Delhi District Court
Nirbhay Kumar, The Then Dy. Sp Cbi vs Wing Cdr. (Rtd) Yashvir Singh Tomar on 30 August, 2014
Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 59/2014 (old CC No. 36/12)
In Re : RC No. DAI2001A0052/ACB/CBI/New Delhi
U/s 3,5 of the Official Secrets Act.
Unique ID No.: 02403R0010602012
Nirbhay Kumar,
the then Deputy Superintendent of Police
Central Bureau of Investigation
(Delhi Special Police Establishment)
ACB New Delhi ...Complainant
vs
Wg. Cdr. (Retd) Yashvir Singh Tomar
S/o Sh Laxman Singh Tomar
R/o E224, Club Road, Sainik Farms,
New Delhi. ... Accused
Date of filing of Complaint case : 18/11/2003
Case received by transfer on : 02/01/2014
Arguments concluded on : 14/08/2014
Date of Judgment : 30/08/2014
Appearances
For prosecution : Sh P.K Dogra, Ld. Senior Public Prosecutor for CBI.
For accused : Sh Rudra Singh Kahlon, Ld. Counsel for accused.
JUDGMENT
Shorn of unnecessary details complaint case in brief is CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 1/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar against the accused under Sections 3 & 5 of the Official Secrets Act for being in unauthorized possession of copies of documents pertaining to File No. AIR HQ/64008/15/MT/Lgs, whose original file was supposed to be in the custody of DMT, classified as "Confidential" and Copy No. 3 of contract between State Committee of the USSR and President of India, classified as "Secret", which was probably originated by ADG (Mov), Sena Bhawan; which documents were recovered from the possession of accused from his residence vide seizure memo dated 27/07/2001. The CBI had received information that AVM J.S Kumar (retired) and other retired officials of Air Force were indulging in antinational activities, Sergent K.C Saini had allegedly contacted Sq. Leader D.K Sharma on 26/07/2001 and arranged a meeting with AVM (retired) J.S Kumar in the evening to pass on sensitive information. However, he conveyed the information to his superior authorities and AVM (retired) J.S Kumar and Sergent K.C Saini were caught and a case was registered against them. During searches in that case, a search was also conducted at the residence of accused Wing Commander (retired) Y.S Tomar and numerous documents, including the aforesaid two documents, were recovered from his possession vide seizure memo dated 27/07/2001. The documents recovered from accused Wing Commander (retired) Y.S Tomar were scrutinized by the Air Force authorities and they reported vide letter dated 17/10/2001 that the following two documents were classified "Confidential" and "Secret" respectively:
CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 2/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar S. Description Classification Details Result of No. of documents of documents of documents Scrutiny (details of the original source like file/folder no. etc.)
1. Official Confidential Notes of file, note from File No. AIR correspondence AOM to CAS, Note from HQ/64008/15/ and note in file CAS to Raksha Mantri on MT/Lgs, File in (documents) procurement of Crash Fire custody of Tender. DMT.
2. Contract for Secret Copy No. 3 of contract Probably shipping between State Committee originated by (documents) of USSR and President of ADG (Mov), India. Sena Bhawan.
2. Accordingly, the instant complaint was filed by the CBI on 18/11/2003. In terms of order dated 30/03/2007 of the Ld. Sessions Judge, Delhi this complaint case was withdrawn from the Court of Chief Metropolitan Magistrate, Delhi and transferred to the Court of Ld. Special Judge, CBI, Patiala House Court, New Delhi. Cognizance for offences under Sections 3 and 5 of the Official Secrets Act 1923 (herein after referred as "The Act") was taken by my Ld. Predecessor on 01/09/2008 and accused was summoned. As per transfer order dated 05/11/2008 case was transferred from the Court of Sh O.P Saini, Special Judge, CBI, Patiala House Court, New Delhi to the Court of Sh M.K Gupta, Special Judge (PC Act) 01 (CBI), Rohini, Delhi from which court later on as per order dated 20/12/2008 of Ld. District & Sessions Judge, Tis Hazari, Delhi case was transferred to the Court of Sh Sanjay Kumar, CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 3/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar Addl. Sessions Judge, Rohini, Delhi. Subsequently vide order dated 10/09/2009 of Ld. Sessions Judge, Delhi the case was transferred to the Court of Sh O.P Saini, Additional Sessions Judge, Patiala House Courts, New Delhi. On 17/09/2009 accused was admitted to bail. Copies were supplied to the accused and requirements of Section 207 of Cr. PC were complied with.
CHARGE
3. Charge for offences under Sections 3 and 5 of the Official Secrets Act, 1923 was framed on 26/03/2011 in terms of Order dated 26/03/2011 by my Ld. Predecessor against accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. To connect arraigned accused with the offences charged, prosecution has examined in all 10 witnesses namely Sh B.R Dhiman (PW1); Retired Group Captain Mahesh Narain Saxena (PW2); Sh Love Kumar Chawla (PW3); Sh Ram Singh (PW4); Retired Inspector Sh A.K Malik (PW5); DSP Sh Ajay Kumar (PW6); Retired Air Commodre Sh Tarun Kumar Varma (PW7); Inspector Shehnaz Khan (PW8); Retired Wing Commander Sh D.K Sharma (PW9) and complainant, now SP Sh Nirbhay Kumar (PW10).
CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 4/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar STATEMENT OF ACCUSED
5. Thereafter accused was examined under Section 313 Cr. P.C. All incriminating material in evidence was put to the accused. Accused pleaded innocence and false implication.
6. Version of accused in his aforesaid statement is as follows:
"There is no written complaint from Squadron Leader D.K Sharma. The FIR has been lodged on hearsay. The FIR mentions name of Wing Commander M.N Saxena whom I never saw or met in my service cadre. Neither M.N Saxena nor D.K Sharma was authorized by the Air Force Authority to file the FIR. In 1987, I was posed to Air Force Hospital, Jorhat and took premature retirment in 1997. In my full service career, I never faced any enquiry rather I was appreciated for the good works. I never collected or obtained any classified documents. I have not collected any documents which are classified documents, rather on 25/07/2001 at about 5 pm, Squadron Leader D.K Sharma came to my house in my absence and gave an envelope to one Trispal for me. Trispal kept this envelope on the table in my outhouse/office of my residence. Sh B.R Dhiman did not peruse the original documents nor confirmed about the originator of the document and granted sanction without any application of mind, in a mechanical manner on the dictates of CBI. I do not know about the trap against AVM J.S Kumar. The classification of documents can only be changed by the originator as per IAP 3902. No other person can change the classification. The document without CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 5/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar signature is never considered as a document. The classification of documents was changed deliberately, just to fix me and harass me by the Indian Air Force Authorities and CBI. I have been victimized and my reputation has been tarnished beyond repair. Even PWs M.N Saxena and T.K Verma have also deposed that only originator can change the classification. Note of Chief of Air Staff to Raksha Mantri is a fabricated document because 02/10/2001 was a holiday and there was no question of CAS going to his office and writing this letter. More so, the procedure for marking the letter was not followed as per the IAP 3902 which was mandatory. The search started without me and my wife in the house. My father was sick and we had gone to see him at IIT, Delhi where he was residing with my younger brother. On being informed, I returned to my house when the search was going on and my full house was open to the search team. I was made to sit in the lawn and after the search was over, I was asked to sign the seizure memo. I did not know what document they were taking. It was evident from the letter itself, it was a manipulated/fabricated letter to ensure my implication in this case. No such letter of CAS to Raksha Mantri ever existed. It is not properly marked as per procedure laid down in IAP 3902 and the date 02/10/2001 mentioned in the letter was a National Holiday. No incriminating documents have been recovered during the search. I never called Squadron Leader or Sergent K.C Saini. On 20/05/2001, Squadron Leader D.K Sharma along with Sergent K.C Saini came to my house without appointment and offered his services of informing me, if I need CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 6/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar anything, to which I said no. Now, I can understand that he came with the intention of planting some document at my residence. I was never interested in knowing any information about the weapon procurement, technical evaluation etc. Since I have been in Indian Air Force, I can say that marking of documents is done as per IAP 3902. The letter dated 23/10/2001 is the correct document which has been correctly marked as per IAP 3902. I do not know about the letters sent to Ministry of Defence. Admittedly, no sanction has been granted by Ministry of Defence or Air Force Authorities to prosecute me. Sanction was granted by PW1 without the application of mind, rather in a mechanical manner on the dictates of CBI. The IO has not investigated the matter properly and has acted on the advice of Wing Commander M.N Saxena, Group Captain T.K Verma and that too they have defaulted in classification of documents and were not authorized to comment on the letter of Indian Army. There was a motive behind it. Three Air Force Officers i.e., Squadron Leader D.K Sharma, Wing Commander M.N Saxena and Group Captain T.K Verma with the help of Nirbhay Kumar, IO planned a move to implicate some retired officers who were doing well in their life. The purpose was to get medals and promotions and posting. It is worth mentioning here that Squadron Leader D.K Sharma got promotion and United Nations posting after this case where he got money in Dollars. Wing Commander M.N Saxena became Group Captain on promotion and Group Captain T.K Verma was promoted as Air Commodor and also got posting of their choice. During the custody of CBI, I was CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 7/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar pressurized to become approver which I refused. Again in Tihar Jail on 29/08/2001, Wing Commander M.N Saxena and Squadron Leader Jain came to meet me posing as CBI officers and asked me to become approver and depose against AVM J.S Kumar and assured me that they would arrange bail for me. On my refusal, they threatened me that I may not be able to come out of the jail and would face number of cases. I stay near the residence of AVM J.S Kumar and from the same branch of Indian Air Force, hence I was also made scape goat. I have nothing to do with the case/allegations against AVM J.S Kumar. I belong to a patriotic family and cannot think of doing the alleged offence. My maternal grandfather was a Judge in Allahabad High Court. My father was a leading lawyer and later became Cabinet Minister in UP from 1977 to 1980. I was selected to Rashtriya Indian Military College, Dehradun where there was only two seats for U.P. Later on, I joined National Defence Academy and thereafter Air Force Academy and became Commissioned Air Force Officer at the age of 21 years. I served the country being the Air Force Officer for more than 22 years. There is no iota of allegation against me in my entire service career, rather I have been appreciated for my work. I am innocent and have nothing to do with the alleged offence. I never possessed or tried to possess any classified documents as alleged in the complaint. I have been falsely implicated in this case wholly on the basis of the concocted story made by three Air Force officers."
CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 8/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar DEFENCE EVIDENCE
7. Accused entered into his defence and examined Sh. Trishpal Singh as DW1.
ARGUMENTS
8. I have heard the arguments of Sh P.K Dogra, Ld. Senior Public Prosecutor for CBI; Sh Rudra Singh Kahlon, Ld. Counsel for accused; accused and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
9. Ld. Senior PP for CBI has argued that by the oral and documentary evidence on record, the prosecution has been able to prove that the two documents in question, classified by the competent authority "Confidential" and "Secret" respectively were recovered from the residence of accused and seized vide memo dated 27/07/2001. Also has been argued that the noting from AOM to CAS and CAS to Raksha Mantri on procurement of crash fire tenders were confidential in nature revealing that there was shortage of crash fire tenders in Indian Air Force at the relevant time casting doubt on the war preparedness of the Indian Air Force which could be prejudicial to the national interest since such noting was prior to procurement and stationing of CFTs. Also has been argued that copy number 3 of contract between State Committee of the USSR and President of India was "Secret" in nature which was regarding supply of some special equipments whose possession with CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 9/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar accused was similarly prejudicial to national interest. It has been argued that the accused was neither the originator nor recipient nor possessor of the elicited two documents in question, so possession of accused of these two documents were prejudicial to the national interest. It has been accordingly prayed that prosecution has been successful in proving its case beyond reasonable doubt against accused for the charged offences. Ld. Senior PP for CBI has prayed for conviction of the accused accordingly relying upon the following precedents:
(1) State of UP vs Hari Mohan & Ors, (2000) 8 SCC 598;
(2) Ambika Prasad & Another vs State (Delhi Administration), (2000) 2 SCC 646;
(3) Harivadan Babubhai Patel vs State of Gujarat, 2013 Cri.L.J 3944 (SC);
(4) Safi Mohd vs State of Rajasthan, (2013) 8 SCC 601;
(5) Sambhaji Lal Surve vs CBI, 2009 (3) JCC 2026 (Del);
(6) Jarnail Singh Kalra vs CBI, 2011 (1) JCC 263: 2011 Cri.L.J 1416;
10. Ld. Counsel for accused argued that the case of prosecution is based upon the opinion given by PW2, complainant himself and PW7 whereas lodged first information report was vague having no mention of any vital installations regarding which even PW8 did not depose. It has been also argued that the evidence on record shows that only three persons viz., PW2, PW7 and IO PW10 are involving in filing of complaint, FIR, alleged verification of alleged documents, investigation and final filing of complaint by PW10 whereas no opinion was ever taken from the custodian(s) or originator(s) of alleged confidential/secret documents besides which none has seen the originals of the copies alleged to be of 'Confidential'/'Secret' documents; even originators of CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 10/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar such documents were neither cited nor examined in the course of investigation or in prosecution evidence. Also has been argued that even as per PW2, nobody can change the gradation except the originator while the copies alleged to be of 'Secret'/'Confidential' documents do not comply with the IAP 3902 in respect of marking of these documents. It has been also argued that even as per Ex PW10/X1 to Ex PW10/X6 depict that till filing of complaint the IO PW10 did not know as to how the alleged documents were a threat to national security and his SP kept on writing to Air Force Authorities who refused to answer. Also has been argued that no enquiries were made by the IO from any higher authorities except from complainant himself and PW7. It has been also argued that PW10 purposely did not obtain the report of Court of Inquiry because Air Force did not recommend anything to be done since they found the alleged seized documents worthless, especially when Russia had ceased to exist after 1989. It has been also argued that IO should have been intrigued by the change of classification of documents by a person other than the originator, but needful was not done by IO on being reported of change of classification of the alleged documents. It was also argued that the file regarding copy of the note of Chief of Air Staff was never 'Confidential' and the copy of the note relied upon by the prosecution is of the date 2 nd October which was a national holiday and every government office is closed whereas the next document to such copy of note was a draft whereon no confidential word was written. It has also been argued that the members of the search team have CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 11/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar testified in contradiction, at variance with each other and none could specify as to from where the copies of alleged confidential/secret documents were recovered there from while the case has been fabricated against the accused and the documents have been planted upon the accused and accused has been falsely implicated for having declined to turn approver against AVM J.S Kumar by manufacturing of false documents. Ld. Counsel for accused has argued that since prosecution has failed to prove its case, so he has prayed for acquittal of accused, relying upon the following precedents:
(1) Srichand P. Hinduja vs State through CBI, 121 (2005) DLT 1 (Delhi High Court);
(2) State of Karnataka vs Sheshadri Shetty and Others, 2005 Cri.L.J 377 (Karnataka High Court).
CITED CASE LAW
11. In the cases of murders in Hari Mohan (supra) and Ambika Prasad (supra), it was inter alia held that the defective investigation cannot be made basis for acquitting the accused if despite such defects and failures of the investigation, a case is made out against all the accused or anyone of them. Even non examination of the investigating officer may have no bearing on appreciation of evidence of injured eye witnesses.
12. In the case of Harivadan Babubhai Patel (supra), it was inter alia held that non examination of particular person/witness of CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 12/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar search does not create concavity in prosecution case and is of no significance when reliable evidence proves prosecution case.
13. In the case of Safi Mohd (supra),wherein independent witnesses resiled but testimonies of police witnesses were accepted after proper appreciation of their evidence and reliance was placed there upon to prove the seizure of certain documents with diary including traced map prepared with certain markings which on the basis of evidence was found to be useful to enemy country and held to be adversely affecting the security of India as enemy country can work out strategy to attack India on basis of such documents.
14. In the case of Sambhaji Lal Surve (supra), placing reliance upon judgment of Govt of NCT of Delhi vs Jaspal Singh (2003) 10 SCC 586, it was held that in order to prove offence under Section 3 (1) (c) of Officials Secret Act it has to be first shown that there was an actual passing of the sensitive or classified information. For the more severe punishment to be attracted, it has to be shown that what was passed on relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India or security of the State and is committed in relation to a defence establishment. Whether the information is classified or not is a matter of certification by the competent authorities and further subject to such opinion being tested at the trial. Once it is proved that accused was found in conscious position CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 13/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar of classified material and no plausible explanation was given for its possession, then the mens rea has to be presumed and statutory presumption under Section 3(2) of Officials Secrets Act that the information that was obtained or collected was for the purpose prejudicial to the safety or interests of the State is attracted.
15. In the case of Jarnail Singh Kalra (supra), it was inter alia held that under Section 3 of Officials Secret Act mere possession of Secret official code or password, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy, or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India or security of State has been made an offence.
16. In the case of Srichand P. Hinduja (supra), it was inter alia held in para 33 as follows:
"33. The disputed photo copies do not qualify as certified copies for the following reasons:
(a) That the Ministry of Justice does not claim to have original in its possession;
(b) The officer who has initialed them neither had nor even claims the custody of the originals.
(c) There is no certificate written at the foot of the copy that it is true copy of any other document.
(d) There is no date and there is no name and official title of the officer;
(e) There is, however, a seal of the Ministry of Justice of which I cannot take judicial notice"
CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 14/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar
17. Also was held in above cited case of Srichand P. Hinduja (supra) that unless the person who wrote those words is identified and it is proved that his position is such that his writing those words proves the truth of the contents, the documents are utterly useless; in terms thereof, it was held that based on such dubious material, it would be sheer persecution, waste of public time and money to allow prosecution to go on for many more years since there was no other evidence to connect the payments in question with the Bofors contract nor was there any evidence to show that the Hindujas were in fact Indian agents, especially employed for the contract in question. CBI had failed to produce the original documents therein. Following propositions laid in case of Om Prakash Berlia and Anr. Vs Union of India and Ors., AIR 1983 Bombay page 1 were relied upon:
"(a) the contents of document may be proved by the evidence of a person who saw it being executed or was himself the executant,
(b) the contents of a document is different from the truth of what the document states,
(c) the truth of its contents can be proved by one who has personal knowledge of the matter recorded,
(d)if the document is in the handwriting of some one, the handwriting itself must be proved under Section 67 of the Evidence Act,
(e) A public document can be proved by a certified copy,
(f) In such a case production of the original or accounting for nonproduction of the original is not essential but all other requirements must be complied with."
CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 15/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar
18. In the case of Sheshadri Shetty (supra), it was held that Rule of fairness required impartiality in criminal investigations and the procedures adopted in respect of investigating officer himself noting complaint, registering FIR, initiating investigation and giving evidence of trial was disapproved holding that investigation was vitiated, even though no motive/negligence was attributed to investigating officer.
APPRECIATION OF EVIDENCE
19. PW1 testified that while posted and working as Under Secretary, Internal Security, Ministry of Home Affairs, he had issued an authorization Ex PW1/A in the name of President of India for prosecution of accused for offence under Section 3 & 5 of Official Secrets Act.
20. PW9 testified that in January 2001 he was Assistant Director, Air Staff Requirement (ADASR) (SU30) and on 20/05/2001 at 8.30 am one Sgt K.C Saini introduced PW9 to accused at the residence of accused at Sainik Farm, New Delhi where accused said that he worked in a very safe manner on defence deal and knowing well that middle man in the arms dealings is not legal, he therefore, enters into technical or contractual consultation contract with the Defence Suppliers on non defence equipments, by which way he can ensure that he will get his commission. As per PW9, accused also said that he would be interested in working on SU30 EW System with both the CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 16/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar vendors/bidders, namely Russian and the French companies, by which way he will get commission from both the companies regardless of who gets the contract; accused further stated that he maintains transparency in his dealings on defence deals in sharing the commission with Sgt K.C Saini and PW9. Also as per PW9, accused further said that he can get his commission anyway even if it needs to be through other means of muscle power or political power; accused also stated that if some one is not honouring the deal, then it is easy to get them eliminated by paying Rs 50,000/ to Rs 1,00,000/ for which accused was capable of doing all, if people do not work with him honestly.
21. Also as per PW9, he had 13 meetings with said Sgt. K.C Saini in the period from February 2001 to July 2001. It was on 26/07/2001, in the morning hour, when PW9 was asked by the then Wing Commander PW2 to give complaint and name of persons whom he had met and accordingly PW9 provided his complaint on the basis of which PW2 lodged report Ex PW2/A on the basis of which FIR Ex PW10/A (D2) was registered by IO PW10. The complaint which PW9 had provided to PW2 was not shown the light of the day since neither it was annexed with the complaint nor proved in evidence. Ex PW2/A is the information of PW2 on the basis of hearsay information received by PW2 from PW9, devoid of the requisite complaint of PW9. It would not be out of place to mention that the matter pertaining to alleged meetings of PW9 with Sgt. K.C Saini or with accused were not reported in writing CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 17/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar immediately by PW9 to his immediate boss or to any superior authorities of Sgt. K.C Saini or to any investigating agency including the CBI. PW9 admitted in the course of his cross examination of having written a letter directly to Vice Chief of Air Staff in 2008 saying that all the officers including accused, AVM J.S Kumar and other officers had been convicted by the Court. For that PW9 clarified that he had done so on the basis of some unverified facts but PW9 denied of being reprimanded for such act for giving false information since no such officer had been convicted by the Court. PW9 was working as ADASR in January 2001 and later till July 2001, during which period he allegedly had 13 meetings with Sgt. K.C Saini and one with accused on 20/05/2001. Ex PW2/A finds mention of PW9 being extremely shaken up and distressed on being threatened by accused on 20/05/2001. As on 20/05/2001 the accused was a retired person while PW9 was working as ADASR, as aforesaid. It is also the version of PW9 that whatever transpired in his meetings with Sgt. K.C Saini and accused, he immediately and regularly reported to PW2. In the course of his deposition PW9 infact did not whisper of so extremely shaken up and distressed on being so threatened by accused on 20/05/2001, as is mentioned in Ex PW2/A. In terms thereof, the version contained in Ex PW2/A attributed to PW9 for got shaken up and distressed on being so allegedly threatened on 20/05/2001 by retired accused or these facts being the cause for non reporting of such threats to competent authorities including Air Force Authorities and CBI, remains not proved.
CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 18/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar
22. PW2 and PW7 are the star witnesses of the prosecution case. PW2, the then Deputy Director, Intelligence Wing, Security in the office of Joint Director, Intelligence, Directorate of Intelligence is the author of Ex PW2/A wherein he reproduced the information of PW9, as elicited above. PW2 is not a witness of alleged search and seizure of the 'Confidential' and 'Secret' documents from the residence of accused. Documents allegedly recovered from residence of accused were sent to PW2 for opinion regarding which PW2 elicited that list of documents Mark P1, Mark P2, Mark P3, Mark P4, Mark P5 (later Ex PW10/C) were sent under his signatures. Aforesaid list of documents Mark P1, Mark P2, Mark P3 and Mark P4 were sent with covering letter Ex PW7/DA (also Mark D) (D32) signed by PW7 dated 23/10/2001 to SP CBI. Mark P3 contains security classification as "Unclassified" in respect of Folder 7 (G20G72) of description draft contract for shipping, detailed as unsigned draft contract for shipping to Embarkation HQ Mumbai whose source / custodian was described as 25461/Q Mov Shipping ADG MOV, QMG Branch Army HQ Cdr CJ Singh DA QMG (M) Shipping 1100/S/Cont/SS/S1/88 ibid. In terms thereof, the alleged recovered copy number 3 of contract between State Committee of the USSR and President of India i.e., copy of contract for shipping was termed as "Unclassified" document, as per Mark P3. Ex PW7/DA (Mark D) (D32) also finds mention that the documents had been scrutinized at the appropriate level pursuant to which the copy of report was annexed CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 19/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar and the contents of the said report have been elicited in part herein above. Vide letter Ex PW10/C (Mark P5) dated 10/12/2001 of PW2 the classification of aforesaid documents of Folder 7 (Sl No. G20 to G29 and G57 to G66) was changed from 'Unclassified' to 'Secret' as the documents were graded 'Secret'. In response to question of Ld. Special PP for CBI to specify the documents which were graded 'Secret' in this case, in the course of his examination, PW2 responded that as per report of PW7, the copy number 3 of contract between State Committee of the USSR and President of India, Mark D (actually Mark B), as per report of PW7 was the 'Secret' document whereas the note of Chief of Air Staff to Raksha Mantri, Mark E, was the 'Confidential' document.
23. PW2 candidly admitted in the course of his cross examination that the gradation of documents was done on the basis of IAP 3902 and maker of documents grades the document as secret, top secret or confidential besides which only the originator of document can change the grade after grading a document unless and until such document has been erroneously graded by the originator of the document.
24. Ex PW2/DA1, part of relevant rules contained in IAP 3902 prescribes the marking of documents as a precautionary measure against the circulation of documents to unauthorized persons. In terms thereof:
CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 20/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar "Marking of documents 5 ...........................
(b) TOP SECRET, SECRET or CONFIDENTIAL Documents other than Bound Books. TOP SECRET, SECRET or CONFIDENTIAL documents, including books whose papers are not permanently and securely fastended (to the binding), and all forms of signals are to be marked with the security classification on every page. Files, dockets and looseleaf binders are not permanent bindings; and stapling is not a secure binding. Covers containing TOP SECRET documents will be marked with a diagonal RED cross extending from corner to corner on both back and front.
...........................
(d) Method of Marking. In every document, letter or signal that requires marking under subparas (b) and (c) above, the security classification is to be printed or typed centrally at the top and bottom of each page. Additionally, in the case of typed papers bearing the classification CONFIDENTIAL and above, the security classification is also to be stamped on each page just below and just above the typed security classification at the top and bottom centres respectively. In case of TOP SECRET papers/documents the imprint of the rubber stamp should be in red ink. In case certain sections of a classified document are meant for subsequent 'pull out', and are assigned with a lower classification even then all pages must initially bear the classification of the main document as a whole. Sections once extracted are to be considered as separate documents and marked with lower classification as envisaged accordingly.
(e) Letters/documents including appendices and annexure, if any, should have continuous page numbers. The total number of pages of Top Secret/Copy numbered Secret letter/document containing more than one page will be indicated in words below the security classification on the top centre of the front page i.e.: (Typed Security Classification) SECRET (Stamped Security classification) SECRET (Total number of pages - Twelve Pages/only page) ....................................................................................................."
CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 21/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar
25. PW2 elicited that G20 to G23 (part of Mark B) were not marked in accordance with IAP 3902 while pages from G24 to G29 (part of Mark B) did not bear any mark of classification. As per PW2, when the documents allegedly recovered from residence of accused were sent by CBI for their opinion, then a committee headed by Air Vice Marshal Ramanujan examined these documents and recommended certain classification, in terms of which afore elicited Folder No. 7 G 20 to G72 was termed as "Unclassified". Such classification was in list Mark P3 signed by PW2 and was sent to CBI with letter Ex PW7/DA (D32) dated 23/10/2001 signed by PW7.
26. PW2 deposed that PW7 had received an input regarding the shipping document that it could be graded as secret, because of which in letter Ex PW10/C (Mark P5) dated 10/12/2001 PW2 sent the opinion of up grading of documents of Folder No. 7 (Sl No. G20 to G29 and G57 to G66) to be changed from 'Unclassified' to 'Secret', as the documents were graded secret. In Ex PW10/C (Mark P5), there is no mention that the fact for change of classification of the concerned documents from 'Unclassified' to 'Secret' was based upon the input received by PW7 or it was an internal opinion of Air Headquarter nor any such opinion of Air Headquarter was enclosed with letter Ex PW10/C (Mark P5).
27. Per contra, PW7 testified that in his letter dated 17/10/2001, Ex PW7/A he had mentioned the finding of the team, headed by AVM CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 22/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar Ramanujan inter alia regarding classification of documents wherein afore elicited copy number 3 of contract between State Committee of the USSR and President of India has been termed as "Secret" document. PW7 elicited that his such recommendations in Ex PW7/A (D31) dated 17/10/2001 were on the basis of report of AVM Ramanujan Committee. Report of Ramanujan Committee has not seen the light of day since neither it has been filed nor proved by the prosecution. PW7 elicited that he was not given any written direction to write letter dated 17/10/2001 but as AVM Ramanujan had directly spoken to him, so he wrote Ex PW7/A. PW7 also elicited that after 23/10/2001 he had never given any directions/ instructions/inputs to PW2 to change the classification of documents in question from "Unclassified" to "Classified"/"Secret". On the other hand, PW2 says that on receipt of input from PW7 he had changed the classification from "Unclassified" to "Secret" in respect of documents of Folder No. 7 (Sl. No. G20 to G29 and G57 to G66), as per Ex PW10/C (Mark P5) dated 10/12/2001. PW7 also elicited that since he had not given his personal opinion on the classification of documents in question in this case, he could not say why document Mark D (Mark B) had been mentioned as "Unclassified" not "Secret", for which the answer can only be given by AVM Ramanujan Committee. PW7 also stated that he had no personal knowledge as to whether the documents allegedly recovered from the house of accused were infact classified, secret documents or not since he had only written letters communicating his opinion based upon AVM Ramanujan CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 23/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar Committee and the opinion of Directorate of Intelligence. Mark P3 embodying security classification "Unclassified" of folder 7 in respect of draft contract for shipping viz. copy number 3 of contract between State Committee of the USSR and President of India is also stated to be based upon the recommendations of the AVM Ramanujan Committee and Ex PW7/DA (D32) dated 23/10/2001 finds mention of these documents having been scrutinized at the appropriate level. Ex PW7/A (D31) (Mark C) dated 17/10/2001 also finds mention that originator of copy number 3 of contract between State Committee of the USSR and President of India was probably ADG (Mov), Sena Bhawan. Admittedly, the change of classification of documents was not done by the originator of said shipping document or its probable originator. Report of AVM Ramanujan Committee was neither filed nor proved. Letter Ex PW10/X 7 dated 23/06/2003 sent by SP CBI ACB to Joint Secretary (Ports) & CVO, Ministry of Shipping inter alia finds mention of aforesaid document of shipping having been referred to Army Headquarter and Army Headquarter having opined that comments on such document be obtained from Ministry of Shipping Transport or Ministry of Defence. In letter Ex PW10/X8 dated 08/08/2003 of Joint Secretary & CVO, Ministry of Shipping addressed to SP CBI ACB DELHI there is mention that Ministry of Shipping is in no way concerned with the said agreement of shipping and has no comments. Captain (IN) GSO1 Mov (Shipping) for ADG Mov sent letter dated 07/12/2012 to my Ld. Predecessor with the mention that Army HQ/Embarkation HQ was not a signatory to CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 24/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar contract 8 to 0841 dated 28/08/1987 or any subcontract related to this contract, so the original of said contract or any other original document of any contract or subcontract related to said contract 8 to 0841 was not available in the files of of Mov Directorate/Army HQ. It is implicit clear accordingly that neither during investigation nor during the trial, despite efforts of the investigating agency and of the Court, original of the alleged copy number 3 of contract between State Committee of the USSR and President of India could not be located and its originator was not ADG Mov, Sena Bhawan.
28. Bare perusal of typed Mark B reveals of finding mention of word "Secret" on top of each of pages from 19 to 23 (including overleaf) while no signatures are appended thereto of supplier or customer nor is there any other marking of documents in terms of IAP 3902, elicited herein before. Security classification 'Secret' is not stamped since there is no such stamp impression on any of aforesaid pages of such document.
29. The copy of alleged typed note of Chief of Air Staff to Raksha Mantri, Mark E, in respect of procurement of crash fire tenders bears date 2 OCT 2000 and on top and bottom of it CONFIDENTIAL finds mention, where as file number mentioned is AIR HQ/64008/15/MT/Lgs in respect of which letter Ex PW7/A (D31) dated 17/10/2001 finds mention of the said document to be CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 25/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar "Confidential" and the file to be in the custody of DMT. Security classification 'CONFIDENTIAL' is not stamped since there is no such stamp impression on both the pages overleaf of said document. Group Captain Jagdish Kumar Raval being Director (Mechanical Transport), i.e., DMT, Indian Air Force, Headquarter, New Delhi was examined as Court Witness as CW1 on 04/04/2014 and he brought on record his written submission Ex CW1/A (colly) at the fag end of which he submitted that file bearing reference No. Air HQs/64008/15/MT/Lgs/PC II or Air HQ/64008/15/MT/Lgs having original copies of communication shown at para 5 are not available at any of the places where it could have been found. Despite his diligent and sustained efforts, he had not been able to locate said letters/files in original. At the same time, he had also not been able to find relevant records in proof of the fact that either the said documents or files containing these documents have been destroyed. CW1 submitted that the said documents were untraceable. CW1 also stated that he could not ascertain the name of individual staff who was handling the file, aforesaid in question containing the original of Mark E whereas no action has been taken by his department, as per law/rules applicable for misplacing/loss of documents specified in para no. 5 of Ex CW1/A (colly) or for the loss misplacement of registers of handing over/taking over of documents of periods concerning records of documents specified in para 5 of Ex CW1/A (colly). CW1 stated that since matter had come to light, the department would initiate action. No action taken by department of CW1 has been intimated to the Court.
CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 26/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar Original of Mark E was never seen by CW1. The then Chief of Air Staff, Air Chief Marshal Sh A.Y Tipnis is the purported signatory to aforesaid document, copy Mark E but neither he has been cited nor examined as prosecution/complainant witness for proving fact of bringing into existence of original of Mark E or classification 'CONFIDENTIAL' of said document nor the original of Mark E has been procured, produced and proved in evidence. Whether or not such a document came into existence is also a question which remains unanswered and eye brows are raised when such document is alleged to have been brought into existence on National holiday on Mahatma Gandhi Jayanti, when in routine, such offices are closed and no material has been produced to prove extreme urgency of bringing into existence of such document on such National holiday. Beside that excepting word 'Confidential' at the top and bottom of the two pages of the note overleaf Mark E, accompanying documents do not mention even word 'Confidential'. Whether or not document Mark E was replica of its original or containing the written text similar to its original, also has not been proved. The text of Mark E does not decipher the deployment and locations of the Crash Fire Tenders but depicts note put up before Hon'ble Raksha Mantri seeking direction for time bound action for finalization of pending cases for procurement of Crash Fire Tenders (CFTs) with simple mention of total number of available CFTs against total number of authorized CFTs at various airfields. Of course, Crash Fire Tenders constitute a vital safety service in air operations since CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 27/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar aviation rules do not permit an aircraft to take off from or land at an airfield unless the required number of CFTs are available to combact emergencies. It is a known phenomenon to all and sundry not hidden or secret to anyone. Nothing has been proved on record by any cogent evidence borne out of deposition of prosecution witnesses examined on record, as to how the disclosure of text of Mark E would be in any way be prejudicial to national security or sovereignty or integrity of India and security of India or beneficial to any enemy country.
30. The case of prosecution hinges on the premise of alleged recovery of (1) copy of alleged 'Confidential' note from AOM to CAS, note from CAS to Raksha Mantri on procurement of Crash Fire Tender and (2) copy of alleged 'Secret' document viz. copy number 3 of contract of shipping between State Committee of the USSR and President of India; elicited in detail in table in earlier part of this judgment allegedly recovered from residence of accused situated at E224, Club Road, Sainik Farms, New Delhi62 during the course of its search started at about 8.45 pm on 26/07/2001 and completed on 27/07/2001 at 3.30 am. Search cum Seizure Memo Ex PW3/A (D8) dated 27/07/2001 was prepared for afore elicited conducted search and seizure. At the outset in Ex PW3/A (D8) there is mention of such search having been conducted on authorization of IO PW10 issued under Section 165 (3) of The Code of Criminal Procedure, by PW5 and his team consisting of the then Inspectors PW6 Sh Ajay Kumar, Ms Shehnaz Khan and independent CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 28/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar witnesses PW3 Sh Love Kumar Chawla, UDC in office of Excise & Entertainment Department, MCD and PW4 Sh Ram Singh, Assistant Chemical Examiner in Excise Office. No authorization under Section 165 (3) of The Code of Criminal Procedure has been filed with the complaint Ex PW10/D nor proved. Along with complaint Ex PW10/D, no document has been annexed to depict and prove any report/intimation sent to Court concerned in terms of Section 11 of Official Secrets Act, 1923 after the alleged search/seizure. Ex PW3/A (D8) finds mention at the outset in the initial paragraphs of premises having been searched after observing all legal formalities and through out the search accused, family members of accused and one Sh Anand Pal Singh, brother in law of accused having remained present. Five sheet memo Ex PW3/A (D8) was transcribed after the search and seizure proceedings which continued for six hours and forty five minutes. There is clear breach in the case of such search and seizure which required "two or more independent and respectable inhabitants of the locality" to be called to witness the search in terms of the salutary provision of Section 100 (4) of The Code of Criminal Procedure, 1973. Team leader of search viz PW5 testified that the duty officer in CBI office had arranged for witnesses PW3 and PW4 in day time and all search team members were present in CBI office. FIR Ex PW10/A (D2) was registered at 4 pm on 26/07/2001, which finds no specific mention of accused being in possession of any 'Secret' or 'Confidential' document(s) as on that day. Be that as it may, the members of the search team CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 29/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar reached premises of accused in the evening time where search started at 8.45 pm on 26/07/2001. As per PW5, the place of search was a farm house which was a bungalow having a bigger as well as a smaller gate and on knocking at bigger gate, it was opened by relative of accused behind whom accused was walking towards the gate. The prosecution has not come forward with any explanation whatsoever as to why afore elicited provision of Section 100 (4) of The Code of Criminal Procedure was not complied with. PW3 as well as PW4 were the public servant witnesses of office of Excise & Entertainment Department of MCD and Excise Office respectively, both offices situated at I.P Estate, New Delhi which were at far away distance from Sainik Farm, situated at South Delhi. Neither before nor during the search and seizure proceedings any efforts were made to call upon or request any one, two or more independent and respectable inhabitants of the locality of Sainik Farm where the said premises of accused was located to join the search proceedings or seizure made there from. Burden lies on the prosecution to explain reasons for non compliance of Section 100 (4) of The Code of Criminal Procedure, 1973. Such burden has not been discharged as no explanation whatsoever is borne out either from search cum seizure memo Ex PW3/A (D8) or from the testimonies of examined prosecution witnesses. It is not a case where any independent and respectable inhabitants of the locality was so requested to join search and seizure and upon such request he or she refused, making him/her liable for commission of offence under Section 187 of IPC, in terms of Section 100 CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 30/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar (8) of The Code of Criminal Procedure, 1973. Of course, for non compliance of the salutary provision of Section 100 (4) of The Code of Criminal Procedure, such search can be resisted by the person whose premises are sought to be searched, besides which for such irregularity in the search, the Court needs to examine carefully the evidence regarding such search and seizure. Emphasis laid on the pronouncements in the case of Radha Kishan vs State of UP, AIR 1963 SC 822. In the case of Sahib Singh vs State of Punjab, AIR 1997 SC 2417, when it was found that no attempt was made by the searching officer to join admittedly available person(s) of locality to witness the search and recovery, it was held that such non joining of independent and respectable inhabitants of locality in the search and recovery would affect the weight of evidence of prosecution. It is also not the case of the prosecution/complainant that due to paucity of time, they could not join two or more independent and respectable inhabitants of the locality in such search. Per contra, the intent of the concerned officers of investigating agency for non compliance of salutary provision of Section 100 (4) of The Code of Criminal Procedure is apparent on the face of record when the search team comprising CBI officers and public officials working in their respective offices at I.P Estate were called in the CBI office in day time itself before leaving CBI office for such search to be conducted at the aforesaid premises at Sainik Farm in South Delhi at night time on 26/07/2001. There was no justification depicted or proved on record for not calling upon any local independent or respectable inhabitants of CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 31/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar locality of Sainik Farm to witness the search and seizure. It is also not the case of prosecution that the place of search was at an isolated place where in the vicinity there were no places of abode or none resided nearby. In this back drop of the events, it is all the more important to carefully analyse the testimonies of the alleged witnesses of search.
31. Whereas PW4, PW5, PW6 and PW8 stated of search having been conducted at premises at Sainik Farm; per contra, PW3 elicited that besides search at Sainik Farm residence of accused, in the stated period, the search was conducted as well at a flat which was either at Vasant Vihar or at Vasant Kunj. PW3 was not knowing to whom said flat belonged. None amongst PW3, PW4, PW5, PW6 and PW8 could specify which document was recovered from which particular place of search i.e., from which room/table/cupboard/ almirah/drawer/shelf/window/bed/chair/showcase/any other place in the residence. Simply PW3 stated that CBI officers had recovered documents from almirahs. No other witness amongst witnesses of search could even specify whether any or all documents were recovered from almirahs or else where from the place(s) of search. No witness of search could describe the topography of place of search or exact place(s) in which the documents in question were respectively found. PW3 elicited that members of search team informed him (PW3) of the house searched to be belonging to accused. PW3 did not remember whether accused was present at the house at the time of search proceedings. PW3 CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 32/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar could not specify which document was recovered from Vasant Vihar/Vasant Kunj flat or from Sainik Farm premises. PW3 infact elicited that accused was not present when members of search team had reached at the premises of Sainik Farm but the accused had arrived later after some time. Said fact in itself falsifies the averment contained in Ex PW3/A (D8) of accused being present through out the search proceedings from inception till end. PW4 testified that the documents were handed over to him at the place of search by his team leader (i.e., PW5) for signature. PW4 did not whisper any exact place where from documents in question were recovered. Despite the fact that PW8 lady Inspector Shehnaz Khan being the member of the search team, as per the case of prosecution, PW4 testified that there was no lady member in their search team. The team leader of search operation namely PW5 testified that initial plan of IO PW10 was to lay trap but later considering the sensitivity of situation, he (PW10) had changed the plan to conduct a search. Per contra, IO PW10 did not state that there was any such initial plan to lay trap, which was later changed. PW5 also testified that on way to house of accused, IO PW10 had called him (PW5) on phone and told him that team should not wait as the programme had changed. Also PW5 had stated that initially they were told to wait and keep watch at house for about half an hour but later they were told not to wait and conduct search immediately on reaching there, so they did not wait on reaching the house of accused and immediately conducted the search.
CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 33/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar
32. As per PW6, documents required to be seized from the residence of accused were mentioned in list accompanying authorization for search. Neither any such authorization for search under Section 165 of the Code of Criminal Procedure nor any list accompanying such authorization has been filed with complaint nor proved. Neither in Ex PW3/A (D8) nor in testimonies of other witnesses of search there is mention of any such alleged list accompanying authorization under Section 165 of The Code of Criminal Procedure. There is no whisper in Ex PW3/A (D8) i.e., search cum seizure memo of any of search team members having offered themselves to search to any inmate(s) of house of accused before starting the search operation there. PW6 admitted that they did not specifically took in writing that they had offered themselves for search or for that accused or other inmates of house had refused. PW8 did not remember as to whether accused was present at the spot when search was conducted. Also PW8 was unable to say (1) when she was assigned duty to be part of search team; (2) when she had put signatures on the seizure memo; (3) when they had proceeded from CBI office; (4) place where search was conducted; (5) names of independent witnesses who were part of investigation; (6) when independent witnesses were dropped after search and (7) how many documents were seized by search team. It has not been brought to the light of the day as to how witnesses PW3 and PW4 were arranged by the Duty Officer/any other officer of CBI since regarding said fact no CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 34/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar document has been placed with the complaint nor proved nor any fact has been testified by prosecution witnesses in that regard.
33. Search in question was alleged to be conducted in accordance with Section 165 of The Code of Criminal Procedure. The general provisions as to searches contained in Section 100 of The Code of Criminal Procedure applied to such searches, as per Section 165 (4) of The Code of Criminal Procedure. Section 100 (5) of The Code of Criminal Procedure mandates that a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses. Numerous articles/files/documents as depicted from serial number 1 to serial number 20 in Ex PW3/A (D8) i.e., search cum seizure memo, dated 27/07/2001 are alleged to be recovered from the search of the stated residence of accused at Sainik Farm. There is no whisper in entire text of Ex PW3/A (D8) as to the specific places in which any or all these articles/documents were so respectively found in the stated premises of accused. Team leader PW5 had stated that the searched place was a farm house, which was a bungalow having two gates, of which one was bigger and one was small. PW5 could not elicit the number of rooms in the place searched but simply stated that documents were seized from different rooms of the said premises. It is borne out of record and evidence that there were several rooms in the place searched. Admittedly, no site plan of place of occurrence was CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 35/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar prepared despite the fact that so many team members of the search team of premier investigating agency remained engaged in the search operation for long period of six hours and forty five minutes. No fact is proved on record to depict any impediment in the way of the officers of investigating agency either in preparation of site plan of premises searched or of depiction of the specific places in which the things/articles/documents were so found and seized vide Ex PW3/A (D
8), in terms of Section 100 (5) of The Code of Criminal Procedure. Member of search team, PW6 elicited that search was conducted in the main building of the house but could not elicit whether said premises had an out house or not. DW1 Sh Trishpal Singh, alleged to be distant relative of accused had claimed to have seen raid at house of accused on 26/07/2001 from outside in the street. Also was testified by DW1 that in the evening of 25/07/2001 one gentleman Mr. Sharma came in the premises of accused, wanting to meet accused, upon which DW1 told said gentleman that accused was not at home and upon enquiry said gentleman informed DW1 that he had to give one envelope to accused and then requested DW1 to hand over the envelop to accused and he will talk to accused later. DW1 kept the envelope on table of office of accused but had not seen its contents. There is no clear evidence from so called independent public servant witnesses PW3, PW4 as well as from other team members of CBI in search team with respect to the fact of the specific place(s) in which aforesaid two documents were respectively found at the place of search. It is not borne out of evidence as to why CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 36/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar PW3 and PW4 were selectively chosen to witness the search and why no independent respectable persons of locality were joined in the search and recovery. Omission on the part of investigating Officer and officials conducting search to join independent respectable persons of locality to witness the search and recovery, devalues the evidence. Reliance placed upon the case of State of UP vs Arun Kumar Gupta, AIR 2003 SC 801. Besides accused, his family members and relative Anand Pal Singh, brother in law of accused were alleged inmates of house at the time of alleged search. Who amongst them was in occupation/using which portion(s) of premises, exclusively or jointly, has not been deciphered / enquired / investigated. Documents in question were not recovered from person of accused. Whether or not the specific place(s) of recovery of documents in question were in exclusive domain of accused or accused was in conscious possession of documents in question has not been proved beyond reasonable doubt. Irregular search vide Ex PW3/A (D8) and elicited evidence of witnesses of search examined lacks credence and substance in respect of specific places where from documents in question were allegedly recovered in Sainik Farm premises of accused. Flagrant violations of salutary provisions contained in sub sections (4) and (5) of Section 100 of The Code of Criminal Procedure, 1973 are when analysed with the elicited evidence of the examined search witnesses namely PW3, PW4, PW5, PW6 and PW8 and evaluated in the backdrop of testimony of DW1 led in defence in preponderance of probabilities, then it brings into fore every reasonable CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 37/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar possibility of planting of two documents in question in Ex PW3/A (D8) at serial number 3 and serial number 7. It makes such alleged recovery of documents in question from residence of accused extremely doubtful.
34. From every act of concerned officers of premier investigating agency what the Court expects is fairness. Fairness of investigation in this case is not apparent from the face of record. Mandate of Subsections (4) and (5) of Section 100 of The Code of Criminal Procedure has been put to winds without any explanation, what to say of a reasonable explanation for their noncompliance. Of course, officers of premier investigating agency at the outset cannot be said to be untrustworthy but when for commission of alleged offences under Official Secrets Act, suspicion is laid over ExAir Force Officer accused, in the absence of an eye witness account, what is expected by a Court from officers of premier investigating agency is firstly to collect best possible incriminating evidence at the first instance/opportunity and also to comply provisions of law and procedure established to lend credence and avoid criticism. In portion 'A' to 'A' of statement Ex PW10/DA of PW7 dated 15/10/2001 under Section 161 of The Code of Criminal Procedure there is inter alia mention by IO PW10 of fact of PW7 having recognized his signatures on letters dated 17/10/2001, 23/10/2001, 05/12/2001 which per se cannot be in existence as on 15/10/2001. There is also mention of letters dated 04/09/2001, 15/10/2001 in portion 'A' to 'A' in Ex PW10/DA whereas neither said CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 38/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar letters nor letter dated 05/12/2001 mentioned in end of Ex PW10/DA were on record, as admitted by PW10 IO. PW10 denied to have recorded after/on 05/12/2001 afore elicited statement Ex PW10/DA dated 15/10/2001, whereas on 09/09/2013 in his part examination in chief before my Ld. Predecessor, PW10 stated that letters dated 17/10/2001, 23/10/2001 and 05/12/2001 which were not on record as on 15/10/2001 and were shown to PW7 on 05/12/2001, but by inadvertent mistake were reflected in statement (Ex PW10/DA) of PW7 under Section 161 of The Code of Criminal Procedure of date 15/10/2001. It is proved on record that either the statement Ex PW10/DA of PW7 dated 15/10/2001 was infact recorded after the aforesaid letters dated 17/10/2001, 23/10/2001 and 05/12/2001 came into existence or these letters dated 17/10/2001, 23/10/2001 and 05/12/2001 were fabricated/forged prior to their respective dates, on or before 15/10/2001. Be that as it may, afore elicited facts reflect investigation to be tainted and not defective.
35. In this back drop of facts, herein above said, precedents including that of Hari Mohan (supra), Ambika Prasad (supra) and Safi Mohd (supra) relied by Ld. Prosecutor have no bearing on this matter since they embody facts and circumstances entirely different and distinguishable to facts and circumstances of case in hand. Afore elicited facts strengthened the probability of false implication of accused as falsity in testimony of IO PW10 is writ large on the face of record, to CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 39/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar which no discerning eyes can be shut. Gamut of elicited evidence proves that testimony of PW10 IO is unworthy of credence.
36. Fact remains that the makers/originators of the two documents in question, detailed in table above in earlier part of this judgment, classified as 'Confidential' and 'Secret' respectively have not been cited nor examined as prosecution/complainant witnesses nor originals of these documents have been produced nor shown in the Court despite the prosecution having obtained clear and specific orders from the Court and the efforts made in the investigation and in the course of trial. It is also fact of the matter that the originator of the copy number 3; if any such document so existed, of contract between State Committee of the USSR and President of India; had not changed the gradation of such document from "Unclassifed" to "Classified"/"Secret" in terms of provisions contained in IAP 3902 and as testified by PW2 and PW7. Report of AVM Ramanujan Committee has not been placed on record nor proved. No member of AVM Ramanujan Committee has been cited nor examined as prosecution/complainant witness. Such best available evidence has been withheld by the concerned officers of investigating agency and prosecution. There is no option but to invoke the presumption of existence of the fact that the evidence which could be and is not produced would, if produced, be unfavourable to the prosecution/investigation who withheld it, in terms of Illustration (g) of Section 114 of the Indian Evidence Act, 1872. Accordingly, had report CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 40/41 Nirbhay Kumar, the then Dy. SP CBI vs Wing Cdr. (Rtd) Yashvir Singh Tomar of AVM Ramanujan Committee been brought on record, any member of AVM Ramanujan Committee had been examined or the then Chief of Air Staff, Air Chief Marshal Sh A.Y Tipnis had been examined then such evidence if so produced would have been unfavourable to the prosecution/the investigating agency who has withheld it.
37. In view of entire foregoing discussions, accordingly prosecution has failed to prove its case beyond reasonable doubt including facets that the two documents in question were (1) 'CONFIDENTIAL' and 'SECRET' respectively and/or (2) recovered from exclusive and conscious possession of accused. Edifice raised by prosecution has crumbled to ground. Accordingly, accused is held not guilty and acquitted for the offences charged. His bail bond is cancelled. Surety is discharged.
38. A copy of judgment be given to the Central Bureau of Investigation/complainant. Ahlmad is directed to page and bookmark the file so as to enable digitization of the entire record.
39. File be consigned to record room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 30/08/2014 Patiala House Court, New Delhi. Deepika CC No. 59/14 In Re: RC No. DAI2001A0052/ACB/CBI/New Delhi 41/41