Punjab-Haryana High Court
Mohd. Salim @ Jagdeep vs State Of Haryana on 15 February, 2008
Author: J.S. Khehar
Bench: J.S. Khehar
JUDGMENT J.S. Khehar, J.
1. The instant appeal has been filed against the order passed by the Sessions Judge, Ambala, in Sessions Case No. 37 of 2003, decided on 16.8.2004. By the impugned judgment, the appellant Mohd. Salim @ Jagdeep has been held guilty and convicted of the offences punishable under Section 14 of the Foreigners Act, 1946 and under Sections 3 and 5 of the Official Secrets Act, 1923. By a separate order passed on 18.4.2004, the accused/appellant Mohd. Salim @ Jagdeep has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- under Section 14 of the Foreigners Act, 1946. In default of payment of fine, he has been ordered to further undergo rigorous imprisonment for three months. Besides the aforesaid, the accused/appellant Mohd. Salim @ Jagdeep has been sentenced to undergo rigorous imprisonment for fourteen years under Section 3 of the Official Secrets Act, 1923 and rigorous imprisonment for three years under Section 5 of the Official Secrets Act, 1923. It has also been directed that all the aforesaid sentences shall run concurrently.
2. The prosecution version of the incident is based on the statement of Inspector Ashok Kumar PW 19, noticed in the First Information Report registered at Police Station, Baldev Nagar, on 1.11.2002. A perusal of the aforesaid report reveals, that Inspector Ashok Kumar PW 19 had received secret information two months prior to the registration of the aforesaid First Information Report on 1.11.2002. As per the aforesaid secret information, a person of Pakistani nationality was posing as Jagdeep and was visiting the house of Veena Rani Bhatia PW 3, situated at 3960/2, Patel Road, Ambala City. According to the secret information, the aforestated Jagdeep was working for the Intelligence Agency of Pakistan i.e. the ISI. Inspector Ashok Kumar PW 19 on the receipt of the aforesaid information, claims to have brought the aforesaid facts it to the notice of the higher authorities. Whereupon, in furtherance of the orders issued by the higher authorities, the aforesaid Jagdeep was placed under surveillance. During the course of his surveillance, it was found, that Jagdeep used to receive telephonic calls at the phone installed at the residence of Veena Rani Bhatia PW 3 bearing No. 2443615. It was also revealed from the surveillance, that he also used to make calls from the same telephone number. Consequently, permission was obtained for recording the conversations on the aforesaid telephone bearing No. 2443615. The tapping of the aforesaid telephone number revealed, that the aforesaid Jagdeep was receiving calls from Pakistan. The calls received by him were made from a telephone bearing No.009241684935. Additionally, it was revealed that the aforesaid Jagdeep used to receive directions for taking photographs of important Army and Air Force installations. He was also receiving directions to collect data in respect of military movements. He was also required to collect information about important dams and bridges in the area of Kurukshetra. Inspector Ashok Kumar PW 19, who was keeping a tap on the aforesaid Jagdeep himself heard Jagdeep during the course of a telephonic conversation, receiving directions to take photographs of the Air Force Station, Dhulkot, from the shop of Saini Advertising Agency. The aforesaid conversation was allegedly heard by Inspector Ashok Kumar PW 19 when the said Jagdeep was making a call from an STD booth. On the basis of the aforesaid conversation over-heard by Inspector Ashok Kumar PW 19, two raiding parties were constituted and deputed to the shop of Saini Advertising Agency. After the members of the two raiding parties, all in plain clothes, had stationed themselves around the shop of Saini Advertising Agency, a person having a camera in his hand, climbed over the wall of the said shop and used a ladder to go upto the roof of the shop. From the roof of the shop of Saini Advertising Agency, the said person started taking photographs of the Air Force Station, Dhulkot. At the said juncture, the members of the raiding parties apprehended the aforesaid person. Interrogation of the person taking photographs revealed, that he was Jagdeep whose movements were under the surveillance of the police. The same also revealed, that his real name was Mohd. Salim son of Mohd. Nazir and a resident of Civil Quarter No. 557-B, Gulam Mohammadabad, Faislabad, Pakistan. His interrogation also revealed, that he was presently residing in the house of one Jamuna Devi, located on Patel Road in Ambala City, wherein he was living under the name of Jagdeep. The person apprehended acknowledged, that he had been sent from Pakistan to spy in India. On being searched, the raiding parties, recovered one Kodak camera of Indian make, besides a bill of a mobile telephone. Information of the factual position noticed hereinabove, was then sent by Inspector Ashok Kumar PW 19 to Police Station, Baldev Nagar. The aforesaid information led to the registration of First Information Report bearing No. 433 at Police Station, Baldev Nagar on 1.11.2002. On account of the fact, that the First Information Report revealed, that the accused/appellant Mohd. Salim @ Jagdeep had entered into India by illegal means, and that, he had collected information pertaining to important military installations and troop movements, which could be dangerous for the integrity and sovereignty of India, he had allegedly violated Section 14 of the Foreigners Act, 1946 and Sections 3, 5 and 7 of the Official Secrets Act, 1923. It would also be relevant to notice, that during his interrogation, the accused/appellant Mohd. Salim @ Jagdeep made a disclosure statement Ex.P1, revealing that he had made maps of military formations and taken photographs of important places in connection with the Indian Military. He also stated, that the aforesaid material was in a bag in his room in the house of Jamuna Devi of Patel Road, Ambala City, and that, he could get the same recovered. Additionally, he mentioned that he had negatives of photographs which he had kept concealed in a khokha near Amritsar Bus Stand, and that, he could get the same recovered as well. Based on the aforesaid disclosure statement Ex.P1, the investigating officer Ashok Kumar PW 19 alongwith witnesses, reached the house of Jamuna Devi at Patel Road in Ambala City. After taking out the key from the bricks fixed in the wall, the door was opened, whereupon, he got recovered a Rexene bag and brought out therefrom a trouser, on the bukram whereof, he got recovered a writing in Urdu language, perusal whereof revealed that the same were addresses of units of military establishments. He also got recovered therefrom 37 coloured photographs of important places, besides other material. The material recovered showed extensive data connected to the Indian Military, including army installations and addresses. The aforesaid recoveries were attested by Godu Ram, Tehsildar E.O.H., Ambala PW 2. Alongwith the recovered articles, were eight cassettes containing the recorded statements on the tapped telephone number referred to hereinabove. After completing the investigation, but before proceedings could be initiated against the accused/appellant Mohd. Salim @ Jagdeep, it was essential to obtain sanction from the Government of India. Accordingly, in response to a request made to the Ministry of Home Affairs, Government of India, sanction was granted by an order dated 26.3.2003 for the prosecution of the accused/appellant Mohd. Salim @ Jagdeep. A challan was, accordingly, presented on 31.3.2003 in the Court of the Chief Judicial Magistrate, Ambala.
3. The Chief Judicial Magistrate, Ambala, by his ordered dated 26.4.2003 recorded his prima-facie satisfaction of the commission of offences punishable under Section 14 of the Foreigners Act, 1946, and under Sections 3, 5 and 7 of the Official Secrets Act, 1923. The accused/appellant Mohd. Salim @ Jagdeep, at that juncture, moved an application under Section 13(2) of the Official Secrets Act, 1923, stating that he desired to be tried by the Court of Session. The Chief Judicial Magistrate, Ambala, accordingly, committed the case for trial to the Court of Session vide his order dated 27.8.2003.
4. By an order dated 16.9.2003, the Additional Sessions Judge, Ambala, charged the accused/appellant Mohd. Salim @ Jagdeep under Section 3 of the Official Secrets Act, 1923 on account of his having taken photographs of the Air Force Station, Ambala Cantt, which is a prohibited area, for purposes prejudicial to the safety/interest of India. He was also charged under Section 5 of the Official Secrets Act, 1923 as he was found to be in possession of material prejudicial to the safety/interest of India. He was also charge under Section 7 of the Official Secrets Act, 1923 on account of the fact, that he had communicated secret information on telephone bearing No.0097150784315, located in Pakistan. Lastly, having entered India without a valid passport, he was charged under Section 14 of the Foreigners Act, 1946.
5. The accused when confronted with the charges levelled against him pleaded not guilty and claimed trial.
6. During the course of trial, the prosecution examined a number of witnesses. A brief description of the statements of the witnesses produced by the prosecution before the trial Court, is being summarised hereunder. The statement of SI Karam Singh was recorded as PW 1. He was one of the members of the raiding party constituted on 1.11.2002 during the course of which the accused/appellant Mohd. Salim @ Jagdeep was detained. A perusal of the statement of SI Karam Singh PW 1 reveals, that he had assisted Inspector Mange Ram PW 5 and Inspector Ashok Kumar PW 19 when the raid by the two police parties, was conducted on 1.11.2002.
7. He also confirmed, that the accused/appellant Mohd. Salim @ Jagdeep had suffered a disclosure statement Ex.P1 in his presence asserting therein, that he had kept concealed one bag containing maps, information of para military forces and photographs of important places of the Indian Army etc., besides information written in Urdu regarding Indian Army units in his pant (trouser). In his disclosure statement Ex.P1, he had also stated that he has placed some negatives in a wooden khokha installed near the Bus Stand, Amritsar. It is apparent, therefore, that SI Karam Singh PW 1 was an eye witness and had seen the occurrence, namely, the accused/appellant Mohd. Salim @ Jagdeep taking photographs of the Air Force Station, Ambala on 1.11.2002 prior to his being apprehended. Godu Ram, Tehsildar, Ambala was produced by the prosecution as PW 2. In his statement, he asserted, that he had been associated with the raiding parties on the orders of the Deputy Commissioner, Ambala. He confirmed the factual position noticed in the complaint made by Inspector Ashok Kumar PW 19 to the effect, that the accused/appellant Mohd. Salim @ Jagdeep had climbed over a wall so as to enter the shop of Saini Advertising Agency, and thereafter, climbed up a stair to reach its roof from where he was taking photographs of the Air Force Station, Ambala Cantt. He also affirmed the recoveries made from the accused/appellant Mohd. Salim @ Jagdeep when he was arrested. He confirmed that he was a witness to the disclosure statement Ex.P1 made by the accused/appellant Mohd. Salim @ Jagdeep, on his interrogation after he was apprehended on 1.11.2002. He also affirmed being a witness when the recovery memo was prepared consequent upon the accused/appellant Mohd. Salim @ Jagdeep having taken the police party to the place referred, from where the recoveries were made. The statement of Veena Rani Bhatia was recorded as PW 3. In her statement, she asserted that she had been introduced to Jagdeep by Charanjit Singh. Charanjit Singh had informed Veena Rani Bhatia PW 3 that Jagdeep was an expert in dyeing and colouring dupattas. He had, accordingly, recommended that she should employ him in her business. Although, she had declined the request of Charanjit Singh in the first instance, but both Charanjit Singh and the accused/appellant Mohd. Salim @ Jagdeep again came to her and showed their helplessness. But, again she refused to accept him in her employment. She further stated that thereafter Jagdeep used to visit her at times and requested her to allow him to use her telephone. He also used to request her, that in case, she received a message on telephone on his behalf, she should communicate the same to him. She also asserted that he would receive telephonic calls on behalf of the accused/appellant Mohd. Salim @ Jagdeep and either allow him to take the same or in alternatively conveyed him the required message. She also stated, that certain money was deposited in her bank account on behalf of the accused/appellant Mohd. Salim @ Jagdeep. On the receipt of the aforesaid money, Veena Rani Bhatia PW 3 withdrew the same from her bank account and gave it to the accused/appellant Mohd. Salim @ Jagdeep. She also affirmed, that she was not aware that Jagdeep was not the real name of Mohd. Salim and additionally, that Jagdeep @ Mohd. Salim was a Muslim. Prem Chand was produced by the prosecution as PW 4. Prem Chand PW 4 was also one of the persons associated with the raiding and investigating parties constituted on 1.11.2002. He reiterated the factual position noticed against the names of other witnesses whose statements have already been discussed hereinabove. It would, however, be pertinent to mention, that Prem Chand PW 4 could not identify whether the accused/appellant present in Court, was the same person who had scaled the wall of the shop of Saini Advertising Agency, and used a ladder to go to the roof of the aforesaid shop. Inspector (retired) Mange Ram appeared as PW 5. He is also an eye witness to the accused/appellant Mohd. Salim @ Jagdeep, taking photographs from the roof of the shop of Saini Advertising Agency. He was also a witness to the interrogation of the accused/appellant Mohd. Salim @ Jagdeep, as also, to the recovery of documents Ex.P3 to P96 and Ex.P97 to P139. According to Mange Ram PW 5, all the documents were put in a parcel. They were sealed and were then handed over to Godu Ram, Tehsildar, Ambala PW 2. Ravinder Kumar Bharara was examined as PW 6. He corroborated the testimony of Veena Rani Bhatia PW 3. In his capacity as Manager, Allahabad Bank, Ambala City, wherein Veena Rani Bhatia PW 3 had stated, that she had received a cheque of Rs. 5,000/- on behalf of the accused/appellant Mohd. Salim @ Jagdeep, and that, she had withdrawn the said amount and given it to the accused/appellant Mohd. Salim @ Jagdeep. ASI Balwant Singh was produced by the prosecution as PW 7. He produced eight cassettes which contained recordings of the conversations on the tapped telephone bearing No. 2443615 installed at the residence of Veena Rani Bhatia PW 3, which was being used by the accused/appellant Mohd. Salim @ Jagdeep for receiving and making calls, including international calls. He also affirmed that he had heard recordings in the aforesaid cassettes which had taken 5-6 hours. Rajinder Kumar was examined as PW 8. He confirmed that the accused/appellant Mohd. Salim @ Jagdeep had contacted him for employment and had disclosed to him, that his name was Jagdeep and he was a resident of Dehradun. He also asserted, that he had engaged the accused/appellant Mohd. Salim @ Jagdeep for colouring/dyeing dupattas and other clothing. Rajinder Kumar PW 8 also deposed that he was a witness to the recovery of photographs and negatives and clothing on the basis of the disclosure statement made by the accused/appellant Mohd. Salim @ Jagdeep. Head Constable Chander Pal PW 9 was a member of the raiding party and reiterated the factual position narrated by the members of the raiding party. ASI Baldev Singh was produced by the prosecution as PW 10. As per his statement, the accused/appellant Mohd. Salim @ Jagdeep had suffered a disclosure statement Ex.P1 on 1.11.2002 in his presence. In his cross-examination, ASI Baldev Singh PW 10 denied that any recovery was made in his presence on the basis of the disclosure statement of the accused/appellant Mohd. Salim @ Jagdeep. Constable Pramod Kumar appeared before the trial Court as PW 11 and Mehar Singh Saini, Steno to the Superintendent of Police, Yamuna Nagar as PW 12. The aforesaid witnesses made formal statements. The statement of Tilak Raj Arora was recorded as PW 13. His statement pertains to the production of the transcript of Telephone No. 2443615 for the period from 1.6.2002 to 31.7.2002. The statement of Ms. Sarita Gupta, Additional District and Sessions Judge (Fast Tract Court), Bhiwani was recorded as PW 14. In her deposition, she asserted that she was the Chief Judicial Magistrate, Ambala, and that Mohd., Salim @ Jagdeep was produced in her Court for taking the specimen of his hand writings and signatures, as also for recording his voice, but he had refused to give consent for the same. Inspector Som Raj was produced by the prosecution as PW 15. His statement is of a formal nature pertaining to the application made to the General Manager, Telecommunication, Ambala Cantt with regard to telephone bearing No. 2443615. SI Randhir Singh appeared as PW 16. He affirmed that he had prepared the report under Section 173 of the Criminal Procedure Code. Shafed Ahmed, working in the Punjab Wakf Board, Ambala recorded his statement as PW 16. He was deputed to translate into Hindi the documents inscribed in Urdu, recovered from the accused/appellant Mohd. Salim @ Jagdeep. Mitter Sain appeared as PW 18 and deposed that a person with the name of Jagdeep had stayed at Suhag Hotel. It would, however, be pertinent to mention, that Mitter Sain PW 18 could not identify the accused/appellant Mohd. Salim @ Jagdeep. Inspector Ashok Kumar appeared as PW 19 and reiterated the entire sequence of events as had been disclosed by him in his statement dated 1.11.2002. After the conclusion of the evidence produced by the prosecution, the accused/appellant Mohd. Salim @ Jagdeep was confronted with the incriminating evidence. He denied the same and asserted that he was innocent and that he had been falsely implicated in the case. He further stated that he committed no such offence. He also denied that he had been arrested by the police from the shop of Saini Advertising Agency. He also stated, that no recovery had ever been made from his possession, as has been alleged by the police. He stated that he had wrongly been roped in by the police. The accused/appellant Mohd. Salim @ Jagdeep was afforded an opportunity to lead his defence evidence. He, however, closed his defence evidence without producing any witness.
8. The Additional Sessions Judge, Ambala delivered the judgment in Sessions Case No. 37 of 2003, on 16.8.2004. The accused/appellant Mohd. Salim @ Jagdeep was held guilty of the offence punishable under Section 14 of the Foreigners Act, 1946 and under Sections 3 and 5 of the Official Secrets Act, 1923. After having heard the accused/appellant Mohd. Salim @ Jagdeep on the question of sentence, he was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- under Section 14 of the Foreigners Act, 1946. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for three months. He was also sentenced to undergo rigorous imprisonment for fourteen years under Section 3 of the Official Secrets Act, 1923 and rigorous imprisonment for three years under Section 5 of the Official Secrets Act, 1923. It was also ordered that all the aforesaid sentences would run concurrently.
9. A perusal of the evidence produced on behalf of the prosecution, as well as, the judgment rendered by the Additional Sessions Judge, Ambala, reveal that while convicting the accused/appellant Mohd. Salim @ Jagdeep, reliance was placed on the ocular evidence produced by the prosecution. The trial Court concluded that the fact that the accused/appellant Mohd. Salim @ Jagdeep was taking photographs of a sensitive military installation at Ambala on the basis of the statement of SI Karam Singh PW 1, Godu Ram, Tehsildar, Ambala PW 2, Mange Ram PW 5, Head Constable Chander Pal PW 9 and Inspector Ashok Kumar PW 19, as all the aforesaid persons were associated with the raiding party which had posted itself in the vicinity of the shop of Saini Advertising Agency on 1.11.2002 when the accused/appellant Mohd. Salim @ Jagdeep had scaled the wall thereof and after climbing the stairs had reached the roof of the shop for taking photographs. The fact that the accused/appellant Mohd. Salim was a Pakistani national, but was posing to be an Indian belonging to Dehradun and has disguised himself by using the name Jagdeep came to be mainly substantiated through the statement of Veena Rani Bhatia PW 3 and Rajinder Kumar PW 8, as well as, from the application filed by him before the Chief Judicial Magistrate, Ambala whereupon, an order dated 14.11.2002 was passed noticing the fact that he had moved an application with the prayer that he be permitted to talk to his family on telephone bearing No.009241690729 at Faislabad in Pakistan, and also, on the basis of the particulars given by him to the trial Court when his statement was recorded, that he was a resident of No. 557-B, Civil Quarters, Gulam Mohammadabad, Faislabad, Pakistan. In so far as the alleged activities conducted by him in and around the area of Ambala are concerned, reliance was placed on his disclosure statement Ex.P1, which was recorded in the presence of Inspector Mange Ram PW 5 and ASI Baldev Singh PW 10 and witnessed by Godu Ram, Tehsildar, Ambala PW 2, as also, the recovery memo Ex.P2, witnessed by Inspector Mange Ram PW 5 and Rajinder Kumar PW 8, besides being attested by Godu Ram, Tehsildar, Ambala PW 2 which led to the recovery of Ex.P3 to P139 i.e., photographs and negatives of various defence installations, railway tracks, bridges, as also, particulars of troop movements, important addresses etc. His association with military personnel belonging to the ISI i.e. secret agency of Pakistan, was sought to be established from the statement of Inspector Som Raj PW 15, who had deposed that his conversations on the telephone in Pakistan, were with an army major of the Pakistan army.
10. In order to repudiate the conclusion drawn by the trial Court in the impugned judgment dated 16.8.2004, and also, in order to demonstrate that the evidence relied upon by the trial Court in recording the conviction of the accused/appellant Mohd. Salim @ Jagdeep was not credit-worthy, the learned Counsel for the accused/appellant raised a number of contentions. The same are being dealt with sequentially hereinafter.
11. The first contention of the learned Counsel for the accused/appellant was that the entire prosecution story is a matter of manipulation. In this behalf, it is submitted that the sole independent witness associated with the raiding party, namely, Prem Chand PW 4 had failed to toe the prosecution story. Learned Counsel for the accused/appellant has invited our attention to the statement of Prem Chand PW 4, wherein he refused to identify accused/appellant Mohd. Salim @ Jagdeep in Court, as the same person who was taking photographs from the shop of Saini Advertising Agency on 1.11.2002. It is also the vehement contention of the learned Counsel for the accused/appellant that the other witnesses in the case were police personnel and must be considered as interested witnesses, because their first objective is to ensure the success of the case. We have considered the first contention of the learned Counsel for the accused/appellant on the basis of the statement of Prem Chand PW 4. A perusal of the statement of Prem Chand PW 4 reveals that he was factually a member of the raiding party. He also acknowledged that he had seen a man on the date of occurrence i.e. on 1.11.2002, as a member of the raiding party, scaling the wall of the shop of Saini Advertising Agency, and further that the said main had climbed stars to go to the roof of the said shop. He also deposed that the same man was seen by him taking photographs of the Air Force Station, nearby. He also acknowledged that the aforesaid person was apprehended by the police, and on being questioned he had acknowledged that his name was Jagdeep @ Mohd. Salim, as also the fact that he was an ISI agent from Pakistan engaged in spying activities in India, for Pakistan. In the background of the aforesaid acknowledged assertion by Prem Chand PW 4 during the course of his cross-examination, as also the fact, that the said person was arrested in his presence and one camera alongwith currency notes, was recovered from him which was taken into possession by the police, we find no justification in the first contention advanced by the learned Counsel for the accused/appellant. When read with the statements of others associated with the raiding party, including SI Karam Singh PW 1, Godu Ram, Tehsildar, Ambala PW 2, Inspector Mange Ram PW 5, Head Constable Chander Pal PW 9 and Inspector Ashok Kumar PW 19, there can be no doubt that the person detained from the shop of Saini Advertising Agency was none other than the accused/appellant Mohd. Salim @ Jagdeep. The mere fact that one of the witnesses could not identify him in Court despite having given all particulars connected to him in his statement, would make no difference. When the evidence of Prem Chand PW 4 is read collectively with the statements of other witnesses referred to above, the fact that he could not identify the accused/appellant Mohd. Salim @ Jagdeep in Court, would be insignificant a fact to disbelieve all other witnesses. It is also not possible for us to accept the second aspect of the matter, namely, that only police personnel were associated with raiding party. It would be pertinent to mention, that a formal request was made by the police to the Deputy Commissioner, whereupon Godu Ram, Tehsildar, Ambala was associated with the raiding party. Godu Ram, Tehsildar, Ambala had appeared as PW 2 and had supported the prosecution story in all material particulars.
12. The second contention of the the learned Counsel for the accused/appellant is that the recoveries allegedly made from the accused/appellant Mohd. Salim @ Jagdeep were made prior in point of time, whereas he had been arrested later in point of time. In this behalf, the learned Counsel for the accused/appellant has invited the Court's attention to the testimony of SI Karam Singh PW 1. According to him, the aforesaid testimony relates to the disclosure statement made by the accused/appellant Mohd. Salim @ Jagdeep, but does not narrate the fact relating to the sequence of incident which had taken place immediately prior thereto, namely, the raid on the shop of Saini Advertising Agency and the detention and interrogation of the accused/appellant Mohd. Salim @ Jagdeep. The aforesaid contention of the learned Counsel for the accused/appellant, to our mind, is wholly misconceived. Through the instant submission, it is not the intention of the learned Counsel for the accused/appellant to contest the veracity of the statement of SI Karam Singh PW 1. In fact, SI Karam Singh PW 1 was not subjected to any serious crossexamination, whatsoever. In the aforesaid view of the matter, the testimony of SI Karam Singh PW 1 will be deemed to be limited only to the disclosure statement to which he was a witness. In so far as the issue that recoveries allegedly made from him had preceded his detention and arrest, we are of the view, that the accused/appellant Mohd. Salim @ Jagdeep was apprehended and interrogated on 1.11.2002 by a large number of members of the raiding party, when he was found to be taking photographs from the roof of the shop of Saini Advertising Agency. The aforesaid sequence of facts have been proved on the basis of the testimony of a large number of eye witnesses accounts which included, besides others, Godu Ram, Tehsildar, Ambala PW 2, Inspector Mange Ram PW 5, Head Constable Chander Pal PW 9 and Inspector Ashok Kumar PW 19. In fact, even the witness who had failed to identify the accused/appellant Mohd. Salim @ Jagdeep, namely, Prem Chand PW 4 deposed that a person had scales the wall of the shop of Saini Advertising Agency on 1.11.2002 and climbed its stairs to reach its roof and was taking photographs of the Air Force Station at Ambala. He also stated that on being apprehended, he disclosed that his name was that of the accused/appellant Mohd. Salim @ Jagdeep. Thus viewed, it is not possible for us to accept that the recoveries were made from the accused/appellant Mohd. Salim @ Jagdeep well before his arrest on 1.11.2002, specially because out of the aforesaid witnesses, Godu Ram, Tehsildar, Ambala PW 2, Inspector Mange Ram PW 5 and ASI Baldev Singh PW 10 were also witness to his disclosure statement. The third contention of the learned Counsel for the accused/appellant is based on the testimony of Tilak Raj Arora PW 13, who was posted as Divisional Engineer in the office of the General Manager, Telecom, Ambala, and had prepared the transcript of telephone bearing No. 2443615 for the period from 1.6.2002 to 31.7.2002 and produced the details of the same before the Court as Ex.P154. Learned Counsel for the accused/appellant desired the Court to go through the cross-examination conducted on Tilak Raj Arora PW 13, which reads as under:
It is correct that there is no signature on Ex.P154 and Ex.P155 and it does not carry any stamp of the telephone exchange. It is correct that we cannot not supply information of any telephone number to any body. I have not brought any record which can show that any application had been filed by the police to our Deptt. I do not remember how many times, place had recorded my statement, I do not remember when the police had recorded my statement.
13. In view of the factual position explained in his cross-examination, it is submitted that the testimony of Tilak Raj Arora PW 13 is totally worthless. We have considered the third contention of the learned Counsel for the accused/appellant. Learned Counsel for the accused/appellant has over-looked the testimony of Tilak Raj Arora PW 13 during the course of his examination-in-chief, wherein he stated that on police demand he had himself prepared the transcript of telephone bearing No. 2443615 for the period from 1.6.2002 to 31.7.2002. The authenticity of the aforesaid transcript prepared at the hands of Tilak Raj Arora PW 13 is not a subject matter of challenge at the hands of the appellant as it was not contested during the course of cross-examination as no question, whatsoever, was posed to the witness to the effect that the transcript prepared by him was not in consonance with the record available in the office of the General Manager, Telecom, Ambala. It is, therefore, clear that the veracity of Ex.P154 was not challenged by the appellant. In this view of the matter, it is clear that the witness under reference successfully supported the purpose for which he was summoned, namely, to show that calls have been made to Pakistan to a particular number. Accordingly, we find no merit in the instant contention of the learned Counsel for the accused/appellant. The fourth contention of the learned Counsel for the accused/appellant was based on the statement of ASI Balwant Singh PW 7, who had produced tape recordings of conversations between the accused/appellant Mohd. Salim @ Jagdeep and others from telephone bearing No. 2443615 installed at the residence of Veena Rani Bhatia PW 3. In order to nullify the statement of ASI Balwant Singh PW 7, learned Counsel for the accused/appellant has again invited the Court's attention to the response of the aforesaid witness, to his cross-examination which is extracted hereunder:
These cassettes were heard by us at residence of DSP H.Q. It took about 5 to 6 hours to listen to these cassettes. I cannot tell the conversation of these tapes. Again said, I had heard these cassettes. These cassettes were not recovered from accused Mohd. Saleem alia Jagdeep, in my presence. When these were produced at residence of DSP, those were not sealed nor any number was written on them. These cassettes are easily available in the open market. These were in possession of the C. Lokesh Kumar who was on duty on Telephone. It is wrong to suggest that I am deposing falsely or that nothing had happened in my presence.
14. In view of the factual position expressed in his cross-examination, it is submitted that the statement of ASI Balwant Singh PW 7 is totally worthless. It is not possible for us to accept the aforesaid contention of the learned Counsel for the accused/appellant on account of the fact that it has come on record in the nature of the statement of Ms. Sarita Gupta, Additional District and Sessions Judge (Fast Tract Court), Bhiwani PW 14, that while she was the Chief Judicial Magistrate at Ambala, the accused/appellant Mohd. Salim @ Jagdeep had declined to give a specimen of his hand writing and signatures, and had also refused to get his voice recorded. The veracity of the statement of ASI Balwant Singh PW 7 could have been contested at the hands of the accused/appellant Mohd. Salim @ Jagdeep only if he had been bold enough to get his voice recorded so that the veracity of the tape recording produced by ASI Balwant Singh PW 7 could be tested. Since the accused/appellant Mohd. Salim @ Jagdeep refused to get his voice recorded, an inference will naturally have to be drawn against him to the effect that if he had got his voice recorded it would have matched the voice recorded in the cassettes, prepared from the telephone bearing No. 2443615. Accordingly, we find no justification in the fourth contention of the learned Counsel for the appellant. Having recorded conclusions on each of the pleas advanced by the learned Counsel for the accused/appellant, and keeping in mind, the seriousness of the allegations levelled against the accused/appellant Mohd. Salim @ Jagdeep, we have also independently examined the evidence produced by the prosecution. From the statement of Veena Rani Bhatia PW 3 and Rajinder Kumar PW 8, it clearly emerges that the accused/appellant Mohd. Salim was posing himself as Jagdeep of Dehradun. There is no reason to doubt the veracity of the statement of Veena Rani Bhatia PW 3 as the accused/appellant Mohd. Salim @ Jagdeep is linked to her through a bank transaction in respect of which she recorded her statement on oath while appearing as a witness. The said bank transaction was fully endorsed by Ravinder Kumar Bharara PW 6. One cannot over-look the fact that by asserting that his name was Jagdeep, the accused/appellant Mohd. Salim @ Jagdeep was posing as a non-Muslim. It is, therefore, that the statement of Veena Rani Bhatia PW 3 assumes importance wherein she had clearly stated that she did not know that the accused/appellant was a Muslim. Besides the false poser of the accused/appellant under the disguised name of Jagdeep, he was caught red handed from the roof of the shop of Saini Advertising Agency, taking photographs of an important defence installation, namely, Air Force Station, Dhulkot. His disclosure statement Ex.P1 led to the recovery of Ex.P3 to P139 through recovery memo Ex.P2. The documents recovered from the accused/appellant Mohd. Salim @ Jagdeep pertained to defence installations, particulars of troop movements, railway tracks, bridges, besides names and addresses etc. There is no assertion at the hands of the accused/appellant Mohd. Salim @ Jagdeep, explaining why and how all the recovered documents were of interest to him, as also, why he had kept them with himself. But for the explanation which emerges from the telephonic conversation which the accused/appellant Mohd. Salim @ Jagdeep had with his superiors in Pakistan, there is no other material to be taken into consideration. In the aforesaid context, the statement of Inspector Som Raj PW 15 assumes importance. Inspector Som Raj PW 15 testified that instructions were being issued to accused/appellant Mohd. Salim @ Jagdeep from an army major in Pakistan. Not only has the accused/appellant Mohd. Salim @ Jagdeep not been able to give details about his Indian bearing, it is also on record that he moved an application before the Chief Judicial Magistrate, Ambala which was decided on 14.11.2002, wherein he had made a request that he be permitted to talk to his family on telephone bearing No.009241690729 at Faislabad, Pakistan. Additionally, while deposing before the Additional Sessions Judge, Ambala, he recorded his name and address as Mohd. Salim @ Jagdeep son of Mohd. Nazir, aged 37 years, resident of House No. 557-B, Civil Quarters, Gulam Mohammadabad, District Faislabad, Pakistan. From the above, it is clear that the prosecution was successful in establishing the guilt of the accused/appellant Mohd. Salim @ Jagdeep to the hilt.
15. In view of the above, we find no merit in the instant appeal.
16. The instant appeal preferred by the accused/appellant Mohd. Salim @ Jagdeep is, accordingly, dismissed.
17. The interim order passed on 18.11.2004 by which recovery of fine was stayed during the pendency of the instant appeal, is cancelled. The Chief Judicial Magistrate is directed to take necessary steps to recover the fine imposed by the trial Court on the accused/appellant Mohd. Salim @ Jagdeep, failing which he shall undergo further imprisonment as ordered by the trial Court.