Crl. Appeal No.903-DB of 2004 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.903-DB of 2004 Date of Decision: 15.02.2008 Mohd. Salim @ Jagdeep ....Appellants. Versus State of Haryana ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Sham Sunder. Present: Mr. H.S. Jaswal, Advocate for the appellant. Mr. J.S. Toor, A.G., Haryana for the respondent. ... J.S. Khehar, J. The instant appeal has been filed against the order passed by the Sessions Judge, Ambala, in Sessions Case No.37 of 2003, decided on 16.8.2004. By the impugned judgement, the appellant Mohd. Salim @ Jagdeep has been held guilty and convicted of the offences punishable under Section 14 of the Foreigners Act, 1946 and under Sections 3 and 5 of the Official Secrets Act, 1923. By a separate order passed on 18.4.2004, the accused/appellant Mohd. Salim @ Jagdeep has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/- under Section 14 of the Foreigners Act, 1946. In default of payment of fine, he has been ordered to further undergo rigorous imprisonment for three Crl. Appeal No.903-DB of 2004 2 months. Besides the aforesaid, the accused/appellant Mohd. Salim @ Jagdeep has been sentenced to undergo rigorous imprisonment for fourteen years under Section 3 of the Official Secrets Act, 1923 and rigorous imprisonment for three years under Section 5 of the Official Secrets Act, 1923. It has also been directed that all the aforesaid sentences shall run concurrently. The prosecution version of the incident is based on the statement of Inspector Ashok Kumar PW19, noticed in the First Information Report registered at Police Station, Baldev Nagar, on 1.11.2002. A perusal of the aforesaid report reveals, that Inspector Ashok Kumar PW19 had received secret information two months prior to the registration of the aforesaid First Information Report on 1.11.2002. As per the aforesaid secret information, a person of Pakistani nationality was posing as Jagdeep and was visiting the house of Veena Rani Bhatia PW3, situated at 3960/2, Patel Road, Ambala City. According to the secret information, the aforestated Jagdeep was working for the Intelligence Agency of Pakistan i.e. the ISI. Inspector Ashok Kumar PW19 on the receipt of the aforesaid information, claims to have brought the aforesaid facts it to the notice of the higher authorities. Whereupon, in furtherance of the orders issued by the higher authorities, the aforesaid Jagdeep was placed under surveillance. During the course of his surveillance, it was found, that Jagdeep used to receive telephonic calls at the phone installed at the residence of Veena Rani Bhatia PW3 bearing No.2443615. It was also revealed from the surveillance, that he also used to make calls from the same telephone number. Consequently, permission was obtained for recording the conversations on the aforesaid telephone bearing No.2443615. The tapping of the aforesaid telephone Crl. Appeal No.903-DB of 2004 3 number revealed, that the aforesaid Jagdeep was receiving calls from Pakistan. The calls received by him were made from a telephone bearing No.009241684935. Additionally, it was revealed that the aforesaid Jagdeep used to receive directions for taking photographs of important Army and Air Force installations. He was also receiving directions to collect data in respect of military movements. He was also required to collect information about important dams and bridges in the area of Kurukshetra. Inspector Ashok Kumar PW19, who was keeping a tap on the aforesaid Jagdeep himself heard Jagdeep during the course of a telephonic conversation, receiving directions to take photographs of the Air Force Station, Dhulkot, from the shop of Saini Advertising Agency. The aforesaid conversation was allegedly heard by Inspector Ashok Kumar PW19 when the said Jagdeep was making a call from an STD booth. On the basis of the aforesaid conversation over-heard by Inspector Ashok Kumar PW19, two raiding parties were constituted and deputed to the shop of Saini Advertising Agency. After the members of the two raiding parties, all in plain clothes, had stationed themselves around the shop of Saini Advertising Agency, a person having a camera in his hand, climbed over the wall of the said shop and used a ladder to go upto the roof of the shop. From the roof of the shop of Saini Advertising Agency, the said person started taking photographs of the Air Force Station, Dhulkot. At the said juncture, the members of the raiding parties apprehended the aforesaid person. Interrogation of the person taking photographs revealed, that he was Jagdeep whose movements were under the surveillance of the police. The same also revealed, that his real name was Mohd. Salim son of Mohd. Nazir and a resident of Civil Quarter No.557-B, Gulam Mohammadabad, Crl. Appeal No.903-DB of 2004 4 Faislabad, Pakistan. His interrogation also revealed, that he was presently residing in the house of one Jamuna Devi, located on Patel Road in Ambala City, wherein he was living under the name of Jagdeep. The person apprehended acknowledged, that he had been sent from Pakistan to spy in India. On being searched, the raiding parties, recovered one Kodak camera of Indian make, besides a bill of a mobile telephone. Information of the factual position noticed hereinabove, was then sent by Inspector Ashok Kumar PW19 to Police Station, Baldev Nagar. The aforesaid information led to the registration of First Information Report bearing No.433 at Police Station, Baldev Nagar on 1.11.2002. On account of the fact, that the First Information Report revealed, that the accused/appellant Mohd.. Salim @ Jagdeep had entered into India by illegal means, and that, he had collected information pertaining to important military installations and troop movements, which could be dangerous for the integrity and sovereignty of India, he had allegedly violated Section 14 of the Foreigners Act, 1946 and Sections 3, 5 and 7 of the Official Secrets Act, 1923. It would also be relevant to notice, that during his interrogation, the accused/appellant Mohd. Salim @ Jagdeep made a disclosure statement Ex.P1, revealing that he had made maps of military formations and taken photographs of important places in connection with the Indian Military. He also stated, that the aforesaid material was in a bag in his room in the house of Jamuna Devi of Patel Road, Ambala City, and that, he could get the same recovered. Additionally, he mentioned that he had negatives of photographs which he had kept concealed in a “khokha” near Amritsar Bus Stand, and that, he could get the same recovered as well. Based on the aforesaid disclosure statement Ex.P1, the investigating officer Ashok Kumar PW19 alongwith Crl. Appeal No.903-DB of 2004 5 witnesses, reached the house of Jamuna Devi at Patel Road in Ambala City. After taking out the key from the bricks fixed in the wall, the door was opened, whereupon, he got recovered a Rexene bag and brought out therefrom a trouser, on the “bukram” whereof, he got recovered a writing in Urdu language, perusal whereof revealed that the same were addresses of units of military establishments. He also got recovered therefrom 37 coloured photographs of important places, besides other material. The material recovered showed extensive data connected to the Indian Military, including army installations and addresses. The aforesaid recoveries were attested by Godu Ram, Tehsildar E.O.H., Ambala PW2. Alongwith the recovered articles, were eight cassettes containing the recorded statements on the tapped telephone number referred to hereinabove. After completing the investigation, but before proceedings could be initiated against the accused/appellant Mohd. Salim @ Jagdeep, it was essential to obtain sanction from the Government of India. Accordingly, in response to a request made to the Ministry of Home Affairs, Government of India, sanction was granted by an order dated 26.3.2003 for the prosecution of the accused/appellant Mohd. Salim @ Jagdeep. A challan was, accordingly, presented on 31.3.2003 in the Court of the Chief Judicial Magistrate, Ambala. The Chief Judicial Magistrate, Ambala, by his ordered dated 26.4.2003 recorded his prima-facie satisfaction of the commission of offences punishable under Section 14 of the Foreigners Act, 1946, and under Sections 3, 5 and 7 of the Official Secrets Act, 1923. The accused/appellant Mohd. Salim @ Jagdeep, at that juncture, moved an application under Section 13(2) of the Official Secrets Act, 1923, stating Crl. Appeal No.903-DB of 2004 6 that he desired to be tried by the Court of Session. The Chief Judicial Magistrate, Ambala, accordingly, committed the case for trial to the Court of Session vide his order dated 27.8.2003. By an order dated 16.9.2003, the Additional Sessions Judge, Ambala, charged the accused/appellant Mohd. Salim @ Jagdeep under Section 3 of the Official Secrets Act, 1923 on account of his having taken photographs of the Air Force Station, Ambala Cantt, which is a prohibited area, for purposes prejudicial to the safety/interest of India. He was also charged under Section 5 of the Official Secrets Act, 1923 as he was found to be in possession of material prejudicial to the safety/interest of India. He was also charge under Section 7 of the Official Secrets Act, 1923 on account of the fact, that he had communicated secret information on telephone bearing No.0097150784315, located in Pakistan. Lastly, having entered India without a valid passport, he was charged under Section 14 of the Foreigners Act, 1946. The accused when confronted with the charges levelled against him pleaded not guilty and claimed trial. During the course of trial, the prosecution examined a number of witnesses. A brief description of the statements of the witnesses produced by the prosecution before the trial Court, is being summarised hereunder. The statement of SI Karam Singh was recorded as PW1. He was one of the members of the raiding party constituted on 1.11.2002 during the course of which the accused/appellant Mohd. Salim @ Jagdeep was detained. A perusal of the statement of SI Karam Singh PW1 reveals, that he had assisted Inspector Mange Ram PW5 and Inspector Ashok Kumar PW19 when the raid by the two police parties, was conducted on 1.11.2002. Crl. Appeal No.903-DB of 2004 7 He also confirmed, that the accused/appellant Mohd. Salim @ Jagdeep had suffered a disclosure statement Ex.P1 in his presence asserting therein, that he had kept concealed one bag containing maps, information of para military forces and photographs of important places of the Indian Army etc., besides information written in Urdu regarding Indian Army units in his “pant” (trouser). In his disclosure statement Ex.P1, he had also stated that he has placed some negatives in a wooden “khokha” installed near the Bus Stand, Amritsar. It is apparent, therefore, that SI Karam Singh PW1 was an eye witness and had seen the occurrence, namely, the accused/appellant Mohd. Salim @ Jagdeep taking photographs of the Air Force Station, Ambala on 1.11.2002 prior to his being apprehended. Godu Ram, Tehsildar, Ambala was produced by the prosecution as PW2. In his statement, he asserted, that he had been associated with the raiding parties on the orders of the Deputy Commissioner, Ambala. He confirmed the factual position noticed in the complaint made by Inspector Ashok Kumar PW19 to the effect, that the accused/appellant Mohd. Salim @ Jagdeep had climbed over a wall so as to enter the shop of Saini Advertising Agency, and thereafter, climbed up a stair to reach its roof from where he was taking photographs of the Air Force Station, Ambala Cantt. He also affirmed the recoveries made from the accused/appellant Mohd. Salim @ Jagdeep when he was arrested. He confirmed that he was a witness to the disclosure statement Ex.P1 made by the accused/appellant Mohd. Salim @ Jagdeep, on his interrogation after he was apprehended on 1.11.2002. He also affirmed being a witness when the recovery memo was prepared consequent upon the accused/appellant Mohd. Salim @ Jagdeep having taken the police party to the place referred, from where the recoveries were made. The statement of Crl. Appeal No.903-DB of 2004 8 Veena Rani Bhatia was recorded as PW3. In her statement, she asserted that she had been introduced to Jagdeep by Charanjit Singh. Charanjit Singh had informed Veena Rani Bhatia PW3 that Jagdeep was an expert in dyeing and colouring “dupattas”. He had, accordingly, recommended that she should employ him in her business. Although, she had declined the request of Charanjit Singh in the first instance, but both Charanjit Singh and the accused/appellant Mohd. Salim @ Jagdeep again came to her and showed their helplessness. But, again she refused to accept him in her employment. She further stated that thereafter Jagdeep used to visit her at times and requested her to allow him to use her telephone. He also used to request her, that in case, she received a message on telephone on his behalf, she should communicate the same to him. She also asserted that he would receive telephonic calls on behalf of the accused/appellant Mohd. Salim @ Jagdeep and either allow him to take the same or in alternatively conveyed him the required message. She also stated, that certain money was deposited in her bank account on behalf of the accused/appellant Mohd. Salim @ Jagdeep. On the receipt of the aforesaid money, Veena Rani Bhatia PW3 withdrew the same from her bank account and gave it to the accused/appellant Mohd. Salim @ Jagdeep. She also affirmed, that she was not aware that Jagdeep was not the real name of Mohd. Salim and additionally, that Jagdeep @ Mohd. Salim was a Muslim. Prem Chand was produced by the prosecution as PW4. Prem Chand PW4 was also one of the persons associated with the raiding and investigating parties constituted on 1.11.2002. He reiterated the factual position noticed against the names of other witnesses whose statements have already been discussed hereinabove. It would, however, be pertinent to mention, that Prem Chand Crl. Appeal No.903-DB of 2004 9 PW4 could not identify whether the accused/appellant present in Court, was the same person who had scaled the wall of the shop of Saini Advertising Agency, and used a ladder to go to the roof of the aforesaid shop. Inspector (retired) Mange Ram appeared as PW5. He is also an eye witness to the accused/appellant Mohd. Salim @ Jagdeep, taking photographs from the roof of the shop of Saini Advertising Agency. He was also a witness to the interrogation of the accused/appellant Mohd. Salim @ Jagdeep, as also, to the recovery of documents Ex.P3 to P96 and Ex.P97 to P139. According to Mange Ram PW5, all the documents were put in a parcel. They were sealed and were then handed over to Godu Ram, Tehsildar, Ambala PW2. Ravinder Kumar Bharara was examined as PW6. He corroborated the testimony of Veena Rani Bhatia PW3. In his capacity as Manager, Allahabad Bank, Ambala City, wherein Veena Rani Bhatia PW3 had stated, that she had received a cheque of Rs.5,000/- on behalf of the accused/appellant Mohd. Salim @ Jagdeep, and that, she had withdrawn the said amount and given it to the accused/appellant Mohd. Salim @ Jagdeep. ASI Balwant Singh was produced by the prosecution as PW7. He produced eight cassettes which contained recordings of the conversations on the tapped telephone bearing No.2443615 installed at the residence of Veena Rani Bhatia PW3, which was being used by the accused/appellant Mohd. Salim @ Jagdeep for receiving and making calls, including international calls. He also affirmed that he had heard recordings in the aforesaid cassettes which had taken 5-6 hours. Rajinder Kumar was examined as PW8. He confirmed that the accused/appellant Mohd. Salim @ Jagdeep had contacted him for employment and had disclosed to him, that his name was Jagdeep and he was a resident of Dehradun. He also asserted, that he had Crl. Appeal No.903-DB of 2004 10 engaged the accused/appellant Mohd. Salim @ Jagdeep for colouring/dyeing “dupattas” and other clothing. Rajinder Kumar PW8 also deposed that he was a witness to the recovery of photographs and negatives and clothing on the basis of the disclosure statement made by the accused/appellant Mohd. Salim @ Jagdeep. Head Constable Chander Pal PW9 was a member of the raiding party and reiterated the factual position narrated by the members of the raiding party. ASI Baldev Singh was produced by the prosecution as PW10. As per his statement, the accused/appellant Mohd. Salim @ Jagdeep had suffered a disclosure statement Ex.P1 on 1.11.2002 in his presence. In his cross-examination, ASI Baldev Singh PW10 denied that any recovery was made in his presence on the basis of the disclosure statement of the accused/appellant Mohd. Salim @ Jagdeep. Constable Pramod Kumar appeared before the trial Court as PW11 and Mehar Singh Saini, Steno to the Superintendent of Police, Yamuna Nagar as PW12. The aforesaid witnesses made formal statements. The statement of Tilak Raj Arora was recorded as PW13. His statement pertains to the production of the transcript of Telephone No.2443615 for the period from 1.6.2002 to 31.7.2002. The statement of Ms. Sarita Gupta, Additional District and Sessions Judge (Fast Tract Court), Bhiwani was recorded as PW14. In her deposition, she asserted that she was the Chief Judicial Magistrate, Ambala, and that Mohd., Salim @ Jagdeep was produced in her Court for taking the specimen of his hand writings and signatures, as also for recording his voice, but he had refused to give consent for the same. Inspector Som Raj was produced by the prosecution as PW15. His statement is of a formal nature pertaining to the application made to the General Manager, Telecommunication, Ambala Cantt with Crl. Appeal No.903-DB of 2004 11 regard to telephone bearing No.2443615. SI Randhir Singh appeared as PW16. He affirmed that he had prepared the report under Section 173 of the Criminal Procedure Code. Shafed Ahmed, working in the Punjab Wakf Board, Ambala recorded his statement as PW16. He was deputed to translate into Hindi the documents inscribed in Urdu, recovered from the accused/appellant Mohd. Salim @ Jagdeep. Mitter Sain appeared as PW18 and deposed that a person with the name of Jagdeep had stayed at Suhag Hotel. It would, however, be pertinent to mention, that Mitter Sain PW18 could not identify the accused/appellant Mohd. Salim @ Jagdeep. Inspector Ashok Kumar appeared as PW19 and reiterated the entire sequence of events as had been disclosed by him in his statement dated 1.11.2002. After the conclusion of the evidence produced by the prosecution, the accused/appellant Mohd. Salim @ Jagdeep was confronted with the incriminating evidence. He denied the same and asserted that he was innocent and that he had been falsely implicated in the case. He further stated that he committed no such offence. He also denied that he had been arrested by the police from the shop of Saini Advertising Agency. He also stated, that no recovery had ever been made from his possession, as has been alleged by the police. He stated that he had wrongly been roped in by the police. The accused/appellant Mohd. Salim @ Jagdeep was afforded an opportunity to lead his defence evidence. He, however, closed his defence evidence without producing any witness. The Additional Sessions Judge, Ambala delivered the judgement in Sessions Case No.37 of 2003, on 16.8.2004. The accused/appellant Mohd. Salim @ Jagdeep was held guilty of the offence punishable under Section 14 of the Foreigners Act, 1946 and under Sections Crl. Appeal No.903-DB of 2004 12 3 and 5 of the Official Secrets Act, 1923. After having heard the accused/appellant Mohd. Salim @ Jagdeep on the question of sentence, he was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/- under Section 14 of the Foreigners Act, 1946. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for three months. He was also sentenced to undergo rigorous imprisonment for fourteen years under Section 3 of the Official Secrets Act, 1923 and rigorous imprisonment for three years under Section 5 of the Official Secrets Act, 1923. It was also ordered that all the aforesaid sentences would run concurrently. A perusal of the evidence produced on behalf of the prosecution, as well as, the judgement rendered by the Additional Sessions Judge, Ambala, reveal that while convicting the accused/appellant Mohd. Salim @ Jagdeep, reliance was placed on the ocular evidence produced by the prosecution. The trial Court concluded that the fact that the accused/appellant Mohd. Salim @ Jagdeep was taking photographs of a sensitive military installation at Ambala on the basis of the statement of SI Karam Singh PW1, Godu Ram, Tehsildar, Ambala PW2, Mange Ram PW5, Head Constable Chander Pal PW9 and Inspector Ashok Kumar PW19, as all the aforesaid persons were associated with the raiding party which had posted itself in the vicinity of the shop of Saini Advertising Agency on 1.11.2002 when the accused/appellant Mohd. Salim @ Jagdeep had scaled the wall thereof and after climbing the stairs had reached the roof of the shop for taking photographs. The fact that the accused/appellant Mohd. Salim was a Pakistani national, but was posing to be an Indian belonging to Dehradun and has disguised himself by using the name Jagdeep came to be Crl. Appeal No.903-DB of 2004 13 mainly substantiated through the statement of Veena Rani Bhatia PW3 and Rajinder Kumar PW8, as well as, from the application filed by him before the Chief Judicial Magistrate, Ambala whereupon, an order dated 14.11.2002 was passed noticing the fact that he had moved an application with the prayer that he be permitted to talk to his family on telephone bearing No.009241690729 at Faislabad in Pakistan, and also, on the basis of the particulars given by him to the trial Court when his statement was recorded, that he was a resident of No.557-B, Civil Quarters, Gulam Mohammadabad, Faislabad, Pakistan. In so far as the alleged activities conducted by him in and around the area of Ambala are concerned, reliance was placed on his disclosure statement Ex.P1, which was recorded in the presence of Inspector Mange Ram PW5 and ASI Baldev Singh PW10 and witnessed by Godu Ram, Tehsildar, Ambala PW2, as also, the recovery memo Ex.P2, witnessed by Inspector Mange Ram PW5 and Rajinder Kumar PW8, besides being attested by Godu Ram, Tehsildar, Ambala PW2 which led to the recovery of Ex.P3 to P139 i.e., photographs and negatives of various defence installations, railway tracks, bridges, as also, particulars of troop movements, important addresses etc. His association with military personnel belonging to the ISI i.e. secret agency of Pakistan, was sought to be established from the statement of Inspector Som Raj PW15, who had deposed that his conversations on the telephone in Pakistan, were with an army major of the Pakistan army. In order to repudiate the conclusion drawn by the trial Court in the impugned judgement dated 16.8.2004, and also, in order to demonstrate that the evidence relied upon by the trial Court in recording the conviction of the accused/appellant Mohd. Salim @ Jagdeep was not credit-worthy, the Crl. Appeal No.903-DB of 2004 14 learned counsel for the accused/appellant raised a number of contentions. The same are being dealt with sequentially hereinafter. The first contention of the learned counsel for the accused/appellant was that the entire prosecution story is a matter of manipulation. In this behalf, it is submitted that the sole independent witness associated with the raiding party, namely, Prem Chand PW4 had failed to toe the prosecution story. Learned counsel for the accused/appellant has invited our attention to the statement of Prem Chand PW4, wherein he refused to identify accused/appellant Mohd. Salim @ Jagdeep in Court, as the same person who was taking photographs from the shop of Saini Advertising Agency on 1.11.2002. It is also the vehement contention of the learned counsel for the accused/appellant that the other witnesses in the case were police personnel and must be considered as interested witnesses, because their first objective is to ensure the success of the case. We have considered the first contention of the learned counsel for the accused/appellant on the basis of the statement of Prem Chand PW4. A perusal of the statement of Prem Chand PW4 reveals that he was factually a member of the raiding party. He also acknowledged that he had seen a man on the date of occurrence