Judgment

G.T.NANAVATI, J.

(1) THIS appeal is directed against the judgment and order dated 13/8/1991, passed by the High court of Gujarat in Criminal No. 147 of 1990. The High court allowed the appeal, set aside the acquittal of the appellant (Accused 1 by the learned Sessions Judge, Kuchchh, in Sessions Case No. 62 of 1988 and convicted him for the offences punishable under S. 3(1(a) and 3(1(c) both read with Section 9 and also under Section 10 of the Official Secrets Act, 1923 (hereinafter referred to as the Act).

(2) RAYNA Alimohamad Hothi (Accused 2 was also tried along with the appellant but it is not necessary to mention the facts relating to him as he has not challenged his conviction.

(3) ON 2/6/1986 Rayna (Accused 2 was arrested while crossing the Indian Border along with two other Pakistani nationals. During interrogation it was revealed that since about 4 years they used to come to India, meet Alana (Accused 1 and two other Indian nationals and obtain information useful to Pakistani intelligence.

(4) THEREFORE, on 4/7/1986, Police Inspector B.B. Dwivedi obtained warrants under Section 11(2 of the Act for searching houses of the said three Indian nationals. Police Inspector B.B. Dwivedi and the raiding party first searched the residence of Rayna Sahab but nothing was found. Then they searched the house of the appellant and found therefrom a map (Ex. 66 prepared by the BSF, showing a section of an underground pipeline constructed for carrying water from Bhuj to Khavda Border for the Army and BSF personnel. As he was found involved in collecting and/or obtaining a map of the type referred to in Section 3(1(c) and supplying the same to the said Pakistani nationals who were involved in the activity of spying and as he was also found harbouring Accused 2, he was charged and tried for the offences for which he has now been convicted.

(5) IN order to prove the recovery of map (Ex. 66 from the house of the appellant, the prosecution examined a panch witness in whose presence the said map was recovered and the two Police Officers who were the members of the raiding party, namely, Police Inspector B.B. Dwivedi and PSI Gohil. The panch witness did not support the prosecution. The learned Sessions Judge therefore held that though it was proved that the house in question belongs to .the appellant, the evidence of the Police Officers alone was not sufficient to prove that the map (Ex. 66 was found from that house. He also held that as the prosecution has failed to prove that the said map is a secret document, no offence under Section 3 can be said to have been committed by the appellant. Therefore, the learned Sessions Judge acquitted the appellant and also Accused 2 who was tried along with him. In appeal, the High court held that for establishing the offence under Section 3 it was not necessary for the prosecution to prove that the map is a secret document. The High court also held that from the evidence on record it can safely be said that the map was found from the house of the appellant and that he was consciously possessing the same. The High court believed that the appellant had obtained the map with a view to help Accused 2 who was engaged in spying for Pakistan. The High court therefore convicted the appellant as stated above.

(6) TWO questions arise for consideration in this appeal. The first is: whether the map (Ex. 66 was obtained or collected by the appellant? The other question is: whether the High court was right in holding that it is not necessary for a conviction under Section 3(1(c) of the Act that the sketch, plan etc. should be a secret document? The contention raised on behalf of the appellant is that out of the prosecution witnesses examined for proving that the map was recovered from the house of the appellant panch witness Praful Kumar (Public Witness 5 did not support the prosecution. P.C. Sajan (Public Witness 1, PC. Jasuba (Public Witness 2 and H.C.