Delhi District Court
State vs . Ahmad Mian Siddiqui on 9 November, 2011
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL); DELHI
SC No.29/10
In the matter of:
State Vs. Ahmad Mian Siddiqui
S/o Mohd. Mian Siddiqui,
R/o 1274, Pahari Zmali,
Churiwalan, Daryaganj,
Delhi.
FIR No.206/2000
U/s 3 and 9 Official Secrets Act,
PS Tuglaq Road, New Delhi.
JUDGMENT
Ahmad Mian Siddiqui (accused) has been facing trial for offences U/s 120B IPC and Sec 3 & 9 of Official Secret Act read with Sec.120 B of IPC.
2. Initially, two persons, namely, Mohd. Riaz and Ahmad Mian Siddiqui were challaned and charged for the aforesaid offences. Charge was framed on 23.02.01 by learned Chief Metropolitan Magistrate, Delhi. On completion of trial, Ahmad Mian Siddiqui FIR No. 206/2000 1 (accused) was acquitted of the charge framed against him, whereas his coaccused Mohd. Riaz was held guilty and convicted of the offence U/s 120 B IPC and Sec 3 & 9 of Official Secret Act, vide judgment dt. 16.12.05 and order on sentence dt. 24.12.05 passed by Chief Judicial Magistrate, Delhi.
3. Feeling aggrieved by the order of acquittal of Ahmad Mian Siddiqui (accused), State preferred Criminal Appeal No.758/07. Vide judgment dt.31.03.09, Hon'ble High Court of Delhi set aside the order dt.24.12.05 and disposed of the appeal (No.758/07) by directing disposal of the case afresh, so far as respondentpresent accused is concerned, observing in the manner as : "In view of the aforesaid proposition of law which is well established, taking into consideration the allegations made against the appellant, the act performed by the appellant in parting with the official documents which he was not required to deal with it in his official capacity certainly does not require any sanction. To this aspect even the learned counsel for the respondent also not raised any objection.
In these circumstances, taking into consideration the judgments cited by the appellant, the impugned order dt. 24.12.05 is set aside only on the point as it proceeds on the basis that no sanction has been obtained by the appellant for prosecution of the respondent. The parties are directed to appear before the learned Sessions Judge who would FIR No. 206/2000 2 then mark the case to the successor court on 01.05.09.
Nothing stated herein would take away the rights of the respondent to raise whatever legal pleas are available to him including the issue of jurisdiction."
4. Accordingly, Ahmad Mian Siddiqui (accused) is once again in the dock.
5. Present case bearing FIR No.6/10 came to be registered on the basis of information received by police of police station Tuglaq Road, Delhi that one Mohd. Riaz in conspiracy with Pakistan Intelligence Officer, namely, Hashim based in Pakistan was collecting/communicating to foreign agent including the above named Pak intelligence Official, document/ information relating to the Defence matters of the country, the disclosure of which to an unauthorised person, could be prejudicial to sovereignty and Integrity of India, the security of the state and friendly relations with foreign state and / or which are intended to be or calculated to be or might be directly or indirectly useful to an enemy country.
6. Information further revealed that Mohd. Riaz was 30 years old and his height was 5'8". There was a healed cut mark on his forehead and was having shallow complexion with short hair, and that he was fond of wearing blue shirt and black pant with sandals. On FIR No. 206/2000 3 19.09.2000, military intelligence informed that said Riaz had collected documents and that he would be passing on the same to the agent of Pak intelligence official at 8.10 p.m. at Lodhi Garden Gate facing Southend road.
7. On the basis of aforesaid information, police party consisting of Inspector H.S. Gill, SI Gurudev Singh, SI Sunder Lal, ASI Janak Dass and ASI Nand Lal reached the disclosed place.
8. One person, whose description tallied with the description as disclosed in the information, came at the gate. He was having one polythene bag in his right hand. He kept standing there till 9.00 p.m. It appeared as if he was waiting for some body. When he was about to move away, he was nabbed by the party.
9. During interrogation, said person was found to be Mohd. Riaz S/o Mohd. Nawaz R/o Vill. Moza Badhshey Wala PO and PS Depal Pur, Distt. Okara, Punjab, Pakistan. Checking of the polythene bag, which he was holding in his right hand, led to recovery of following booklets :
"(1) Photocopy of brief notes on issues of Importance that may come up during budget session - 2000 of Ministry of Defence marked as "Confidential" containing - 40 sheets (2) Photocopy of brief on Border Roads Organisation meeting of Parliamentary Consultative Committee of Ministry of Defence marked as FIR No. 206/2000 4 "Restricted" containing - 65 sheets (3) First report standing committee on Defence, Ministry of Defence containing - 23 sheet.
(4) Fifth Report standing committee on Defence, Ministry of Defence containing - 15 sheets."
10. The aforesaid documents were taken into police possession. On further interrogation Mohd. Riaz disclosed that the said documents had been obtained by him from Ahmed Mian Siddiqui working as P.A. in Parliament House and the same were to be passed on to the agent of Pakistan based intelligence official. That is how present case came to be registered. Special reports were sent to senior officers and Chief Metropolitan Magistrate. The investigation was assigned to SI Gurdev Singh.
11. In pursuance of disclosure statement of Mohd. Riaz, the accused now present in the dockAhmad Mian Siddiqui was arrested. SI Gurdev Singh took up matter with Officers of Parliament to have their opinion and reports about nature and confidentiality of the documents recovered from Mohd. Riaz and passed on to him by his coaccused. Record regarding posting and transfer of Ahmad Mian Siddiqui was also collected.
12. On completion of investigation, challan was put in court. FIR No. 206/2000 5
Charge
13. Prima facie case having been made out against the accused and his coaccused, charge for an offence U/s 120B IPC was framed against both of them and charge for offence U/s 3 & 9 of Official Secret Act read with Sec.120 B of IPC was also framed. Since they pleaded not guilty and claimed trial prosecution was called upon to lead evidence.
Prosecution Evidence
14. To prove his case, prosecution examined following witnesses : PW1 Sh. Sohan Singh, a witness from the public; PW2 Ct. Dhurva Giri;
PW3 ASI Janak Raj, Special Cell;
PW4 Sh. B.R. Dhiman, Under Secretary, Ministry of Home Affairs;
PW5 Lt. Col. Ramesh Sharma;
PW6 Capt. Kapil Gupta, Joint Director, Naval Operation; PW7 Sh. Jagannath Patru, Joint Director ( DA&R); PW8 SI Pankaj Singh;
PW9 Sh. V.S. Bansal (Retd.), Dy. Secretary, Ministry of Parliamentary Affairs;
FIR No. 206/2000 6 PW10 Col. Vijay Kumar, Head Quarter DGBR;
PW11 Mrs. Satish Malhotra, (Retd.) Dy. Secretary, Ministry of Parliamentary Affairs;
PW12 Inspector Sunder Lal;
PW13 Sh. Ashok Chand, DCP Special Cell;
PW14 Inspector H.S. Gill, Special Cell; Incharge of the raiding party PW15 SI Gurdev Singh, Special Cell, Investigating Officer of the case;
PW16 Sh. P.S. Malhotra, Under Secretary, Ministry of Parliament Affairs; and PW17 Sh. Ram Avatar Ram, (Retd.) Joint Secretary, Lok Sabha Secretariat.
Plea of the Accused
15. In his statement under Section 313 Cr.P.C., present accused denied all the incriminating circumstances appearing in evidence against him and pleaded false implication. However, he opted not to lead any evidence in defence.
16. Arguments heard. File perused.
FIR No. 206/2000 7
17. It may be mentioned that the point of sanction U/s 197 Cr.P.C. for prosecution of the present accused has already been decided by the Hon'ble High Court. Now it is to be seen if prosecution has been able to establish the accusation levelled case against him.
Contentions
18. Learned Addl. P.P. has contended that from the material available on record, it stands established that Mohd. Riaz coaccused was arrested on 19.09.2000 with the secret information, as contained in the documents recovered from his possession; that he made disclosure statement on 20.09.2000 disclosing therein that he had collected the documents from the present accused Ahmad Mian Siddiqui, and on the basis of this disclosure, it transpired that the present accused was posted as P.A. in Parliament House and this led to his arrest. Learned Addl. P.P. has further contended that when it stands established that present accused in conspiracy with his co accused communicated the documents containing official secrets to a foreign agent, he is liable to be convicted and sentenced for the aforesaid offences.
FIR No. 206/2000 8
Competence of Court of Session to try cases under Official Secrets Act
19. On the other hand, Learned counsel for the accused has referred to the observations made by Hon'ble High Court in order dt.31.03.09 that nothing said therein would take away the rights of the respondent (accused herein) to raise whatever legal pleas are available to him including the issue of jurisdiction. Learned counsel has then contended that Court of Session has no jurisdiction to try the present case and that only the Court of Chief Metropolitan Magistrate hi is competent to try such cases.
20. The point regarding jurisdiction of the Court of Session to try such cases has been decided by our own Hon'ble High Court in N.G. Sheth Vs. CBI & Ors. ILR (2008) Supp. 5 (Delhi) 168.
21. In N.G. Sheth's case (supra), it finds mention that Vide Gazette Notification dt.06.03.98 the Central Government, in exercise of powers conferred upon it by Sec.13(1) of the OS Act, empowered the Chief Metropolitan Magistrate (CMM), Delhi to try offences punishable under this statute. In terms of Notification dt.21.06.06 of the Ministry of Home Affairs the Central Government rescinded the earlier Notification dt.06.03.98 thereby withdrawing the special FIR No. 206/2000 9 empowerment of the CM under the OS Act in this regard. Predicated on the decision of the Delhi High Court on the Administrative side the Registrar General, Delhi High Court addressed a letter no. 28088/G3/OP Act/ Gaz/06 dt.07.12.06 to Learned District & Sessions Judge, Delhi directing that all the cases pending under the Official Secrets Act be withdrawn from the Court of CMM and be assigned to the Special/Sessions Judges.
22. While dealing with the interpretation of Sec.13 of Official Secrets Act, 1923 and sundry sections of Cr.P.C. and legality of gazette notification dt.21.06.06 of the Ministry of Home Affairs, Hon'ble High Court has held as under: "The cumulative effect of the impugned Notification is that the CMM has ceased to have jurisdiction to try the criminal cases pending before him. Consequent upon the withdrawal or rescission of the special empowerment the Court of Sessions would have jurisdiction to try the cases. The impugned administrative decision of this Court, therefore, validly transfers the pending cases from the Court of CMM to the Court of Sessions. The petitions are dismissed ......."
23. In view of the above decision in N.G. Sheth's case, this Court is fully empowered and competent to decide this case and the contention raised by learned counsel for the accused is obviously without any FIR No. 206/2000 10 merit.
Recovery of documents
24. Regarding seizure of the incriminating documents from Mohd. Riaz coaccused, prosecution has based its case on the statements of PW1 Sohan Singh PW12 SI Sunder Lal and PW14 Inspector H.S. Gill.
25. PW14 Inspector H.S. Gill stated before the court about receipt of secret information on 19.09.2000 from Military Intelligence against Mohd. Riaz coaccused . The Inspector narrated the contents of the information by him and went on to state that after having discussed the information with other officers he constituted raiding party comprising SI Sunder Lal, SI Gurdev Singh, ASI Janak Raj and ASI Nand Lal. The raiding party reached the disclosed place i.e. at the gate of Lodhi Garden and took position at different strategic points.
26. Further according to PW14, at about 8.00 p.m. Mohd. Riaz came to the disclosed place i.e. the gate of the Lodhi Garden. He was carrying a polythene bag in his hand. He started waiting for someone. Ultimately, at 9.00 p.m. He started moving and at that time, he was apprehended. According to PW14, search of polythene bag led to recovery of four types of documents Ex.PX, Ex.PY, Ex.PZ and Ex.PZ1.
FIR No. 206/2000 11
27. While deposing about joining of PW Sohan Lal, a witness from the public, the Inspector stated that the said witness reached at the spot in the meanwhile and he was joined in the investigation. PW Sohan Lal put signatures on each page of documents Ex.PX & Ex.PY. Document Ex.PX was running into 38 pages whereas document Ex.PY was running into 65 pages. Said Sohan Lal also signed other two documents Ex.PZ and Ex.PZ1 and front and the rear page. These were seized vide memo Ex.PW1/A. This memo was attested by PW Sohan Lal.
28. Further according to Inspector Mohd. Riaz accused made disclosure statement to the effect that he had collected these documents from one Ahmed working in parliament.
29. PW12 Inspector Sunder Lal, another member of the raiding party has deposed in line with statement of Inpector H.S. Gill regarding receipt of secret information, constituting of raiding party, their having reached the disclosed place i.e. at the gate of Lodhi Garden where the coaccused Mohd. Riaz arrived, and waited for someone, but who was apprehended when about to leave, and also about recovery of bag containing four types of documents. FIR No. 206/2000 12
30. As regards description of documents PW12 deposed that these were Budget Session of 2000 with a brief note, Border Road Association papers containing 65 sheets, 1st and 5th standing committee reports on defence containing 23 and 15 sheets respectively.
31. The witness also deposed about arrival of Sohan Lal who was joined in the investigation. He then deposed about signing of the recovered documents Ex.PX, Ex.PY, Ex.PZ and Ex.PZ1 by him and Sonal Lal PW. He further deposed about preparation of memo Ex.PW1/A vide which the aforesaid documents were seized.
32. PW Sohan Lal, referred to above, has been examined as PW1. According to this witness, on 19.09.2000, at about 9.30. p.m. he was going via Aurangzeb Road to Denmark Embassy, where he was working as mechanic. When he reached near Lodhi Garden, he saw that police had apprehended Mohd. Riaz. He further deposed that Mohd. Riaz was having one polythene bag containing some papers; that the polythene bag was checked in his presence and seized vide memo Ex.PW1/A. The witness further deposed to have sign the recovered documents namely Brief notes on issues of importance Ex.PX, comprising of 40 sheets; Brief notes on Border Road FIR No. 206/2000 13 Association running into 65 sheets; Ist report on standing committee on defence running into 23 sheets; and 5th report on standing committee. The witness identified his signatures at the given points on these documents Ex.PX, Ex.PY, Ex.PZ & Ex.PZ1. He further deposed that all these documents were recovered from the above referred polythene bag.
33. PW3 ASI Janak Raj was then posted as ASI with operation cell. He also deposed about receipt of secret information, constituting of raiding party, arrest of Mohd. Riaz on 19.09.2000 at about 8.00 p.m. from southern gate of Lodhi Garden by their party headed by Inspector H.S. Gill and recovery of polythene bag containing documents vide seizure memo Ex.PW1/A. Presumption to be drawn against an accused
34. Subsec.(2) of Sec.3 of Official Secrets Act provides that the accused may be convicted of the said offence if
(i) from the circumstances of the case or
(ii)conduct of the accused or
(iii) known character of the accused proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State; and if any sketch, plan, model, article, note, document or FIR No. 206/2000 14 information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or pass word is made, obtained collected recorded, published or communicated by any person other than a person acting under lawful authority.
This subsection further provides that accused may be convicted of the said offence if
(i)from the circumstances of the case or
(ii)conduct of the accused or
(iii)known character of the accused, it appears that his purpose was a purpose prejudicial to the safety or interests of the State, such sketch, plan, model, article, note, document, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State.
35. Having regard to all this contained in this section, Court proceeds to find out if prosecution has been able to establish its case against the accused.
Making of disclosure statement of Mohd. Riaz - coaccused
36. A disclosure statement made before the police by the accused person is admissible U/s 27 of Indian Evidence Act in case, any fact FIR No. 206/2000 15 deposed in any such statement is discovered in pursuance of the information provided by the maker of the statement, and only to the extent of discovery of such a fact. In order to prove disclosure statements attributed to Mohd. Riaz, it was for the prosecution witnesses to depose as to which fact was disclosed by the accused and as to which fact was discovered in pursuance thereto.
37. It is case of prosecution that Mohd. Riaz - coaccused made disclosure statement before the police, after his arrest and during interrogation, and on its basis it transpired that the present accused Ahmad Mian Siddiqui, posted as P.A. in Parliament House, had communicated the documents in question to him.
38. In the present case two witnesses, namely, Inspector Sunder Lal and SI Gurdev Singh were required to state in court that Mohd. Riaz - coaccused disclosed to them, while he was in their custody, that he had obtained communication / information as contained in the documents seized from Ahmad Mian Siddiqui (accused), posted as P.A.in Parliament, on such and such date, time and place.
39. Now, it is to be seen whether prosecution has proved on record the disclosure statement Ex.PW12/C and discovery of any fact in pursuance thereof, and that too in accordance with law. FIR No. 206/2000 16
40. The disclosure statement is Ex.PW12/C and purports to have been made before SI Gurdev Singh in presence of SI Sunder Lal on 20.09.2000. Prosecution has examined Inspector Sunder Lal as PW12 and SI Gurdev Singh as PW 15.
41. According to PW12 Inspector Sunder Lal on 20.09.2000 he again joined investigation of this case and police remand of Mohd. Riaz was obtained. Further, according to witness Mohd. Riaz made disclosure statement Ex.PW12/C and on its basis Ahmad Mian Siddiqui (accused) was arrested from its residence at Churiwalan, Delhi.
42. PW15 SI Gurdev Singh has stated that accused Mohd. Riaz was interrogated at the police station and during interrogation he made disclosure statement x.PW12/C.
43. It may be mentioned here that exhibition of this document as Ex.PW12/C was objected to by learned defence counsel as stands recorded in the statement of this witness. It was also suggested from the side of defence that Mohd. Riaz had not made any such disclosure statement and further that nothing was discovered in pursuance of said disclosure statement.
44. However, perusal of statement of PW12 & 15 would reveal that they simply deposed that Mohd. Riaz - coaccused made disclosure FIR No. 206/2000 17 statement Ex.PW12/C.
45. Neither PW12 nor PW15 stated in court as to what was disclosed by the accused Mohd. Riaz while making disclosure statement. Although PW12 stated Ahmad Mian Siddiqui (accused) was arrested on the basis of disclosure statement made by Mohd. Riaz
- coaccused, he did not state as to which fact was disclosed by Mohd. Riaz which led to arrest of the present accused. PW15 SI Gurdev Singh too nowhere stated that Ahmad Mian Siddiqui (accused) was arrested on the basis of any fact disclosed by Mohd. Riaz - co accused.
So prosecution has failed to prove the disclosure statement in accordance with law.
Arrest of Ahmad Mian Siddiqui on Disclosure of Mohd. Riaz
46. It is case of prosecution that after his arrest, Mohd. Riaz made disclosure statement which led to arrest of present accused Ahmad Mian Siddiqui and discovery of certain facts on 20.09.2000.
47. In order to prove this aspect of the case, prosecution has examined SI Gurdev Singh (PW15). As noticed above, SI Gurdev Singh was also a member of the raiding party that apprehended Mohd. FIR No. 206/2000 18 Riaz accused. According to PW15, after his arrest Mohd. Riaz was brought to the Police Station where he was interrogated. During interrogation, he made statement Ex.PW12/C. Further according to witness, on 20.09.2000 at the pointing out of Mohd. Riaz present accused Ahmad Mian Siddiqui was arrested. Identity card of Ahmad Mian Siddiqui is Ex.PW12/E, which was seized vide memo Ex.PW12/D. The witness also proved his attestation on arrest memo Ex.PW15/B and personal search memo Ex.PW12/A.
48. To the same effect is statement of Inspector Sunder Lal. According to this witness, on 20.09.2000 Mohd. Riaz made disclosure statement on the basis of which present accused Ahmad Mian Siddiqui was arrested from his residence in the area of Churiwalan, Delhi. Further according to witness, one Identity card, Rs.450/ and a wrist watch were recovered. These were seized vide memo Ex.PW12/D. Identity Card of present accused is Ex.PW12/E. Posting of Ahmad Mian Siddiqui during the days of occurrence
49. Prosecution has examined PW9 Sh. V. S. Bansal, Dy. Secretary, Ministry of Parliamentary Affairs. According to PW 9, Ahmad Mian Siddiqui was appointed as Stenographer in the Ministry of Parliamentary Affairs, in officiating capacity w.e.f. 05.11.86 until FIR No. 206/2000 19 further orders.
50. Accused has nowhere disputed that he was posted as P.A. and attached to PW11.
51. PW11 Mrs. Satish Malhotra, (Retd.) Dy. Secretary, Ministry of Parliamentary Affairs has deposed that Ahmad Mian Siddiqui (accused) was posted in her office (Office of Deputy Secretary Administration) as P.A. w.e.f.20.06.2000. Further according to witness, Ahmad Mian Siddiqui remained posted as such with her till the date of his arrest.
52. PW16 Sh.
P.S. Malhotra, Under Secretary, Ministry of Parliament Affairs has been examined to prove his report Ex.PW16/A sent by him to the Investigating Officer. According to the witness, order regarding suspension of Ahmad Mian Siddiqui was forwarded vide letter Ex.PW16/B. The witness also proved that vide letter Ex.PW16/C he had sent copy of order regarding appointment of Ahmad Mian Siddiqui . The appointment order is Ex.PW16/D.
53. From the statements of PW11 and 16, it has been proved that on 20.6.2000 the accused joined as P.A. in the office of Deputy Secretary (Administration) and prior thereto he was in the office of Deputy Secretary (Legislature).
FIR No. 206/2000 20
54. Once it is so established, question arises as to whether he got custody of any of the documents seized from Mohd. Riaz and as to what is the nature of the documents.
Nature of documents Ex.PZ and Ex.PZ1 "Ex.PZ: This is First Report of the Standing Committee on Defence on Action Taken on the recommendations contained in the Eighth Report of the Committee (Twelfth Lok Sabha) on Demands for Grants of the Ministry of Defence (19992000) presented on 19.04.2000.
Ex.PZ/1: This is the Fifth Report of the Standing Committee on Defence on Action Taken on the recommendations contained in the Fifth Report of the committee (Twelfth Lok Sabha) on Army Cantonments presented 22.08.2000."
55. PW17 Sh. Ram Avatar Ram, (Retd.) Joint Secretary, Lok Sabha Secretariat has proved that on receipt of letter Ex.PW17/A from the Investigating Officer alongwith documents Ex.PZ and Ex.PZ1, he examined these documents and submitted his report Ex.PW17/B.
56. These documents were seized from Mohd. Riaz on 19.9.2000.
57. According to PW17 Ram Avtar Ram, taking into consideration security aspect, both these reports were sent to the Ministry of Defence for formal vetting, to secure confidential nature of information. Report is also to the effect that both these reports Ex.PZ and Ex.PZ1 did not contain any secret or classified information. He further specifically mentioned in his report that after having been led on the table of the House the reports became public documents. FIR No. 206/2000 21
58. Report Ex.PW17/B reveal that Ex.PZ was presented on 19.04.2000 and report Ex.PZ1 was presented on 22.08.2000. None of these two reports contained the second page which according to PW17 should have seal of L.S. Secretariat with date of presentation to Lok Sabha and Rajya Sabha. In the said report PW17 Sh. Ram Autar Ram expressed his inability to comment as to when these documents Ex.PZ and Ex.PZ1 were acquired, the reason being that in the inner cover page where date of presentation was given, was missing.
59. Report Ex.PW17/B would reveal that these reports Ex.PZ and Ex.PZ1 had already been presented on 19.4.2000 and 22.8.2000 respectively. Relevant portion of the report Ex.PW17/B reads as under
: "The documents are two reports of the standing Committee on defence (1). First Report of the Standing Committee on Defence on Action Taken on the recommendations contained in the Eighth Report of the Committee (Twelfth Lok Sabha) on Demands for Grants of the Ministry of Defence (19992000) presented on 19.04.2000. (2) Fifth Report of the Standing Committee on Defence on Action Taken on the recommendations contained in the Fifth Report of the committee (Twelfth Lok Sabha) on Army Cantonments presented on 22.08.2000. "
60. About 1400 copies of English and 400 copies in Hindi are got published. After presentation, the reports of the Standing Committee on Defence become public documents and wide publicity is given to it. Apart from circulating to all Members of Parliament it is also sent to FIR No. 206/2000 22 various agencies and libraries as per the mailing list. They are also sent to the Ministry of Parliamentary Affairs. Reports are also available at the Sales counter of the Lok Sabha Secretariat.
61. With such wide circulation, after presentation of suchlike reports, how can the prosecution say that it is only the accused who passed on or communicated these documents to Mohd. Riaz and that too before their presentation, when nothing has been brought on record to suggest as to at what point of time or stage these documents were passed on to Mohd. Riaz.
62. It is significant to note that t he reports also contained printed corrigenda. Such printed corrigenda is generally attached to the report at the time of presentation i.e. after circulation for consideration and adoption by the Committee and ready to present to the both Houses of Parliament.
63. PW17 specifically mentioned in his report that as the reports also had the printed corrigenda therein, it is assumed that the reports might have been acquired after its presentation and circulation. The witness, however, could not say so with certainty about this fact, and rightly so, as the two reports lacked the second page which has the seal of Lok Sabha Secretariat and date of presentation to Lok Sabha and FIR No. 206/2000 23 Rajya Sabha.
64. As regards nature of the information contained in these documents Ex.PZ and Ex.PZ/1, PW17 observed in his report that before the printing of the reports and generally at the time of adoption, the reports are sent to the Ministry of Defence for formal vetting taking into consideration the security aspect to ensure that nothing secret or of confidential nature of information is published.
65. This was also done in respect of both these documents. Therefore, according to PW17, these reports do not contain any secret or classified information. Rather, according to the witness, after being laid on the table of the House, the reports become public documents.
66. As further submitted by the witness in his report Ex.PW17/A, the information contained in the reports is completely related to Defence, but the reports might not contain any confidential material as it was security vetted from the Ministry of Defence.
67. As the same time, the witness left it to the Investigating Officer to consult the Ministry of Defence to ascertain whether the information contained in the documents is directly or indirectly related to the security of the country. However, there is nothing on record to suggest that any such report was called from the Ministry of Defence regarding FIR No. 206/2000 24 these documents.
Nature of document Ex.PX (Brief Notes on issues of importance that may come up during Budget Session2000 (26 pages))
68. Prosecution has examined PW5 Lt. Col. Ramesh Sharma, to prove his opinion regarding the nature of document Ex.PX. Opinion given by the witness is Ex.PW5/A. Same reads as under :
(a) It is a confidential document issued by MOD.
(b) The information contained in the document, if disclosed to an unauthorised person is likely to be prejudicial to the sovereignty and security of the country.
(c) The information contained in the document is directly useful to the enemy.
(d) The document is connected with the defence matter of the country.
69. Report reveals that matters relating to the Navy and "Status of Important Project at DRDO mentioned at serial 7 and 8 of the index were not enclosed with the above documents while seeking opinion from the officer.
70. As per documents Ex.PW6/A proved by Captain Kapil Gupta, Joint Director, Naval Operations, proved notice on issues of importance that may come up during budget session - 2000 relating to Navy "Admiral Gorshkov, Air Defence Ship, For Eastern Naval Command (page 25, 26 to 28)" were confidential documents of the FIR No. 206/2000 25 Ministry of Defence and these were given classification as "Confidential".
71. As per report Ex.PW7/A proved by SCSO J. Patro, JD (OA&R), the documentbrief notes on issues of importance that may come up during budget session - 2000 was confidential and covered by the security classification, "Confidential".
SCSO J. Patro, JD (OA&R), opined as under : "It may be indirectly useful to the enemy, as they could identify a disgruntled service officer who could possibly be lured to work for them. The enemy may also try to know the acquisitions of Indian Navy with detail specifications. These are far fetched possibilities but cannot be ruled out entirely. Besides, the entire matter is already in the public knowledge."
Nature of document Ex.PY (Brief on Boarder Roads Organisation)
72. PW10 Col. Vijay Kumar, who was then posted as Joint Director, EGI, Directorate General Border Road, Seema Sadak Bhawan. He has examined to prove his report Ex.PW10/A regarding nature of documents Ex.PY. Ex.PW10/A reads as under : "A Meeting of the Parliamentary Consultative Committee for the Ministry of Defence was scheduled by Ministry of Defence/D (Parl) on 05.07.2000 for discussion FIR No. 206/2000 26 on the Border Roads Organisation.
This Brief was prepared by this HQ and submitted to Sectt BRDB for onward submission to Ministry of Defence/D (Parl)".
73. Report reveals that based on the directions of the BRDB Sectt., Ministry of Surface Transport, 100 copies of the Brief on the BRO were required to be sent, both in English and Hindi for information of the Hon'ble Members of the above Committee.
As to who were the custodian of the aforesaid documents
74. In this regard, prosecution has examined PW16 Sh.P.S.Malhotra. A perusal of letter Ex.PW16/A sent by PW16 P.S. Malhotra to the police reveals as under:-
"I am directed to refer to your letter No.3063ACP NDR, 3064ACPNDR and 3065ACPNDR dt.10.10.2000 on the above mentioned subject and to inform that the officials in whose custody the documents in respect of the following were kept are as under : I Issues of Importance that may come up during budget session 2000 of Ministry of Defence marked as "CONFIDENTIAL" Smt. D. Chhabra the then Assistant now working as Section Officer.
II Briefs on border roads organisation, meeting of the Parliamentary Consultative Committee of the Ministry of Defence 5th July2000 "RESRICTED" Sh. D.S. Negi, Assistant.
As regards the information sought in response to your FIR No. 206/2000 27 letter No.3063ACPNDR dt.10.10.2000, it may be stated that the Standing Committee on Defence is being dealt with by the Lok Sabha Secretariat and the report under reference has not been received in this Ministry".
75. It is significant to note that PW16 observed in his reply that though the above two officials-Sh.D.S.Negi and Smt.D.Chhabra had the relevant files in their possession containing the documents under reference, yet the certain facts could not be ignored which could also possibly lead to the source of obtaining documents by the suspect and getting their photocopies made.
76. As per reply submitted by PW16, the document referred to in letter no.3065-ACP-NDR dt.10.10.2000 percolated from Secretary's office down to the dealing hand-five levels in all;
77. Further as per reply the suspect was attached to the then Deputy Secretary (Leg.) to whom the documents referred to in letter no.3064-ACP-NDR & 3065-ACP-NDR dt.10.10.2000 were marked/addressed and received in the Section and also to whom the file explaining the position relating to the document mentioned in letter no.3065-ACP-NDR was subsequently submitted for information;
78. Further as per reply, copies of the documents referred to in letter No. 3065ACPNDR dt.10.10.2000 were also sent to the Minister of Parliamentary Affairs office for information and therefore that office was also in custody of this document besides Smt. Chhabra.
79. Admittedly, Ahmad Mian Siddiqui (accused) was serving as FIR No. 206/2000 28 P.A. while attached to PW11 Mrs. Satish Malhotra. Mrs. Satish Malhotra was posted as Deputy Secretary (Establishment) at the relevant time.
80. It is in the statement of PW11 that Ahmad Mian Siddiqui (accused) was posted in her office w.e.f.20.06.2000. In her cross examination, she stated that as Deputy Secretary (Administration), she was dealing with all establishment including financial establishments. However, she categorically stated that no document pertaining to defence were dealt in her section. So, statement of PW11 does not prove that the accused was in custody of or ever handled any such secret document , in this section.
81. PW16 Sh. P.S. Malhotra, Under Secretary, Ministry of Parliamentary Affairs has stated in his cross examination that prior to 20.06.2000, Ahmad Mian Siddiqui (accused) was with Deputy Secretary (Legislature). In his report Ex.PW16/A sent by PW16 to SI Gurdev Singh the witness mentioned that Ahmad Mian Siddiqui (accused) having been attached to the then Deputy Secretary (Legislature), to whom the documents "Brief on Border Roads Organisation meeting of Parliamentary Consultative Committee of Ministry of Defence (Ex.PY) were marked/addressed. PW16 also mentioned in his report that document Ex.PY was received in the FIR No. 206/2000 29 section of Deputy Secretary (Legislature) and the file explaining the position relating to this document Ex.PX was subsequently submitted for information.
82. PW16 expressed in his report that this fact i.e. the receipt of documents Ex.PX and Ex.PY in the section of Deputy Secretary (Legislature) could possibly lead to the source of obtaining of this document. So, police was required to investigate as to who had handled these documents in this Section so as to find out the culprit.
83. In this regard, the Investigating Officer was bound to collect copies of the office notes on the requisite files to depict their movements from time to time so as to show that it was such and such who was the only custodian of the record and that only that person could communicate / pass on the information contained in these documents Ex.PX and Ex.PY to Mohd. Riaz.
84. In his report Ex.PW16/A, PW16 P.S. Malhotra mentioned that document Ex.PX had percolated from the office of the secretary down to the dealing hand five levels in all. So, it was for the Investigating Officer to join all the dealing hands in the investigation to find out as to who was the custodian of the record and as to who could pass on / communicate this information. However, nothing of the sort appears to have been done. A perusal of the file would reveal that after receipt FIR No. 206/2000 30 of report Ex.PW16/A from PW16, SI Gurdev Singh did not make any effort to "further investigate" to the custodian of the record at the relevant time when the documents are stated to have been passed on to Mohd. Riaz. In absence of collection of information in the form of office notes from the relevant files, it cannot be said that it is Ahmad Mian Siddiqui (accused) who got these documents Ex.PX and Ex.PY prepared while original record was in his custody.
85. In his report Ex.PW16/A, PW16 specifically mentioned that copies of Ex.PX were also sent to the office of Ministry of Parliamentary Affairs for information and in that office Smt. Chhabra was in custody of the documents. Record does not reveal as to when document Ex.PX reached the custody of Smt. Chhabra and as to which other sections, this document had been sent earlier to its receipt in the office of Smt. Chhabra.
86. As regards document Ex.PY, in his report Ex.PW16/A Sh. P.S. Malhotra mentioned that B.S. Negi, Assistant was in custody of this document. It was for the SubInspector to find out as to when Sh. Negi had received this document and as to which other sections this document had been sent prior thereto. However, there is no investigation in this regard.
Conclusion
87. In view of the above discussion, this court comes to the FIR No. 206/2000 31 conclusion that prosecution has failed to establish that it is only the accused who communicated or passed on this information, contained in the aforesaid documents to Mohd. Riaz, since convicted. Consequently, Ahmed Mian Siddiqui (accused) is hereby acquitted of the accusation levelled against him.
88. While parting with the judgment, it may be mentioned here that in the Ministry of Parliamentary Affairs, Government of India, numerous documents are received from various Departments/Ministries for consideration, adoption and presentation. Many of these documents fall in the category of secret documents, others in the category of restricted documents and yet others confidential in nature. As has been noticed in this case, some documents received in the office of Deputy Secretary (Legislature), Parliament House, New Delhi were handled upto five levels in all and prosecution has not been able to pinpoint as to at which stage copies of those documents came to be prepared and by whom, before the same reached the foreign agent. In the given situation, this Court feels that in order to fix liability of an offender, from amongst the staff/officers employed in various sections of the Parliament House, New Delhi, custody of suchlike documents containing official secrets needs to be restricted only to one or two officers. Further, in case of FIR No. 206/2000 32 preparation of photocopies of suchlike documents, record needs to be maintained by the concerned custodian of record, regarding the date of the document being photocopied and about the designation of the officer engaged in preparing photocopies. Secret special indelible mark also needs to be put even on the so prepared photocopies, so as to find out as to from whose custody and as to at which stage the document or the copy went out and came to be communicated to unauthorised person.
89. Case property be disposed of in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
90. File be consigned to the Record Room.
Announced in Open Court
on 09.11.2011 (Narinder Kumar )
Additional Sessions Judge (Central)
Delhi.
FIR No. 206/2000 33