espionage case pune judgement
TRANSCRIPT
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1 R. C. C. No. 2361/2007
Received on : 06/07/2007Registered on: 06/07/2007
Decided on : 29-03-2011Duration : Ys. Ms. Ds.
IN THE COURT OF CHIEF JUDICIAL MAGISTRATE, PUNE AT : PUNE
( Presided over by Suchitra S. Ghodke )
R. C. C. NO. 2361 OF 2007
EXH.
State of Maharashtra ]through Police Inspector ]..Complainant.
Anti Extortion Branch, Pune. ]
V/S.Vishalkumar Premshankar Upadhyaya ]Age-27 years, Occu. Education ]R/at Sankat Mochan Marg, ] Accused.Bokaro city, Jharkhand. ]
CHARGE : Offence punishable under section
3, 9 of Official Secret Act, 1923 and120-B of Indian Penal Code.
APPEARANCE :- Shri. P.B. Gaikwad, Lrd., A. P. P. for the State.Shri R. V. Katore, Advocate for the accused.
J U D G M E N T
[ Dictated and Delivered on 29-03-2011 ]
1. The Anti Extortion Branch, Pune chargesheeted the
accused for the offence punishable under section 3 and 9 of Official
Secret Act, 1923 and under section 120-B of Indian Penal Code.
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2. Assistant Police Inspector Mr. Raghunath Phuge lodged
the complaint to Deccan Police station vide C. R. No.173/2007 on
8/4/2007. On the very date he was posted in the Anti Extortion
Branch and was working with Mr. Barge, Police Inspector. On
6/4/2007 Mr. Barge has intimated him by calling him that they
received the information that one Mr. Vishalkumar Upadhaya, age
25 years residing at Ganga Lodge, Room No. 3, Deccan Gymkhana
had returned from Pakistan. He was holding documents of the Pune
Military and also the religious places of Pune City. He was having
photographs of religious places and CDs and he was going to send it
recently to the Pakistan through somebody. Complainant was asked
to keep watch on him. On 8/4/2007 at about 12.00 noon Mr.
Barge had called the complainant in his room and informed that on
the very date he was sending the documents CDs, photographsthrough unknown person. Due to which there was danger to the
security of the nation. He has also informed him that he should be
arrested by any means. Deccan Gymkhana Police Inspector Mr.
Patil was also intimated about the same and proposed raid. Mr.
Barge has obtained permission from Mr. Anil Kumbhare, Deputy
Commissioner of Crime Branch, Pune. Thereafter Mr. Barge along with staff and two panchas, B.R. Patil, had gone to the Ganga Lodge
Room No. 3, Deccan and knocked the door of room no. 3 wherein
one person had opened the door and on inquiry he had disclosed his
name as Vishalkumar Upadhaya, age 24 years, Sankat Mochan
Marg, Bokaro city, Jharkhand. Immediately the police have started
his personal search and on personal search inside pant pocket oneIndian Passport was found. Shirt having in and wherein he had
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3 R. C. C. No. 2361/2007
kept one green colour envelope. The envelope was taken out on
which the Sallahudin Sha, Rashid Minhas Road, Javahar Mod,
Sunny pride,Block No. A, First floor, Karachi Pakistan was written.
On the backside of that envelope Mr. Vishalkumar Upadhya,
Hadapsar, Pune was written. Two CDs which were kept inside were
seen by the police on their laptop. In the said CDs the photographs
of military buildings were existing. Near about 34 photographs were
existing there. In the right side pant pocket of the accused one
black colour money purse was found in which Rs.300/-of Indian
currency and the five dollar of Australian dollars and one Western
Union customer received money receipt was found. The diary pages
were torn and the address of the Karachi Pakistan were written.
One black colour diary of the containing written Urdu diary, then
one I-card of Annasaheb Magar College was found. In the shirtpocket Nokia company mobile was found. Other articles like ten
CDs, wrist watch, plastic bags were found. All these documents and
articles were seized by the police by drawing panchnama on the
spot The labels were affixed on it by obtaining the signatures of the
panchas. During investigation it was transpired that accused was
having criminal conspiracy with Sallahudin Sha ISI agent of Pakistan and Tirmizi and Abdul Latif. After returning to Deccan
Police station A. P. I. Mr.Phuge lodged the complaint. According to
the complainant the accused has committed an offence punishable
under section 3, 9 of Official Secrets Act and under section 120-B of
the Indian Penal Code.
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3. The charge against accused was framed at Exh.8. Accused
denied the charge and claimed to be tried for the same. The defence
is taken by the accused is that he was having the love affair with a
girl of Pakistan Miss. Fatima Sallahudin Sha and he has also
admitted that he has visited two times at Pakistan and denied the
allegations about the collection of CDs and photographs and
intention to hand over the information to Pakistan which is likely to
affect the sovereignty, integrity and security of India. He has also
denied the charge of any criminal conspiracy with Sallahudin Sha,
Abdul Latif and Tirmizi.
4. Points for determination are -
POINTS FINDINGS1. Whether the prosecution proves that
on 8/4/2007 at about 3.00 p.m. atGanga Lodge, Branch No. 2, Room No.3,Deccan Gym. Pune the accused foundin possession the collected CDs andphotographs of military buildings andCDs & photographs of religious places of Punecity, which is useful to an enemy disclosing information which is likely to affect the sovereignty, integrity of India? ..In the affirmative.
2. Whether the prosecution proves thatthe accused on the said date, timeand place attempting to communicatethe collected CDs, photographs andinformation to Pakistan agent forthe purpose of prejudicial to the safety
of the State and which the information was directly and indirectly useful to theenemies? .. In the affirmative.
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3. Whether the prosecution proves thatthe accused on the said date, time
and place the accused committedcriminal conspiracy with the Pakistanresident Sallahudin Sha to othersto commit the offence? .. In the affirmative.
4. What order ? .As per final order.
R E A S O N S
AS TO POINT NOS. 1 TO 3 :-
5. Heard the learned APP Mr. P. B. Gaikwad for the State
and learned Advocate for the accused Mr. R. V.Katore.
6. The accused has been chargesheeted for the offence
punishable under section 3, 4 and 9 of the Official secrets Act, 1923and under section 120-B of Indian Penal Code.
7. Anti Extortion squad Pune Branch, Police inspector
Bhanupratap Barge received the confidential information on
06/04/2007 that one Vishalkumar Upadhayay Age 25 years,
Resident of Ganga Lodge, Room No. 3, Deccan, had visited thePakistan on 14/10/2006 and 23/01/2007 and taken the training for
terrorism activities. He has collected the information in two CDs of
Hindustan Antibiotics Factory, H. E. A Factory, NDA, BEG, Bombay
Shopper, Southern Command, the names and telephone numbers of
the Army Officers, Army confidential documents, CDs, photographs
as well as CDs and photographs of the famous Shrimant DagdusethHalwai Ganpati Mandir, RMS Sangthana Motibaug, Head office,
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Airport, Pune City religious places. It was intimated that he was
going to deliver it within short period to the person of Pakistan. On
the basis of this information the concerning investigation branch
kept the watch on the accused. His place of residence i.e. Ganga
Lodge, Branch No. 2, Room No. 3, Deccan Gymkhana, Pune was
raided. He was found in possession the above official secret
documents of Military, photographs, CDs as well as the photographs
and Cds of the religious places of Pune city. During the course of
investigation it was also transpired that he has attempted to send it
to Pakistan with the help of the Pakistani Agents Sallahudin Sha and
with the help of the two staff members Mr. Sayeed S. Hussain
Tirmizi and Abdul Latif working with the Pakistan High
Commission.
8. The accused has come before this court that he is student
of Annasaheb Magar Engineering College, Hadapsar, Pune. He has
denied the case of the prosecution. He has admitted his visits to the
Pakistan for two times. Accused has given the explanation that due
to the love affair with the girl of Pakistan he had gone there.
9. In order to establish the guilt of the accused the
prosecution has examined in all nine witnesses namely at Exh. 19
the complainant API Mr. Raghunath Vithal Phuge, at Exh. 68 Mr.
Sachin Chandrakant Jadhav, owner of Ganga Lodge, Deccan Gym,
Pune, at exh. 70 Mr. Raviraj Raosaheb Jadhav, the owner of Ganga
Cyber Cafe, Deccan Gymkhana, Pune, at exh. 73 Mr. Yogesh SharadThorat, the owner of Ambika Lodge, at Exh. 76 Mr. Shaikh Manchar
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Immam Narulhua, Maulana Imman Shahin Mazid, Hadapsar, Pune,
at Exh. 77 Mr. Namdeo Narayan Kunjeer the panch witness, at Exh.
80 Mr. Shubhan Nagraj Yadav the nephew of Santosh Yadav, the
owner of Icon Net Cafe Kothrud, at exh. 87 Mr. Bapu Narayan
Pawar the panch witness of the raid of Ganga Lodge and at exh. 95
Mr. Bhanupratap Shankarrao Barge, the police Inspector, Crime
Branch, Investigating Officer, Pune.
10. The complainant has narrated at Exh. 19 that on
6/4/2007 he was posted as API at Anti extortion Crime Branch,
Pune. Mr. Barge, Police Inspector was the unit commander of their
squad. On 6/4/2007 Mr. Barge has informed him that the accused
had gone at Pakistan for two times and he was residing at Ganga
Lodge in Room No. 3, Deccan Gymkhana, Pune. It was alsoinformed that he was having the CDs of defence buildings, Pune
area temple and pilgrim area. He was going to send it to Pakistan
through somebody. Hence, the direction was given to keep watch on
him. Accordingly, they kept the watch on him. On 8/4/2007 at
about 12.00 p.m.. Police Inspector Mr. Barge called him and
intimated him accused was going to send that confidentialinformation existing in CDs and the photographs through one
unknown person to Pakistan. It was dangerous to the nation and
national integrity. Mr. Barge has asked him to make attempt to
arrest him. At that time Mr B. R. Patil was the police inspector of the
Deccan Police station to whom the said witness has given the
information in summary. On the very date Mr. Barge had obtainedthe authority letter from Deputy Commissioner of Police Mr. Anil
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Kumbhare for the search of place where Vishalkumar was residing
and also taken the authority for his personal search. The said
evidence is corroborated as it is at Exh. 95 in his oral testimony. Mr.
Barge has narrated at Exh. 95 that he had issued a request letter
addressed to DCP on 8/4/2007 which document is produced at Exh.
96. Exh. 96 bears the signature of DCP and also bears the order
giving authority to Mr. Barge. The authority letter given by Mr. Anil
Kumbhare is produced at exh. 97. The said letter authorized the
Investigating Officer Mr. Barge to search the premises where the
accused was residing. It also discloses the authorization given to
him to do the personal search of the accused.
11. The complainant has further stated that he himself along
with two police staff, investigating officer Mr. Barge had gone to theDeccan Police station there they have also taken the police staff of
Deccan Police station and police inspector Mr. B. R. patil. They have
made the entry in the station diary of Deccan Police station. The
Investigating Officer Mr. Barge has narrated in his evidence in para
2 that he had also intimated to Mr. B. R. patil, the Senior Police
Inspector of Deccan Police station about the proposed raid in viewof the authority letter. He has given a report to the Inspector, Anti
Extortion branch, about their proceeding towards raid at Ganga
Lodge Room No. 3, The station diary No. 8/2007 at about 12.35
pm.. by the police station officer of crime branch. It is entry is at
exh. 99. Along with the police staff and panch they proceeded by
private vehicle towards Deccan Police station and reached at about1.00 p.m.. Their report in writing addressed to the Police Inspector
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of Deccan Police station is at exh. 100 and the police station diary
entry is bearing No. 15/07 taken by the concerned police station
officer of Deccan Police station which is marked as Exh. 101.
12. According to the prosecution witness the complainant
they reached at Ganga Lodge at about 13.15 hours. According to the
investigating officer the manager of Ganga Lodge Sachin
Chandrakant Jadhav was present there. They introduced themselves
and disclosed the reason for their visit. Sachin took them towards
the Room No. 3 situated on third floor. They knocked the door. The
accused had opened the door. At that time the complainant and
raiding party asked his name and address who has disclosed his
name as Vishalkumar Premshankar Upadhyaya whose age is 24
years old resident of Sankatmochan Marg, Gujarat Colony, Bokarocity, Jharkhand. They intimated him the reason for their visit and
also intimated about his personal search and search of his room.
13. The police have done the personal search and search of
the room in presence of panch witnesses as well as the in presence
of the owner of the Ganga Lodge. The accused has denied about hisresidence in the Ganga Lodge in Room No.3. According to him he
has never resided in the Ganga Lodge but he was residing at
Saipurva Hostel, Near to the Anna Saheb Magar College. To prove
his residence of the accused in the Ganga Lodge on 8/4/2007 the
prosecution has examined the witness Sachin Chandrakant Jadhav
at Exh. 68.
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14. In the testimony of this witness Sachin it has come on
record that he is owner of the Ganga Lodge situated at 1253,
Deccan having two branches. In the branch No. 1 of the Ganga
Lodge they used to keep the customer on daily basis and in the
branch No. 2 of Ganga Lodge on monthly basis. He has further
narrated that the accused Vishalkumar was his customer. He had
come to him on 30/3/2007. He was demanded room on monthly
cot basis. Here I would like to refer the one admission given in
statement under section 313 of Cr. P.C. by the accused that he used
to visit Ganga Cyber cafe, situated at 683, Deccan Gym. Pune.
15. The witness Raviraj Raosaheb Jadhav owner of Ganga
Cyber cafe narrated at exh. 70 that being the owner of Ganga Cyber
cafe he used to open the cafe at 9.00 a.m.. and used to close at10.00 p.m.. Rs. 10/- was the charge for the cyber cafe customer for
one hour. He used to take entry of the customer in register for how
many hours he was sitting there. He knows the accused Vishalkumar
who started visiting his cyber cafe from 21/3/2007. According to his
version accused used to visit between 10.30 to 11.00 a.m.. he was
doing chatting on the net of Yahoo messenger. On 30/3/2007 hehad come to his cyber cafe. The witness has told him that in the
lodge of his brother the place was available. Prior to that the
accused was residing at Motimahal lodge where he was required to
pay more fare. Hence he has requested the witness Raviraj for the
another place. Under these circumstances, the brother of this
witness, Sachin Jadhav has provided room to the accused on30/3/2007. With reference to the owner of cyber cafe Raviraj,
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accused had gone to the Ganga Lodge owned by the witness Sachin
Jadhav. His residence in the Ganga lodge is after his visits of
Pakistan. The date of Pakistan visit of the accused were 14/10/2006
and 23/01/2007. In the cross examination of the witness Sachin it
has come on record that cyber cafe owner Raviraj Jadhav who is his
brother. He has seen the accused on 6 th in the lodge. No specific
date of which month, year is asked in cross-examination. The
defence taken by the accused is that he was arrested on 5/4/2007
then such type of suggestion given by his Advocate discard his
defence. The witness Sachin has stated in the cross examination that
Raviraj is the owner of cyber cafe where the accused used to sit who
has referred him his Ganga lodge.
16. The witness Sachin Jadhav has further narrated thataccused has written his mobile No. 9823413471 and land line
06542235001, student come for education in the register entry. The
accused had paid him Rs.1000/- and he had signed on it. The entry
was taken in the register in regular course of the Ganga Lodge
register. At exh. 69 the witness has produced his original register.
In the said register at Sr. No. 3 there is a entry in the name of visitors Vishalkumar Upadhyaya, age approximate 23 years, Gujarat
Colony, Jharkhand, phone No. 9823413471 and 06542235001,
occupation as student, date and arrival 30/3/2007 at about 4.00
p.m.. the reason for the visit is study, amount is paid Rs.1000/-.
When he was residing in Saipurva hostel what was necessity to
reside in Ganga Lodge, it only suggest the ill intention of accused, asno explanation is given. The witness has narrated that the written
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contents are in the handwriting of accused. In the cross examination
of this witness nothing has been challenged by the accused. Only
the suggestion was given that receipt was not given to the accused.
But the explanation is given by the witness by saying that as the
accused has not paid the full amount he has not issued any receipt.
The witness Sachin has narrated and corroborated the case of the
prosecution about their visit on 8/4/2007 at Ganga Lodge Branch
No. 2. He has also supported the prosecution case that accused was
present in the room no. 3 and police have taken the search of his
room as well as his personal search. This given evidence is also
remained unrebutted.
17. From the said oral evidence the prosecution has
established that on the basis of information the Police Inpsector,complainant and the panch witnesses has raided the Ganga Lodge
No. 2 on 8/4/2007 at about 13.15 hours and raided the room no. 3
in presence of the owner of the Ganga Lodge Sachin Jadhav. In the
room the customer of Ganga Lodge residing from the date
30/3/2007 was existing in the room No. 3. It is also proved that the
police have started the search of his room and his personal search.The residence of accused on 8/4/2007 in the Ganga Lodge No. 2,
Room No. 3 is proved by the prosecution beyond reasonable doubt.
18. On the personal search one Indian Passport bearing no.
F1863965 was found in the right side pant pocket of the accused.
The accused has admitted the passport no. F 1863965 in hisstatement under section 313 of Cr. P. C. in question no. 8. but he is
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denying the search of the said passport in his right side pant pocket.
19. In respect of the said passport the police have done
investigation by issuing the letter to the Superintendent of Regional
Passport office on 13/4/2007. At exh. 128 the copy of the said letter
sent by Inspector Mr. Barge which is produced on record. The
photocopies of the passport, his application form and the documents
attached by the accused were asked to be submitted. The said
passport was issued at Ranchi on 7/3/2005. His expired passport
No. T 658836 issued at Patna on 16/01/1995 and its No. was
RCHKOO218104. From the said documents it is clear that the
accused had obtained his first passport in the year 1995 and later on
in the year 2005. The accused has admitted his passport. It was
issued being the Pakistan Visa which is marked at Exh. 26. The reply given by passport authority is at Exh. 167.
20. Thereafter one light green colour packet was traced out
on his person inside the shirt. On the said packet Sallahudin Sha,
Rashid Mias Road, Jawahar Mode, Salipride, Block No.A, Karachi,
Pakistan was written. On the other side of the said packet Vishalkumar Upadhyaya was written. They found two CDs inside it.
The police have seen two CDs which were seen on the laptop. In the
said CD the photographs of the building of the Defence and
photographs of the Lord Dagduseth Ganpati, photographs of
Bombay shoppers, ammunition factory and photographs of Airport
road were found. The envelope is at Exh. 56. Inside the exh. 56 thetwo cds and 48 photographs were found. On one CD NDA was
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written. It is marked as Exh. 57. On the another CD the Pune city
was written which is already marked at Exh. 48. The 48
photographs were in respect of Dagduseth Halwai Ganpati Temple,
Khadki Ammunition Factory, Hindustan Antibiotics Factory, Bombay
Shopper Vishrantwadi, BEG building and other building
photographs which were marked as Exh. 59.
21. In respect of this searched document in the possession of
the accused there is no cross examination nor any denial is on
record.
22. According to the prosecution further on the personal
search the accused was found in possession one black colour money
purse in his right side pant pocket which is at Exh. 27 in whichRs.300/-which is marked as Exh. 28, five Australian dollars which is
marked as exh.29, western union money transfer receipt Exh. 30,
including the senders name as Fatima Sallahudin and receiver name
was Vishalkumar Upadhyaya was found. The identity card of Anna
Saheb Magar College was found which is a Exh. 31. The torn blue
pages of diary in 13 numbers were found which is marked as exh.32. One Debit Card was found which is marked as exh.34. The
mobile of Nokia blue colour model No.3330 bearing Hutch company
SIM Card no. 8991270609041696512 was found in possession
which is marked as exh. 35. If we perused the statement of the
accused under section 313 of Cr. P. C. the questions were asked
about the seizer of the articles of his passport Exh. 26, the purse,Indian currency, Australian currency, the receipt of Western Union
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Money standing in the name of Fatima and money received by him,
his identity card of Annasaheb Magar College, then 13 blue and
white colour pages of the diary, the debit card of SBI Exh. 34, then
mobile of blue colour Nokia company Exh. 35 all these seized
articles from his possession by the police on 8/4/2007 admitted by
him in view of the questions asked him at Sr. No. 18 to 25.
23. Further during the course of seizer of the articles in the
white colour plastic bag the 29 pages information of Military officers
of different places numbers, was existing and the said list was seized
which is at Exh. 36. The railway map which is also seized which is
at exh. 39. The two white colour envelopes sent from Karachi on
the address of Annasaheb Magar College bearing Mobile No.
9860179763 having the seal were found which are marked as Exh.40, 41. These two envelopes were in the name of Raj. The accused
has admitted these two envelopes in view of the question no. 29
asked under section 313 of Cr. P. C. Exh. 42 is a document which is
a guidance file for the further education is admitted by the accused
found in his possession. The seized diary pages having the numbers
of Pune Mumbai which is at Exh. 43, the green colour page which isin the handwriting is a marun colour marked as Exh. 44. The
accused has admitted Exh. 43 the diary pages but he does not know
exh. 44. The one seized golden diary which is at exh. 45 is admitted
by the accused owned by him in view of the answer of Exh. 35. The
accused has admitted the seized wrist watch of Sico company which
is made in Japan having label of 91438 owned by him in view of question no. 34 of Statement under section 313. The accused has
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also admitted the seized the archy company wrist watch in blue
colour box which is at exh. 47 owned by him. The seizer of two pens
of Amazing company one red and blue colour is admitted by the
accused. The Exh. 49 radio mirchi of blue colour horizon 2000 is
owned by him in view of the answers given at eXh. 36 and 37
respectively. The accused is admitting the seizer of four greetings
cards which are owned by him which are marked as exh. 50. the
seized ten negatives of photo of Fatima produced at Exh. 51 are
admitted by him in view of the answer of question no. 38. The
accused has admitted teh seizer of the letter written by Sallahudin
Sha which is at exh. 53 and also admitted the two letters written by
Kashis to the accused in the name of Raj which are marked as exh.
54. The accused has admitted at the question 39 that they belongs
to him. There is seizer of one envelope in the name of SallahudinSha alleged to be written by the accused on the address Rasid Minaz
Road Karachi, Pakistan. Exh. 57 are the two CDs existing in the
plastic of cover of sony writeen as NDA were seized from the
possession of the accused. The CDs of moserber company of Pune
city produced at Exh. 58. There is a seizer of 48 photographs of the
temple lord ganesh Dagduseth Halwai, Khadki Ammunition Factory,Hindustan Antibiotics, Bombay Shoppers and other photographs at
exh. 49.The four CDs which are marked as Exh. 60 were seized out
of which the accused is admitting the CDs of marriage function of
Fatima's sister were owned by him and other CDs not of him.
24. After the seizer of the articles the panchnama was drawnon the spot in presence of the panch witnesses. If we perused the
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cross examination of the complainant nothing has been challenged
by the accused about the seized articles from his possession narrated
by the witness. The Advocate for the accused has argued that the
panchnama Exh. 88 is not duly proved. To secure the conviction the
seizer panchnama of the articles from the possession of the accused
is required to be proved. It is argued on behalf of the accused that
investigating officer is not aware of the number of workers working
with the owner of Ganga Lodge Sachin. Secondly he has argued that
the accused has never visited the Ganga Lodge. The investigating
officer has not made query that how many customers were existing
in his lodge. In the cross examination the suggestion was given by
the Advocate for the accused that at the time of search of room of
the accused except their police staff and the accused and panch
witnesses nobody was present there. The said suggestion shows thatthere is an admission of the raid of the police in the room of the
accused and the accused was residing in the Ganga Lodge.
25. To support the case of the prosecution the seizer panch
witness Mr. Bapu Narayan Pawar was examined at Exh. 87. The said
witness has acted as a panch witness at the time of raid at GangaLodge. He has narrated that on 7/4/2007 he was called by Anti
Extortion squad office, Pune. Deepak Eknath Jadhav another panch
was accompanied with him. Mr. Barge has asked him whether he
will act as panch witness at the time of visit at Deccan area. He had
gone along with the Mr. Phuge, Barge and the police staff by
government vehicle. They have visited teh Ganga Lodge Branch No.2, Sachin Jadhav met there. He took them to the third floor of the
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building then they knocked the room no. 3 and the person opened
the door who disclosed his name as Vishalkumar Upadhyaya. Police
started investigation. Before him police have taken the personal
search of the accused. They have taken the personal search. Then
articles were seized before him which he has narrated and identified
each and every articles in his chief examination. Further he has
stated that all the articles were seized and sealed before him and
panchnama was also drawn before him. The exh. 88 bears his
signature. The contents are true and correct. In the cross
examination it has come on record that the said panch has worked
in C. R. No. 57/2008 of RCC No. 983/2008. Though he has given
the said admission there is no further explanation that in what
context he has acted as a panch witness. There is no question that of
which police station the RCC No. 983/2008 was there in which hehas acted as panch witness. Even there is no explanation taken from
the witness that Mr. Barge has drawn that panchnama of that case
No. 983/2008. Only this admission to act as panch witness in C. R.
No. 57/2008 of RCC No. 983/2008 does not discard the evidentiary
value of his evidence which is supporting to the prosecution, to act
as panch witness he was present at the time of raid at Ganga Lodge. Advocate for the accused has drawn my attention towards the
reported rulings -
1. 1994 Cri. L. J. 1020Between
Mohammad Hussain Ramzan V/s.
State of Maharashtra
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The two accused were convicted under section 21 read
with 1C of N. D. P. S. Act and the said order of conviction was
challenged on the ground of seizer of heroin from the possession of
the two accused, and its taking of the sample from the accused. The
acted panch witness was established being used three times in the
said MIDC unit
In the reported ruling it was observed that the
prosecution has failed to establish about the reliability of the
evidence of panch witnesses.
2. 2000 (5) Bom. C. R. 585Between
Lalchand Yadav V/s.
State of Maharashtra.
The additional Sessions Judge, Greater, Bombay in
Session Case No. 1242/1992 convicted and sentenced the accused
to undergone imprisonment for life for the offence under section
302 of IPC against which the accused has filed an appeal.
In this case the observation relating to the public panch of
recovery was a habitual panch witness. In his cross-examination he
has admitted that he might have acted as a panchas once or twice
and post before the Court. The said evasive answer by him in the
view of the Hon'ble Supreme Court goes against his credibility. The
PSI has also answered that it may be possible that once or twice thepanch witness might have acted as a panch earlier. On that ground
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it was observed that the police officer was to give straight forward
answer and when he does not give it but gives the evasive answer it
becomes very difficult for them to accept his evidence and it was
observed that it was extremely unsafe to place reliance on the
recovery evidence.
26. I have gone this reported ruling. The ratio laid of this
ruling are not applicable to the present case as the facts are totally
different.
27. The accused has admitted in the statement under section
313 of Cr. P. C. in this case the part of the articles were seized from
his possession on 8/4/2007. In the cross examination the panch
witness has stick up with his evidence in the chief examination. Hehas only supported to the prosecution case that at teh time of raid at
Ganga Lodge he was present there and before him the police have
done the personal search of the accused as well as his room and the
14 articles were seized before him as per the drawn panchnama
Exh. 88.
28. In the cross examination of the investigating officer themuch more questions were asked relating to the drawing of the
panchnama that the panchnama was drawn in the crime branch
officer where the signatures of the habitual panch witnesses were
obtained. There is nothing brought on the record to discard and
disbelieve the raid done by the investigating officer along with API
Mr. Phuge, complainant and panch witnesses at Ganga Lodge,Room No. 3.
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29. The accused has not offered any explanation in respect of
the documents recovered from his possession. If we perused the
cross examination of teh complainant then panch witness Mr.
Pawar, Investigating officer there is no cross examination about the
denials of the given evidence of the seizer of documents articles,
collected by the accused and found in his possession.
30. The prosecution has come before the court that they have
seized the documents Cds, photographs from the possession of the
accused in view of exh. 88 which is duly proved. The said seized
documents from the possession of the accused are the classified
documents and also the photographs are of the military or the Army
related. The investigating officer has issued a letter in view of Exh.
161 to the General officer, Commending in chief, HeadquarterSouthern Command, Pune. The opinion of classified documents and
photographs was called. The opinion on the following points were
called.
(i) Nature of documents.
(ii) Is the information contained in the documents, if disclosed to unauthorized person can nbe prejudicial to
the safety, security, and interest of the State,
(iii) Whether the information / photographs contained can be
directly or indirectly useful to an enemy country (the
word enemy includes a potential enemy with whom the
country might be at war at some future date )(iv) Is the information / photographs contained directly or
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indirectly connected wtih the defence matters of the
country.
31. The opinion is given by B. Mathew Lieutenant Colonel,
General Staff Officers Grade -1 (Intelligence) For General Officer
Commanding -in-chief as under :-
(a) The documents are of classified nature.
(b) The disclosing of the information contained in the
documents to unauthorized persons can cause breach of
security.
(c) The information contained can be of use to the enemy of
teh country.
(d) The information contained in the tele directory isconnected to the defence forces.
32. At Exh. 36 the document was seized from the possession
of the accused was in respect of the STD codes and CIV JN Nos of
MIL EXCHs. In the said document the Army, Naval and Air force
information of their offices, residence, hospitals is given. Theopinion given by the Lieutenant Colonel that the said information
tele directory is connected to the defence forces and which can be
used to the enemy of the country. The opinion is given that the
recovered documents are classified in nature.
33. The accused is a student of the Annasaheb Magar College,for his character the investigation is also done. At Exh. 118 the
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letter is addressed to the Poona District Education Association
College of Engineering dated 13/4/2007 requesting to submit the
form fill up by teh accused at the time of admission enclosed with
his mark list and also his attendance list verified copy. The college
of Engineering Pune has submitted the copy of the application given
by the accused to the college at the time of admission in which the
Marks obtained as physics 58, chemistry 55, maths 37, PCM 300,
the application was dated 15/9/2004. At Exh.120 the application
for admission for second year degree course is produced. At exh.
121 the examination mark list of the month of May 2006 is
produced. Exh. 122 the mark list for the examination of November
2006 is produced. He got 83 marks out of 750. Exh. 121 on its
backside a letter written by the accused is existing. In which he has
written that he was able to fill up his fees as his father is not inIndia and there is some service problem.
34. At Exh. 123 the duplicate copy of school leaving
certificate issued by Bokaro Ispat Senior Secondary school is
produced on record. Exh. 124 is an affidavit given by the accused
for the admission for the year 2001-02. He has also taken a gap forthe period 2002-03. At Exh. 126 a letter dated 5/4/2007 addressed
to the Principal regarding recommendation letter He wanted to
appear for International English Language Testing System for future
academic help. The accused has admitted all these documents and
the led evidence by the prosecution produced at exh. 119 to 126. At
Exh. 127 the attendance copy of the accused for the year 2006-07 isproduced on record. In this year the accused has gone at Pakistan
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on 14/10/2006 and on 23/1/2007 the accused is remained in the
absent in the college. His attendance sheet is marked as exh. 127
(1) to 127(6) admitted by the accused.
35. The accused who has obtained the passport from the
Ranchi in view Exh. 128 the passport officer Ranchi has replied at
exh. 167. It was intimated the date of issue of his passport was on
7/3/2005 and it was issued on the basis of valid old passport.
36. From the evidence of this documents it is clear that the
accused who has come here and admitted in Annasaheb Magar
College was not attending the college regularly.
37. He had gone at Pakistan for two times which is not deniedby him. The prosecution has brought on record the evidence of the
Airline tickets obtained by the accused from Riya Travels of Airlines.
At exh. 139 the invoice copy of Riya Travel of Airlines Pakistan
International having ticket No. 2638578756 in the name of accused
was booked. The said ticket is dated 9/12/2006 for the traveling
date 23/01/2007. Exh.140 is the receipt of the cash payment. Exh.141 is the ticket from Pune to Karachi. During the course of
statement under section 313 of Cr. P. C. the accused has answered
that his father is a company agent Wilfley, his father used to send
him Rs.8,000/- to Rs.10,000/- per month money. The accused has
admitted that he has received the money transfer through the
western union money transfer vide answer in the question no. 175and also in the question no. 21. At Exh. 145 the list of western
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money transfer is produced on record. It shows that the Fatima
Sallahudin Sha as well as Mohammad Sallahudin Sha sent the
amount to the accused. The dates of money sending are as under :-
Date Sender name Amount
12/8/2006 Fatima Rs.10000/-,
18/10/2006 Fatima Rs.2287.45
23/8/2006 Mahd. Salauddin Rs.16,000/-
31/8/2006 Fatima Rs.10,000/-
12/9/2006 Fatima Rs.2500/-
18/9/2006 Fatima Rs.4,500/-
22/9/2006 Fatima Rs.5,956.43
25/9/2006 Fatima Rs.5,000/-
27/12/2006 Mam.Sallahudin Rs.1,000/-
38. The said amount was sent from the city Karachi from thesame address of Flat no. 14, Block No. A, First Floor, Sunny Pride, J
and from the another address Flat No. 14, Sunny Pride Block No. A
Gulistan EJ, Karachi, the receiver name is mentioned as accused.
The receivers address is a different places .i.e. Saipurva Hostel,
Pune, Hotel Baramputra Prabhaganj, New Delhi, hotel
Sangatrvganj New Delhi. The said amount is received by theaccused admitted whose name is existing in the said information list
Exh. 145. From this document it appears that he used to go at Delhi
and residing in the hotel.
39. The address mentioned in exh. 145 is one and the same is
existing on the envelopes Exh. 39, 40 the white colour envelopeadmitted by the accused received in the name of Raj.
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40. The accused used to call at Pakistan. According to him he
used to call by his own mobile No. of hutch company mobile no.
9823413471. The DCP Mr. Kumbhare has called the details in
respect of call at Pakistan. It has also come in the evidence he had
also contacted to the Pakistan High Commission at Delhi and called
at Pakistan on this mobile number. The accused has answered in teh
affirmative in the questions No. 169 and 170 under statement under
section 313 of Cr. P. C. The prosecution has produced on record at
Exh. 163 a letter given to teh Director of Pak Division, Miya Akbar
Hotel Delhi asking the photographs of the staff Mr. Sayeed Tirmizi
and Abdul Latif Javed and their particular postings. At Exh. 164 the
photographs of Tirmizi and Abdul Latif members of Pak High
Commission provided. AT Exh. 170 the photograph of Sayeed
Tirmizi and at Exh. 171 the photograph of Abdul Latif are produced.In respect of these two accused the query was made by the
complainant in view of Exh. 165. The accused has given a
statement under section 313 of Cr. P. C. and given the statement
that there is no person by name Hafizi the police have no proof
about the existence of any personality by name Hafizi. He has
admitted that he used to call to teh Pakistan Embassy, customercare for his visa information. There is documentary evidence
produced on record by the prosecution that accused used to go at
Delhi reside in the hotel, receive the money sent from the Pakistan.
The Hafizi and Abudl Latif were working at Delhi. '
41. The said evidence brought on record by the prosecution
establishes that the accused was having the connection with thePakistan High Commission.
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42. It is also case of the prosecution that the accused used to
call at Pakistan. At Exh. 134 the letter was addressed to the
Manager of Hutch mobile company to get teh details, with the
location activation of the cell of teh accused No. 9823413471. At
Exh. 134 the said letter issued by Anil Kumbhare DCP is produced.
The letter giving incoming and outgoing details from January are
given. There were 74 outgoing calls to the Pakistan Phone No.
923002592314 outgoing 17 92300360021 outgoing 51 and
incoming 3, 923002386994 five outgoing, 9232121241717, Mobile
No. 9899756401, SMS four. At Exh. 136 the details of the call are
produced. At Exh. 132 a letter issued by Anil Kumbhare, DCP,
crime branch, Pune city calling the details of the five numbers
addressed to the Airtel mobile is produced. The Five numbers are
9860179763, 9860489816, 9890546863, 98906611656,9890217996. The details of the Airtel call on these numbers in
which the number of accused is existing. The details from the BSNL
company were also called by issuing a letter by Anil Kumbhare to
the Manager about the land line No. 26997427. The accused has
admitted the calls from this number to the Pakistan in the statement
under section 313. At Exh. 147 the letter given by BSNL company of Mr. D. M. Purandare about the 31 calls to the mobile no.
9230025923141 are produced. From this document produced by
the Airtel company, Hutch Company, and BSNL it appears that the
accused was having the connection with the Pakistan and he used to
call at Pakistan and also Vice Versa call from Pakistan to the
accused.
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43. At Exh. 150 the letter addressed to Bhandoriya
Commandant, Commandant Intelligence Officer, HQ, Mumbai was
issued. In respect of inquiry of one Ratnakar Dube. At Exh. 151 a
notification in respect of suspect of Ratnakar Dube in the crime is
produced on record. At Exh. 152 is a search warrant issued by
Commissioner of Police Pune under section 11 of Official Secret Act
about authorization given to Mr. Barge to search the residence of
Ratnakar Dube was dated 19/4/2007. At Exh. 154 a letter to the
Director of Navel Training Khadakwasla about the inquiry of Dube
request for furnishing detail of NDA Posting was called. According
to the investigating officer he has done the investigation with the
accused was having the connection. On 20/4/2007 the investigating
officer recorded the statement of Ratnkar Dube who had given a
statement that for two times the accused had visited the NDA whenhe was posted there. The statement was also given that accused has
promised to give admission to his niece in the Annasaheb Magar
College and it was found that the Ratnakar dube was not having any
nexus with the accused. The said evidence of investigating officer in
para 46 is nowhere challenged in the cross examination. Thus from
the evidence on record it is clear that the documents collected by the accused and found in possession of which the investigating
officer has drawn the panchnama exh. 88 where the documents
coming under the Secracy and security of the nation.
44. The documents which were obtained from the possession
of the accused for the purpose of prejudicial to the safety andintegrity of the India. The definition of the document under the
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29 R. C. C. No. 2361/2007
official Secret Act, 1923 is given under section 2 which I would like
to reproduce on record.
45. It is also necessary to consider the definition under section
2(8) given in the Official Secret Act in respect of the photographs,
then the undeveloped films defined under the Act. The definition of
prohibited place is also given which I would like to reproduce it as
under :-
(8) Prohibited place means -
(a) any work of defence, arsenal, naval, military or airforce establishment or station, mine minefield, camp, shipor aircraft belonging to to, or occupied by or on behalf of Government, any military telegraph or telephone sobelonging or occupied, any wireless or signal station oroffice so belonging or occupied and any factory, dockyard
or other place so belonging or occupied and used for thepurpose of building, repairing, making or storing any munitions of war, or any sketches, plans, models ordocuments relating thereto, or for the purpose of gettingany metals, oil or minerals of use in time of war.
46. In this case the accused who has come before this court
that he was having love affair with a girl Pakistan with whom he has
chatted. That the accused was sitting in the cyber cafe. The
prosecution has examined the witness Namdeo N. Kunjeer at Exh.
77. The said panch witness is on the point of seizer o f the SIM card
of Airtel company on teh memorandum statement given by him. At
Exh. 77 the witness has narrated that he had gone at crime branch
Pune,. The accused was present there. Another panch Sunil Barne was present there. Accused has given a memorandum statement and
as per his memorandum statement they had gone at Icon Net Cafe
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at Kothrud. The memorandum statement given by the accused is at
exh. 63. The panchnama is drawn under section 27 of evidence Act.
As per the statement given by the accused Vishalkumar. There is a
search in the Icon Net cafe. That memorandum panchnama is at
Exh. 64. The accused has produced the concealed SIM cards of
Airtel company. If we perused the cross examination the cross
examination does not discard the panchnama drawn by the police
under section 27 of Evidence Act. The witness from the said Net
cafe Subham Yadav is examined at exh. 80. According to this
witness the accused used to come to their net cafe. He has requested
to keep his two suitcases till he will get the accommodation. On
14/2/2007 Vishalkumar had come to their net cafe. He has done
chatting work on Yahoo messengers. Again he had come on
21/2/2007. The witness has asked him to take his two suitcaseskept in the shop. But thereafter on 21/4/2007 the police had come
there. There is no reason to disbelieve the statement of the
witnesses as there is no cross examination or denials of the
statements given by the witnesses in the cross examination.
47. The recovery of the SIM card on the statement made by teh accused during investigation is admissible in evidence under
section 27 of the Evidence Act.
48. In respect of his chatting work the letter was issued
through the Cyber crime cell, crime branch, Pune addressed to the
Anti Extortion squad by referring the Email documents obtained by them. The said letter is at exh. 137. At Exh. 138 from the pages 2 to
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80 the Email record is produced on record. If we see the Email
record on the pages 343 there is a Email dated 13/8/2006 from
Sadiya Fatima Sadiya Pak girl in which there is contention of the
sending of Rs.10,000/- and its bifurcation of the incurred expenses.
The page 341 Email dated 2/11/2006 from Sadiya Fatima related to
the nature of work to be done by a person being under any type of
education but it is not related to any love affairs.
49. The Email contacts page No. 355 the letter is given by one
Fatima addressed to Jog Wilson, subject is for admission wherein it
is mentioned that this is Fatima my brother is doing Engineering
from Pune University, India, he is studing in Second Year and he
wants to transfer overthere. The name of Vishalkumar along with
his contact numbers is given. From teh said contents of Email it canbe inferred that there was a relation between Fatima Sallahudin Sha
and the accused. Fatima is calling Vishalkumar as a brother where
as Vishalkumar saying Fatima is his lover.
50. According to the prosecution that the accused was having
contact with the Sallahudin Sha. At Exh. 76 one Shaikh MancharImam arulhuda is examined. He is Maulana Immam Shain Mazid
Hadapsar, Pune. He knows the accused who had gone to him in teh
month of May, June 2005 in Shahin Mazid. The witness has
narrated that accused told him that he was taking education in
Annasaheb Magar College At Hadapsar and he was having love with
a girl of Pakistan. He told him that he wanted to change his religionin Muslim and he wanted to marry with that girl. The witness has
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refused to do that work. Again the accused two days after requested
him to talk with a father of the girl of Pakistan. Hence, they had
gone at STD booth of Annasaheb Magar College. According to the
witness he talked with the father of the girl at Karachi. Father has
told him that he had taught him Kalma and changed his religion.
Thereafter witness left teh place and returned to Mazid. The
investigating officer has told that Maulana has given a statement
that the father of that girl told that they have changed his religion
and kept his name as Bilal. In the Email record there is a reference
of Bilal.
51. In the 313 statement of Cr. P. C. teh accused had
admitted that he had talked with Maulana and also their talk with
the father of girl of Pakistan. The answere given by the accused inthe affirmative are in question no. 80,, 81 and 83.
52. The prosecution has also produced on record the accused
visit to the Ganga Cyber cafe, Deccan. At Exh. 71 (1) to 71(16) the
attendance of the accused in the cyber cafe is produced on record.
The evidence of the owner of Ganga Cyber Cafe of Raviraj Jadhav isnowhere challenged in the cross examination. The accused has also
resided at Ambika Lodge on 29/3/2006. The room No. 45/2A was
provided to the accused. The entry at Sr. No. 2328 in the register in
the regular course is taken wherein teh accused has made the entry
o fhis mobile no. 9823413471. the said document is at exh. 74.
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53. After the arrested of the accused he was taken to Narco
testing. The letter issued by the complainant to the Police Inspector
for Narco test is at exh. 61, a letter addressed to the medical
Victoria by complainant is at Exh. 62.
54. In respect of receiving the information confidentially the
arguments were submitted on behalf of the accused that from where
the information was received that evidence is not brought on
record. The API Mr. Barge is interested to get publicity, raid,
investigation is bogus. If we perused the evidence of Investigating
Officer he has done the investigation thoroughly. Since the
threshold of the case the investigation is legally sequence and
properly done. The statements of 11 witnesses were recorded under
section 164 of Cr. P. C. of which evidence is at Exh.193. Thestatement of Dnyneshwar, Raviraj, Yogesh, Mandar Mithilesh,
Laxman Niteshkumar, Bijli, Pramod recorded. According to the
accused Mithileshkumar statement supporting to him. I feel accused
could have examined him as defence witness which is not done.
55. The provisions of the section 13 (3) of the Official Secrets Act, 1923 are in respect of restriction on the trial of the offences.
The sanction is necessary. At Exh. 168 prosecution sanction letter
issued by Virendra Kumar, Under Secretary dated 2/7/2007 is
produced. The provisions of section 13(3) which are as follows -
13. Restriction on trial of offences : (1) No court (otherthan that of a Magistrate of the first class specially empowered in this behalf by the (appropriate Government
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), which is inferior to that of a District or Presidency Magistrate, shall try any offence under this Act.
(3) No court shall take cognizance of any offence underthis Act unless upon complaint made by order of, or underauthority from, the (Appropriate Government ) or someofficer empowered by the (appropriate Government ) inthis behalf.
56. The Dy. Commissioner of Police have filed teh
chargesheet through the investigating officer Mr. Bhanupratap
Barge. In respect of receiving the information confidentially and not
examining the person who has given the information the advocate
for the accused has drawn my attention towards two reported
rulings -
1. 1983 Cri. L. J. 1276 (1) Supreme Court,Between
Bhagdomal Gangaram and others V/s.
State of Gujarat and others. The accused was convicted under section 65(A) read withsection 81 of Bombay Prohibition Act. The revision wasreversed. Their Lordships observed that the evidence of
admissibility comes and when the witness testifying as toinformation given to him about ( being a manager ortruck involved in that crime by specified person and thatlater person is not examined. Under these circumstances,
Apex Court observed that testimony of the witness is notadmissible.
2. Case Appeal No. 887/2007 Supreme Court of India
betweenKanya Mishra V/s. State of Bihar.
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In this case the accused was convicted under section 302of IPC he was sentenced to death and pay fine of
Rs.5,000/-. In this case there were observations relatingto the investigation done by the Investigating Officer. Theaccused after occurrence of alleged incident abscondedfrom his house and surrendered to the court. The only evidence on the circumstances was that the investigatingofficer has stated that during the course of investigationhe received secret information that the appellant wasfleeing away wearing only the under garments and inorder ot verify the same left the police station along with
the armed forces in search of the accused, went to thehouse of Mithiklesh Jha, at village Murali, where he wasinformed that Chandra Mishra father of applicant hadgone there in search of him and he is having not for thereto the place of other relatives for searching him. This
witness nowhere stated that from whom he received thesecret information inasmuch as such information cannotbe made a basis to prove his circumstances for being usedagainst the appellant.
57. These rulings are related to the confidential information
i.e. Secret information from whom it is received and there is no
explanation for the same. In this case the information received by
the investigating officer is confidential and he has refused to give
the name of person giving the said information in the safety of the
person provided the information. The arguments submitted by the
Advocate for the accused that to just to get publicity nobody will do
such type of deep investigation in interest of security of a nation. I
do not agree with teh argument submitted by the Advocate for teh
accused.
58. The accused who is charged under section 3 of Official
Secrets Act. The section 3 of the Official secret Act is for the
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penaliies for spying and also for prejudicial act against the safety
and interest of the State. I would like to reproduce the contents of
section 3 as under :-
Section (3) : Penalties for spying : -(1) If any person for any purpose prejudicial to the safety or interest of the state -(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place or(b) makes any sketch, plan, model, or note which iscalculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or(c) obtains, collects, records or publishes orcommunicates to any other person any secret official codeor password, or any sketch, plan or model, article, note orother document or information which is calculated to beor might be or is intended to be directly or indirectly,useful to an enemy [ or which relates to a matter thedisclosure of which is likely to affect the sovereignty and
integrity of India, the security of the State or friendly relations with the Foreign States ] he shall be punishable with imprisonment for a term which may extend, wherethe offence is committed in relation to any work of defence, arsenal, naval, military or air force establishmentor station, mine, minefield, factory, dockyard, camp, shipor aircraft or otherwise in relation to the naval, military orair force affairs of Government or in relation to any secretofficial code, to fourteen years and in other cases to three
years.
(2) On a prosecution for an offence punishable undersection it shall not be necessary to show that the accusedperson was guilty of any particular act tending to show apurpose prejudicial to the safety or interest of the State,and, notwithstanding that no such act is proved againsthim, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved,it appears that his purpose was a purpose prejudicial tothe safety or interests of the State, if any sketch, plan,model, article, note, document, or information relating to
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or used in any prohibited place, or relating to anything insuch a place, or any secret official code or password is
made, obtained, collected recorded, published orcommunicated by any person other han a person actingunder lawful authority, and from the circumstances of thecase or his conduct or prejudicial character as proved itappears that his purpose was a purpose prejudicial to thesafety or interests of the state, such sketch, plan, model,article, note document, information, code or passwordshall be presumed to have been made, obtained collected,recorded, published, or communicated for a purpose
prejudicial to the safety or interests of the State.
59. The provisions of section 9 of the Official Secret Act of
which provisions are as follows -
Section 9 official Secrets Act. Attempts, incitements, etc.- Any person who attempts to commit or abets thecommission of an offence under this Act shall bepunishable with the same punishment, and be liable to beproceeded against in the same manner as if he hadcommitted such offence.
60. In respect of section 9 of the Official Secret Act, it is
argued that though accused found in possession of documents there
is no evidence of sending it to Pakistan. He might have changed his
mind and for this the Advocate for the accused has drawn my
attention towards the reported rulings -
1. 1997 Cri. L. J. 1660Between
Jagmohan Alias Manohar Lal V/s.
State of U. P.In this case the accused was convicted by the SpecialJudicial Magistrate under section 3 read with section 7 of the Essential Commodities Act, for contravening the
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provisions of U. P. Paddy and Rice Order, 1970 and he was sentenced to undergo RI for two years and pay fine of
Rs. 26,407/- and in default of fine to undergo further RIfor three months. The trial Magistrate acquitted thedriver of the bus but convicted the conductor of the busand owner of the rice bags. The conviction and sentenceof both were set aside an appeal filed by the presentapplicant Jagmohan dismissed and his conviction andsentence both were maintained by 3 rd Additional DistrictJudge. Against that order revision was filed. TheirLordships observed that in order that the person may be
convicted of an attempt to commit crime. He must shownfirst to have, had and intention to commit an offence andsecondly to have done the act which constitutes the actusrea of criminal attempt. The test of determining whetheract of the accused person constituted an attempt orpreparation is whether nor tacts already done are suchthat if an offender changes his mind and does not proceedfurther in its progress. The accused already done wouldbe completely harmless. It was held of seizer of truck of paddy in territory of Punjab cannot be said to be export
within the meaning of para 2 of the order, on the basis of this observations it was argued by the Advocate for theaccused that in this case the provisions of section 9 arenot attracted as there is no attempt. When the attempt
will be fulfilled when there is having intention. Accordingto the prosecution case in the near future so there is nospecific date mentioned in the complaint nor any evidenceis on record. The envelope which is seized is not havingthe handwriting of the accused and the accused hasdenied the existing handwriting on the envelope. There isno handwriting expert opinion. It is argued thatpresuming that he was possessing the document but hemight have changed his mind and he has not made any attempt to commit an offence of sending it outside hence,there is no offence.
2. Secondly, he had drawn my attention towards thereported rulings -
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1970 AIR 713Between
Malkiat Singh and Anr. V/s.State of Punjab
In this case also the offence under section 3 and 7 of theEssential Commodities Act. The truck carrying paddy wasstopped by the police of Punjab State and it was observed
whether any offence committed by the driver of the truck,Their Lordships observed that no offence has been
committed by the Appellant nor was there attempt tocommit the offence as the paddy was seized well insidethe Punjab boundary and there was no export of paddy outside the State of Punjab. It was also possible thatappellants might have changed their mind at any placebetween the place of seizer and the state of boundary.The acts of the appellants then would only constitutepreparation and not an attempt to commit an offence of export because the test of determining whether actsconstitute merely preparation and not an attempt is
whether the overt act already done are such that if theoffender changes his mind and does not proceed furtherthe acts already done would be completely harmless.
61. The ratio laid down in the said rulings are not applicable
to the present case as prosecution has proved the offence under
section 3 and also proved the offence under section 9 of the Official
Secret Act, 1923.
62. The accused is charged punishment for criminal
conspiracy. In this case the evidence produced on record by the
prosecution established that the accused hatched in the criminalconspiracy with teh sallahudin Sha and Tirmizi and Javed and
pursing to the same he has committed an offence under section 3 by
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collecting the secret information of teh nation. The secret Act
indicates that its provisions are essentially concern with the security
and sovereignty of India.. Under the garb of the love affair with a
girl of Pakistan the accused attempted to handover the secret
information of the nation which is a dangerous act on teh part of
the accused. The prosecution has established teh guilt of the
accused under section 3, and 9 of the Official Secret Act, 1923 and
also established the criminal conspiracy with the sallahudin Sha,
Tirmizi and Abdul Latif of teh absconded accused.
63. The accused who has come before the court that he is
student of second year engineering college and leaving in the
Saipurva Hostel, what was the necessity to reside him at different
lodges at Pune, Ganga Lodge, Amibka Lodge, Prabhat Lodge in viewof Exh. 160 entry made in the prabhat lodge of Room No.106. His
visits are at Delhi. Received the money from the Western Union at
Delhi. He has also resided at Delhi. The two accused Abdul Latif and
Tirmizi were staff members working at Delhi.
64. The evidence on record substantiate that the saidcollected documents were secret of Military, religious place of India,
the accused having intention to send from India to Pakistan
considering the entire gamete of conspiracy under section 120-B of
Indian Penal Code and a role played by the accused of collecting
the information of the military, Pune city is a ultimate achievement
of common goal of conspiracy.
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The provisions of Section 120-B of IPC is the punishment
for the criminal conspiracy. The elements of the criminal conspiracy
required to be considered that -(a) an object is to be accomplished
(b) a plan or scheme embodied means to accomplished that object
and (c) agreement or understanding between two or more persons
whereby they become definitely committed cooperate for the
accomplishment for the object and means embodied in the
agreement / understand. (d) In the jurisdiction where a statute
require and overt act.
65. Evidence shows that the accused was in thick of
conspiracy. The illegal act of accused is of collection of secret
documents and having common goal to send it Pakistan where he
has admitted visited for two times as on 14/10/2006 and23/1/2007 with the father of alleged girl Fatima, sallahudin Sha
and other two absconded accused Abdul Latif and Tirmizi.
66. It is clear that the accused has committed an offence
against teh safety, security of teh nation. Being a student of Anna
Saheb Magar Engineering College, under the false concocted loveaffair he wanted to misguide the people of the nation. If really the
working woman Fatima was having love affair with this accused and
they were going to marry she might have come, but not she nor her
father sallahudin Sha had come before the court to explain the real
truth. I do not believe the story of accused. By communicating the
secret information as discussed above including the photographs,CDs and I hold that he liable to be punished for the offences
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punishable under section 3,9 of Official Secret Act and 120-B of
Indian Penal Code. For this reason the points for determination nos.
1 to 3 are answered in the affirmative.
67. As the accused held guilty punishable under section 3, 9
of the Official Secret Act and under section 120-B of IPC. He is liable
for punishment.
68. Before imposing the punishment accused is required to be
heard on the point of sentence. Hence I have taken pause for the
same.
une. (Mrs. Suchitra S. Ghodke)Dt.29/03/2011. Chief Judicial Magistrate,
Pune.
69. The accused has been brought before me. I have informed
him the gist of the judgment and also intimated him that he has
been held guilty for the charges leveled against him and opportunity
is given to him to heard him on the point of sentence. Advocate for
the accused Mr. Katore R. V. is also present in the court hall. APPMr. P. B. Gaikwad is also present in the Court.
70. Heard the accused in person who has submitted that his
father is paralyze, two sisters are dependent on him. Hence, lenient
view may kindly be taken. Advocate for the accused has submitted
that the accused is in Jail from the year 2007. The age of accusedmay be considered. The family of the accused is dependent on him
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as he is the alone earning member in the family. Hence, lenient
view may kindly be taken. APP has submitted that the act of the
accused is against the nation. The offences charged against him are
duly proved hence, maximum punishment may be given.
71. After hearing the accused, his advocate and APP I feel that
a student, accused who was admitted by his parents in the
Annasaheb Magar Engineering college for his future. He had come
at Pune along with passport obtained from the Ranchi of the year
2005. The activities of the accused brought on record by the
prosecution are the anti social activities against the security and
sovereignty of the nation. The accused is 28 years old at this time in
view of the statement given under section 313 of Cr. P. C. as on
17/2/2011. The offences charged against the accused proved by theprosecution by doing the investigation in the interest of the nation.
Already I have observed that by taking pains for doing such type of
investigation and obtaining the sanction from the Government and
filing the case within time is not only the duty goes towards for
getting the publicity in the society. The investigating officer has also
done the deep investigation which cause result to bring home theguilt of the accused on record. A student of engineering college
doing such type of activities against the nation is also shameful.
However, considering his age, prayer and the offence proved against
him I feel the order of sentence will meet the ends of justice. In the
result,
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O R D E R
1. The accused Vishalkumar Premchand Upadhyaya ishereby convicted under section 248(2) of Criminal Procedure Codefor the offence punishable under section 3, 9 of the Official Secret
Act, 1923 and under section 120 B of Indian Penal Code.
2. The accused is hereby sentenced to suffer R. I. For seven years for the offence punishable under section 3 of the officialSecret Act 1923.
3. The accused is hereby sentenced to suffer R. I. For seven years for the offence punishable under section 9 of the officialSecret Act, 1923.
4. The accused is hereby sentenced to suffer R. I. for seven years for the offence punishable under section 120-B of the IndianPenal Code.
5. All sentences shall run concurrently in view of theprovisions of section 427 of Cr. P. C.
6. The period of detention undergone by the accused isgiven set off against the sentences of imprisonment under section428 of Cr. P. C.
7. The muddemal property 12 Cds out of which the two Cdsof religious places of Pune city and the Army buildings and 48photographs be given in the custody of the Southern Command,Pune after appeal period is over.
8. The Indian Passport bearing No. 1863965 and thePakistan Visa of the accused is hereby canceled and be sent to thepassport authorities for the necessary order after appeal period isover.
9. The western union receipts, Nokia company handset, two wrist watch, one digital camera be confiscated to the Governmentafter appeal period is over.
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10. The holy Quran book be given to the school library AngloUrdu Girls High School, Pune after appeal period is over.
11. The muddemal property the military officers telephonenumbers and other information documents be given in the custody of Southern Command, Pune after appeal period is over.
12. The muddemal property .i.e. photographs the girl of Pakistan, identity card of accused of Engineering college, the diary pages having Pakistan addresses, the blue colour diary in which theUrdu writing is there, the green pista colour envelope and other
white colour envelopes , two cds of sony company on which NDA is written, then mosebear company is written, one photograph of lordDagduseth Hawai Mandir, Khadki Ammunition factory, H A Factory,Bombay shopper, BEG Khadki photographs and others, the black leather valet, ten Cds the guide book of other state education,amazing company two pens, one blue colour horizon 2000 company radio mirchi, the greeting cards, negatives of photograph of Pakistani girl and also letter to Sallahudin, one black colour bag, thecard reader writer, airtel company sim card one is white and onered colour and the white colour plastic bag be destroyed afterappeal period is over.
13. The muddemal property cash of Rs.300/- and the Australian dollar currency be confiscated to the Government afterappeal period is over.
14. The muddemal property register of Ganga Lodge bereturned to the owner after appeal period is over.
Pune. (Mrs. Suchitra S. Ghodke)Dt.29/03/2011. Chief Judicial Magistrate,
Pune.
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I affirm that the contents of this P. D. F. file Judgment are same word for word as per original Judgment.
Name of Steno : Patil Shivaji N.Court Name : Chief Judicial Magistrate, Pune.Date : 29/03/2011Judgment signed by Presiding officer on :- 30/03/2011Judgment uploaded on :- 31/03/2011