Gujarat High Court
Kasam Lakha Sama vs State Of Gujarat on 2 December, 2002
Equivalent citations: 2003CRILJ2959, (2003)1GLR376
Author: A.L. Dave
Bench: A.L. Dave
JUDGMENT Akshay H. Mehta, J.
1. In this appeal, the appellant has challenged the judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Kutchh at Bhuj in Sessions Case No. 75 of 1992 which was tried along with Sessions Case No. 89 of 1998. The appellant has been convicted for committing offence made punishable under Section 3(1)(b)(c) of the Official Secrets Act and he has been sentenced to suffer rigorous imprisonment (RI) for a period of 14 years and to pay a fine of Rs. 5,000/-, in default further RI for 3 years.
1.1. The appellant is the original accused of Sessions Case No. 75 of 1992. The other original accused of that case, namely Junas Dosal Sama has been acquitted by the learned trial Judge of the offences with which he was charged. Similarly, the learned Judge has also acquitted original accused of Sessions Case No. 89 of 1998, namely Ismail Mahmed Sama of the offences with which he was charged. Both these cases have been disposed of by the learned trial Judge vide common judgment dated 31st August, 2000.
2. The case of the prosecution in short can be stated as under :-
2.1. Upon receiving information from his informant to the effect that the appellant, who at the relevant time resided at Lakhavandh, had collected and was to convey the secret information in respect of Defence and sovereignty and integrity of India and security of the State to the original accused Ismail Mamad and Junas Dosal Sama, who in turn were to pass on the said information to the Pakistani secret agency, the Police Inspector, Mandvi, obtained search warrant as contemplated under Sections 11(2) of the Official Secrets Act, 1923 (hereinafter referred to as 'the Act'). The said search warrant was issued to the Police Inspector Mr. Mahida along with an order to carry out the search at the premises of the appellant by Mr. Pramod Kumar Jha, the then District Superintendent of Police, Kutchh District. Mr. Mahida, thereafter, along with the raiding party and two panchas raided the residential house of the appellant on 19th July, 1991. At the time when the raiding party reached the house of the appellant, the appellant's wife, namely, Havabai was present but the appellant was absent. The Inspector explained the contents of the search warrant to the wife of appellant in Gujarati language and also asked her whether she would like to call persons of her choice to remain present and watch the proceedings. She, however, stated that she did not want any one else to remain present. Her thumb impression was obtained on the search warrant as a token of having explained the contents thereof to her. It was also signed by the Panchas accompanying the raiding party.
2.2. The search was thereafter commenced and during the same one packet of cigarette was found from the upper portion of the main door of the house. It was of a foreign make. On opening the said packet, it was found that it contained one camera roll and torn note of Rs. 5/- of Pakistani currency. These articles were seized by the raiding party under the panchnama. Since, no other incriminating article was found from the house, the raiding party left. Mr. Mahida thereafter produced the articles which were recovered during the raid before the P.S.O., Khavda Police Station, who made relevant entry regarding it in the Police Station Diary and also issued order for investigation of the case. At the end of investigation, Mr. Mahida submitted charge-sheet against the appellant and another original accused Junas Dosal and separated the case of absconding accused Ismail Sama.
2.3. The Inspector Mr. Mahida subsequently lodged a complaint in the Court of the learned Judicial Magistrate First Class on 23rd June, 1992, who in turn committed the case to the Court of Sessions vide order dated 17th October, 1992. The aforesaid complaint was filed by Mr. Mahida in anticipation of the authority that may be granted by the appropriate Government by virtue of provisions of Section 13(3) of the Act. Since, the area involved in the present case was declared as prohibited by Notification issued by the Central Government and since the incriminating articles and in particular the camera roll contained information relating to the Defence, the Central Government was the appropriate Government under the provisions of Section 13 of the Act.
2.4. Mr. Mahida thereafter submitted all the relevant documents including the First Information Report to the Secretary, Ministry of Home Affairs, Government of India, New Delhi for obtaining its authority to file the complaint and the Under Secretary to the Government of India vide order dated 11th January, 1994 granted authority to Mr. Mahida to prosecute the appellant along with the aforesaid original two accused. The said authority was thereafter produced before the trial Court i.e., the Court of learned Sessions Judge, who framed charge against the appellant and other original accused on 17th November, 1999. The charge is on record of the case at Exh. 1.
2.5. The appellant and other original accused denied the charge and claimed to be tried.
2.6. At the trial, the prosecution examined witnesses, namely P.W. 1 -Muljibhai Ramabhai Sharma, Exh. 15, P.W. 2 - Pramodkumar Jaybir Jha, Exh. 17, P.W. 3 - Ravindrakumar Ramsagarsing, Exh. 21, P.W. 4 Gabha Vela Harijan, Exh. 27, P.W. 5 - Bhupatsinh Kunvarji Sodha, Exh. 33, P.W. 6 -Lunsinh Punsinh Exh. 34, P.W. 7 - Mukesh Nandkishor Joshi, Exh. 42, P.W. 8 - Narendra Dayalal, Exh. 47, P.W. 9 - Gajendrasinh Chhitarsinh Choudhary, Exh. 49, P.W. 10 - Premaji Devshi, Exh. 50, P.W. 11 - Imamkhan Bhikhankhan Exh. 53 and P.W. 12 - Vrajlal Ratanshi Exh. 57. Over and above this, the prosecution also produced documentary evidence such as panchnama of the raid, photographs developed from the camera roll found from the house of the appellant, the complaint, the authority received from the Central Government, etc. 2.7. After completion of recording of oral evidence, statements of the accused were recorded under Section 313 of the Criminal Procedure Code. Their Defence was that of general denial and no specific Defence was pleaded by any of the accused.
2.8. At the end of the trial, the learned trial Judge found appellant guilty of committing aforesaid offence and accordingly awarded him the sentence which has already been stated above. The other two original accused came to be acquitted. The appellant has, therefore, approached its Court by way of this appeal to challenge the judgment and order of conviction and sentence passed against him.
3. Mr. Avinash Thacker, the learned Advocate for the appellant has raised before us several contentions. He has submitted that the entire prosecution is liable to be vitiated solely on the ground that the complaint which was filed by Mr. Mahida was not in accordance with the provisions of Section 13(3) of the Act and the learned trial Judge could not have taken cognizance of the offence involved in this case. According to him, by virtue of Section 13(3) of the Act, the complaint could be made only upon receiving the authority of the appropriate Government and making of complaint without such authority would clearly violate the provisions of Section 13(3) of the Act. He has submitted that admittedly in the present case, Mr. Mahida did not have any authority of the appropriate Government to make complaint at the time when it was filed in the Court of the learned Magistrate i.e. on 23rd June, 1992 and the authority has been received much later i.e. on 11th January, 1994. Such subsequent authority cannot cure the inherent defect which had already crept in for want of authority. He has also submitted that the evidence adduced by the prosecution is not at all satisfactory and there are number of discrepancies on vital aspects which may render the case of the prosecution very doubtful. According to him, no reliance can be placed on such evidence. He has also submitted that at the time when the raid was carried out, the appellant was not present in the house, and therefore, the prosecution had failed to prove that the appellant was in conscious possession of the incriminating articles that were found from his house. He has also submitted that the search warrant that was obtained by P.I. Mr. Mahida was not in accordance with the provisions of Section 11 of the Act and the concerned P.I. had no valid authority to carry out search of the house of the appellant. He has also submitted that the prosecution has failed to adduce any evidence to the effect that the contents of the search warrant were duly explained to wife of the appellant, namely Havabai before the search was carried out and that factor also would vitiate the proceedings of the raid. Lastly, he has submitted that two accused out of three have been acquitted by the learned trial Judge and on the same facts the appellant has been convicted. The approach of the learned trial Judge, is therefore, absolutely erroneous and according to Mr. Thacker, the learned trial Judge ought to have come to the conclusion that in respect of the present appellant also the evidence of the prosecution was not believable and he ought to have given the benefit of doubt to the appellant. On the question of sentence, Mr. Thacker has submitted that the learned trial Judge has imposed a fine of Rs. 5,000/-, but the penal provision does not envisage imposition of any fine. Therefore, the order regarding imposition of fine is illegal. He has also submitted that the event has taken place in the year 1991, and subsequently, the appellant had remained on bail for more than 8 years, and thereafter, he has been convicted and has been awarded the maximum punishment, which according to him is totally out of proportion and considering the facts and circumstances of the case, the same is required to be reduced.
4. As against that, Mr. Sudhanshu Patel, learned A.P.P., appearing for the State has supported the judgment and has submitted that the conviction recorded by the learned trial Judge and the sentence awarded to the appellant are absolutely just, proper and legal and no interference by this Court is at all called for. He has submitted that though the complaint has been filed in anticipation of receiving the authority, in fact the authority has been received prior to the trial Court taking cognizance of the offence, and therefore, the defect was already cured when the cognizance was taken by the learned trial Judge. In other words, according to Mr. Patel, only because the authority was granted at a subsequent date, before taking the cognizance by the trial Court, it would not vitiate the trial. He has further submitted that if at all Defence had to raise is objection, it ought to have been done at the appropriate stage i.e., at the time of framing of the charge and it cannot be permitted to raise such contention on the question of sanction or grant of authority at the fag end of the trial when the entire evidence of the prosecution has been recorded and the further statements of the accused have also been recorded under Section 313 of the Cr.P.C. He has submitted that the objection raised at such a belated stage does not deserve any countenance. He has further submitted that the evidence adduced by the prosecution is absolutely trustworthy, cogent and reliable and the learned trial Judge has not committed any error in accepting the same and passing the order of conviction on such evidence. According to Mr. Patel, the compliance of Section 11 is also fully made by Mr. Mahida before carrying out the search of the premises of the appellant by resorting to the provisions of Sub-sections (2) and (3) of Section 11 of the Act, which provide that in case of emergency the permission to carry out the search under the written order of the officer not below the rank of Superintendent be obtained and accordingly in this case also looking to the urgency he had obtained the written order from Mr. P.K. Jha, District Superintendent of Police of Kutchh district. Lastly, he has submitted that considering the fact that the appellant had taken photographs of some of the installations which were of vital importance concerning the Defence and Security of the State, the learned trial Judge has rightly awarded him the punishment of R.I. for 14 years and no leniency is required to be shown in this case. According to Mr. Patel, this appeal does not have any merit and it deserves to be dismissed.
5. With a view to re-appreciate the entire evidence on record, we have carefully gone through the record and proceedings of this case. We have also carefully considered the rival submissions.
6. With a view to establish its case the prosecution has examined P.W. I - Mulajibhai Ramabhai Sharma, Exh. 15, who at the relevant time i.e. on 19th July, 1991, was discharging his duty as Police Station Officer at Khavda Police Station between 12-00 hours and 20-00 hours. During this time, Mr. Mahida, the Circle Police Inspector had been to Police Station and had produced the articles which were seized during the raid carried out at the residence of the appellant. The articles contained roll of Konica Company and half portion of the note of Rs. 5/- of Pakistan currency and one empty packet of cigarette of foreign make in which this note and roll were kept. A note with regard to these articles was made by him in the diary and a receipt was passed on to the P.I. along with the order for further investigation. In the cross-examination on behalf of the appellant only one question has been put to this witness that the note made in the diary is false. The witness has replied in the negative. The other accused have not cross-examined this witness.
6.1. Mr. Pramodkumar J. Jha, P.W. 2 Exh. 17 has deposed before the Court that at the relevant time i.e. in the year 1991 he was working as the District Superintendent of Police of Kutchh district. On 19th July, 1991 he had received a report from the L.I.B. and on the basis of the same he had issued search warrant and also order for carrying out the raid to Circle Police Inspector of Bhuj Mr. Mahida and pursuant to the said warrant Mr. Mahida had carried out the raid at the residence of the appellant and had submitted report to him. He has further deposed that he had also received an order from the Home Ministry of Government of India, which he has produced on the record of the case at Exh. 20. In the cross-examination he has denied the suggestions made on behalf of the Defence that whenever a false case was to be filed the matter was being entrusted to Mr. Mahida. He has also denied the suggestion that initially the appropriate Government had refused to accord sanction and later on, on making a personal request, it was granted. The witness has voluntarily stated that as soon as the appellant was released on bail by this Court he was detained under the provisions of the National Security Act. In the cross-examination on behalf of the original accused No. 2 he has stated that he had followed the provisions of Section 11 of the Act at the time of issuing the search warrant. He has stated that considering the urgency to carry out the raid he was approached for grant of permission and issuance of warrant. He has also deposed that in accordance with the said provisions of the Act he had informed the District Magistrate about the issuance of warrant by him. He has denied the suggestion that he did not have any authority to issue warrant under Section 11 of the Act.
6.2. The next witness examined by the prosecution is Ravindrakumar Ramsagarsing P.W. 3 Exh. 21. This witness, in the year 1993, was serving as Customs Inspector in Khavda region in the district of Kutchh. He has stated that on 19th July, 1993 Police Inspector Mr. Mahida had been to him and had shown him the photographs of wireless tower situated behind his office. Those photographs were bearing Nos. 32 and 33. He has also deposed that those photographs were of the wireless tower of the Customs Department which was of sensitive nature. According to him, if these photographs fell in the hands of the enemy, it would pose hazard to the security of the State. He has also stated that he had issued certificate to this effect to Mr. Mahida. In the cross-examination on behalf of the appellant he has stated that in his office outward register is being maintained. He has also admitted that the certificate issued by him did not bear any outward number. He has further stated that though he was not able to say for sure whether the certificate shown to him was original or a carbon copy of the original, but he has identified the signature on the certificate to be his and according to him the signature was original. In the cross-examination on behalf of original accused No. 2, he has stated that after seeing the photographs no attempts had been made to shift the tower from its original place. However, he has denied the suggestion that the tower was not of sensitive nature.
6.3. The prosecution has also relied on the evidence of P.W. 4 - Gabha Vela Harijan at Exh. 27. In the year 1993, he was working as Mistry in the Water Resources Department at Khavda. According to him, one Police Sub Inspector of the Police Department had approached him with certain photographs and they were shown to him. He identified the photographs to be of water conservation tanks belonging to his department. According to him, the photographs bearing Nos. 22, 23, 24, 30 and 31 were that of the aforesaid water tanks. The water tank reflected in photograph No. 22 was of the storage capacity of 1,00,000 litres. He has further stated that photographs Nos. 23 and 24 reflected the lower portion of the said tank as well as the stemps. He has further stated that photograph bearing No. 31 was of the another water tank having storage capacity of 1,00,000 litres. In the cross-examination on behalf of the appellant he has stated that he was in the service of the Water Resources Department since the year 1985 and those water tanks had been constructed prior to his joining the service. The rest of the cross-examination is totally irrelevant for the purpose of deciding this case.
6.4. Bhupatsinh Kunvarji Sodha P.W. 5 Exh. 33 has been examined by the prosecution and he has acted as one of the Panchas at the time of carrying out the raid at the house of the appellant. He has stated that about 6 years prior to the date of deposition, while he was standing on the road, the police had approached him and had obtained his signature in panchnama. He had no idea what the panchnama was about. He has further stated that he had not gone with the police anywhere. With the permission of the Court the learned Public Prosecutor has declared this witness as hostile and has cross-examined him. In the cross-examination by the learned P.P. he has denied that on 19th July, 1991 he and other panch Narendra Dayalal had gone to village Lakhavandh along with the police and had searched the house of the appellant. He has also denied the find of Muddamal articles, namely the empty packet of cigarettes, torn currency note of Pakistan and the camera roll. He has, however, identified his signature on those articles. He has further denied that in his presence those articles were seized by the police. This witness has not been cross-examined by any of the accused.
6.5. Lunsinh Pursinh P.W. 6 Exh. 34 has deposed that in the year 1992 he was discharging his duty as 75 Independent Brigade Subedar. In the month of May, 1992 the city Police Inspector of Bhuj and his Writer Constable had approached him in his office. He was shown certain photographs. Those photographs were of a bridge situated near the border, of a water tank and a helipad. According to him, this helipad was being used by the Defence. He was also shown one photograph of wireless aerial. He has further stated that the photographs bearing Nos. 22 and 23 were of the helipad; whereas the photographs bearing Nos. 35 and 36 were of the bridge and photographs bearing Nos. 37 and 38 were that of the water tank. He has also identified photographs bearing Nos. 32 and 33 to be of the wireless tower. At the time of recording of deposition he was shown a certificate issued by Major N.J. Methew, whose signature the witness has identified and the same has been given Exh. No. 41. This witness has also stated that he had informed the P.I. that if the enemies got these photographs, it may pose a danger to security of the Nation. Lastly, he has stated that he had retired as Captain from the service of the Military. In the cross-examination on behalf of the appellant he has stated that the structures shown to him in the photographs are situated about 140 kms., away from City of Bhuj and no guards have been posted at those places. He has agreed to the suggestion made by the Defence that those spots being sensitive from the view-point of Army, guards ought to have been posted there. In the cross-examination on behalf of accused No. 2 he has stated that no intelligence report in respect of these photographs had been received by his head office. He has further stated that the helipad of the Army is being constructed by the core of engineers and the helipad shown to him in the photographs was of a permanent nature. He has further stated that in the event of war this helipad is being used for receiving injured for medical aid. In the cross-examination on behalf of accused No. 3, he has stated that the photographs were brought in a cover, which was not sealed. He has further stated that the helipad is only meant for the use of the Army. However, occasionally, when any V.I.P. visited the place he was being permitted to use the said helipad.
6.6. The next Witness examined by the prosecution is Mukesh Nandkishor Joshi P.W. 7 Exh. 42. In the year 1991, he was working as Scientific Assistant, Senior, in the Forensic Science Laboratory of Ahmedabad. On 7th August, 1991 he had received a camera roll of Konica make containing 36 photographs. This roll was developed by the photographer of the Department, who had taken out the positive prints from the negative. During this process, it was noticed that some portion of the roll was having finger prints on it. Hence, such portion was cut from the entire film and was forwarded to the Finger Print Expert for his examination. According to the witness, about 16 photographs from this roll could be developed which were given Nos. from 22 to 36 plus one. He has also deposed that out of these photographs, the photographs bearing Nos. 22, 23, 30 and 31 were the photographs of overhead tank and those photographs Nos. 22 and 31 were taken from a close range; whereas the other two photographs were taken from distance. He has further stated that photograph bearing No. 24 was of the water pumping station. He has also stated that he had written all these details of photographs in his report, which has been produced on record at Exh. 43. In the cross-examination on behalf of the appellant he has stated that the roll was received through messenger, namely Police Constable Bhavarsinh and when the roll was brought to him, it was in intact condition. He has further deposed that a portion of the said roll which could contain about 20 photographs was cut off and mention of that has been made in the report submitted by him. He has denied the suggestion made on behalf of the Defence that unless the entire roll was taken out the portion of about 20 photographs could not be cut. He has also stated in the cross-examination that the examination of the photographs was made by him in the company of the photographer. In the cross-examination on behalf of accused No. 2 he has stated that the cassette as well as roll are two different things and the positive process of the roll could be done either by computer or manually. In the cross-examination by accused No. 3 he has stated that his Department did not have any Hand Writing Expert and that his Department could not forward directly any material for the examination of Hand Writing Expert.
6.7. Narendra Dayalal P.W. 8 Exh. 47 is the other Panch, who had accompanied the raiding party to the house of the appellant. Initially, considering the replies given by him at the time of recording his evidence the learned P.P. had sought permission of the Court to cross-examine the witness on certain aspects. Later on, a permission was sought by the learned P.P. to declare him hostile and to cross-examine him further which was duly granted by the trial Court. In the cross-examination of the learned P.P. this witness has admitted that the Muddamal articles shown to him were seized by the police in his presence and those articles are having his signature as well as that of the other panch. In the cross-examination by the Defence nothing of any importance has been elicited from this witness.
6.8. The next witness examined by the prosecution is Gajendrasinh Chhitarsinh Choudhary P.W. 9 Exh. 49. In the year 1991, he was serving in the Bhuj Taluka Police Station and on 19th July, 1991 he had accompanied Mr. Mahida to Lakhavandh for the purpose of carrying out the raid. He has further stated that the Panchas were called for the purpose of the raid. When they reached the place of the appellant, his wife Havabai was only person present in the house. She was shown the warrant and the same was translated into Gujarati to explain the contents thereof. In the said warrant signatures of the Panchas were obtained. Havabai, the wife of the appellant had also appended her right thumb impression on the said warrant. He further states that Havabai was asked whether she would like to call any person of repute from the village to keep them present when the raid was carried out, but she had declined to do so. He has also stated that thereafter the raid was carried out and the articles like camera roll, a container of cigarette as well as a half-torn currency note of the denomination of Rs. 5/- of Pakistan were found from the house of the appellant and a panchnama was duly drawn. In the cross-examination on behalf of the appellant he has stated that his statement was recorded by the police on 25th September, 1991. He has denied the suggestion made by the Defence that there is no village named Lakhavandh. He has stated that from Khavda if one proceeds to Lakhavandh, he would first reach Dinara village and from Dinara Lakhavandh is about half a kilometer away. According to him, Lakhavandh consists of 30 to 40 Bhungas (small houses) and the population of that village is around 100 to 150 people. He was also cross-examined with regard to appearance of Havabai and he has given adequate description of the said lady. He has denied the suggestion that he was deposing falsely because Mr. Mahida was his superior officer.
6.9. Premaji Devashi Mothariya has been examined by the prosecution as P.W. 10 Exh. 50. He has been examined by the prosecution with a view to show that other offences were also pending against the original accused Nos. 2 and 3. He has been cross-examined by the Defence to prove that the documents pertaining to different proceedings relating to the accused Nos. 2 and 3 could not be legally brought on the record. However, it appears from the evidence of this witness that he has adequately withstood the cross-examination.
6.10. Imamkhan Bhikhankhan Chauhan P.W. 11 Exh. 53 has deposed that on 20th August, 1993 he had investigated into this offence and had arrested the absconding accused Ismail Mamad and had submitted a supplementary charge-sheet. He has further stated that the earlier investigation was carried out by P.I. Mr. Mahida. In the cross-examination an attempt has been made to challenge the complaint being brought on record which was recorded by P.I. Mr. Mahida, who by then had expired and was not available for giving evidence before the Court and the questions have been put to him with regard to his knowledge about signature and hand writing of Mr. Mahida.
6.11. Lastly, the prosecution has examined Vrajlal Ratanshi P.W. 12 Exh. 57, who in the year 1991 was working as Dinara Group Talati-cum-Mantri and several villages and Vandhs were under his jurisdiction. He had also brought along with him the assessment register of Dinara and on perusing the same, he has deposed that on page 32 thereof for property at Serial No. 19 name of Kasam Lakhmir i.e. Lakha had been mentioned. He has further deposed that while he was in the service he had known the appellant and he also identified the appellant in the Court room as Kasam Lakha, to whom the house which was searched belonged. This witness has been cross-examined by the Defence with a view to show that Kasam Lakha and Kasam Lakhmir were two different persons and name contained in the register was Kasam Lakhmir, who was different person and the house in question did not belong to the appellant. For that purpose even the authenticity of the register has also been challenged. However, this witness has firmly stood the test of cross-examination and nothing of any importance from the point of view of the Defence has been brought out on record.
7. In view of the aforesaid evidence, it clearly transpires that the present appellant was certainly involved in the activity of collecting information with regard to the important installations of sensitive nature from the view-point of security of the Nation. It has been amply brought on record and proved by the prosecution that the roll which was recovered from the house of the appellant contained photographs of wireless tower belonging to the Customs Department, the bridge situated near the border, water tanks belonging to the Water Resources Department having different capacity of storage of water and the helipad meant for the use of Defence Department and wireless aerial. If these structures are to be viewed from the point of their aesthetic value, it can be said for sure that they do not have any such value and no one would photograph them with that approach in the mind. More so, when the appellant who is otherwise said to be rustic villager having hardly any means of income would certainly not photograph these structures on account of their having any aesthetic value. The natural inference that can be drawn is that he had photographed these structures only for the purpose of collecting vital information such as their location, the size, etc. which could be a valuable information if passed on to enemies from the security point of view. It may also be noted here that these structures have been photographed more than once and that too from different angles and in different parts as has been deposed by the prosecution witness Mukesh Vyas of the F.S. Laboratory. Now, so far as the water tank is concerned, not only storage portion is photographed, but even the lower portion and stemps have been photographed. It is a matter of common knowledge that if the water tanks are destroyed, that may not only cause grave problem of water supply but would also cause severe panic in the minds of the residents of that area. Not only that but the photographs of the connecting bridge situated near the border as well the helipad would become of immense value to the enemies to have easy access to them or to destroy them. It is, therefore, not difficult to infer that these photographs were obtained with a view to collect the information with calculated motive that it would directly or indirectly become useful to the enemies. Mr. Thacker has advanced a submission that merely taking the photographs of the structures which are well within the reach of common people cannot be covered under the provisions of Section 3 of the Act. However, as stated above, when the purpose thereof is very obvious, it would certainly become an offence, which could be punishable under the provisions of Section 3 of the Act.
7.1. Further, it may also be kept in mind that the camera roll containing these photographs was found concealed in an empty packet of cigarette which again was kept at a secret place in the house of the appellant. In these circumstances, only one conclusion that can be reached is that the appellant himself had obtained these photographs with a view to pass them on to the enemy country to supply vital information with regard to different installations of the Defence, the Customs and other Departments.
7.2. At this juncture, we may also deal with the argument of Mr. Thacker that the appellant cannot be said to be in a conscious possession of the offending articles since at the time of the raid he was not present in the house. So far the conscious possession of these articles is concerned, it is hardly material whether the appellant was present in the house at the time when the raid was carried out. The very fact that the house belonged to him, as can be seen from the evidence to the Talati-cum-Mantri of village Dinara, namely Vrajlal Ratanshi and when these articles were found from a place where ordinarily the appellant alone could have reached and placed them there, it can well be said that he was in conscious possession of those articles. While dealing with this aspect, we may also deal with the submission of Mr. Thacker that the prosecution has not been able to conclusively prove that the residence in question was belonged to the appellant. If the evidence of Vrajlal Ratanshi is perused, he has categorically stated that while he was in service he had occasion to know the appellant and he has also identified him in the Court room at the time of giving deposition. Not only that but he has also stated that the residence mentioned in the register brought by him in the name of Kasam Lakhmir belonged to the appellant and he was the owner thereof. There is nothing in the cross-examination which could persuade us to disbelieve this part of the evidence of the witness. The fact that this witness was Talati-cum-Mantri. It is very natural that he would have had occasions to visit Lakhavandhs and notice the topographical situation thereof. It is also equally possible that in the normal course of his duty he would come to know the appellant because Lakhavandh, as it is on record, has population of hardly 100 to 150 people. Moreover, he has been adequately supported by the contemporary entry made in the register. This witness is a retired Government servant. He has no animosity with the appellant nor has he any other reason to falsely implicate the appellant in the present offence. His evidence is, therefore, totally acceptable to the Court. If, that be so, it can safely be held that the prosecution has proved beyond any doubt that the house in question belonged to the appellant.
7.3. So far find of articles from that house is concerned, there is evidence of members of the raiding party as well as it also gets corroboration from the evidence of Panch witness Narendra Dayalal, who has been otherwise declared as hostile witness, but he has in the cross-examination by the learned P.P. admitted that the offending articles were found from the house of the appellant. Considering this evidence, we are of the opinion that the prosecution has been able to prove that the offending photographs were obtained by the appellant and that he was in conscious possession thereof and at the time of carrying out the raid the same were recovered from his house by the raiding party.
8. Mr. Thacker's submission that when the other two accused have been acquitted on the basis of this very evidence, the appellant should not have been convicted by the trial Court, has no merit and we cannot accept it. So far the appellant is concerned, the charge against him was to obtain the material information with regard to the secret installations of the Defence as well as other Government Departments with a view to pass them on to his co-accused and ultimately to the enemy country. The first portion, therefore, consists of obtaining the information and collecting them for the purpose of transferring them to the other accused. So far the first portion is concerned, it also constitute offence under Section 3 of the Act and so far that part of the offence is concerned, as discussed above, it has been amply proved by the prosecution. Therefore, it cannot be said that the benefit also should be given to the appellant. The role ascribed to appellant and other original accused is totally different and when the prosecution is not able to prove the role played by the other original accused, it cannot be said that it has also failed to prove the guilt of the appellant. So far the appellant is concerned, the offence committed by him under Section 3 of the Act has been conclusively proved by the prosecution and we have no reason to reject the prosecution evidence on this ground.
8.1. Mr. Thacker has also submitted that the prosecution has not been able to prove that Havabai was the wife of the appellant and that she was explained the contents of the search warrant as well as the purpose of the raid in Gujarati. We find no merit in this argument, firstly because the evidence of prosecution witnesses comprising members of the raiding party as well as the documentary evidence in the form of search warrant and the panchnama clearly establish that Havabai was the wife of the appellant and that she was very much present at the time when the raid was carried out and she was also explained in Gujarati the contents of the search warrant as well as the purpose of the raid. It may also be noted here that in the cross-examination at no point of time the Defence has put any question to the prosecution witnesses to the effect that Havabai was not the wife of appellant. In such circumstances, there is no reason for us to disbelieve this part of the prosecution story.
8.2. So far Mr. Thacker's submission with regard to non-compliance of Section 13(3) of the Act is concerned, we may state that this question ought to have been agitated at the earliest. Sub-section (3) of Section 13 of the Act prescribes that no cognizance can be taken of the complaint which is not made with the authority of the appropriate Government. Admittedly, in this case, at the time when the complaint was made on 23rd June, 1992 the authorization was not granted by the appropriate Government i.e. Central Government to Mr. Mahida as required under the provisions of the Act. The letter granting authority is dated 11th January, 1994. The said authorization was produced before the trial Court on 17th November, 1999. This being a Sessions case, the cognizance by the trial Court can be said to have been taken on the date on which the charge has been framed. The charge has been framed on 17th November, 1999. In that view of the matter, the appropriate stage for the Defence to take this contention was the date on which the charge was framed. However, from the record, it appears that no such objection was raised at that stage and the entire trial was allowed to proceed and at a belated stage of making final submissions before the Court, argument came to be advanced on behalf of the Defence that there was non-compliance of Sub-section (3) of Section 13 of the Act. Time and again, the Apex Court as well as different High Courts have said in no unclear terms that if the Defence wished to raise such technical objection, it has to be done at the earliest and at belated stage, the Court should not permit the Defence to raise such objection. One fails to understand that when complete details with regard to the events narrated above viz., making of the complaint by the P. I. Mr. Mahida, the prosecuting agency receiving the authority of the appropriate Government, the production of such authority on the record of the case were available, the Defence had not raised the objection against the trial Court taking cognizance of the offence on 17th November, 1999 i.e. the day on which charge against the accused was framed. The only inference that can be drawn is that the Defence had deliberately not agitated this question at that stage with a view to use it as a last resort at the end of the trial. If such thing is permitted, in the event of upholding the contention of the Defence, the whole trial will have to be scrapped and the entire procedure will have to be started de novo. This will not only cause grave prejudice to the prosecution, but it would result into enormous waste of public time, money and energy. We, therefore, find that the Defence has purposely allowed the trial to be almost over and at the time of final stage of the trial i.e. arguments this point has been raised. Such objection at such a belated stage cannot be entertained, and therefore, we have no hesitation in turning down the said contention of Mr. Thacker, without entering into the merits of it.
8.3. Mr. Thacker has also advanced a submission that there was non-compliance of Section 11 of the Act inasmuch as that there was sufficient time for the prosecuting agency to obtain warrant from the concerned learned Magistrate and for that purpose he has drawn our attention to the evidence of Mr. P.K. Jha and also to Exh. 18, which is an order passed by the said witness wherein it has been stated that he was reported on 18th July, 1991, and therefore, there was ample time for the concerned officer to approach the learned Magistrate and obtain the warrant. This submission of Mr. Thacker cannot be accepted because the evidence of Mr. Jha is very clear on this aspect. It is true that in his evidence he has given the date of receipt of the information as 19th July, 1991 and in the order which has been brought on record the date of receipt of information is shown to be 18th July, 1991. However, if the report is closely perused, it also shows that the said information was received by him from the P.I. on 18th in the night, and therefore, even if that date is to be taken into consideration, it can well be said that there was hardly time for the concerned officer to obtain the warrant from the learned Magistrate, because it would have been very difficult for him to approach the learned Magistrate at night to comply with these formalities. Looking to the urgency of the situation, Mr. Jha was well within his bounds to issue warrant and order for search of the house of the appellant. His evidence further shows that in accordance with Sub-section (3) of Section 11 he had duly intimated the action taken by him to the District Magistrate. Therefore, there was due compliance of Sections 11(2) and (3) by the officer concerned and the search carried out pursuant to the said warrant cannot get vitiated on the ground of non-compliance of Section 11 of the Act.
9. To sum up the aforesaid discussion, we are entirely in agreement with the conclusion reached by the trial Court finding the appellant guilty of committing offence made punishable under Section 3 of the Act, since there is ample evidence on record to establish that the appellant, for the purpose prejudicial to the safety of the State, had obtained information intended to be directly or indirectly useful to enemy, which was likely to affect the sovereignty and integrity of India and the security of the State. It may here be noted that Sub-section (2) of Section 3 of the Act even permits Court to draw presumption against the accused so far the purpose of collecting such information is concerned. Considering the conduct of the appellant of taking photographs of vital installations relating to Defence and Customs Departments and concealing the roll containing these photographs in his house at a secret place, clearly enables this Court to presume that it was done with the purpose as envisaged in Section 3 of the Act. We have, therefore, no hesitation in holding that the appellant has been rightly convicted for committing the aforesaid offence.
10. This brings us to the question of sentence and to consider the submissions made by Mr. Thacker on that behalf.
10.1. Mr. Thacker has firstly contended that the learned trial Judge has imposed a fine of Rs. 5,000/- on the appellant, whereas the penal provisions as prescribed under Section 3 of the Act do not envisage imposition of fine on the accused. This submission is required to be accepted because the penal provision at no place permits the Court to impose fine together with the substantive sentence or even otherwise. In that view of the matter, the order regarding imposition of fine of Rs. 5,000/- passed by the learned trial Judge is required to be quashed and set aside. It is hereby ordered to be quashed and set aside.
10.2. The second submission of Mr. Thacker is that considering the facts and circumstances of this case there was no need for the trial Court to impose maximum punishment as prescribed under the Act as ho special reasons have been assigned by the learned trial Judge for awarding the maximum punishment. Moreover, he has submitted that the trial has taken place after very long time from the date of offence and considering the fact that there was no fault on the part of the appellant for causing delay in trial, he ought to have been awarded lesser punishment than the maximum prescribed in the Act. We find some substance in this argument of Mr. Thacker. It is to be noted that the offence had taken place in the year 1991, he was arrested on 30th November, 1991, and thereafter, kept in judicial custody. However, he was released on bail by the learned Magistrate vide order dated 7th August, 1992 on account of failure of the Investigating Officer to submit the charge-sheet in time. The said order of the learned Magistrate was challenged before the learned Sessions Judge, and thereafter, before this Court, but the same was not disturbed by either of the Courts. Thus, from 7th August, 1992 the appellant has remained on bail and even during the trial which effectively took place in the year 1999-2000 he had remained on bail. No untoward incident involving the appellant has taken place during this time. It is only after the judgment of the trial Court delivered on 31st August, 2000 he has been taken into custody. Considering these facts and also that the appellant had constantly remained under mental stress since the year 1991 till the trial got over in the year 2000, it can well be presumed that he has suffered grave agony for no fault of his in the matter of prolonging the trial. This factor has not been taken into consideration by the learned trial Judge. We, therefore, feel that the ends of justice would meet if the appellant's sentence of RI for 14 years is reduced to the term of rigorous imprisonment for 7 (seven) years.
11. In the result, this appeal is partly allowed. The substantive sentence of RI imposed by the trial Court for a term of 14 years is reduced to RI for 7 (seven) years. The order of imposition of fine is quashed and set aside. No change in order passed by the learned trial Judge with regard to Muddamal of the case.