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Supreme Court of India
CHANDRAMAULI KR. PRASAD, V. GOPALA GOWDA, JJ.
Safi Mohd
Versus
State of Rajasthan
Criminal Appeal No. 1954 of 2009
Decided on : 17-04-2013
Constitution Of India,1950 - article 5 - Indian Penal Code,1860 - Section 120-B - Investigation – FIR - appellant questioning the correctness of the judgment dated 29th May, 2009 passed by the High Court of Rajasthan at Jaipur in S.B. Criminal Appeal No. 314 of 2004 in confirming the judgment dated 9th March, 2004 of the sessions judge, Jaipur City, Jaipur in Sessions Case No. 196 of 1992 wherein this appellant along with the others were convicted under Section 3(1)(c)of the Official Secrets Act, 1923 (hereinafter referred to as ‘the Act’) and was sentenced to undergo seven years rigorous imprisonment purpose of considering the rival legal contentions urged in this appeal and with a view to find out whether this Court is required to interfere with the impugned judgment of the High Court, the necessary facts are briefly stated Bhoormal Jain, Superintendent of Police CID Zone, Jodhpur lodged an FIR for the offences punishable under Sections 3, 3/9 of the Act read with Section 120-B IPC with the Special Police Station Rajasthan, Jaipur numbered as FIR No.1/1990 against the accused Mohd. Ishfaq who was found roaming in suspicious circumstances in the Air Force Area and was arrested on 07.03.1990. On interrogation, he stated that the appellant Safi Mohd. used to supply secret information to the Pakistani Intelligence and had handed over Rs.6500/- to him for working for Pak Intelligence Agency –Held, Merely because the independent witnesses have turned hostile, the other police witnesses’ evidence cannot be relied upon by the courts below to record a finding on the charge as has been done by the trial court by rightly placing reliance upon the judgment of this court referred to supra, he has come to the right conclusion by accepting the evidence of police witnesses PW-21, PW-22 with regard to the conduct of the search and seizure of documents from the house of the appellant and recorded the finding to this effect by assigning valid and cogent reasons in his judgment. He had rightly come to the conclusion on the fact while recording the finding on the charge on the basis of evidence of PW-27 and PW-32 who have opined that if the said document and information Evidence Act by placing reliance upon the decisions of this Court referred to supra are mis-placed and they do not support the case of defence for the reason that the learned sessions judge after careful scrutiny of the ocular evidence and the written submission has rightly come to the correct conclusion about the said document seized from the appellant. The said finding and reasons recorded by the learned sessions judge in his judgment on the charge framed against the appellant has been re-examined by the High Court by applying its mind consciously and concurred with the said finding of fact by assigning valid reasons. Therefore, the same cannot be termed erroneous in law on the grounds urged by the learned counsel for the appellant and interfered with by this Court in exercise of its jurisdiction by placing reliance upon the decision of this Court referred to supra as they are mis-placed and do not support the case of the appellant - In our considered view both the learned sessions judge and the High Court, on proper appreciation and re-appreciation of evidence on record, after considering the arguments advanced on behalf of the defence have arrived at the correct conclusion. The High Court has carefully considered the arguments advanced on behalf of the appellant and recorded its findings on the charge with reasons – appeal dismissed
Judgment :-
V. Gopala Gowda, J.
This appeal is filed by the appellant questioning the correctness of the judgment dated 29th May, 2009 passed by the High Court of Rajasthan at Jaipur in S.B. Criminal Appeal No. 314 of 2004 in confirming the judgment dated 9th March, 2004 of the sessions judge, Jaipur City, Jaipur in Sessions Case No. 196 of 1992 wherein this appellant along with the others were convicted under Section 3(1)(c)of the Official Secrets Act, 1923 (hereinafter referred to as ‘the Act’) and was sentenced to undergo seven years rigorous imprisonment.
2. For the purpose of considering the rival legal contentions urged in this appeal and with a view to find out whether this Court is required to interfere with the impugned judgment of the High Court, the necessary facts are briefly stated hereunder:
On 6th March, 1990, Bhoormal Jain, Superintendent of Police CID Zone, Jodhpur lodged an FIR for the offences punishable under Sections 3, 3/9 of the Act read with Section 120-B IPC with the Special Police Station Rajasthan, Jaipur numbered as FIR No.1/1990 against the accused Mohd. Ishfaq who was found roaming in suspicious circumstances in the Air Force Area and was arrested on 07.03.1990. On interrogation, he stated that the appellant Safi Mohd. used to supply secret information to the Pakistani Intelligence and had handed over Rs.6500/- to him for working for Pak Intelligence Agency. On 08.03.1990, the appellant was arrested from his Railway Quarters by the CID Police and on his house being searched, a blue colored diary of the year 1982 and a trace map Ex.D-3 were alleged to have been recovered. Later on, on further disclosure by the accused No.1, accused No. 3 - Chotu Khan and accused No. 4 - Chand Khan were arrested. On 12.04.1990, the other accused Mohd. Safi, Accused No.5, was also arrested. The documents recovered from the accused were sent to the Air Force Officers for their opinion, who informed that the said documents were useful to enemy country and affect the security of India. After completion of investigation of the case the charge-sheet was filed before the committal court by the Investigating Officer.
3. On 26.07.1994, charges were framed against the 5 accused persons but all of them pleaded not guilty. The appellant was charged under Section 3 read with Section 9 and 5 of the Act. The learned Sessions Judge after trial convicted the appellant u/s 3 (1) (c) of the Act by order dated 09.03.2004.
4. Learned counsel for the appellant Mr. Sushil Kumar Jain submits that the conviction of the appellant based on the recovery of Ex.D-3 from the house of appellant is doubtful. Further, he submits that the conviction based on the experts opinion of Col S.K. Sareen (PW-27) and Wing Commander Alok Kumar (PW-32) on documents Ex. P-33 and P-34 respectively is not in favour of the prosecution. Therefore, the conviction of the appellant based on their evidence rendered the concurrent finding erroneous in law. Hence, the same is liable to be set aside. Further, he contends that the conviction of the appellant based on the recovery or possession of a trace Map Ex.D-3, which is a rough sketch map under Section 3 (1) (c) of the Act is not tenable in law. In so far as the recovery of the document Ex.D-3 from the quarters of appellant is concerned, it is contended by the learned counsel for the appellant that the said document as per recovery memo. Ex.P-22 said to have been recovered by Suresh Kumar (PW-22) is attested by two witnesses Bhoop Singh and Umed Singh. Bhoop Singh has been declared hostile and Umed Singh, the other attesting witness has not been examined in the case. Ex.P-22 ws not put to the witness Bhoop Singh in his cross-examination by the prosecution. The prosecution has relied upon the said document solely on the statement of evidence of the investigating officer Yad Ram Tiwari PW-24 and Suresh Kumar PW-22. He submits that on account of non-examination of Umed Singh in the case, the attesting witness to the memo for r
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