akhtar. ASI Jagdish Singh (PW1) vide Ex.P1; ASI Megh Pal Crl.Appeal No.946-DB of 2004 4 (PW5) vide Ex.P94, and EHC Ranbir Singh (PW7) vide Ex.P95 tendered their evidence on affidavits. These witnesses proved that during their custody, the case property remained intact, and was not tempered or allowed to be tempered at any stage. Naib Tehsildar, Hisar, Daljit Singh (PW2) proved the recovery of incriminating articles (Ex.P2) which was effected under his supervision as an Executive Magistrate pursuant to the disclosure statement of accused-appellant (Ex.P74). ASI (retired) Narinder Kumar (PW3) proved the recording of FIR (Ex.P71) under his signature. ASI Raghbir Singh (PW4) was a member of the raiding party that arrested the accused. He supported the disclosure statements and recoveries effected from the personal search as also from the rented house in occupation of accused-appellant Masood Akhtar at Hisar. He also supported the recovery from a forest near Ambala Cantt. Constable Joginder Singh (PW6) proved the prompt delivery of special report to superior officer/Magistrate concerned. Rajinder Parshad (PW8), was Reader to District Magistrate, Hisar, who proved the order dated 26.3.2003 (Ex.P75) passed by District Magistrate, Hisar, deputing Naib Tehsildar Shri Daljit Singh (PW2), an Executive Magistrate, for effecting the search of rented house of accused- appellant. DSP Raj Gopal (PW9) proved the filing of complaint (Ex.P98) in the court concerned for taking cognizance against accused-appellant Masood Akhtar. Patwari Jagdish Sahai (retired) (PW10) proved the Hindi translation (Ex.P99) of a chit written in Urdu (Ex.P64), which was recovered from the possession of accused. Senior Scientific Office, FSL, Madhuban, Ram Kumar (PW11) proved the developing of negatives of photographs (Ex.P100 to Ex.P178) without any addition or omission. Shri B.R. Dhiman, Under Secretary to Government of India, Ministry of Home Crl.Appeal No.946-DB of 2004 5 Affairs, (PW12) proved the sanction order (Ex.P97) for the prosecution of accused-appellant. He also proved the writing of forwarding letter (P96) issued in this regard. Dr.J.S.Mehanwal, Assistant Director, FSL, (PW13) proved the laboratory examination report (Ex.P179) of the floppy recovered from the possession of accused. Inspector Ashok Kumar (PW14) is the Investigating Officer, who gave a complete account of investigations conducted by him. During examination in Court under Section 313 Cr.P.C. on being put across the incriminating evidence appearing against him, accused Masood Akhtar pleaded innocence and alleged false implication. However, he did not lead any evidence in defence. On appreciation of evidence on record, learned trial Judge passed the impugned judgment of conviction and sentence as the aforesaid. Shri Vinod Ghai, a counsel with sufficient standing and insight in the field of criminal law, was appointed as Amicus Curiae to appear on behalf of appellant. Learned counsel submitted that accused appellant herein has been held guilty only on the basis of recovery which was effected from a Cyber Cafe though there is no independent witness to support the connection of accused with documents so seized by Ambala police. Strangely, the owner of that Cyber net was not made an accused nor examined as a witness by prosecution. Similarly, in the case of recoveries of incriminating articles at Hisar, pursuant to disclosure statements made by accused, while being in police custody, from a house alleged to have been taken on rent by accused appellant for residence, the owner of that house was not examined. Prosecution did not associate any independent witness to support the recoveries of incriminating articles. According to learned Crl.Appeal No.946-DB of 2004 6 counsel, if recoveries themselves are shrouded with suspicion, the impugned judgment would not be sustainable and thus, this accused-appellant deserved to be visited with benefit of doubt. This is a case of no evidence and learned trial Judge has pre-judged the issues, even in the absence of sufficient materials on record to support. On the other hand, learned Deputy Advocate General on behalf of State of Haryana submitted that though no independent witness was associated with investigations but the recoveries of incriminating articles were effected in the presence of an Executive Magistrate, who had no axe whatsoever to grind against this accused. Such recoveries of defence documents of highly sensitive and incriminating nature and that too relating to important army installations cannot be lightly disbelieved. Undoubtedly, accused-appellant made the disclosure statements in police custody but since there are recoveries pursuant thereto, the same would be admissible in evidence under Section 27 of the Evidence Act. And on account of non- examination of owner of Cyber Net, the credibility of prosecution evidence would not become doubtful. Cyber Net Cafe was a public place and anyone could utilize the services available on payment basis. However, that itself would not give a right to any customer to misuse that place for a nefarious purpose like spying activities. According to learned State counsel, keeping in view the sovereignty and integrity of this country, learned trial Judge has rightly passed the judgment of conviction and sentence. We have carefully considered the rival submissions and examined the evidence on record. Accused-appellant was charged with committing offences under Sections 3, 5 and 7 of the Official Secrets Act, 1923, and Section 14 Crl.Appeal No.946-DB of 2004 7 of the Foreigners Act, 1946. Charges as framed against accused-appellant Masood Akhtar are reproduced hereunder: “That you on 26.3.2003 at around 2.30 pm within the area of Ambala Cantt. Police Station Ambala Cantt., were found taking photographs of Military Units, Ambala Cantt. and other important places, which are prohibited places, for the purposes of prejudice to the safety/interest of India, and such photographs are directly useful to the enemy i.e. Pakistan; and that you thereby committed an offence punishable under Section 3 of the Official Secrets Act and within the cognizance of this Court. Secondly, you on the same date, time and place, were found in possession of one camera (Yashika) along with negatives, one floppy and some documents having maps and photograph of tank, printed on one paper etc., which are prejudicial to the safety/interest of India; and that you thereby committed an offence punishable under Section 5 of the Official Secrets Act, and within the cognizance of this Court. Thirdly, you on the same date, time and place, were found in possession of floppy along with other documents, which you have used to pass secret information of Defence of India to Pakistan; and that you hereby committed an offence punishable under Section 7 of the Official Secrets Act, and within the cognizance of this Court. Fourthly, you, being a foreigner, have entered India without any valid passport; and that you hereby committed an Crl.Appeal No.946-DB of 2004 8 offence punishable under Section 14 of Foreigners Act, and within the cognizance of this Court.” For prosecution of accused-appellant in respect of offences under the Act, Central Government, being the appropriate Government, granted the sanction. Ministry of Home Affairs, Government of India, vide order (Ex.P97) authorised Raj Gopal, DSP (PW9), to lodge a complaint against accused-appellant Masood Akhtar. That sanction letter on behalf of Government of India was signed by one Shri B.R.Dhiman, Under Secretary to Government of India, Ministry of Home Affairs, (PW12). He conveyed the sanction through his forwarding letter (Ex.P96). Accordingly, a complaint (Ex.P98) was lodged by DSP Raj Gopal (PW9) and thus, there was a compliance of Section 13(3) of the Act. DSP Raj Gopal (PW9) in his evidence submitted that pursuant to said authorisation, he filed a complaint in the Court of CJM, Ambala, for prosecution under Sections 3, 5 and 7 of the Act and Section 14 of the Foreigners Act. In his cross-examinations, he candidly submitted that he filed the complaint on the basis of informations supplied by the IO, who investigated the case pursuant to FIR registered on 26.3.2003. Shri B.R.Dhiman, Under Secretary to Government of India (PW12), has stated that on 20.6.2003 he issued the sanction order for prosecution of accused vide Ex.P97, which bears his signatures. Again under his signatures, this witness also issued a forwarding letter (Ex.P96). In his cross-examinations, this witness categorically mentioned that before according the sanction, he went through the relevant record as supplied by State Government. That record also included the report of army authorities regarding sensitivity of documents/informations recovered from the accused. Report of army authorities also disclosed that the informations Crl.Appeal No.946-DB of 2004 9 contained in documents were of such nature which could be prejudicial to the safety and security of the country and useful to the enemy. Now coming to evidence to substantiate charges, Inspector Ashok Kumar (PW14) has given a detailed background of investigation. On 26.3.2003, he was posted as Inspector/SHO, Ambala Cantt. While he was on patrol duty in Government Vehicle No.HR-010303, at Bus Stand, Ambala Cantt. with police force, he received a secret information about the accused that he was an agent of ISI of Pakistan and was sitting in shop `Cyber Net' at Nicholson Road, Ambala Cantt. This was also informed that accused was spying for Pakistan and supplying secret informations of important army establishments situated in India to Pakistan. Inspector Ashok Kumar found this information to be reliable. He, thus, formed a raiding party and proceeded towards the said Cyber Net. On seeing police party, as one young man tried to run away from the shop, he was apprehended with the help of other police officials on the basis of suspicion. Accused disclosed the details of his identity and was found in possession of some incriminating documents, which are reproduced from the testimony of this witness as: “One cash memo receipt bearing No.136 dt. 26.3.3003 of Rs.50/- relating to shop of `Cyber Net' for sending one E-Mail and for one print out (Ex.P85), one printed paper `MSN Hot- Mail' composed from `salma waheed' salma-baby 88 @ hotmail.com to ramo 887 @ hotmail.com (Ex.P87) were recovered from his left hand. Accused was holding a bag of `Action Shoes' (Ex.P88) in his right hand. From the search of the bag, one floppy on which IMATION-2HD-1BM- Crl.Appeal No.946-DB of 2004 10 FORMATTED-1.44MB was printed (Ex.P183), one camera- reel lying in a plastic container of black colour, one key, one purse (Ex.P89) containing Rs.1500/-, one ATM card of Standard Bank (Ex.P90), one printed paper on which deployment of various units of army & its officers at Hisar, Ambala Cantt. and Dada Chandi have been printed under the `Tau Ranjit Hisar' (Ex.P91), one printed paper YMSG E-Mail between salma-baby 88 @ hotmail.com and ramo 88 @ hotmail.com (Ex.P92), and one printed paper bearing No.133 dated 25.3.2003 of Cyber Net for Rs.35/-, one E-Mail information to salma-baby 88 @ hotmail.com and one map of Haryana, Punjab and Rajasthan (P93) were recovered. Recovered floppy and camera reel were made into a parcel after putting impression AK. Rest of the articles were taken into possession vide recovery memo (Ex.P73) which was attested by ASI Raghbir Singh and HC Naresh Kumar.” Ruqa (Ex.P70) was sent through EHC Satyawan for registration of a case. Pursuant thereto, FIR (Ex.P71) was recorded by ASI Virender Kumar. This witness inspected the spot and prepared a rough site plan (Ex.P180). Accused was arrested and interrogated. Accused suffered a disclosure statement (Ex.P74), which was attested by ASI Raghbir Singh and HC Naresh Kumar. Accused also put his signatures on the same. Thereafter, IO proceeded for Hisar along with accused and other police officials in a government vehicle. He moved an application (Ex.P181) to DC, Hisar, for deputing an Executive Magistrate to effect recovery of incriminating articles pursuant to disclosure statement. IO with Executive Crl.Appeal No.946-DB of 2004 11 Magistrate and police force reached the House No.743, Mahavir Colony, Hisar. Accused-appellant Masood Akhtar opened the lock of room on the first floor and got recovered the incriminating articles as: “One bag of black colour underneath a coat from which one camera Yashica along with 60 negatives, one paper slip on which some addresses in English and some portion of it has been written in Urdu language, one pocket diary restricted to army consisting of pages 1 to 117, one tracing paper containing map and sketch of a tank, photocopy of a confidential book titled Centre for Army lessons learnt containing 1 to 124 pages, one photocopy of book Koppen's Classification of Climates containing 70 pages.” Necessary formalities required to be complied during the course of investigation were completed as stated by IO Ashok Kumar as: “Thereafter, negatives were put in a parcel and same was sealed with the seal impression `AK'. Parcel of negative was attested by Raghbir Singh. All the articles produced by the accused i.e. Parcel of negatives, camera and other documents were taken into possession vide recovery memo (Ex.P2). Then I prepared rough site plan of place of recovery (Ex.P3). Negatives are Ex.P4 to Ex.P63, paper slip is Ex.P64, pocket book containing 117 pages is Ex.P65, tracing paper is Ex.P16, and photocopy of book containing 124 pages is Ex.P67, photocopy of book Koppen's Classification of Climates is Ex.P68 and camera is Ex.P69. Accused was produced before the ld. Illaqa Magistrate on 27.03.2003 and I obtained his police remand upto Crl.Appeal No.946-DB of 2004 12 09.04.2003. Statements of PWs under Section 161 Cr.P.C. were recorded.” In his cross-examinations, this witness has given in minute details as to how he could reach the accused. After receiving information, this witness formed a raiding party and went to spot straightway. He did not inform about raiding party to Police Station, Ambala Cantt., before conducting raid. First of all, he entered the cyber cafe and searched there. He did not take the owner of cafe in confidence. He noticed that 3-4 persons were using internet there. He also noticed that accused-appellant was operating a computer while sitting in a corner of the cafe and after seeing police, he tried to slip away from there. He has also stated that he approached army authorities and verified the documents recovered from the possession of accused. This witness verified the facts about sensitivity of these documents on his own and submitted the investigation details and documents recovered from the possession of accused to the Ministry of Home Affairs on the basis of which, the sanction for prosecution of accused was granted. His communication was sent to the Ministry through DIG, CID. This witness also put up a challan against accused. He submitted that at Hisar, owner of the house was joined in the investigation. However, he refused to make a statement. This has also come in the testimony of this witness that the accused was produced before Illaqa Magistrate on 27.3.2003 and his police remand was obtained upto 9.4.2003. This witness also recorded the statements of prosecution witnesses. On 7.4.2003, the accused was again interrogated and he suffered yet another disclosure statement (Ex.P76). That statement was attested by EHC Satyawan and ASI Raghbir Singh and the accused also put his signatures on that. Pursuant to Crl.Appeal No.946-DB of 2004 13 that disclosure statement, accused Masood Akhtar got recovered some further incriminating articles. Articles so recovered and procedures followed towards that are reflected in the evidence of this witness as under: “Thereafter, accused in pursuance of his disclosure statement got recovered one rexene bag make FILA having black & blue strips and on which `Raju' and `telephone No.9416067479981' was written. From the bag, one paint and one shirt, one slip on which WWWM.COM was written, one slip having six blocks on which 2-3-3-III & names in English were written and one slip made of cigarette packet on which Kanhaiya Lal Mom were written, were recovered under recovery memo (Ex.P77). I prepared rough site plan of place of recovery which is Ex.P78. During investigation I consulted the army authorities who informed me that Ex.P66 and Ex.P67 are the confidential documents of the army authorities and nobody could possess these types of documents except army authorities as these are secret documents and relate to defence policies having bearing on the sovereignty and integrity of the country. Document (Ex.P91) recovered from the accused was related to the defence of the country as it was having code numbers used by army personnel. Ex.P64 i.e. The slip in Urdu is also of military importance as it contains code numbers used by the Indian Army. Hindi version of this slip is Ex.P99. During custody accused was got medico legally examined. During police custody accused was produced before ld.Illaqa Magistrate where he moved an application (Ex.P182) for seeking Crl.Appeal No.946-DB of 2004 14 permission to have a talk with his family members on telephone as his family members are the residents of Pakistan. Said application was allowed by the Court and consequently accused was facilitated to have a talk with his family members through STD/ISD on the telephone number given by the accused, i.e., 009244161057, belonging to Pakistan. Sanction for prosecution was obtained from Ministry of Home Affairs, Govt. of India, vide Ex.P97. After obtaining sanction for prosecution complaint (Ex.P98) was filed by Raj Gopal, DSP, Head Quarter, Ambala.” In his cross-examination, this witness has reiterated that the secret information was received by him at about 11.30/12.00 am (noon) at local Bus Stand, Ambala Cantt. Executive Magistrate, Shri Daljit Singh (PW2), has supported the testimony of Inspector Ashok Kumar (PW14) as regards recovery at Hisar. This witness has stated that he got all those documents duly sealed which were recovered in his presence from the spot. He has further stated that on 26.3.2003 after receiving an order of District Magistrate, Hisar, he joined the police party and investigations. Accused Masood Akhtar led the police party to the House No.743 of one Ram Kumar, wherein one room situated on the upper floor had been taken on rent by him. He opened the lock of the door on first floor and got the recoveries of incriminating articles effected. ASI Raghbir Singh (PW4) was a member of the police party on patrol duty with Inspector Ashok Kumar (PW14). He has stated that Inspector Ashok Kumar received a secret information as discussed hereinabove. He has supported the testimony of Inspector Ashok Kumar Crl.Appeal No.946-DB of 2004 15 (PW14) in material particulars. He is a witness of recovery of incriminating articles, which he has supported in his testimony. He corroborated the statement of Inspector Ashok Kumar (PW14) in toto including the ones related to two disclosure statements suffered by accused-appellant and recoveries effected pursuant thereto. This witness was again recalled for further examination-in-chief on 12.4.2004 and he again supported the prosecution case. ASI Magh Pal (PW5) vide his evidence on affidavit (Ex.P94) deposited the parcel of incriminating articles at FSL, Madhuban. EHC Ranbir Singh (PW7) also deposited some other articles like reel, 16 negatives and floppy on 31.3.2003 at Madhuban. Ram Kumar, Senior Scientific Officer, Madhuban, has been examined as PW 11. He submitted that on 31.3.2003, he received two parcels in his office. One parcel was containing a floppy and one coloured undeveloped film and the second parcel contained the negatives. He developed the photgraphs (Ex.P100 to Ex.P178). Photographs were developed as per negatives without any addition or omission Accused-appellant in his examination under Section 313 Cr.P.C. denied the prosecution evidence and refused to lead any evidence in defence. From the evidence as above, it appears that the prosecution witnesses who attested the