Delhi District Court
Judgment Cbi vs Salam Singh Rathore on 7 July, 2018
1
IN THE COURT OF SH. SANJAY KUMAR AGGARWAL
SPECIAL JUDGE03, (P.C. ACT), CBI
TIS HAZARI COURTS, DELHI.
CBI Case No.: 27232/2016
RC No.: 04(A)/2006
Branch: ACUIX/New Delhi.
U/s 120B/409 IPC
&
Section 3 & 5 Official Secrets Act, 1923.
Central Bureau of Investigation
versus
1.Salam Singh Rathore s/o Late Govind Singh r/o L260, Sector25, Noida, U.P.
2. Jarnail Singh Kalra s/o Late Sardar Singh r/o H77, Sector25, Noida, U.P. Date of institution : 01.02.2007 Date on which reserved for judgment : 04.06.2018 Date on which judgment announced : 07.07.2018 J U D G M E N T The case of the CBI, in brief, is that during investigation of CBI case No. RC 02(A)/2006 ACUIX, New Delhi(Naval War Room Leak Case) a witness Sh. Manish Kumar Chaudhary, who was working for Kulbhushan Parashar (main accused in case RC 2(A)/2006ACUIX) revealed that accused Salam Singh Rathore(later on identified as Captain(Time Scale)(Retd.) of Indian Navy was in contact with Kulbhushan Parashar and had accepted gifts in cash and kind. On the basis of this information searches were conducted at the Judgment CBI Vs Salam Singh Rathore 2 residence of Salam Singh Rathore on 23.06.06 under Section 11 of Official Secrets Act 1923. During these searches incriminating articles/documents were seized from the residence of accused Salam Singh Rathore.
The investigation revealed that on scrutinizing of these documents recovered on 23.06.2006 from the residence of accused Salam Singh Rathore, it was found that he was in unauthorized possession of 17 documents which were prima facie found to be containing sensitive information related to Ministry of Defence. These documents are as below:
Sl. No. Description of documents
1. NavyAnnual Acquisition Plan 0506, wherein the status(till May 05) of acquisition of various items by Navy, is mentioned.
2. Update on implementation of the Programme of Ministry & Technical Cooperation between India and Russia for the period upto 2010(Update as on 13 Sept. 05).
3. A copy of letter dated 05.12.05 of Sh. NSS Parmar, Commander, Joint Director Naval Air Staff to Director, Planning Office, Capital Acquisition, Department of Defence Production and Supplies, alongwith a brief on Seaking 42B Naval Helicopters, documents marked as "Secret".
4. A note on requirement of interceptor Boats(IBs) -
Judgment CBI Vs Salam Singh Rathore 3 Coast Guard.
5. 10 year yard craft induction plan(20032012), annexure to some document.
6. Photocopy of VolumeII, Commercial Proposal of M/s RAFAEL about Beyond Visual Range(BVR) AirtoAir Missile for the Indian Navy SeaHarrier Aircraft, which bears a property notice to the effect that the document contains classified information, propriety of RAFAEL and to copy, use or transmit the documents is prohibited. Technical Evaluation Committee Report on the aforesaid Missile, marked as 'Secret'.
7. Photocopy of Report of Technical Evaluation Committee(TEC) constituted to evaluate technical proposals on limited upgrade of Sea Harrier Air Craft of Indian Navy, bears the signatures of officers of TEC.
8. Photocopy of draft Contract between the President of India and M/s Hindustan Aeronautics Ltd.(HAL) for up gradation of 15 sea Harrier GRMKI Aircraft of Indian Navy, marked as 'Restricted'
9. Photocopy of a letter from HAL to Director Naval Air Staff(DNAS), Integrated Hqrs., Ministry of Defence(Navy) on Project Tiger alongwith analysis of cost of Sea Harrier Judgment CBI Vs Salam Singh Rathore 4 Upgrade, marked as 'Secret'.
10. Photocopy of Naval Staff Qualitative Requirement for Ship Borne Multi Role Helicopters.
11. Photocopy of letter dated 10 March 06 of Commander NSS Parmar, Joint Director Naval Air Staff (JDNAS) addressed to Director, Planning & Coordination, Department of Defence Production and Supplies alongwith its enclosures, on acquisition of 6 Medium Lift Utility Helicopters for Indian Navy, documents marked as 'Secret'.
12. Photocopy of letter dated 10 March 06 of Commander Deepak Adhar, JDNAS addressed to DDP&S, Director Planning & Coordination, on acquisition of 37 Multi Role Helicopters for Indian Navy, documents marked as 'Secret'.
13. Photocopy of Naval Staff Qualitative Requirement for Heavy Weight Torpedoes for Submarines of Project75.
14. Photocopy of Army Annual Plan 200506, contains the status of acquisitions of various items by Army.
15. Photocopy of Comparison of equipment being fitted on New Construction Ships, marked as 'Secret', which contains the details of Gunnery, Anti Submarine Warfare(ASW), Radars and Navaids of the ships.
Judgment CBI Vs Salam Singh Rathore 5
16. A secret note of Sh. Dhirendra Singh, Special Secretary(A), MOD, on proposal for acquisition under fast track procedure.
17. Note dated 24.05.05 marked as secret on the contract negotiating committee on the cost of Brahmos Missiles and systems to be negotiated with M/s Brahmos Aerospace Pvt., Ltd.
On the basis of these recoveries, criminal case no. RC4(A)/2006 ACUIX/CBI was registered under Sections 120B of IPC and 3 & 5 of official Secret Act 1923 against Salam Singh Rathore and other unknown person(s).
As per chargesheet, during investigation of the instant case accused Salam Singh Rathore Capt.(Retd.) (A1) was arrested on 03.11.2006 and he remained in police custody till 10.11.2006. Accused Jarnail Singh KalraCdr.(Retd) (A2) was arrested on 10.11.2006 and he remained in police custody for 6 days.
During investigation, as per the provisions of Section 11(2) of the Official Secrets Act, 1923, searches were conducted on the intervening night of 09/10112006 at following two places:
i) Customer Service Office of Hindustan Aeronautics Limited as Ist Floor Core 6, Scope Complex, Lodhi Road, New Delhi i.e office of accused Jarnail Singh Kalra Cdr.(Retd) (A2), Dy. General Manager(Customer Service) Hindustan Aeronautics Limited.
ii) Flat No. H77, Sector 25, Noida, UP i.e residence of accused Jarnail Judgment CBI Vs Salam Singh Rathore 6 Singh KalraCdr.(Retd.)(A2), Dy. General Manager(Customer Service), Hindustan Aeronautics Limited.
Investigation further revealed that accused Salam Singh Rathore Capt.(Time Scale)(Retd) (A1), joined Navy on 1st July 1974. After training, he was commissioned on 1st July 1978 as acting SubLieutenant. Salam Singh Rathore(A1) worked at various levels during his tenure in Navy. In December, 2001 accused Salam Singh Rathore was posted in Defence Procurement Board, Ministry of Defence, where he worked as Deputy Director(Maritime), in Acquisition Wing till July, 2005 and dealt with matters referred to him in this Acquisition Wing. He was given Time Scale and rank of Captain in July 2005 and was posted as Officer Incharge, Defence Advisory Group, Vishakapatnam. He took voluntary retirement from Navy on 31 st January 2006 i.e six months after his transfer from Acquisition Wing, Defence Procurement Board, Ministry of Defence. Accused Salam Singh Rathore, immediately after his retirement, started working in M/s Viraat Consultant and Traders Pvt. Ltd., Noida, a company owned by Commander(Retd.) Arvind Singh Raghav. Accused Salam Singh Rathore had known Arvind Singh Raghav when the two were posted together on INS Ranvir for the period from Sept. 1987 to December 1988. M/s Viraat Consultant & Traders Pvt. Ltd., Noida has contracts with foreign companies namely M/s Fiar, Italy(later taken over by M/s Galilio Avionics, Italy), M/s Atlas Elektronik, Germany and M/s Fincantieri Shipyards, Italy. These 3 foreign based companies were engaged in Defence Business and were awarded contracts of Ministry of Defence between 2001 to 2005, when Salam Singh Rathore was posted in Acquisition Wing of Ministry of Defence. Further accused Salam Singh Rathore(A1) and Jarnail Singh Kalra(A2) were batch mates in Navy and were close friends.
Judgment CBI Vs Salam Singh Rathore 7 That investigation further revealed that apart from being batch mates accused Salam Singh Rathore(A1) and Jarnail Singh(A2) had remained posted together at INS Venduruthy from 01.07.78 to 30.06.78, i.e for a period of one year and had worked together in Directorate of Naval Air Staff, New Delhi during July 1993 to 30 th June 1995. Both of them were in constant touch with each other even after retirement from service. This fact was corroborated by their mobile phone records collected in the course of investigation.
The classification of documents have been described in the INBR 1800(Naval Security Instructions) with amendment dated 01.08.1967 issued by Indian Navy, Chapter IV, titled 'Security of Classified document' of those instructions, contains security classifications and principles of handling of classified documents.
As per these orders/guidelines, plans or particulars of future major or special operations, including, in this context the deployment, disposition or impending move(s) of forces or convoys and the detailed plans of any increase or decrease contemplated in the Armed Forces are to be categorized as "TOP SECRET" document as documents, information and material, the security aspect of which is paramount and whose unauthorized disclosure would cause exceptionally grave damage to the nation. Further 'Secret' classification is applied to a document or information, the unauthorized disclosure of which would endanger, national security, causes serious injury to national interest or practice or be of great advantage to a foreign nations. 'CONFIDENTIAL"
classification is given to documents or information, the unauthorized disclosure of which would be prejudicial to the national interest or prestige or Judgment CBI Vs Salam Singh Rathore 8 would cause administrative embarrassment or be of advantage of a foreign nation. 'RESTRICTED' classification is given to all information and material, which is essentially meant for official use only and which should not be published or communicated to any one except for official purpose.
It was further alleged during investigation that all the 17 incriminating documents mentioned in table at page 2 onwards of this judgment were sent to the Ministry of Defence, Govt. of India for its opinion. Ministry of Defence vide MOD ID No. 13026/1/D(VIG III)/2006 dated 27.12.2006 has forwarded opinion on 14 out of these 17 documents related to Navy. It has been opined that out of these 14 documents, 9 documents are classified as Secret, 4 are classified as Restricted and one as Confidential. All these classified documents are not meant to be in public domain. These documents should not be available to any outsider/unauthorized person as the same would prejudice the interest of the nation.
It was further alleged that the documents recovered from the possession of accused Salam Singh Rathore contained present and future plans of Indian Navy and upgradation of its facilities and provides insight into the present capabilities and proposed futuristic upgradation of Indian Navy which has a bearing on national security. As per the opinion of Ministry of Defence following 9 documents recovered from accused Salam Singh Rathore were classified 'Secret' by the Ministry of Defence.
i) A copy of letter dated 05.12.05 of Sh. NSS Parmar, Commander, Joint Director Naval Air Staff to Department of Defence Production and Supplies, Director, Planning Office, Capital Acquisition alongwith a brief on seaking 42B Naval Helicopters, documents marked as "Secret".
Judgment CBI Vs Salam Singh Rathore 9
ii) Photocopy of VolumeII, Commercial Proposal of M/s RAFAEL about Beyond Visual Range(BVR) AirtoAir Missile for the Indian Navy SeaHarrier Aircraft, which bears a property notice to the effect that the documents contain classified information, propriety to RAFAEL and to copy, use or transmit the documents is prohibited. Technical Evaluation Committee Report on the aforesaid missile, marked as 'Secret'.
iii) Photocopy of a letter from HAL to DNAS, Integrated Hqrs., MOD(Navy) on Project Tiger alongwith analysis of cost of Sea Harrier Upgrade, marked as 'Secret'.
iv) Photocopy of Naval Staff Qualitative Requirement for Ship Borne Multi Role Helicopters.
v) Photocopy of letter dated 10 March 06 of Commander NSS Parmar, JDNAS addressed to Director Planning & Coordination, Department of Defence Production and Supplies, alongwith its enclosures, on acquisition of 6 Medium Lift Utility Helicopters for Indian Navy, documents marked as 'Secret'.
vi) Photocopy of letter dated 10 March 06 of Commander Deepak Adhar, JDNAS addressed to DDP&S, Director Planning & Coordination, on acquisition of 37 Multi Role Helicopters for Indian Navy, documents marked as 'Secret'.
vii) A secret note of Sh. Dhirendra Singh, Special Secretary(A), MOD, on proposal for acquisition under fast track procedure.
viii) Photocopy of Comparison of equipment being fitted on New Construction Ships, marked as 'Secret' which contains the details of Gunnery, Anti Submarine Warfare(ASW), Radars and Navaids of the ships.
ix) Note dated 24.05.05 marked as secret on the contract negotiating committee on the cost of Brahmos Missiles and systems to be negotiated with M/s Brahmos Aerospace Pvt., Ltd.
Judgment CBI Vs Salam Singh Rathore 10 As per chargesheet, thus unauthorized possession and possible disclosure to unauthorized person of these 9 documents marked 'Secret' have a bearing on the national security, can cause serious injury to national interest or practice or be of great advantage to a foreign nation.
One document recovered from Salam Singh Rathore(A1) titled 'NavyAnnual Acquisition Plan 0506', wherein the status(till May 05) of acquisition of various items by Navy is mentioned has been opined as confidential. As per the guidelines, mentioned above, the unauthorized disclosure of these documents would be prejudicial to the national interest or prestige or would cause administrative embarrassment or be of advantage to foreign nations.
Investigation further revealed that alleged scenes of crime from where the incriminating documents were obtained by the accused persons, are two offices viz the Acquisition Wing, Defence Procurement Board, Ministry of Defence, Dalhousie Road, New Delhi, where Salam Singh Rathore(A1) was posted during the impugned period and the Customer Service Office of Hindustan Aeronautics Limited located at 1st Floor, Core6, Scope Complex, Lodhi Road, New Delhi, which was headed by Commander(Retd) Jarnail Singh Kalra(A2).
Investigation further revealed that the Acquisition Wing of Ministry of Defence, headed by Special Secretary(Acquisition), handles all matters concerning Defence acquisition of capital nature. This Acquisition Wing consist of four Divisions, namely Land, Maritime, Air Force and Systems Divisions dealing with Army, Navy, Air Force and a Systems Divisions Judgment CBI Vs Salam Singh Rathore 11 responsible for triservice applicability respectively. Each of the Division has Acquisition Manager, Technical Manager and Deputy Directors. Salam Singh Rathore(A1) was one of the Deputy Directors(Maritime) in this highly sensitive office of Ministry of Defence. That in course of their duty, officers of Acquisition Wing deal/handle classified and sensitive documents of Ministry of Defence and Defence Services, having bearing on national security and interests. Main tasks of the Acquisition Wing are:
1. Preparation of Qualitative Requirements(QRs) for equipment featuring in the Long Term Perspective Plan(LTPP)
2. Inviting Tender Proposals with predetermined Qualitative Requirements(QRs)
3. Equipment Evaluation Trials, whenever required.
4. Selection of vendor on the basis of competitive tendering.
5. Establishing Equipment Induction Cells for major/complex programmes
6. Opening of Commercial bids
7. Contract/Price Negotiations
8. Approvals at appropriate levels Investigation further revealed that the 2nd scene of crime is the Office of Hindustan Aeronautics Limited, Customer Service, First Floor, Core 6, Scope Complex, Lodhi Road, New Delhi. Hindustan Aeronautics Limited(HAL), is a Defence Public Sector Undertaking, under Department of Defence production, Ministry of Defence having its Corporate Office at Bangalore. HAL is responsible for development, manufacturing, desiging, fabrication, assembly, and maintenance of aircrafts, helicopters, jet engines, aerospace, navigation and communication equipments and their components Judgment CBI Vs Salam Singh Rathore 12 for Defence Services and Para Military Forces. Thus HAL is a Public Sector Undertaking of Strategic importance. Whenever any proposal for acquisition of new helicopter, aircraft or related equipment is considered by Ministry of Defence, opinion of HAL is sought on the proposal. The correspondence in this regard are sent by Ministry of Defence to HAL Corporate Office, Bangalore through its CustomerService Office located at 1st floor, Core6, Scope Complex, New Delhi. In course of their duty, officers of Hindustan Aeronautics Limited, Customer Servide Department, Delhi deal/handle classified and sensitive documents of Ministry of Defence, having bearing on national security and interests. Investigation has disclosed that unless such sensitive documents are specifically marked to them, none of their officers of Customer Service of HAL, New Delhi have any authority to open the sealed classified documents received from Ministry of Defence for onward transmission.
Investigation further revealed that Salam Singh Rathore(A1) during his posting in the Acquisition Wing, Defence Procurement Board, Ministry of Defence during December 2001 to July 2005 was dealing with various documents, which were of classified nature, having a bearing on national security as per aforesaid guidelines mentioned in para 10 above. Salam Singh Rathore(A1) unauthorizedly obtained and collected classified and sensitive documents of Ministry of Defence related to different stages of acquisition of various equipments and arnaments and retained the same even after his retirement from service.
It was revealed during investigation that, two of the documents recovered from the residence of Salam Singh Rathore(A1), mentioned at Sl. NO. 2 & 3 of above table in page 2 above, are dated 13.09.2005 and Judgment CBI Vs Salam Singh Rathore 13 05.12.2005 respectively, when he had already been transferred from the Acquisition Wingh and was posted as Officer Incharge, Defence Advisory Group, Vishakhapatnam. Other two 'Secret' documents namely note on Six Medium Lift Utility Helicopters and note on 37 Multi Role Helicopters, as mentioned as Sl. No. 11 & 12 respectively at page 2 above are dated 10.03.2006 and are of the period when Salam Singh Rathore(A1) had already taken voluntary retirement from the Navy and was serving in M/s Viraat Consultants and Traders Pvt. Limited., Noida, a firm working for the foreign firms having defence contracts allotted during the period of the posting of Salam Singh Rathore as Dy. Director(Maritime) in Acquisition Wing of Ministry of Defence, Govt. of India, as mentioned in para above.
Investigation further revealed that that accused Salam Singh Rathore(A1) apart from unauthorizedly collecting documents from his office in Acquisition Wing had also entered into criminal conspiracy with Jarnail Singh Kalra(A2) to obtain and collect classified documents of Ministry of Defence. In pursuance of this conspiracy, Jarnail Singh Kalra(A2) provided the classified and sensitive documents of Ministry of Defence received in his office for onward transmission to Hindustan Aeronautics Limited. Corporate Office, Bangalore unauthorizedly to Salam Singh Rathore(A1), while the later was working with M/s Virat Consultants & Traders Pvt., Limited, Noida, a firm dealing in Defence Contracts.
It was revealed during investigation that three documents mentioned at Sl. No. 3, 11, & 12 of page 2 onwards, related to Seaking 42 B Naval Helicopters, Six Multi Life Utility Helicopters and 37 Multi Role Helicopters, recovered from Salam Singh Rathore(A1) were received by Cdr.
Judgment CBI Vs Salam Singh Rathore 14 (Retd), Jarnail Singh Kalra in his official capacity as Dy. General Manager(Customer Service), Hindustan Aeronautics Limited, New Delhi for onward transmission to HAL Corporate Office, Bangalore. As per prosecution chargesheet, there is witness statements of Col. K.V.Kuber, Planning Officer(CAP), Sh. Peeyush Sonker, Deputy Secretary(Aero), Sh. Suresh B. Manker, PA to Deputy Secretary(Aero), Ministry of Defence and Sh. M.R.Beerh, Under Secretary(HAL), Ministry of Defence, Wing Commander(Retd.) Satyabrata Mahapatra and Shri Waqar Hassan, Senior Manager, Customer Service HAL, New Delhi as well as documentary evidence in this regard.
Accused Jarnail Singh Kalra(A2) faxed only four pages out of 34 pages of this sensitive document to the Corporate office of HAL at Bangalore, and 29 pages, which are classified and marked 'Secret' were unauthorisedly passed on to Salam Singh Rathore. This document contains handwritten Diary No. 190/PO(CAP)/05.12.2005 written by Sh. Gautam Kumar, LDC in office of Planning Officer, Capital Acquisition Plan, Ministry of Defence, which shows that Jarnail Singh Kalra(A2) had passed on the same document received from Ministry of Defence to Salam Singh Rathore(A1). Sh. Gautam Kumar, LDC had put Diary Number on the original document as well as on its photocopy. The original document was in Ministry of Defence file and its copy was sent to the office of Cdr. Jarnail Singh Kalra(A2) through Deputy Secretary(Aero), HAL, Ministry of Defence. Similarly Jarnail Singh Kalra apart from sending documents related to Six Multi Life Utility Helicopters and 37 Multi Role Helicopters to Corporate Office of HAL, Bangalore, had also provided copies of these documents to Salam Singh Rathore. These documents are classified documents of Navy and Marked as Judgment CBI Vs Salam Singh Rathore 15 Secret, which have bearing on national security and national interests.
The chargesheet further states that the aforesaid facts and circumstances prima facie established that Capt.(Retd) Salam Singh Rathore(A1) while serving in Indian Navy and during his posting in Acquisition Wing was unauthorizedly obtaining, collecting and retaining classified documents of Ministry of Defence, which are calculated to be or were intended to be or might be useful to the enemy and or the disclosure of which to an unauthorized person, is prejudicial to the sovereignty and integrity of India, Security of the State. In furtherance of his acts Salam Singh Rathore(A1) after his retirement, entered into criminal conspiracy with Cdr. (Retd) Jarnail Singh Kalra(A2) for obtaining and collecting such documents related to national security. Cdr. Jarnail Singh Kalra, misusing his official position, unauthorizedly passed on classified sensitive documents related to the safety and security of the nation to Capt.(Retd) Salam Singh Rathore(A1), an unauthorized person. As per final report of CBI, evidence on the record revealed that accused Salam Singh Rathore(A1) while in service and posted as Deputy Director(Maritime), Acquisition Wing, Ministry of Defence, had been obtaining gifts from arms dealers like Kulbhushan Parashar, in cash and kind.
After completion of investigation, a complaint u/S 13 of the Official Secrets Act was filed in the Court of Ld.CMM on 01.02.2007. On said date itself, cognizance of the offences on the basis of said complaint was taken u/S 3 / 5 of the Official Secrets Act r/w Sec.120B IPC. It is also submitted by the complainant that CBI was also filing chargesheet in the present case separately against the same accused persons on the basis of which cognizance Judgment CBI Vs Salam Singh Rathore 16 cognizance had already been taken of the offence u/S 409 IPC by the same Court.
From the perusal of the record it is revealed that on the same day i.e. on 01.02.07, chargesheet was filed against the same accused persons i.e. Salam Singh Rathore and Jarnail Singh Kalra u/S 3 / 5 of Official Secrets Act and Section 409 IPC r/w Sec.120B IPC of which cognizance on the charge sheet was taken of the offences u/S 409 IPC r/w Sec.120B IPC. On the same day it was observed that since the cause of action in both the cases was the same, and the cognizance of the offence u/S 3 / 5 of Official Secrets Act r/w Sec.120B IPC had already been taken on the basis of the complaint and accordingly the application of the prosecution u/S 210 Cr.P.C was allowed and the complaint filed u/S 13 of the Official Secrets Act was ordered to be clubbed with the chargesheet filed in RC No.4(A)/2006/ACU/IX and it was ordered that henceforth proceedings shall only be recorded in the State case. Thereafter, the application for supply of documents was moved by the accused persons, which was disposed off vide detailed order dated 10.07.07 with the following observations
8. Reverting back to the case in hand, applying the aforediscussed analogy, the "Documents" which have been mentioned in Annexure 1, by the CBI, relate to certain papers/documents which contained secret information, the proof of which is not required to be established in this case and simultaneously the disclosure of the same to the accused persons could be prejudicial to the safety and interest of the Country. At the same time it needs to be kept foremost in mind that the accused persons are facing trial for very serious offences, for being found in illegal possession of sensitive and Judgment CBI Vs Salam Singh Rathore 17 classified information due to pilferage/leakage by the defence personnels themselves who are accused in the instant case. The factum of their being in illegal possession of such classified information/documents is the reason for them facing trial and, therefore, under compliance of Section 207 Cr.P.C, it could never have been the object or the intention of the legislators to supply that sensitive information to the accused persons. I, therefore concur with CBI and endorse that the documents which contain sensitive information, the disclosure of which could adversely affect the security of the country, should not be allowed to be given to the accused persons.
Thereafter, the matter continued with miscellaneous proceedings and vide detailed order dated 20.10.2007, the matter was committed to the Court of Sessions for trial.
Thereafter, vide detailed order dated 31.07.2014 on the point of charge, it was opined that prima facie offences punishable under Section 120 B r/w Section 3 and 5 of Official Secrets Act was made out against both the accused persons. Further, it was held that there was sufficient material for proceeding against accused no.1 Salam Singh Rathore for substantive offences punishable under Section 3(1)(c) and Section 5(2) of Official Secrets Act and against accused no.2 Jarnail Singh Kalra for offences punishable under Section 3(1)(c) and Section 5(1) (a) of Official Secrets Act. Formal charges were framed on 07.08.2014 against both the accused persons as above, to which they pleaded not guilty and claimed trial.
Judgment CBI Vs Salam Singh Rathore 18 In the present matter, the Hon'ble High Court of Delhi had stayed the pronouncement of judgment vide order dated 22.03.2018 in a petition which was pending consideration with respect to clubbing of the complaint case with the State case in this case. Before the Hon'ble High Court of Delhi a plea was taken as informed by parties that the practice of clubbing together a complaint case u/s 13(3) of Official Secrets Act and the charge sheet u/s 173 CrPC as to the provisions of Section 210 CrPC is violation of law as the provisions of Section 13(3) of Official Secrets Act are enacted by way of special statute. However, after completion of final arguments in this case, the Ld. Counsels for both accused approached Hon'ble High Court of Delhi again for vacation of stay on pronouncement of judgment in this case. The Hon'ble High Court of Delhi vide its separate orders dated 23.05.2018 & 24.05.2018 for individual accused in this case dismissed the revision petition with liberty to the petitioner to raise all these issues before the trial court and in case the conviction takes place also before the appellate court as per law. However, when the parties approached this court with the vacation of stay orders dt. 23.05.2018 & 24.05.2018, they made statements in this court that they were not willing to agitate this point regarding clubbing of the State case as well as the complaint case filed u/s 13(3) of Official Secrets Act since the liberty has been granted by the Hon'ble High Court of Delhi to agitate the same before appellate court in case the conviction takes place. The Ld. Counsels wanted that this issue may not be decided by this court. Therefore, in terms of the request of the ld. Counsels, this issue is not being taken up by this court as being not pressed.
The prosecution in support of its case has examined 24 witnesses in all. After recording statement of prosecution witnesses, the statement of Judgment CBI Vs Salam Singh Rathore 19 accused u/s 313 CrPC was recorded. The accused Jarnail Singh Kalra in his defence examined 2 witnesses in his support and the accused Salam Singh Rathore did not examine any witness.
The prosecution witness PW1 is Cdr.Deepak Adhar, who has deposed that at the relevant time he was posted as Joint Director in the Directorate of Naval Air Staff, New Delhi and was dealing with the matter of procurement of weapons and equipments for Naval Air crafts and that he was aware of classification and categorization of documents as Top Secret, Secret, Confidential, Restricted and unclassified based on the sensitivity of the documents as per the Naval Security Instructions from Indian Naval Book of Reference 1800 MarkPW1/I. He also deposed that the Naval Staff Qualitative Requirement (NSQR) documents are classified as Secret document, but in case the requirement is related to Nuclear Weapons, then NSQR is classified as Top Secret as per the Naval Security Instructions. He also deposed after seeing the photocopy document marked 'Secret' Ex.PW1/A 'Integrated Headquarters of Ministry of Defence (Navy) Staff BranchII, (Directorate of Naval Air Staff) comments for DAC BriefAcquisition of 37 multirole Helicopters dated 10.03.2006 that it was shown to him in the CBI office when he was called there. He has also proved certain documents which are Ex.PW1/A (mentioned at serial no. 12 of the table at page 4 of this judgment) original of which is Ex.PW1/B and also other original document Ex.PW1/C which is enclosure of Ex.PW1/B. One other original document Ex.PW1/D (mentioned at serial no. 11 of the table at page 4 of this judgment) i.e. comments for DAC BriefAcquisition of six medium left utility helicopters originated by NSS Parmar was proved by him. He also proved the original document Ex.PW1/E i.e. Provisional Staff Requirement (PSR) for medium lift Judgment CBI Vs Salam Singh Rathore 20 utility helicopter which is basically an enclosure to the original document Ex.PW1/D originated by Sh. NSS Parmar. He also proved the original document Ex.PW1/F i.e. comments for DAC brief, midlife upgrade of seaking 42B Naval Helicopter (mentioned at serial no. 3 of the table at page 2 of this judgment). Original Ex.PW1/G was proved as enclosure to original document Ex.PW1/F. PW2 is Col. K.V. Kuber, who was working in Department of Planning and Coordination, Department of Defence Production, Ministry of Defence, New Delhi as Planning Officer (Capital Acquisition Plan) has stated that the documents Ex.PW1/A bears his initials and that seizure memo Ex.PW2/A also bears his signatures vide which he had handed over certain documents mentioned therein to the CBI. He has also deposed that the documents Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW1/E, Ex.PW1/F and Ex.PW1/G were received in his office from Indian Navy and document Ex.PW2/B was originated by him. He has also deposed that a note dated 30.03.06 Ex.PW2/D (D14) was initialed by him and bears his signatures vide this noting the documents Ex.PW1/C to Ex.PW1/E were forwarded to Director Planning & Coordination as well as to JS (HAL). He has also deposed that vide seizure memo Ex.PW2/A he had handed over Ex.PW1/F to the CBI officer. He has also proved the original of documents MarkPW1/4, MarkPW1/5, MarkPW1/2 and MarkPW1/3 as Ex. PW2/E to Ex. PW2/H. PW2 Col. K.V. Kuber further deposed that the original of mark PW1/4 is Ex.PW1/F which was handed over by him to CBI officers along with other documents vide seizure memo Ex.PW2/A. He also stated that Ex.PW1/F have some remarks ade by him in encircled portion. He stated that document marke Ex.PW1/4 and annexures Mark PW1/5 were same which were shown Judgment CBI Vs Salam Singh Rathore 21 to him by CBI officers when they visited his office and thus he proved both these documents as Ex.PW1/E and Ex.PW1/F. PW2 Col. K.V. Kuber further stated that the original dispatch register containing entry from 06.07.2004 to 16.12.2005 Ex.PW2/C having entry at serial no. 451 regarding dispatch of letter Ex.PW2/B at page no. 39, the letter having the dispatch to JSHAL, Room no. 133, South Block. He proved the entry at page no. 39 contained in encircled portion A. PW3 is Gautam Kumar. He has deposed after seeing the document Ex.PW2/E that he had seen the same on 14.12.06 in the office of Mr.Sonkar in South Block, New Delhi. He had also seen the diary number mentioned on Ex.PW2/E and he had also identified the diary number encircled at potion B on the same having been written by him. He has also deposed that the original of photocopy Ex.PW2/E was received in the office of Col.K.V.Kuber (PW2). The original of which is Ex.PW1/F. He has also deposed that Ex.PW1/F was given by him to PW2 Col. K.V. Kuber. He has also identified the noting in the encircled portion A to be in the handwriting of PW2 and deposed that it was there when PW1/F was given to him by PW2. He has also deposed that the photocopy of the above document was taken by him as per the direction of PW2 Col. K.V. Kuber and that he had entered the diary number original Ex.PW1/F as well as photocopy thereof Ex.PW2/E and after he had mentioned the diary number, the original letter Ex.PW1/F was kept in the almirah of Col.Kuber which was lying in the section itself and photocopy Ex.PW2/E was sent to JS (Hindustan Aeronautics Ltd.) vide covering letter Ex.PW2/B. He has also deposed after seeing the dispatch register Ex.PW2/C that vide entry number 451 at page no.39, which is in his handwriting same was delivered in the office of JS Judgment CBI Vs Salam Singh Rathore 22 (HAL). It also bears the signatures of official who received the same.
PW4 is Suresh Mankar. He has deposed that in July 2005, he was posted as Personal Assistant to Dy.Secretary (Aeronautics), Ministry of Defence, South Block, New Delhi and and Mr.Piyush Sonkar was working as such. He has also identified the handwriting of Mr.Sonkar on letter Ex.PW4/A MOD ID No.9(42)/2005/DAC/DP(PlgIX) dated 05.12.2005. He has also deposed that Ex.PW4/A was received in the office of Mr.Sonkar from JS (HAL), which was marked to accused Jarnail Singh Kalra. Thereafter, PW4 sent this letter to the office of HAL after making an entry in the dispatch register Ex.PW4/B at page no.59 S.No.1745 and the encircled portion Ex.PW4/C was in his handwriting. He has also deposed that sometimes accused Jarnail Singh Kalra himself used to come to their office for getting the dak and sometimes peon from his office used to come to collect dak and the letter Ex.PW4/A was kept in an envelop sealed with the office seal and that accused Jarnail Singh Kalra himself came to the seat of PW4 Suresh Mankar in his office and he had handed over letter Ex.PW4/A to him in a sealed cover.
PW5 is Sh.Baljeet Chaudhary, who at the relevant time was posted as Junior Engineer in the office of Executive Engineer, Dwarka and that he had received a call to join the investigation in the CBI office in the month of June 2006, whereafter he accompanied CBI officers to the residence of accused Salam Singh Rathore in Sector25, NOIDA, where the house search was conducted in his presence in the said house and the seizure memo Ex.PW5/A was prepared mentioning the articles recovered therefrom bearing his signatures. He also deposed that probably three mobile phones, one digital diary were also recovered. The said witness also identified the signatures on memo Ex.PW5/B and Ex.PW5/C and the sample of seals used for seizure of mobile phones and digital diary are Ex.PW5/D1 to Ex.PW5/D6. He also Judgment CBI Vs Salam Singh Rathore 23 identified the two mobile phones of Nokia Make and one digital diary which are Ex.PW5/1 to Ex.PW5/3.
PW6 is Sh.Piyush Sonkar, who at the relevant time was posted as Dy.Secretary (Aeronautics) in the Department of Defence Production, Ministry of Defence, South Block, New Delhi. He has also deposed that sometimes in the year 2006, one CBI officer came to his office and showed him the documents which was Secret in nature i.e. Ex.PW2/E "Comments for DAC Briefs dated 05.12.05" alongwith its annexures collectively Ex.PW2/F pages no.16 to 30 titled 'Mid life upgrade of seaking 42B Naval Helicopter'. He further deposed that the documents Ex.PW2/E and Ex.PW2/F received in his office on 06.12.05 alongwith the covering letter Ex.PW4/A from the office of JS (HAL) bearing his endorsement alongwith his signatures in encircled portion A and the said letter was given diary number 1745/DS(Aero)/05 dated 06.12.05 in his office in encircled portion B. He has also deposed that as per his endorsement at encircled portion A on the same letter Ex.PW4/A, the letter alongwith documents Ex.PW2/E and Annexure Ex.PW2/F (colly.) page nos.16 to 30 were marked to accused Jarnail Singh Kalra, working in the Customer Care Department of HAL. He also deposed that as per procedure when the document was marked as Secret, the document had to be put in an envelop and sealed by PA, who will deliver the envelop / document to the addressee. He also deposed that the documents Ex.PW2/E and Ex.PW2/F alongwith the covering letter was sent to accused Jarnail Singh Kalra on 06.12.05 and comments were called by 07.12.05. He has also proved memo dated 14.12.06 Ex.PW6/A through which he handed over the diary register of PA to DS Aero already Ex.PW4/B vide entry Ex.PW4/C. PW7 is Wing Cdr.Satyabratta Mahapatra. He has deposed that in April, 2005 he joined HAL, Delhi office as Sr.Manager. At that time accused Judgment CBI Vs Salam Singh Rathore 24 Jarnail Singh Kalra was Head of Delhi office of HAL and was designated as Dy.General Manager and the primary function of the said office was to interact with the customers i.e. Air Force, Coast Guard, Ministry of Defence, Indian Army, Indian Navy and to communicate the same to the corporate office of HAL at Bangalore. He has also deposed that their office was not getting classified documents from Air Headquartes and as per procedure, if in a case classified document was involved, th same was to be received in closed envelop and used to be sent as such to the Corporate Headquarter of HAL, Bangalore. He has also proved the seizure memo dated 09.11.06 Ex.PW7/A vide which one dispatch register Ex.PW7/B containing 175 pages and also containing entries from 01.03.05 to 09.11.06 were seized by the CBI. He has also deposed that entry no. 12 dated 04.04.06 Ex.PW7/C at page no.117 in dispatch register Ex.PW7/B, relates to dispatch of two letters to GM (Planning), HAL Co. Bangalore. DAC, 6 Med.Lift37 Multi Role Helicopter Utility Helicopter Navy Proposal542/DS(HAL1) 2006.
PW8 is Waqar Hassan, who has deposed that he was working as Sr.Manager and was posted in HAL, New Delhi in the year 2005. At that time accused Jarnail Singh Kalra was working as Dy.General Manager, Customer Services. He has also deposed that all the communications which was received or brought in HAL , Customer Services office, New Delhi, Ministry of Defence and Service Headquarter by any officer of HAL including himself used to be handed over to accused Jarnail Singh Kalra and it was he who used to decide to whom the communications / letters / dak was to be given for processing. He has also deposed that in December 2006 he was called in the CBI office where he was shown attested photocopy of page no.35 of a peon book Ex.PW8/A which were addressed to Director (D&D) HAL, Bangalore, Sh.A.K.Baweja, HAL, G.M.Finance, HAL Lucknow. He identified his signatures Judgment CBI Vs Salam Singh Rathore 25 thereon in encircled portion A on Ex.PW8/A as acknowledgement for having received the documents and vide Ex.PW8/A certain documents were received by him on03.04.06 from the office of M.R.Beerh, Under Secretary, D2 Wing, Sena Bhawan, New Delhi. He also deposed that he was instructed by accused Jarnail Singh Kalra to go to Sena Bhawan and to collect the documents from the office of M.R.Beerh. After returning to HAL office alongwith the documents collected by him from the said office,he handed over all the documents to the Head of Department, Jarnail Singh Kalra. He has also deposed after seeing forwarding letter of accused Jarnail Singh Kalra, addressed to GM (Planning), Corporate Office, HAL Bangalore that vide said letter the documents received from the office of Mr.M.R.Beerh were forwarded. The said document is MarkP8/1 and he also stated that Mark P8/2 has been also collected by him from the office of Mr.M.R.Beerh, Under Secretary, Sena Bhawan.
PW9 is Sh.Sujan Singh Rautala. He has deposed that during the relevant time he was working as Manager in Punjab Ntional Bank, Bhikaji Cama Place, New Delhi. He deposed that he had handed over one demand draft Ex.PW9/A1 generated on 25.06.03, cancelled DD mentioned 446434/7/2002 as Ex.PW9/A2, cash order no.724898 dated 16.08.2003 Ex.PW9/A3 favouring Manish Kumar, also carbon copy of the cancelled draft Ex.PW9/A4 to Ms.Sonali Mishra, SP, CBI vide letter Ex.PW9/A. PW10 is Sh.Sameer Gogia. He has deposed that his father was running a shop in the name of Cell Net at G8, South Extension, PartI dealing with mobile phones and its accessories. In the year 2007 an information was sought by the CBI relating to bill no.33850 dated 26.10.04 pertaining to sale of Nokia mobile phone model no.1100, IMEI No.353753007729103 to a person named Kulbhushan Prasar. He gave this information to CBI vide letter Judgment CBI Vs Salam Singh Rathore 26 dated 10.01.2007 Ex.PW10/A which is in his handwriting and signatures. Photocopy of the bill is Ex.PW10/B bearing signatures of his father. He also deposed that the mobile phone sold vide Ex.PW10/A was purchased from M/s Telemart Communications India Pvt.Ltd., K19, Lajpat Nagar, PartII, photocopy of the bill bearing signatures of his father dated 21.10.04 is Ex.PW10/C. PW11 Pratap Singh has deposed that at the relevant time he was posted as Manager (Accounts) in the SBI, Bhikaji Cama Place, New Delhi. He deposed that vide letter dated 08.01.07 Ex.PW11/A, he had handed over statement of account Ex.PW11/B pertaining to account no.11876 in the name of Manish Kumar to SP, CBI and said letter Ex.PW11/A is in his handwriting and his signatures and also bears the seal of bank branch SBI, Bhikaji Cama Place. He also deposed that he had seen the transaction dated 19.08.03 in the statement of account Ex.PW11/B which relates to collection of cheque bearing no.724898/PNB Bhikaji Cama Place.
PW12 Sh. Sanjay Gupta has deposed that after his retirement from Indian Navy as Commander in the year 1993, he joined Viraat Consultant and Traders Pvt. Ltd. In the year 2004 and in the year 2006 accused Cdr.retired Salam Singh Rathore also joined the same firm as Sr.Executive and was assigned to look after the defence procurement procedure for future offset requirement as he had served in the Acquisition Wing of Ministry of Defence dealing with such kind of matters. He also deposed in the said Company they were dealing in providing services in local support in India to certain foreign companies who were supplying equipments and systems to Indian Navy and they were also helping foreign companies dealing with Indian Navy arranging their visits, serving the Indian Market for local industry support and helping them to understand the procedures they Judgment CBI Vs Salam Singh Rathore 27 were required to follow for fulfilling the commitments of their contracts with Indian Navy and while working there, they were dealing with two foreign companies namely (1) Atlas Electronik of Germany and (2) Fincantieri of Italy. M/s Calzoni was a company of Italy and they were dealing with ship steering system, auto pilots, stabilizers and visual landing aids.
PW13 Cdr. K.S.Phogat has deposed that in the year 2007 he was posted as Director (Personnel) Services at Naval Headquarter, Delhi. He was looking after discipline and vigilance duties. He further deposed that CBI was investigating War Room Leak Case and had recovered various documents connected with the Navy which they had referred to Naval Headquarters to ascertain their security implications and classifications. He further deposed that vide letter dated 25.01.07 Ex.PW13/A he had forwarded a copy of Naval Security Instructions containing all security classifications to Ms.Sonali Mishra, SP CBI. He had also proved the Naval Security Instructions as Ex.PW1/DA2. He further deposed that vide letter dated 15.01.07 Ex.PW13/B he had forwarded posting details of both the accused persona and Cdr. A.S.Raghav to Ms.Sonali Mishra, SP CBI. He has also proved letter dated 15.01.07 Ex.PW13/C written by Sh.Ajay Kumar Singh, Dy.Director (OA&R) to Principal Director Personnel Services (PDPS), who was Nodal officer for handling the War Room Leak Case with the CBI. He identified the signatures of Sh.Ajay Kumar Singh at point A. He further deposed that vide letter Ex.PW13/C, three pages Ex.PW13/C1 to Ex.PW13/C3 containing the posting profile were sent to PDPS for further handing over to CBI.
PW14 Sh.Virendra Kumar deposed that on 24.01.07, he was posted in Ministry of Home Affairs, North Block as Under Secretary. He had seen order dated 24.01.07 Ex.PW14/A, which bears his signatures and seal at point A vide which he authorized Sh.Ramnish, ASP CBI, New Delhi to make a Judgment CBI Vs Salam Singh Rathore 28 complaint in this case in the court of competent jurisdiction on behalf of the President of India. A request was received from CBI to give authorization under Official Secrets Act to make a complaint against both the accused persons in the court of competent jurisdiction alongwith the documents recovered from their possession and other documents. Thereafter, the matter was examined and put up the detailed examination before the competent authority for obtaining the approval. After getting the approval from the competent authority, the authorization was issued in the name of Sh.Ramnish, ASP CBI to make a complaint in this respect before the court of competent jurisdiction under Official Secrets Act, 1923.
PW15 Anu Anand from Bharti Airtel Ltd. proved the letter dated 20.12.06 Ex.PW15/A addressed to Smt.Sonali Mishra,SP, CBI written by him, while working as Executive Legal and Regulatory vide which he handed over customer application form of mobile no.9873873614 bearing SIM no.00025779076 in the name of Salam Singh Rathore alongwith the declaration form and addressed proof (ration card) of the above customer vide Ex.PW15/B (colly.) and all the said documents were authenticated by him. He also deposed that he had written a letter dated 21.11.06 Ex.PW15/C to the same SP, CBI by which he handed over the call details running into 7 pages of above mobile collectively Ex.PW15/D. PW16 Mr.M.R.Beerh has deposed that from November 2002 till August 2008 he remained posted in Ministry of Defence as Under Secretary in HAL division, Department of Defence Production. He deposed that as Under Secretary in HAL Division, he was mainly dealing with Russian Projects, categorization of projects, issuance of sanctions in connection with these projects etc. HAL was having head office in Bangalore. In Delhi, HAL is having two offices, Regional office at Hauz Khas and Customer Service at CGO Judgment CBI Vs Salam Singh Rathore 29 Complex, Lodhi Road. All the correspondences to the Head Office of HAL at Bangalore were being made either through the Regional office or through the customer care service. These documents were being delivered in the envelopes and the documents were properly diarized and were being handed over against proper receipts. All the documents used to be sent in the envelopes in sealed condition.
He also deposed that in the year 2006, CBI officials came to the office of JS, HAL and shown him certain documents which are already Ex.PW2/G and Ex.PW1/A. He also deposed that certain photocopies of the documents were given by them to the CBI officers, running into 99 pages, each page was attested by him and the said documents are Ex.PW2/D (colly.). The witness also stated after seeing the original file titled as 'Co development of medium multi role helicopter bearing file no.43(12)/2/2006/D(HAL) and he confirms that the Ex.PW2/D is the photocopy of this file. The witness after looking into the relevant file states that both these documents titled Proposal for acquisition of 37 multirole helicopters and proposal for acquisition of 6 medium lift utility helicopters alongwith all enclosures were received from the office of PO(CAP) on 30.03.2006 through Director, P & C in the office of JS (HAL). From his desk, these documents were sent to Chairman, HAL. These documents being secret documents were in sealed condition, it was received by HAL representative, the name of whom he do not remember, but he was from Customer Service. These documents were sent vide diary no.542/US (HALI)/2006 dated 03.04.2006 vide his covering letter Ex.PW16/A, which bears his signature at point A. He also deposed after seeing document (D13) which bears his signatures at point A that vide this document, the attested copy of file already Ex.PW2/D, attested copy of page nos. 165 to 166 of receipt diary Judgment CBI Vs Salam Singh Rathore 30 register US(HALI) of year 2006 and attested copy of page no.35 of Peon Book were handed over. The document D13 is the seizure memo of these documents, which is Ex.PW16/B. After seeing page no.35 of Original Peon Book, same is Ex.PW16/C and attested photocopy of this document handed over by him to CBI is already Ex.PW8/A. The copy of page nos.165 ,166 are Ex.PW16/D and the original of these pages are Ex.PW16/E. The witness after seeing peon book Ex.PW16/C, page no.35 encircled portion X, states that the said document seems to have been received by one Mr.Hussain of HAL.
PW17 Sh.Manish Kumar, who stated that he was working with one Kulbhushan Prasar from 1997 till 2006 in various companies belonging to him and finally he was transferred to Delhi and was assigned to work as B 2/59, First Floor, Safderjung Enclave, which was the office cum residential premises of Kulbhushan prasar, he remained there till 2006, when the case was registered against him he left Delhi at the instructions of Kulbhushan Prasar. He was doing the job as domestic help as well as delivering different gifts, documents and items on the asking of Kulbhushan Prasar to various persons. The gifts used to be in the nature of sweets, bouquets and cash in small envelopes. The gifts used to be distributed during the festivals of Diwali and Holi and he can tell the name of some of the officers whom the gifts were distributed namely Vijender Rana, Hanchi Lal and one more person i.e. accused Salam Singh Rathore and he has also gone to his house with two mobile phones on the instructions of Kulbhushan Prasar, as the said two mobile phones were required by the said accused for his daughter.
He also deposed that in the year 20052006 Kulbhushan Prasar gave him cash of Rs.40,000/ or Rs.50,000/ and asked him to get a draft prepared for the institution where the daughter of accused Salam Singh Judgment CBI Vs Salam Singh Rathore 31 Rathore was studying for payment of her fees. He prepared the draft from PNB, Bhikaji Cama Palace and filled up the form in his own handwriting and delivered the same to Salam Singh Rathore at his residence at Arjun Vihar, near Dhaula Kuan. After sometime, Kulbhushan Prasar gave back the draft to him for cancellation. He also deposed that Kulbhushan Prasar was also gifting mobile phones to various officers, the SIM cards for these mobile phones were purchased either in the name of Sanjay Rawat or Maan Singh Rawat. He after seeing the slip dated 25.6.03 already Ex.PW9/A1 which was filled for issuance of draft of Rs.40,000/ in the name of Dean Padamshree Dr.Patil University stated that the form was in his handwriting and he has mentioned the office address in this form. He after seeing the demand draft already Ex.PW9/A2, stated that it was the same which was issued after depositing Rs.40,000/. At the time of cancellation of the aforesaid draft, he made endorsement on the back of this draft. His endorsement is Ex.PW17/A, bearing his signatures at point A. After seeing the cheque already Ex.PW9/A3 issued after cancellation of the aforesaid demand draft Ex.PW9/A2 stated that the same bears his signatures at point A on the back of the said cheque. He mentioned his account number in encircled portion X. He stated that his SBI Account number was mentioned on the back of cheque Ex.PW9/A3.
PW18 is Sh.M.N.Srinath, who has deposed that in the year 2006 he was working as Dy.General Manager, Planning Corporate Office, HAL Bangalore, when CBI officials contacted him, the Director, Planning and the Chairman HAL directed him to submit the files to the CBI. The CBI officers also showed him documents and asked him whether they pertained to HAL Bangalore. These documents were relating to SQR (Staff Quality Judgment CBI Vs Salam Singh Rathore 32 Requirement) of helicopters. Out of four documents shown to him, three pertained to HAL. He also handed over two files to CBI which were seized vide seizure memo Ex.PW18/A and the documents mentioned therein are Ex.PW18/B (colly.) and another file no.2 was also seized vide seizure memo Ex.PW18/A and the documents contained therein are Ex.PW18/C (colly.). The accused Jarnail Singh Kalra was working with HAL in the year 2005 and 2006 as DJM, Customer Services, Lodhi Road, Delhi and his job profile was to liaison with the different services. He was supposed to attend meetings with defence officers and to receive documents from Air Headquarters. He used to collect documents either directly or sometimes through fax and after collecting the documents, he was supposed to deliver the said documents to the addressee of the said documents by the intranet of the organization and if it was classified he was supposed to send the same by speed post without opening the same. All the officers were allotted unique identification number, which was not used during the correspondence.
The witness also stated after seeing the file Ex.PW18/B that out of the documents contained in the said file, the documents which are classified are Ex.PW18/B1 and Ex.PW18/B2. The witness also after seeing the file Ex.PW18/C stated that the following documents in the said file were classified which are Ex.PW18/C1 to Ex.PW18/C5.
PW19 Sh.G.S.Audhkhasi has deposed that in the year 2006 he was working in SectorD (NavyII) in the MOD, Sena Bhawan, New Delhi, as Under Secretary (Personnel). He after seeing enclosure of (D7) i.e. a letter dated 11.12.2006 Ex.PW19/A stated that it bears his signatures at point A and vide this letter it is indicated that 17 documents were received from SectionD (Vigilance) of Ministry of Defence for comments. As he was looking after Personnel Matters of Naval Officers from the rank of Commodore to Vice Judgment CBI Vs Salam Singh Rathore 33 Admiral only, he forwarded these documents to the Naval Head Quarters for their examination and comments. Whatever comments were received from the Naval Head Quarters in a tabulated form, these were forwarded to D(Vigilance)Section of MOD for further action at their end. The said tabulated form is Ex.PW19/B (colly.) (running from page no.2 to 10 pages) .
PW20 Ms.Namita Mehrotra, who has deposed that in the year 2006 she was posted as Director (Vigilance) in MOD, New Delhi. She after seeing the document (D7) which is a letter dated 27.12.06 stated that same bears her signatures. Alongwith said letter she forwarded a letter bearing ID No.MOD ID No.1429/US(P)/06D(NII) dated 11.12.2006 already Ex.PW19/A and its enclosures running into 11 pages. The said letter dated 27.12.2006 is Ex.PW20/A. PW21 Sh.Ramnish Geer deposed that in the year 20062007, he was posted in ACUIX branch of CBI, New Delhi w.e.f 20.03.06 as Addl.SP. Sh.Girraj Sharma was IO of this case. This case was registered on the basis of recoveries made in Naval war Room Leak case of which he was the IO. In that case, searches were conducted at the residential premises of accused Salam Singh Rathore after obtaining search warrants as per the provisions of Official Secrets Act. Certain documents recovered from him were prima facie related to Indian Defence Establishments / Ministry of defence, accordingly as those documents were not related to Naval War Room Leak case, the present case was registered separately.
He further deposed that after completion of the investigation, a report was sent to Ministry of Home Affairs (MHA) for seeking permission to file complaint as per the provisions of Official Secrets Act. Accordingly, MHA issued authorization in his name, as requested by CBI for filing complaint. Therefore, after satisfying himself with the investigation, complaint in the Judgment CBI Vs Salam Singh Rathore 34 present case was filed by him.
He after seeing the complaint alongwith the list of documents, list of witnesses and order of authorization, stated that it was the same complaint alongwith Annexures which was filed by him on 29.01.2007. The complaint bears his signatures at point A and is Ex.PW21/A. The authorization order is already Ex.PW14/A and list of documents and witnesses are already Ex.PW14/DA.
The complaint was filed alongwith application u/S 210 Cr.P.C which bears his signatures at point A and the application is Ex.PW21/B. PW22 Sh.R.K.Singh deposed that he was working as Nodal Officer with Bharti Airtel Ltd. since May 1997 to 15 June 2015 and was authorized to provide call details to the investigating agency in the capacity of Nodal Officer. He after seeing letter dated 21.11.06 stated that vide this letter, call details of mobile no.9871821631 and 9810386790 were forwarded to Smt.Sonali Mishra, SP CBI, ACB, New Delhi. This letter bears his signatures and alongwith it the call details in one page for mobile no. 9871821631 for the period 01.10.05 to 31.12.05, in 38 pages for the same number for period 01.01.06 to 20.11.06, in 55 pages for the call details of mobile number 9810386790 from 01.10.05 to 31.12.05, and in 136 pages for the same number for period 01.01.06 to 20.11.06 were forwarded. He further stated that each page of call details bears his initials and official seal. The said letter and call details are Ex.PW22/A. He further deposed that he obtained all the details from the server, which was stored automatically in the main server. He obtained all these details by using his specific password which can access the details from the server.
PW23 Dy.SP Surender Kumar deposed that in the year 2006 he was posted as Inspector in CBI, ACUIX Branch, ACIII Zone, New Delhi. In the Judgment CBI Vs Salam Singh Rathore 35 present case he conducted the search at the residential premises of accused Salam Singh Rathore at L260, Sector25, Noida on 23.06.06 alongwith Inspr.Shiv Kumar and two independent witnesses namely Baljeet Chaudhary, JE DDA and S.S. Meena, AE DDA.
He further deposed that during the search at the aforesaid premises, whatever documents and articles were seized had been reduced into writing in the mode of search list dated 23.06.2006 already Ex.PW5/A (D1) (running into 3 pages), bearing his signatures at point B on each page. During the search at the aforesaid premises, accused Salam Singh Rathore, his wife Ms.Sadhna and his son were present during the entire course of search. During search, two mobile phones and one digital diary were seized using CBI seal and he identified his signatures on the impression of seals on already Ex.PW5/D1 to Ex.PW5/D6 at point B on each exhibits. The said impressions were taken in the presence of independent witnesses and so they had also signed on each exhibits at points C and P. PW24 is Inspr.Girraj Sharma, IO of the present case has proved the FIR as Ex.PW24/A, besides that he has also proved production cum seizure memos as Ex.PW2/A, Ex.PW16/B, Ex.PW18/A, Ex.PW6/A, complaint Ex.PW21/A. During the course of investigations, he had collected the relevant records, recorded the statements of witnesses u/S 161 Cr.P.C and also collected opinion in respect of classification of documents seized from the residence of accused Salam Singh Rathore. On 01.02.07 he submitted the final report after conducting investigations against two accused persons namely Salam Singh Rathore and Jarnail Singh Kalra for the offence(s) punishable u/S 120B IPC r/w Sec. 409 IPC and Sec.3 and 5 of Official Secrets Act. On 18.08.08 he submitted the supplementary chargesheet before the Court. He further deposed that the result of investigation was based on Judgment CBI Vs Salam Singh Rathore 36 examination of the documents and opinion submitted by Ministry of Defence in respect of classification of secret document(s).
Thereafter, statement of both the accused persons u/S 313 Cr.P.C was recorded in which the entire incriminating evidence appearing in the record was put to both the accused persons. The defence of the accused Salam Singh Rathore was that he has been falsely implicated in this case even and that as per his statement, nothing incriminating was found against him in the investigation, and that the documents allegedly seized from his residence, which forms the bedrock of the present case, by no stretch of imagination qualify to be Top Secret, Secret, Confidential or Restricted documents as the contents of the said documents are freely available to public at large and the information contained in same are in public domain.
The defence of accused Jarnail Singh Kalra was that he has been falsely implicated in this case, that there is no evidence on the record against him. The chargesheet has been filed by the CBI at the behest of Sh.Ramnish Geer, IO of RC No.2(A) to complete the chain of events and to justify illegal raids conducted on 23.06.06 wherein nothing incriminating was found and there has been unexplained delay in the registration of the present RC and there is no admissible evidence produced on the record by the CBO to connect him with this case and has been make scapegoat.
The accused Salam Singh Rathore did not lead any evidence in defence, whereas accused Jarnail Singh Kalra examined two witnesses in his defence namely D2W1 Sh.James Rajan from Force Magazine, who has proved the relevant volumes of said Force magazine published for the month of June Judgment CBI Vs Salam Singh Rathore 37 2006 and July 2005, which are Ex.D2W1/A and Ex.D2W1/B. Another witness D2W2 examined by the accused Jarnail Singh Kalra is Sh.Pitamber Dutt, Sr.Library Assistant from the Institute for Defence Studies and Analysis, New Delhi, who has produced bound volumes of Jane's All the World's Aircraft 198889 as also the Jane's Weapon Systems 198687. The document already MarkE(colly.) is part of the Jane's Weapon Systems 198687 at pages no.184, 185, 221,612,613,724, 769,783 and the same was proved as Ex.D2W2/A (colly.). Another document relied upon by the defence is MarkG(colly.) which is also a part of the Jane's All the World's Aircraft 198889 at pages no.314 to 319 and the same was proved as Ex.D2W2/B (colly.). This Jane's Magazines is published by Jane's Information Group, Surrey, U.K. He further deposed that these magazines were being supplied to them by their authorized agents in India. These magazines are published articles regarding the World Aircrafts, World Defence systems and Defence Equipments.
Coming to the case of accused Jarnail Singh Kalra, the accused Jarnail Singh Kalra is facing charges for the offences u/S 120B IPC r/w Sections 3 & 5 of the Official Secrets Act besides Sec.3(1)(c) and 5(1)(a) of the same Act. As is clear from the charge framed against the accused Jarnail Singh Kalra, his role is primarily concerned with three documents which are as under: (1) NavyAnnual Acquisition Plan0506, wherein the status (till May 05) of acquisition of various items by Navy is mentioned.
(2) Update on implementation of the Programme of Ministry & Technical Cooperation between India and Russia for the period upto 2010 (Update Judgment CBI Vs Salam Singh Rathore 38 as on 13 Sept.05) and (3) A copy of letter dated 05.12.05 of Sh.NSS Parmar, Commander, Joint Director Naval Air Staff to Director, Planning office, Capital Acquisition, Department of Defence Production and Supplies, along with a brief on Seaking 42B Naval Helicopters.
The accused Jarnail Singh Kalra has been charged by this Court that the above documents which pertained to Indian Navy were received by him in furtherance of conspiracy hatched between him and the coaccused Salam Singh Rathore in December, 2005 or a period nearby while being posted as Dy.General Manager (Customer Services) Hindustan Aeronautics Ltd. which was found in unauthorized possession of Capt. Retired coaccused Salam Singh Rathore. These documents were received by accused Jarnail Singh Kalra during the course of his duties while working in HAL and these three documents were a part of 17 documents recovered from the house of the coaccused Salam Singh Rathore in a search carried on 23.06.06. As per the charge framed by Ld. Predecessor of this court, these documents and information contained therein could be useful to an enemy which were collected by the accused Jarnail Singh Kalra and communicated by him for a purpose prejudicial to the safety and interest of the State. Finally, he has also been charged that these documents were marked as 'Secret' which were entrusted to the accused Jarnail Singh Kalra by the Naval officers and the accused Jarnail Singh Kalra willfully communicated the said documents to co accused Salam Singh Rathore to whom he was not authorized to communicate.
Arguments of Ld. Counsel for accused Jarnail Singh Kalra and its consideration.
The Ld. Counsel Sh.Maninder Singh for the accused Jarnail Singh Judgment CBI Vs Salam Singh Rathore 39 Kalra vehemently submitted that the accused Jarnail Singh Kalra has been falsely implicated in this case and he was arrested by CBI in this case without any rhyme or reasons given the circumstances when there was no evidence against him. The accused Jarnail Singh Kalra was not named in the FIR and he further argued that from 23.06.2006 i.e. the date on which the raid was conducted at the premises of the coaccused till 03.11.2006 i.e. the date on which the coaccused Salam Singh Rathore was arrested, the CBI could not explain as to why there was a long gap between the raid and the arrest and as to what was the incriminating evidence the CBI could collect against the accused Jarnail Singh Kalra. He further urged that the accused Jarnail Singh Kalra was arrested on 10.11.2006 and by that time the CBI had not even got the opinion from Ministry of Defence (MOD) on the classification of documents. He has drawn the attention of this Court towards the testimony of PW21 Sh.Ramneesh Geer, who was Additional SP CBI, wherein in his cross examination he has termed to be correct that from the date of raid i.e. 23.06.06 to 10.11.06 the opinion of MOD on the alleged documents recovered from the premises of coaccused Salam Singh Rathore had not come. The Ld. Counsel further highlighted that though the CBI is claiming that the accused Jarnail Singh Kalra was arrested on the basis of the disclosure statement made by the coaccused, but no disclosure statement has been brought on record by the CBI. He has also highlighted the other portion of the cross examination of PW21 Ramneesh Geer wherein he has termed it to be correct that no disclosure statement of the coaccused Salam Singh Rathore was recorded in the present case. The Ld. Counsel was surprised as to when the disclosure statement was not reduced to writing, how the accused Jarnail Singh Kalra could be arrested on the basis of the said statement claimed to have been made by the coaccused. The Ld. Counsel further has drawn the attention of this court towards the cross examination of PW24 Girraj Sharma recorded on 20.02.2017 wherein in one of the questionnaires at page no.5 of the cross examination, it has been mentioned Judgment CBI Vs Salam Singh Rathore 40 by PW24 Girraj Sharma that there was only a disclosure statement of coaccused Salam Singh Rathore which he has not filed on record. The Ld. Counsel further argued that no reasons has been assigned by the CBI as to what made them for not filing the disclosure statement on record in case it was recorded and further argued that in fact the statement was not recorded.
Ld. Counsel further highlighted that all the factors as explained herein above lead to believe that the accused Jarnail Singh Kalra was arrested without any source information or any disclosure statement of the coaccused or any other information. Meaning thereby as per Ld. Counsel, evidence whatever it may has been procured by CBI after the illegal arrest of the accused Jarnail Singh Kalra.
Thereafter, the Ld. Counsel for the accused Jarnail Singh Kalra turned on another point with respect to Section 3 sub clause 2 of the Official Secrets Act, 1923 and stated that in order to attract the presumption as contained in the said Section, the CBI should have established the bad conduct or the bad character from the circumstances and it has not done so. He submitted that during entire public service career of the accused Jarnail Singh Kalra, he never faced any Departmental Inquiry or any complaint by anyone in this world, that the accused Jarnail Singh Kalra was having a very clean antecedents and was an officer of impeccable integrity and that the CBI should have proved the bank accounts etc. or the accumulation of money by accused Jarnail Singh Kalra in case he had committed any violation of official Secrets Act. He further submitted that the accused Jarnail Singh Kalra was arrested by CBI in complete violation of Hon'ble Apex Court as well as Hon'ble High Courts with respect to law laid down on arrest.
The Ld. Counsel for the accused Jarnail Singh Kalra continued stating that the prosecution was under bounden duty to prove firstly that the accused Jarnail Singh Kalra obtained and collected the aforementioned Judgment CBI Vs Salam Singh Rathore 41 documents as contained in charge with further proof that the said documents were directly or indirectly useful to an enemy or would likely to affect the sovereignty and integrity of India, the security of the State or friendly relationship with foreign States. In order to attract the provisions of Section 3 (1)(c) of the Official Secrets Act of which he has been charged besides other offences, it has been further urged by the Ld. Counsel that the prosecution was required to prove that the accused Jarnail Singh Kalra willfully communicated these documents to the coaccused Salam Singh Rathore with whom he was not under duty to communicate it in order to prove the charges u/S 5(1)(a) of the Official Secrets Act. Finally, as per Ld. Counsel the prosecution was under
duty to prove that the accused Jarnail Singh Kalra has collaborated or entered into conspiracy with the coaccused Salam Singh Rathore and it is only in furtherance of this conspiracy that the copies of these documents were handed over by the accused Jarnail Singh Kalra to the coaccused Salam Singh Rathore.
The Ld. Counsel stressed that the prosecution has utterly failed to place on record any document or any evidence which may suggest that the accused Jarnail Singh Kalra ever obtained or collected the aforesaid documents as there is no receipt of the said documents on the part of the accused Jarnail Singh Kalra and neither any Messenger Book which is required for handing over and taking over the secret documents has been seized or produced by the prosecution. He has drawn the attention of this Court towards the statement of Investigating Officer recorded during trial by the Ld. Predecessor of this Court upon an application being moved by the accused, wherein the IO has categorically stated before this Court on 17.09.2014 in his statement on oath that the diary register of the Directorate of Integrated Head Quarters, MOD (Navy) was not seized and that the diary register wherein the Judgment CBI Vs Salam Singh Rathore 42 documents received in the office of Col.K.V.Kuber in December, 2005 are mentioned was also not seized. Ld. Counsel further stressed that when the Messenger Book which is a very crucial document for the movement of 'Secret' documents has not been seized, the prosecution has utterly failed to prove that the documents referred hereinabove ever came into the possession of accused Jarnail Singh Kalra. The Ld. Counsel has further drawn the attention of this Court towards the testimony of PW1 Cdr. Deepak Adhar wherein in his cross examination conducted on 16.09.14 at page 2 it has been termed to be correct by PW1 Cdr. Deepak Adhar that the location of classified document can be read from the Messenger Book only. He also termed it to be correct that the date of receiving of the document and the name of the person receiving the document with date and signature are there in the Messenger Book. Ld. Counsel submitted that when the movement register itself could not be seized, presumption can't be drawn that the documents were in possession of the accused Jarnail Singh Kalra and that during the said possession these were handed over by him to the coaccused Salam Singh Rathore.
The Ld. Counsel further argued that nowhere right from the originator of this document Ex.PW1/F Sh. N.S.S. Parmar till its possession by Corporate Office at Bangalore PW18 Sh. M.N. Srinath, it has been stated by any witness that these documents were received by him / her from the previous possessor of the same. More particularly, it was highlighted that the PW4 Mr.Mankar from whom the documents were allegedly taken by the accused Jarnail Singh Kalra has nowhere mentioned in his testimony before this Court that he had handed over the documents to accused Jarnail Singh Kalra, neither the PW18 Srinath has mentioned in his statement on oath that the said document was received by his office from accused Jarnail Singh Kalra.
The focus of the Ld. Counsel for accused Jarnail Singh Kalra was Judgment CBI Vs Salam Singh Rathore 43 on the testimonies of PW18 M.S.Srinath, PW1 Deepak Adhar, PW4 Mr. Mankar, PW24 IO, PW6 Piyush Sonkar, PW2 Col. K.V. Kuber, PW3 Gautam Kumar etc. He has tried to draw inconsistencies amongst the testimonies of different witnesses in order to establish that documents never fell at the hands of accused Jarnail Singh Kalra. The Ld. Counsel further argued that the presumption u/s 3(2) of Officials Secret Act 1923 is a rebuttable assumption and the prosecution has to prove its case beyond reasonable doubt like any other criminal case as the burden of prosecution is in no way dilated. He relied upon the judgment in Amin Chand & Ors. Vs The State, 1987 Cr.L.J. 1034. He also stated that mere suspicion however strong or probable it may be is no effective substitute for legal proof required to substantiate the charge of commission of crime and the graver the charge is, greater should be standard of proof required (Ashish Batham Vs State of M.P. (2002) 7 Supreme Court Cases 317). He also asserted that absence of site plan of the spot is also an infirmity and that no malkhana register has been produced in support thereof of the prosecution story. (State of Rajasthan Vs Gurmail Singh (2005) 3 Supreme Court Cases 59). He also highlighted that the accused Jarnail Singh Kalra was arrested on the basis of disclosures made by the coaccused but the disclosure statement of the accused Salam Singh Rathore neither been produced before this court nor is admissible. (Bhimappa Jinnappa Naganur Vs State of Karnataka AIR 1993 SC 1469).
The Ld. Counsel for accused Jarnail Singh Kalra also urged that there was no conspiracy between coaccused Salam Singh Rathore and the present accused as the prosecution has not been able to establish any meeting of mind between the two and only have shown their postings at common station that too way back from the date of incident. He also stated that the evidence has to be weighed and not counted and material discrepancies Judgment CBI Vs Salam Singh Rathore 44 render the evidence unreliable. He also stated that if two views are possible, one that leads to acquittal and the other to conviction the court must rule in favour of the accused. He also elaborated that now acquittal of guilty person is preferred to conviction of innocent person unless the prosecution establishes the guilt of accused beyond reasonable doubt (Rang Bahadur Vs State of UP (2000) 3 SCC 454, State of Uttar Pradesh vs Nandu Vishwakarma and others (2009) 14 SCC 501).
Ld. Counsels for accused Jarnail Singh Kalra and Salam Singh Rathore have relied upon the Indian Naval Book of Reference1800 (hereinafter called INBR1800) which is again a secret document and submitted that though the copy of the same has not been given in this case, but the counsel for accused Jarnail Singh Kalra could obtain it in some other case. Referring to Section 65 of the said Book of Reference, ld. Counsels submitted that the originator of the document as per this rule is responsible for marking the correct security classification of the document and for want of the production of the originator of the document Sh. NSS Parmar Ex.PW1/F dt. 05.12.2005 (Document no. 3 in the charge), both the accused have lost an occasion to cross examine him on the point of classification of the document. It was submitted that he would have been the only person who could have detailed down as to why the aforementioned document Ex.PW1/F was classified as "secret", and for the reason best known to the CBI the said originator Sh. NSS Parmar has not been produced in court despite the fact that as per the testimony of PW1 Deepak Adhar (crossexamination carried on 16.09.2014), he has specifically mentioned that the said NSS Parmar was still in service of Indian Navy. Ld. Counsel further submitted that no official from HALBangalore has been produced who could say that 29 documents were Judgment CBI Vs Salam Singh Rathore 45 found missing and even in the testimony of PW18 M.N. Srinath there is nothing in the entire statement which may suggest that the witness had ever said that HALBangalore had received complete set of documents from HAL Delhi. It was further submitted that when there are allegations that out of 33 pages, the accused Jarnail Singh Kalra could only sent 4 pages and the remaining 29 pages were withheld by him for onward transmission to the co accused, why no witness could say so more particularly PW18 M.N Srinath. He also referred to Section 62 of INBR1800 wherein in clause B it has been mentioned that documents are classified according to the information they contain. Ld. Counsel further referred to Section 63 (b) of INBR1800 to say that only those documents which would endanger national security or may cause serious injury to national interest or be a great advantage to a foreign nation can be classified as secret which is not so in the case in hand.
The Ld. Sr. PP for CBI stated that there is ample evidence against the accused Jarnail Singh Kalra as well as Salam Singh Rathore. It has been elaborated that it is only after confirmation by the CBI Investigating Officer that the accused Salam Singh Rathore and the accused Jarnail Singh Kalra were actively involved in conspiracy that both were arrested on the basis of material available on record. Regarding delay in arrest, the Ld.Sr.PP for CBI explained that following the judgments of Hon'ble Supreme Court and Hon'ble High Court of Delhi, CBI never remains in hurry for arrest of a person as it involves the liberty and lives of the citizen. He further argued that it is only after getting authenticated evidence of supply of documents by the accused J.S.Kalra to the accused Salam Singh Rathore that both the accused were arrested, though on different dates. He explained that though the disclosure statement is not in record, but simply because the same is not on record, the allegation against the accused J.S.Kalra cannot be termed to be superfluous as Judgment CBI Vs Salam Singh Rathore 46 claimed by Ld. Counsel. He further urged that simply because there was no inquiry against the accused persons during their service career or simply because there was no complaint in this world against them during their service tenure, it cannot be termed to mean that the accused persons cannot indulge themselves into anti national activities under Official Secrets Act. He submitted that the accused Jarnail Singh Kalra was having such a position in Hindustan Aeronautic Ltd. that the relevant documents which has been supplied by him to accused Salam Singh Rathore went through his hands while sending the same to Bangalore office of Hindustan Aeronautics Ltd. It has been argued that accused Jarnail Singh Kalra first obtained and collected the documents and then supplied the same to the accused Salam Singh Rathore from whose possession the photocopies of the same were recovered. It was further stated that the nature of documents were such that it were directly or indirectly useful to the enemy and would likely to effect the sovereignty and integrity of India, security of State or friendly relationship with foreign states. It was further stated that the accused Jarnail Singh Kalra willfully communicated these documents to accused Salam Singh Rathore and there are initials in the registers maintained by the authorities vide which he had received the said documents. Ld. Sr.PP for CBI further argued that the judgments relied upon by the Ld. Counsel are not applicable to the facts of this case and that the presumption u/S 3(2) of Official Secrets Act, though is a rebuttal presumption, but the accused persons have not been able to lead any evidence to rebut the same. He further explained that the classification of documents have been done on the basis of INBR 1800 and the prosecution has already proved document Ex.PW19/B vide which it had received the report of defence authorities regarding the classification.
I have taken note of the submissions of the Ld. Counsel for the Judgment CBI Vs Salam Singh Rathore 47 accused Jarnail Singh Kalra as well as Ld. Public Prosecutor for CBI. I have also gone through the aforementioned judgments relied upon by him in support of his claim that accused Jarnail Singh Kalra is innocent. The law laid down by the aforementioned judgments relied upon by the ld. Counsel for accused Jarnail Singh Kalra is not disputed neither have been challenged by the prosecution as over ruled. I have taken guidance from the law laid down by the Hon'ble Superior courts which is relied upon by the ld. Counsel for accused Jarnail Singh Kalra.
In order to prove the case against the accused Jarnail Singh Kalra, the prosecution was under bounden duty to establish that :
1. all the three documents as contained in the charge went through the hands of the accused Jarnail Singh Kalra while he was working in HAL and that the documents were received by accused Jarnail Singh Kalra during the course of his duties.
2. the documents and information contained therein could be useful to an enemy which were collected by accused and communicated by him for the purpose prejudicial to the safety and interest of the State and
3. Being entrusted with the documents, the accused Jarnail Singh Kalra willfully communicated the said documents to the coaccused Salam Singh Rathore to whom he was not authorized to communicate in furtherance of the conspiracy hatched between the two.
Now this court shall take up point by point the aforesaid requirements, the burden of which was upon the prosecution to prove.
The first issue is as to whether the document at serial no. 3 of Judgment CBI Vs Salam Singh Rathore 48 charge or the other documents at serial no. 1 and 2 of charge ever fell in the hands of the accused Jarnail Singh Kalra while he was working in HAL.
I have gone through the document at serial no.3 of the charge as well as testimony of various witnesses in order to get the procedure regarding movement of documents known to the court. The procedure highlighted by the different witnesses is of utmost importance in order to appreciate the claim of ld. Counsel that in fact the recovered document Ex.PW2/E pertaining to upgradation of 42B Naval Helicopters which is the photocopy of the original seized document Ex.PW1/F seized vide production cum seizure memo Ex.PW2/A never went through the hands of accused Jarnail Singh Kalra. The original document Ex.PW1/F which is the original of the photocopy Ex.PW2/E allegedly recovered from the coaccused Salam Singh Rathore having been allegedly supplied to him by the accused Jarnail Singh Kalra is in the core of the issue as the said document contained at serial no. 3 of the charge. The original document Ex.PW1/F and its photocopy Ex.PW2/E pertains to comments for DAC Brief Midlife Upgrade of 42B Naval Helicopter.
As is apparent from the documents, the author of the original document Ex.PW1/F namely N.S.S. Parmar has not been produced by CBI. It would be useful to refer to the crossexamination of PW2 Col. K.V. Kuber in which the procedure of handling of document in the office of PW2 Col. K.V. Kuber was detailed down by him. The relevant portion of the procedure detailed down by PW2 in his testimony on oath (Crossexamination part carried on 04.09.2014 is as under:
"When a document is received in my office, no photocopy of the document is prepared. When a document is sent from the office, a copy of the same is retained. Normal procedure is that original document is retained in the office and only a Judgment CBI Vs Salam Singh Rathore 49 copy of that is sent. Someone from my office would have prepared the photocopy of Ex.PW1/F. In this case, Mr. Gautam would have prepared the photocopy of Ex.PW1/F as was the only Clerk associated with me. I had seen Gautam preparing a photocopy of Ex.PW1/F, when Ex.PW1/F was sent from my office."
The PW2 Col. K.V. Kuber was working in Directorate of Planning and Coordination, Department of Defence Production, Ministry of Defence, New Delhi as a Planning Officer (Capital Acquisition Plan). After reading the above highlighted portion of the testimony of PW2 Col. K.V. Kuber, it is clear that no photocopy is prepared when a document is received in the office of PW2 Col. K.V. Kuber and in case the document is required to be sent further, the original document is not sent but it is copy which is sent. The PW2 Col. K.V. Kuber was not sure as to whether the document was copied or not as he stated in his cross examination that someone from his office would have prepared the photocopy of original Ex.PW1/F and thereafter he continued with his statement that Mr. Gautam Kumar (PW3) would have prepared the photocopy of Ex.PW1/F as he was the Clerk associated with him. He even claimed that he had even seen Mr. Gautam Kumar (PW3) preparing a photocopy of original Ex.PW1/F when the same was sent from his office. Therefore, initially this witness PW2 Col. K.V. Kuber used the word "someone would have prepared a photocopy" and after sometime he named the PW3 Gautam as the person who was seen preparing a photocopy of Ex.PW1/F by him.
Now coming to the testimony of PW3 Gautam Kumar who was claimed by PW2 Col. K.V. Kuber to have prepared the copy of the original Ex.
Judgment CBI Vs Salam Singh Rathore 50 PW1/F. PW3 Gautam Kumar was posted at the relevant time in the Directorate of Planning & Coordination. He had deposed that in the month of December 2005, Planning 9 Section was merged into Planning 5 Section of Directorate of Planning & Coordination. The PW3 Gautam Kumar has taken altogether a different stand and thus compelled this court go through the testimony (examination in chief) recorded on 28.07.2014 in which PW3 Gautam Kumar submitted that PW2 Col. K.V. Kuber had asked the PW3 Gautam Kumar to call someone for getting the copy prepared, accordingly PW3 Gautam Kumar called the peon and handed over the original letter Ex.PW1/F to the peon. As per PW3 Gautam Kumar, the peon got the photocopy of the letter prepared and returned the same to PW3 Gautam Kumar.
It is clear from the testimonies of both these witnesses that they are taking contradictory stand as PW2 Col. K.V. Kuber had seen PW3 Gautam Kumar as preparing the copy whereas the PW3 Gautam Kumar had taken a stand that copy was prepared by the peon. Unfortunately, the said peon who was seen by PW3 Gautam Kumar as preparing the copy has not been produced or examined by the prosecution in order to clear the grain from the chaff, neither the statement of that peon has been recorded by the CBI. The attention of this court was drawn to the crossexamination of PW3 Gautam Kumar wherein he stated that he did not tell the IO PW24 Insp. Girraj Sharma that he had not given the letter Ex.PW2/E (photocopy of the original Ex.PW1/F i.e. allegedly recovered document) for getting the photocopy of the same prepared.
Now coming to the dispatch register, as highlighted by the Ld. Counsel for the accused Jarnail Singh Kalra. The dispatch register Ex.PW2/C Judgment CBI Vs Salam Singh Rathore 51 was important in order to clarify the position regarding the movement of the original document Ex.PW1/F as mentioned in serial no. 3 of charge. It is found that the relevant entry regarding the movement of the document Ex.PW1/F from the office of PW2 Col. K.V. Kuber to the office of Joint Secretary (HAL) Ministry of Defence has been entered at serial no. 451 of the dispatch register Ex.PW2/C. The PW3 Gautam Kumar has stated in his crossexamination carried on on 17.09.2014 that he had made entry in the dispatch register which was sent through peon Ms. Sahira. However, it is not clear from the dispatch register Ex.PW2/C as to whom the letter was delivered vide entry no. 451, though the said entry reflects that the said letter was addressed to JS(HAL) Room no. 133, South Block. This is the entry which has been proved by PW2 Col. K.V. Kuber as encircled A. In the said entry though at point Y there are some initials dated '5/12' but it is not clear as to who had affixed his initials on the same, meaning thereby it is not clear as to who had received the said document at the office of JS(HAL). The said initials were not sent for opinion of handwriting epxert.
Moreover, the PW3 Gautam Kumar has specifically mentioned in his testimony on oath that he cannot identify the person who had signed at point Y in entry no. 451 of dispatch register Ex.PW2/C as the receiver and he can't tell the designation of the person who had signed at point Y. Accordingly, from the dispatch register Ex.PW2/C it is not ascertainable as to whom the document was handed over by the office of PW2 Col. K.V. Kuber. Moreover, the said peon Sahira has neither been examined nor produced by CBI.
Further the Jt. Secretary, HAL, Ministry of Defence to whom the letter was sent from the office of PW2 Col. K.V. Kuber has not been produced by the prosecution to whom the letter was addressed by PW2 Col. K.V. Kuber.
Judgment CBI Vs Salam Singh Rathore 52 This letter reached the office of JS(HAL) along with the copy of original letter Ex.PW1/F. For the sake of repetition, it is pertinent to mention that Ex.PW1/F was the original letter of which copy Ex.PW2/E was allegedly recovered from coaccused Salam Singh Rathore and this letter was concerning Mid Life Upgrade of Seaking 42B Naval Helicopters.
The PW4 Suresh Mankar was the Personal Assistant to Dy. Secretary, Aeronautics, Ministry of Defence at South Block. The originator of the letter Ex.PW4/A dated 05.12.2005 was PW2 Col. K.V. Kuber. In the said letter dated 05.12.05 Ex.PW2/B, Col. K.V. Kuber had forwarded the proposal of Department of Naval Air Staff received from IDS (Navy) along with comments of HAL. It has been mentioned in the letter that from the comments provided by HAL it appears that HAL route may not prove to be cost effective as claimed by them. Ibid proposal will be taken up in the forthcoming SCAPCC Meeting when scheduled. Request therein was made to JSHAL in the letter to analyze and forward the inputs for further processing.
The PW6 Peeyush Sonkar has mentioned that the photocopy document Ex.PW2/E (Copy of original Ex.PW1/F) and Ex.PW2/F pertaining to Naval Headquarters were received in his office on 06.12.2005 along with covering letter Ex.PW4/A from the office of Jt. SecretaryHindustan Aeronautics Ltd. This letter Ex.PW4/A was proved by PW4 Suresh Mankar as the letter which was proved by PW2 Col. K.V Kuber as Ex.PW2/B. It is pertinent to mention that it has been mentioned in the letter Ex.PW4/A before the endorsement JS(HAL) that he was on leave. Though, the status from the office of JS(HAL) is not clear, but as per the endorsement of PW6 Peeyush Sonkar who was Dy. Secretary Aeronautics, Department of Defence Production, Ministry of Defence, South Block New Delhi at portion A Judgment CBI Vs Salam Singh Rathore 53 on Ex.PW4/A, the said letter along with the document Ex.PW2/E and annexures Ex.PW2/F were marked to accused Jarnail Singh KalraHindustan Aeronautics Ltd. who was working in the customer care/customer service department of Hindustan Aeronautics Ltd. It has also been mentioned that document Ex.PW2/E concerning Mid Life Upgrade of Seaking 42B Naval Helicopter (original of which was Ex.PW1/F) and Ex.PW2/F collectively along with covering letter Ex.PW4/A were sent to accused Jarnail Singh Kalra on 06.12.2005 and comments were called by 07.12.2005. The PW4 Suresh Mankar had also identified the signatures of PW6 Peeyush Sonkar, Dy. SecretaryAeronautics on the endorsement dt. 06.12.2005 in the encircled portion. It has been claimed by the prosecution that the document Ex.PW4/A proved by PW4 Suresh Mankar which is in fact copy of other letter Ex.PW2/B proved by Col. K.V. Kuber was handed over by PW4 Suresh Mankar to the accused Jarnail Singh Kalra. The CBI has not produced the JSHindustan Aeronautics Ltd. It has come on the document Ex.PW/A that JSHindustan Aeronautics Ltd. was on leave. It is not clear then who was the officer who was responsible for files of JSHindustan Aeronautics Ltd. in case he was on leave.
There are inconsistencies in the statement made by PW4 Suresh Mankar wherein initially in his examination in chief he deposed that after the letter Ex.PW4/A was marked to Cdr. Kalra, he had sent the letter to the office of Hindustan Aeronautics Ltd. After the letter Ex.PW4/A was handed over to PW4 Suresh Mankar, he made entries in the dispatch register and had also put the dispatch number on letter Ex.PW4/A which was proved in encircled portion B in his own handwriting. The relevant entry at page no. 59 at serial no. 1745 in encircled portion Ex.PW4/C of dispatch register Ex.PW4/B was also proved. The PW4 Suresh Mankar further continued deposing that Judgment CBI Vs Salam Singh Rathore 54 sometimes accused Jarnail Singh Kalra used to come to his office for getting the dak (post) and sometimes peon from his office used to collect the dak (post). He also stated that he had obtained the signatures of accused Jarnail Singh Kalra on the dispatch register Ex.PW4/C, but again he said that signatures were not obtained. It is not clear as to when the documents were considered to be sensitive enough, why the signatures of the recipient were not taken. The PW4 Suresh Mankar had further stated that the letter Ex.PW4/A was never handed over by the office of the Dy. Secretary Aeronautics to the accused Jarnail Singh Kalra as even the dispatch register Ex.PW4/B containing entry no. 71745 dt. "06.12" does not contain the signatures of accused Jarnail Singh Kalra and only a remark has been made in the register that it was handed over to Cdr. KalraHindustan Aeronautics Ltd. on 06.12.2005. He further drew the attention of this court that there is also an endorsement that the documents were "LR" which has been clarified by PW4 in crossexamination that 'LR' referred to an entry in column no. 7 in Ex.PW4/C in the dispatch register means a document which was received in loose condition. The PW4 Suresh Mankar has also termed it to be correct in the crossexamination that he had not given any reference that the document Ex.PW4/C (entry in the dispatch register) is a seized document. Initially it was deposed by PW4 Suresh Mankar that document was dispatched to the office of Hindustan Aeronautics Ltd. but later the statement was improvised by the witness PW4 Suresh Mankar as it was termed to be incorrect that the documents were not handed over to the accused Jarnail Singh Kalra. No where in the entire examination in chief the prosecution has taken burden to ask the witness PW4 Suresh Mankar as to whether the documents attached with the letter i.e. Ex.PW18/B1 (original of which is Ex.PW1/F) concerning upgradation of 42B Naval Helicopters and others were handed over to the Judgment CBI Vs Salam Singh Rathore 55 accused Jarnail Singh Kalra.
Now again coming to the testimony of PW6 Peeyush Sonkar before this court, who was the then Dy. Secretary (Aeronautics), he stated that as per his endorsement encircled A on the letter Ex.PW4/A, the letter along with documents Ex.PW2/E and annexure Ex.PW2/F were marked to Cdr. KalraHindustan Aeronautics Ltd. It was also deposed by him that these documents with covering letter were sent to Cdr. Kalra on 06.12.05 and comments were called by 07.12.05. Ld. Counsel stated that the comments were to be called from Bangalore and it was not possible for a person to comment within 24 hours from Delhi to Bangalore on a secret document and hence he was sure that the document Ex.PW4/A and its enclosures were manipulated documents procured by the office of PW4 Suresh Mankar and PW6 Peeyush Sonkar. Ld. Counsel urged that the PW6 Peeyush Sonkar was not the witness who had handed over the documents, as per the prosecution story but in fact he had made endorsement vide which the matter was referred to the accused Jarnail Singh Kalra for giving comments. After hearing, this court can't buy this argument of ld. Counsel that since the time of 24 hours was granted, it being a manipulated document. This is because in this era of electronic age report can be called even during the course of day.
However, from the testimony of PW18 M.N. Srinath, it is clear that CBI did not call any official of Hindustan Aeronautics Ltd. from its offices at Delhi. However, it called one official PW18 M.N. Srinath who hailed from Bangalore office of the Hindustan Aeronautics Ltd. Even the witness from Bangalore office of Hindustan Aeronautics Ltd. i.e. PW18 M.N. Srinath has nowhere in his testimony on oath stated that he could receive only four pages sent from Delhi office or that he had not received 29 pages. Therefore, the lone testimony of PW18 M.N. Srinath is sufficient to give an impression to the Judgment CBI Vs Salam Singh Rathore 56 court that CBI could not prove the allegations against the accused Jarnail Singh Kalra that out of 33 pages, he could dispatch only four pages and that 29 pages were withheld by him which were allegedly transferred by him to the coaccused. Nothing has been stated by the PW18 M.N. Srinath about the receipt of fax purportedly sent from Delhi or that whether any acknowledgment of the documents were sent back to Delhi office of HAL. The documents Ex.PW4/A, Ex.PW18/B1 (the copy of the original Ex.PW1/F) concerning upgradation of 42B Naval Helicopters etc. were claimed to have been sent by FAX as per the prosecution story, but it is not clear from the documents itself which contains a very dim details of the FAX number etc. that from which telephone number etc. the said documents were faxed to the office of HALBangalore. Neither any details about the FAX etc. have been sought to be produced by the prosecution during the trial.
Now coming to the testimony of IOPW24 Girraj Sharma wherein he in his crossexamination carried on at page 6 dt. 20.02.2017, admitted that the author of the letter dt. 05.12.05 Ex. PW1/F Cdr. NSS Parmar was not examined as a witness in this case. At page 8 of his crossexamination of the same date, it has been termed to be correct by the IO PW24 Insp. Girraj Sharma that the signatures of accused Jarnail Singh Kalra does not appear on any register regarding the receipt of the documents pertaining to this case, though voluntarily he had stated that the witnesses do say that accused Jarnail Singh Kalra had received the documents. The CBI has not been able to bring on record any factum as to whether any internal inquiries were conducted by HAL or Ministry of Defence in case the documents would have been withheld by accused Jarnail Singh Kalra or that the same were shunted from the accused Jarnail Singh Kalra to the coaccused.
From the above noted discussion, it is clear that the CBI has not Judgment CBI Vs Salam Singh Rathore 57 been able to prove that document Ex.PW1/F concerning upgradation of 42B Naval Helicopters as contained in Serial no. 3 of charge ever fell in the hands of accused Jarnail Singh Kalra.
Now coming to the other documents as contained in serial no. 1 of the charge against the accused Jarnail Singh Kalra.
Regarding the document no. 1 in the charge i.e. Navy Annual Acquisition Plan, 0506, wherein the status (till May 05) of acquisition of various items by Navy is mentioned. No witness has referred to the said document except PW19 G.S. Audhkasi who had forwarded the documents vide letter Ex.PW19/A dated 11.12.2006 of which the aforementioned document no. 1 was a part to the naval headquarters for their examination and comments. This court had a occasion to go through the document Ex.PW19/B (colly.) containing the details of the documents which were sent vide the aforementioned letter of PW19 G.S. Audhkasi. The PW19 G.S. Audhkasi was shown with the letter Ex.PW19/A before this court wherein he proved his signatures on the said letter. Vide the said letter Ex.PW19/A, it is indicated that 17 documents were received from SectionD (Vigilance) of Ministry of Defence for comments. As per of PW19 G.S. Audhkasi, since he was looking after personal matters of Naval officers from the rank of Commodore to Vice Admiral only, he forwarded these documents to the Naval Headquarters for their examination and comments. He further deposed that whatever comments were received from Naval Headquarters in a tabulated form these were forwarded to D(Vigilance) Section of MoD for further action at their end. He proved the tabulated form running from page 2 to 10 as Ex.PW19/B. The serial no. 9 of Ex.PW19/B contained the details of this document at serial no. 1 as contained in the charge and in the observation column it is mentioned that it is an unsigned document relating to acquisition Judgment CBI Vs Salam Singh Rathore 58 plan of Navy pertaining to year 20052006 wherein 118 projects as in May 2005 showing the total costing and financial outgo has been shown. It has been mentioned in the remarks part that the document is confidential whereas in the security classification column it has been mentioned that it bears no classification. Ld. Counsel for accused Jarnail Singh Kalra stated that had the CBI been clear enough in the chargesheet, it could have produced the original document and the document on record i.e. Ex.PW5/B which is an unsigned one. Further, this documents has never been dealt with by HAL or by accused Jarnail Singh Kalra as no movement of this document has either been mentioned in the charge sheet or been proved in the during in order to subscribe its view by CBI that the document ever fell at the hands of accused Jarnail Singh Kalra. Ld. Counsel for accused Jarnail Singh Kalra highlighted that for want of movement of this document through HAL, the prosecution has not been able to prove that the said document ever possessed, communicated or used or transmitted by the accused Jarnail Singh Kalra. On these points as highlighted by ld. Counsel of accused Jarnail Singh Kalra in this para, it appears to this court that there is substantial weight in the arguments advanced as the CBI could not satisfactorily replied to the queries raised by ld. Counsel in this regard.
Now coming to the document at serial no. 2, as contained in the charge i.e. update on implementation of programme of Ministry and Technical Corporation between India and Russia for the period 2010 (update as on 13.09.2005), the bare perusal of the said tabular document containing the details of documents at serial no. A1 at page no. 11 of Ex.PW19/B goes to suggest that the said document pertains to Army whereas the accused Jarnail Singh Kalra was dealing with the affairs of Navy at HAL. The record also reflects that no person from the army was produced by CBI to show the Judgment CBI Vs Salam Singh Rathore 59 movement of this document also like document no. 1 in chargesheet. More so, no witness has been produced to prove the said document, the persons who had given opinion on the said documents have also not been produced and that the document no. 2 is not a classified document.
The accused Jarnail Singh Kalra has been charged that he conspired with the accused Salam Singh Rathore and accordingly supplied three documents to accused Salam Singh Rathore, as contained in the charge. The status of the individual three documents as contained in the charge have already been discussed in the preparas of this judgment. The prosecution/CBI has utterly failed to prove that the documents ever fell in the hands of accused Jarnail Singh Kalra in his ordinary course of business at HAL or he ever received the documents. No evidence has come on record that the said three documents (as mentioned at serial no. 1,2,3 of the formal charges framed against accused Jarnail Singh Kalra) were supplied by the accused Jarnail Singh Kalra to the coaccused Salam Singh Rathore. The entire case against the accused Jarnail Singh Kalra is revolving around only the three documents as contained in charge. The prosecution has not been able to prove that the said documents were received by him in the year 2005 or a period nearby while being posted as Dy. General ManagerHindustan Aeronautics Ltd. or the accused Jarnail Singh Kalra willfully communicated the documents and information to the coaccused.
Common arguments on charge of conspiracy and other common arguments on behalf of accused Jarnail Singh Kalra and the accused Salam Singh Rathore and its considerations. Regarding the allegation of conspiracy being hatched between accused Jarnail Singh Kalra and coaccused Salam Singh Rathore, the Ld. Judgment CBI Vs Salam Singh Rathore 60 Counsels for both the accused submitted that though the prosecution has tried to prove the different postings of the accused Jarnail Singh Kalra as well as co accused Salam Singh Rathore vide Ex.PW13/C, but the said posting and transfer orders are also not correct. Ld. Counsels have taken the attention of this Court that though in the document Ex.PW13/C it has been mentioned that both the accused worked together in DNAS from July 1993 to June 1995, but the appointment of coaccused Salam Singh Rathore in the said division DNAS has been shown as joined on 15.05.92 and that of accused Jarnail Singh Kalra on 31.07.93. Ld. Counsels further submitted that it is only in DNAS that both the accused were posted together for about one year in the year 1995 i.e. much prior (around 10 years) to the alleged conspiracy. It is submitted by the Ld. Counsels for both the accused that no CDR of calls between accused Salam Singh Rathore and accused Jarnail Singh Kalra could be produced or proved by the prosecution and hence, the prosecution has miserably failed to prove the allegations regarding conspiracy.
It has been submitted by ld. Counsels for the accused Jarnail Singh Kalra and accused Salam Singh Rathore that the accused persons are not involved in any conspiracy as there was no meeting of mind between the accused Jarnail Singh Kalra and the accused Salam Singh Rathore which is a condition precedent for indicting a person for the offence u/s 120B IPC. The Ld. Counsels made this court go through the provisions of Section 120A IPC which contains the definition of criminal conspiracy and which starts with the wordings when two or more persons agree to do or cause to be done, meaning thereby as per the Ld. Counsels for both the accused, the prosecution was under bounden duty to prove first that the accused Jarnail Singh Kalra had entered into an agreement with accused Salam Singh Rathore for doing an illegal act or for doing an act which is not legal by illegal means. Though the Judgment CBI Vs Salam Singh Rathore 61 prosecution has claimed that the mobile phone of accused Salam Singh Rathore was seized, but it is not clear as to whether the CBI had seized the mobile phone of the accused Jarnail Singh Kalra or that of accused Salam Singh Rathore at any point of time. The call details of the mobile numbers of both the accused (as claimed by prosecution) has been filed. It has also been highlighted that call details have been filed by the prosecution but it is not accompanied with any certificate u/s 65B of Indian Evidence Act which is a condition precedent for the proof of a document which contains information pertaining to some electronic record.
Coming to the non production of originator of document Sh. NSS Parmar as witness before this court, the Ld. Counsels submitted that he shall first refer to the document listed at Sr. No. 3 in the charge framed against accused Jarnail Singh Kalra, the author of this original document Ex.PW1/F was Sh.N.S.S.Parmar. They stated that the said Sh.N.S.S.Parmar despite being still in service during trial has not been produced or made witness by the prosecution for the best reasons known to the agency. The Ld. Counsels has drawn the attention of this Court towards the testimony of PW1 Cdr. Deepak Adhar recorded on 16.09.14 wherein in his cross examination at page 4 it has been mentioned by PW1 that JDNAS Sh. N.S.S.Parmar was still in the services of Indian Navy when PW1 Cdr. Deepak Adhar was called by CBI office. Ld. Counsels stated that no explanation has come forward from the side of prosecution as to why said N.S.S.Parmar who was the author of the document at serial no.3 in the charge against the accused Jarnail Singh Kalra was not made a witness by the prosecuting agency. They stated that he has every doubts over the authorship of the said document and said document was never prepared by its author N.S.S.Parmar and is being a manipulated one Judgment CBI Vs Salam Singh Rathore 62 way or other in order to falsely implicate the accused persons.
The Ld. Counsels went on saying during his arguments that even for sake of assumption the authenticity of photocopy Ex.PW2/E dt. 05.12.2005 allegedly recovered from coaccused (original Ex.PW1/F) is treated as gospel truth, still the prosecution has not been able to prove its contents as the signatures of its author Sh. N.S.S.Parmar could not be proved legally by the CBI in the so called original document Ex.PW1/F. The Ld. Counsels relied upon Section 47 of the Indian Evidence Act, 1872 by stating that the signatures has not been proved in terms of the said Section as the PW 1 Cdr. Deepak Adhar was not acquainted with the handwriting of the said N.S.S.Parmar and it was not written or signed before the PW1 Cdr. Deepak Adhar.
On the other hand, the Ld. Sr. PP for CBI argued that the conspiracies are always hatched in black chambers and it is very difficult to have exact or verbatim knowledge of the terms of the agreement. It was urged that the conspiracy can only be proved by the circumstantial evidence as the direct evidence is rarely available in such type of offences under Official Secrets Act. It was further highlighted that accused Jarnail Singh Kalra and Salam Singh Rathore not only remained posted together at different point of time during their services, but they were actively engaged in calling each other telephonically and were in regular contact with each other which has come out during evidence. It was further elaborated by Ld. Sr. PP that in view of the latest judgment of Hon'ble Supreme Court of India in Shafhi Mohammad Vs State of Himachal Pradesh (2018) 2 Supreme Court Cases 801, the electronic evidence cannot be ruled out on any technicality if the same is relevant and its authenticity and procedure or its admissibility may depend on facts situation. It was further explained that since the call details along with Judgment CBI Vs Salam Singh Rathore 63 letter has been filed by the prosecution, the same cannot be thrown away simply because of the fact that certificate u/s 65B of the Indian Evidence Act was not filed by the prosecution.
I have heard the ld. counsel for accused Jarnail Singh Kalra, Salam Singh Rathore and Ld. Sr. PP for CBI on the issue of conspiracy.
At the outset, before dealing with this charge of conspiracy, it would be appropriate to deal with relevant evidence. The PW24 Insp. Girraj Sharma has categorically mentioned in his crossexamination carried on 23.02.2017 that the mobile number xxxxxx1631 belonged to the accused Salam Singh Rathore and the mobile number xxxxxx6790 belonged to the accused Jarnail Singh Kalra. He has also termed it to be correct that accused Salam Singh Rathore was posted at Visakhapatnam from July 2005 till 31.01.2006 and there was no inter se call from the aforesaid numbers from July 2005 till 31.01.2006 nor any call was found with the code of Vishakapatnam i.e. 0891. However, he voluntarily clarified that there were interse calls from the aforesaid mobile numbers after February, 2006. It was also highlighted that as per Ex.PW13/C, the units /ships where the accused persons namely Jarnail Singh Kalra and Salam Singh Rathore had worked together is DNASJuly 93 to 30.06.1995. He also termed it to be correct that there was no record of any posting of these two accused persons after this time. From the bare reading of the testimony of PW24 Insp. Girraj Sharma it is clear that prosecution has tried to prove the charge of conspiracy by means of the call details of the mobile numbers used by both the accused persons and also by means of their postings at the same ships/stations during their services.
Now this court shall deal with the evidence regarding the call details of the aforesaid mobile numbers claimed by the prosecution to have Judgment CBI Vs Salam Singh Rathore 64 been owned / used by the two accused. The mobile phone of accused Salam Singh Rathore was seized during the course of search only as per depositions made by the PW23 Dy. SP Surender Kumar. However, regarding the accused Jarnail Singh Kalra, the position regarding the seizure of his mobile phone is not clear as the PW23 Dy. SP Surender Kumar as well as PW24 Insp. Girraj Sharma are silent with respect to the seizure of the mobile phone of the accused JS Kalra. It has also been termed to be correct by the PW21 Ramnish Geer who was working as DIG in CBI in his crossexamination carried on on 16.11.2016 that nothing incriminating was recovered from the office as well as residence of the accused Jarnail Singh Kalra. The call details of the mobile phone bearing number xxxxxx1631 belonging to accused Salam Singh Rathore and that mobile phone bearing number xxxxxxx6790 belonging to accused Jarnail Singh Kalra was also filed and proved as Ex.PW22/A by the PW22 R.K. Singh. Accordingly this court turned to the testimony of PW22 R.K. Singh who stated that he was working as Nodal Officer with Bharti Airtel Ltd. During his evidence, he was shown with the letter dt. 21.11.2006 by the prosecution and he submitted that through the said letter the call details of the mobile number xxxxxx1631 and xxxxxx6790 were forwarded to Smt. Sonali MishraSP CBI. He proved his signatures on the same along with call details in one page for mobile no. xxxxxx1631 for the period 01.10.2005 to 31.12.2005 in 38 pages for the same number for the period 01.01.2006 to 20.11.2006 in 55 pages for the call details of mobile number xxxxxx6790 from 01.10.2005 to 31.12.2005 and in 136 pages for the same number for the period 01.01.2006 to 20.11.2006. He proved the said letter and call details as Ex.PW22/A. In his crossexamination, The PW22 R..K. Singh stated that he had not issued any certificate u/s 65 B of the Indian Evidence Act to CBI for the reason that the same was not demanded by CBI. He also stated that the Judgment CBI Vs Salam Singh Rathore 65 highlighted portion of the mobile no. xxxxxx1631 in Ex.PW22/A running in 38 pages was not highlighted by him. He also termed it to be correct that customer application form of both these numbers are not on file as they were not demanded by CBI.
From this testimony of the PW22 R.K. SinghNodal Officer, Bharti Airtel, it is clear that though the call details pertaining to the mobile number xxxxxx1631 claimed by prosecution to be owned/used by accused Salam Singh Rathore and xxxxxx6790 claimed by prosecution to be owned/used by the accused Jarnail Singh Kalra were filed, but the certificate u/s 65B of Indian Evidence Act which is requirement under Evidence Act for proving the electronic record has not been filed by the prosecution. Neither the customer application form etc. which may suggest the name of the consumer of the SIM card of both these mobiles have been filed by the prosecution.
If we turn to Section 65 A of Indian Evidence Act, from the title itself it is clear that it is special provision as to evidence relating to electronic record and it states that the contents of the electronic record may be proved in accordance with provisions of Section 65 B of the Indian Evidence Act. Section 65B of Indian Evidence Act deals with admissibility of electronic record and it starts with non obstinate clause. It explains that notwithstanding anything contained in the Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be Judgment CBI Vs Salam Singh Rathore 66 admissible.
Sub clause 2 of Section 65B of Indian Evidence Act prescribes the condition with respect to computer output which contains the information. Sub section 4 prescribes that in any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
From the bare reading of the provisions of Section 65B it is clear that the certificate u/s 65B of the Indian Evidence Act required to be filed is a technical certificate which should contain any of the requisites as mentioned in Subclause 4 of Section 65B of the Indian Evidence Act.
To appreciate the arguments of Ld. Counsel for accused Jarnail Judgment CBI Vs Salam Singh Rathore 67 Singh Kalra and accused Salam Singh Rathore with respect to the non filing of certificate u/s 65B of Indian Evidence Act, I am guided by the decision of Hon'ble Supreme Court of India in Anvar P.V. vs PK Basheer and others (2014) 10 Supreme Court Cases 473 in which it was held as under:
"the electronic record produced for the inspection of the court is documentary evidence under Section 3 of the Evidence Act, 1872 (the Evidence Act). Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B of the Evidence Act. The purpose of these provisions is to sanctify secondary evidence in electronic form generated by a computer. The very admissibility of electronic record which is called as "computer output", depends on the satisfaction of the four conditions prescribed under Section 65B (2) of the Indian Evidence Act.
Under Section 65B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which should identify the electronic record containing the statement;
(b) the certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B (2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a Judgment CBI Vs Salam Singh Rathore 68 responsible official position in relation to the operation of the relevant device.
The person concerned occupying the responsible official position concerned need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive etc., which contains the statement which is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transportation, excision etc., without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45A of the Evidence Actopinion of Examiner of Electronic Evidence can be sought.
The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
From the bare reading of the aforenoted important judgment it is clear that the provisions of 65 B of the Indian Judgment CBI Vs Salam Singh Rathore 69 Evidence Act are to be mandatorily complied with and the special provision on the Evidence Act relating to the electronic record shall be governed by the procedure prescribed in the special Act."
In the cited judgment in Anvar P.V. case (supra), no certificate u/s 65 B of Indian Evidence Act was filed and accordingly Hon'ble Apex Court refused to accept the evidence of electronic record without the same. It was further held in AnvarP.V. case that Section 63 and 65 of Indian Evidence Act have no application in case of secondary evidence by way of electronic record and the evidence in electronic record is wholly governed by the provisions of Section 65A and 65B. It was further declared that the statement of law on admissibility on secondary evidence pertaining to electronic record as stated by Supreme court in its earlier judgment in Navjot Sandhu case (2005) does not lay down correct proposition of law and that an electronic record by way of evidence shall not be admitted in evidence unless the requirement of certificate u/s 65B of Indian Evidence Act is satisfied.
Now coming to the argument of Ld. Sr. PP for CBI that by virtue of judgment in Shafhi Mohammad Vs State of Himachal Pradesh (2018)2 SCC 801, there is no requirement of certificate u/s 65 B of Indian Evidence Act, it appears to this court that interpretation of the said judgment has not been done by the Ld. Sr. PP for CBI in its true letter and spirit. The Hon'ble Supreme Court in Shafhi Mohd. Case (supra) has also discussed its earlier judgment in Anvar P.V. Vs P.K. Basheer case. The law in Shafhi Mohammad case (supra) was summarized to the extent that Section 65B of the Evidence Act can't be held to be complete code on the subject and authenticity and procedure for admissibility of the electronic record may depend on the fact situation whether person producing such evidence is in a position to furnish Judgment CBI Vs Salam Singh Rathore 70 certificate u/s 65B of Evidence Act and if the party producing the electronic evidence is not in possession of device from which the electronic document was produced, then such party cannot be required to produce certificate u/s 65B Evidence Act. It was further held in the said judgment in Shafhi Mohammad case that requirement of certificate u/s 65B Evidence Act being procedural can be relaxed by court wherever the interest of justice so justifies and that the requirement of certificate is not always mandatory.
After going through the judgment relied upon by Ld. Sr. PP for CBI, this court feels that the Hon'ble Supreme Court laid down the law in Shafhi Mohammad case (supra) wherein the party producing electronic evidence is not in a position to furnish certificate u/s 65B of Indian Evidence Act may be for the reasons that the party producing the evidence may not be in possession of device from which electronic document was produced or that depending upon fact situation, the court may relax its filing. The Hon'ble Supreme court in Shafhi Mohammad case has not overruled the law laid down in Anvar P.V. case (supra) but has relaxed the condition with respect to mandatory filing of certificate under Section 65B of the Indian Evidence Act certificate for proving the electronic evidence.
Here in this case, the situation is completely different as it has come on record that the prosecution had obtained call detail records from the Nodal Officer of the service provider of the mobile phone. The certificate u/s 65B of the Indian Evidence Act has not been filed even though the party producing the electronic evidence i.e. CBI was in a comfortable position for filing the same as it had already approached the service provider for getting call details of mobile phone. Unlike the case in Shafhi Mohammad case (supra), here in the present case, the position was not such that the CBI was not reachable to the person holding the electronic device or that the electronic Judgment CBI Vs Salam Singh Rathore 71 record could not have been in the possession of the CBI. Therefore, the CBI was under obligation to file certificate u/s 65 B of Indian Evidence Act and since the same has not been filed, the call detail record Ex.PW22/A containing the call details of mobile numbers xxxxxx1631 and xxxxxx6790 is not admissible in evidence in terms of Section 65B of Indian Evidence Act and in terms of dictum laid down in Anvar P.V. case (supra). Moreover, no customer application form etc. has been collected by CBI and hence the court could not find any assistance from CBI in order to substantiate the claim that mobile phone belonged to both the accused persons. Accordingly, as far as the claim of the CBI that both the accused namely Jarnail Singh Kalra and Salam Singh Rathore were in regular touch with each other through mobile phone and for that reason only the conspiracy was hatched between them could not be proved by the prosecution as it has failed to file the certificate u/s 65 B of Indian Evidence Act.
Regarding the second aspect that the postings of the two accused namely Jarnail Singh Kalra and Salam Singh Rathore were together at different point of time, this court has seen the posting records Ex.PW13/C1 and Ex.PW13/C2 of the accused Salam Singh Rathore and accused Jarnail Singh Kalra respectively. The PW13 Cdr. K.S. Phogat after seeing the letter dt. 15.01.2007 (D6) Ex.PW13/B stated that vide this letter he had forwarded posting details of accused Salam Singh Rathore and accused Jarnail Singh Kalra to Ms. Sonali MishraSP/CBI. No doubt for a short period of time, the prosecution has proved that both the accused remained together on a same station, but the period during which they remained posted together is much earlier (around 10 years) from the period during which the offence is claimed to have been committed. The postings of the two of the accused have been shown together sometime during the year 19931995 i.e. around 10 years Judgment CBI Vs Salam Singh Rathore 72 prior to the period of commission of offence and that too for a period of around one year. Moreover, no other evidence except both the accused remained posted together for a short period have been filed in order to give credence to the claim of the CBI that conspiracy has been hatched between them simply because the two accused remained posted together at same station during their service tenure and that too prior to ten years of the period of commission of offence, it cannot ipso facto taken to mean that they had hatched conspiracy.
Therefore, it is clear from above noted discussion that the prosecution has not been able to prove the charges of conspiracy against both the accused.
The arguments regarding the non production of the originator of the document Sh. NSS Parmar in the witness box shall be dealt with in the later part of the judgment.
Arguments on behalf of accused Salam Singh Rathore (A1).
Coming to the case of accused Salam Singh Rathore, the accused Salam Singh Rathore is facing charges for the offences u/s 3 & 5 of Official Secrets Act, 1923, besides Section 3(1)(C) & 5(2) of the said Act. As per the charges, the accused Salam Singh Rathore being a retired captain from Indian Navy and working with M/s Virat Consultants & Traders Pvt. Ltd., Noida during the year 2006 on 23.06.2006 or thereabout in New Delhi or in Noida U.P. entered into conspiracy with coaccused Jarnail Singh Kalra, also a retired Navy officer and working as Dy. General Manager (Customer Service) Hindustan Aeronautics Ltd. (HAL), Lodhi Colony to obtain, collect and communicate documents and information which could have been useful to Judgment CBI Vs Salam Singh Rathore 73 enemy, the information/documents were in relation to work of defence, naval establishment, which were obtained, collected and communicated for the purpose prejudicial to the safety or interest of the State. The said Salam Singh Rathore was found in unauthorized possession of 17 documents as per charge sheet, search list dt. 23.03.2006 which were recovered from him. Out of these documents, 3 documents as contained in serial no. 1,2,3 of the charge were obtained by coaccused Jarnail Singh Kalra because of his position in Hindustan Aeronautics Ltd. holding a position under the Government. The accused Salam Singh Rathore is also facing charges that he voluntarily received secret documents and information in the form of above noted three documents which were received by him from coaccused and the coaccused in turn, as per charge, had received while he posted as DGM, Customer Care Service, HAL. In all the accused Salam Singh Rathore is facing charges for the offence u/s 120B r/w Section 3 & 5 of Official Secrets Act, Section 3 (1) (C) of Official Secrets Act and Section 5(2) of Official Secrets Act, 1923.
Ld. Counsel for accused Salam Singh Rathore vehemently argued that a false story has been cooked up by the CBI and all the documents allegedly recovered are the photocopies, there is no evidence as to from where these documents came from as the prosecution was under bounden duty to link the alleged recovered documents from the place of recovery. He has drawn the attention of this court towards the recovery memo Ex.PW5/A and stated that the search was conducted by CBI at the house of the accused for ten hours but the CBI did not care to join any public witness. He stated that though PW5 Baljeet Chaudhary who hails from some other department was joined in the alleged recovery but he was first taken to CBI office and only then he was brought to the place of raid.
Judgment CBI Vs Salam Singh Rathore 74 Ld. Counsel further strenuously argued that if we have a bare look at the recovery memo Ex.PW5/A, it talks of the bunch of papers allegedly recovered, but in the chargesheet there is individual reference of documents. He stated that the CBI should have scrutinized the documents at the place of raid only, since it was not done, the prosecution is unable to connect the documents mentioned in the charge sheet with those allegedly recovered, the documents were not sealed. He further claimed that the search was made in complete defiance of Section 100 of Criminal Procedure Code, and that no site plan etc. was preferred. In support of his claim, he relied upon various judgments of Hon'ble Supreme Court of India delivered in Criminal Appeal No. 513 of 1991 titled as Kochu Maitheen Kannu Salim Versus State of Kerala 1998(1) Crimes 1 (SC) Decided on 05.03.1998; Criminal Appeal No. 409410/1996 titled as State of U.P. Versus Arun Kumar Gupta 2003(1) Supreme 175 Decided on 08.01.2003 and Criminal Appeal No. 61 of 1992 titled as Sahib Singh Vs State of Punjab 1996(6) Supreme 774 Decided on 13.09.1996.
Ld. Counsel for the accused Salam Singh Rathore further urged that there are so many loopholes in the prosecution story. He has relied upon the testimony of PW23 Dy. SP Surender Kumar wherein in his cross examination recorded on 04.01./2017 at page 2 he had specifically admitted that he did not ask any person of the locality to join such proceedings as he was already having two independent witnesses. He urged that non joining of the independent witness had serious repercussions in a criminal trial as possibility of false implication cannot be ruled out. On the point of recovery of documents from the accused Salam Singh Rathore, the ld. Counsel stressed that in fact the documents alleged to have been recovered from the accused Judgment CBI Vs Salam Singh Rathore 75 Salam Singh Rathore were already recovered by IO from the place of another search conducted at the premises of Virat Consultants & Traders Pvt. Ltd. where the accused was working after his retirement. He has drawn the attention of this court towards the testimony of PW24 Insp. Girraj Sharma recorded on 13.02.2017 at page no. 5 wherein he has specifically termed it to be correct that he has received documents related to search and seizure from Virat Consultants & Traders Pvt. Ltd. He has also referred to the testimony of PW5 Baljeet Chaudhary recorded on 24.09.2015 wherein at page no. 3 he has specifically stated that he was not taken by the CBI officers to the office of Virat Consultants & Traders Pvt. Ltd. Ld. Counsel on the point of recovery was finally meant to say that all the documents were recovered from the office of Virat Consultants & Traders Pvt. Ltd. and not from the accused Salam Singh Rathore.
It was also highlighted on behalf of the accused Salam Singh Rathore that after the alleged recovery of the documents from the accused, though mobile phone and digital diary were sealed as also stated by PW5 Baljeet Chaudhary at page 3 in his testimony recorded on 24.09.2015, no circumstances have been explained by the CBI as to why documents allegedly recovered were not sealed. The PW5 Baljeet Chaudhary has also stated that no videography of the search proceedings were done in his presence which is in complete defiance of dictum of superior courts.
Ld. Counsel for accused Salam Singh Rathore further stated that regarding the seal, the PW5 Baljeet Chaudhary has mentioned that the CBI had themselves kept the seal but the PW23 Dy. S.P. Surender Kumar had stated that he did not remember as to whom the seal was given. He has also referred to recovery memo Ex.PW5/A wherein it is shown that the brass seal was handed over to PW5 Baljeet Chaudhary. Ld. Counsel submitted that Judgment CBI Vs Salam Singh Rathore 76 when the position of seal itself is not clear, the search becomes open to suspicion. It was also highlighted by Ld. Counsel for the accused that the statement of PW5 Baljeet Chaudhary u/s 161 CrPC was not recorded and neither the malkhana incharge where the documents were being kept by the IO has been made a witness in this case. Attention of this court has been drawn to the testimony of PW24 Insp. Girraj Sharma wherein he had admitted that he has not filed any copy/extracts of malkhana register whereby he had collected the documents from malkhana incharge as stated by him in his deposition on 02.11.2006. He had also termed it to be correct that the malkhana incharge has not been made a witness in this case. It was further urged that the investigation has been done in contravention of the guidelines laid down by CBI manual.
Ld. Sr. PP for CBI refuted the arguments of Ld. Counsel for accused on the grounds that section 100 (4) CrPC calls upon the police officers to join two or more independent inhabitants of the locality, the CBI has already taken care of the said mandate. It had joined the PW5 Baljeet Chaudhary as an independent witness who was posted as Jr. Engineer in the office of Executive Engineer, DDA. He referred to the testimony of PW5 and stated that the PW5 Baljeet Chaudhary was called by the CBI to join investigation through the Executive Engineer. He also stated that since the search was to be kept secret as it related to the security of the nation, the CBI had not joined the local inhabitants from the area where the search was made. He further elaborated that the PW5 Baljeet Chaudhary had categorically mentioned that he had accompanied the CBI Inspectors in Maruti van to Sector25 Noida, U.P. and the search of entire house was carried on in his presence. He has also detailed down the other items recovered like the mobile phone etc. Ld. Sr. PP for CBI further strenuously argued that on that day raid Judgment CBI Vs Salam Singh Rathore 77 was made not only at the house of the accused Salam Singh Rathore but also at Virat Consultants & Traders Pvt. Ltd. It was clarified that the raids conducted at the premises of Virat Consultants & Traders Pvt. Ltd. on the same day of the raid conducted at the house of the accused (for which the present case was registered) is not related to the present case as another case FIR was registered for the raids at Virat consultants & Traders Pvt. Ltd. It was further highlighted that when each and every page has been signed by PW5 Baljeet Chaudhary, the plea of ld. Counsel for the accused Salam Singh Rathore that the documents recovered were not sealed have no relevance at all. Ld. Sr. PP for CBI further argued that it was not possible for the investigating team to sift the documents at the place of recovery itself though it was tried by IO, as highlighted by PW5 Baljeet Chaudhary at page no. 3 of his testimony recorded on 19.04.2016 wherein the PW5 Baljeet Chaudhary has specifically mentioned that from the bunch of documents recovered the IO was sifting out documents. It was further stated that investigation cannot be completed on the same day and for these reasons only the legislature has prescribed different periods time for offences for completion of investigation before filing of chargesheet. Since the documents could not have been completely identified or sifted at the place of recovery, the specification of documents on the day of recovery was not possible for the IO of this case.
I have heard the ld. Counsel for accused Salam Singh Rathore and Ld. Sr. PP for CBI, I have also gone through the recovery memo Ex.PW5/A wherein the signatures of said PW5 Baljeet Chaudhary finds mention at point A. The PW23 Dy.SP Surender Kumar had also joined other witness S.S. Meena in recovery proceedings but the said witness could not be produced by CBI. The PW23 has also categorically mentioned in his testimony that he Judgment CBI Vs Salam Singh Rathore 78 conducted the search at the residential premises of accused Salam Singh Rathore at L260, Sector25, Noida on 23.06.06 alongwith Inspr.Shiv Kumar and two independent witnesses namely Baljeet Chaudhary, JE DDA and S.S.Meena, AE DDA. On the search aspect the police officer namely Inspr.Shiv Kumar was also joined by IO but unfortunately the said Insp. Shiv Kumar also could not be examined in court by CBI. Accordingly, there remains two witnesses with CBI for proving the search conducted at the premises of the accused Salam Singh Rathore. The PW5 Baljeet Chaudhary has duly corroborated the version of PW23 Surender Kumar on the aspect of search and have duly proved the search list/recovery memo Ex.PW5/A. The signatures of the PW5 Baljeet Chaudhary and PW23 Surender Kumar have also been proved at points A to A respectively by both these individual witnesses. I find force in the arguments advanced by Ld. Sr. PP for CBI that no witness from the locality could have been joined by CBI as the matter related to the search of documents pertaining to the defence of India. In case the IO would have made efforts to join public witnesses of locality at which proposed search was to be made the possibility cannot be ruled out that the entire efforts of the CBI for recovery of incriminating documents could have been frustrated. Moreover as already mentioned, it is not the number of eye witnesses which matters in a criminal trial but it is the credibility of a witness which is most important and weighs for the investigation and trial of a criminal case. In this regard, I gain guidance from the judgment of Hon'ble Supreme Court of India in AIR 2004 Supreme Court 2688 Chaco aliyas Aniyan Kunju and others vs State of Kerala wherein it was held that no particular number of witnesses is required to establish a case and the corroboration may be necessary when the witness is partially reliable. The relevant dictum of Hon'ble Supreme Court in this regard is as under:
Judgment CBI Vs Salam Singh Rathore 79 "7. Coming to the question whether on the basis of a solitary evidence conviction can be maintained. A bare reference of Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act') would suffice. The provision clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of single witness if he is wholly reliable.
Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained."
Further, in another judgment delivered in AIR 2001 Supreme Court 3031 Munshi Prasad and others vs State of Bihar, it has been held that non examination of independent witness from nearby residential area does not matter when evidence on record is satisfactory and trustworthy in nature. The increase in number of witnesses cannot be termed to be a requirement in a case. Heavy reliance was placed by ld. Counsel for accused Salam Singh on the CBI manual stating that the provisions of the same has not been followed by the CBI while conducting searches and that judgment of Hon'ble Supreme Court of India in (1998) 1 Supreme Court Cases 226 Vineet Narayan Vs Union of India was also relied upon wherein it was held that the CBI Manual is based on statutory provisions of CrPC provides for essential guidelines for CBI functioning. Ld. Counsel urged that it is imperative that CBI adheres scrupulously to the provisions in the manual in relation to its investigating functions like raids, seizures and arrest, any deviation from Judgment CBI Vs Salam Singh Rathore 80 established procedure could be viewed seriously and severe disciplinary action be taken against the officials concerned.
This court after going through the said judgments has also considered the argument of Ld. Counsel as to whether the CBI manual has been followed or not. It has already been explained by the CBI as to why the public witnesses were not joined and the CBI has already involved one independent witness Baljeet Chaudhary who hailed from some other department. The signatures of the said Baljeet Chaudhary has been taken on each page recovered from the accused, as came up during evidence. Chapter 13.6 of CBI manual as mentioned by the Ld. Counsel for accused Salam Singh in his paper book it has been mentioned that it is mandatory as per provision of Section 100(4) CrPC for making search to get two or more witnesses. The next chapters deals with the recording of video films, preparation of inventory (seizure memo), recording of statement of witnesses etc. After going through the evidence on record, this court is of the view that since public witness Baljeet chaudhary was already joined by the CBI and the reasons for non joining of the public witnesses from the neighbourhood has already been well explained and recovery memo Ex.PW5/A was also prepared by the IO, statement of witnesses was recorded u/s 161 CrPC, majority of the guidelines, as contained in the Manual has already been complied with by the IO. Judicial notice can be taken of the fact that there might have been practical difficulties in videography of the search and seizure as it could have led to the revelation of the proposed search, as for the same reason the public witnesses from the neighbourhood could not be joined by the CBI as explained by Ld. Sr. PP for CBI. It is settled law that Judgment CBI Vs Salam Singh Rathore 81 minor discrepancies in a criminal trial can be ignored and can be treated as irregularity.
The defence has not been able to discredit or impeach the testimony of PW5 Baljeet Chaudhary who was joined by the CBI during the raid conducted at the premises of accused Salam Singh Rathore. This is because nowhere in the entire cross examination of PW5 Baljeet Chaudhary, it could be taken out from the mouth of the witness that he had taken part in other raids conducted by CBI. The PW5 Baljeet Chaudhary has specifically mentioned in his testimony on oath before this court on 24.09.2015 at page 3 wherein he termed it to be incorrect to suggest that he was taken for one more search by the CBI. He specifically stated that he was not taken by CBI officers to the office of the Virat Consultants & Traders Pvt. Ltd. Therefore, the plea of Ld. Counsel for accused Salam Singh Rathore that the recovery in this case was not effected from accused Salam Singh Rathore and that it was in fact effected from premises of M/s Virat Consultants & Traders Pvt. Ltd. is not tenable.
Further PW5 Baljeet Chaudhary was an active participant during the raid of the premises of the accused and since he had signed each and every document recovered from the possession of the accused Salam Singh Rathore and since he had also signed the recovery memo, non recording of his statement by the IO of this case u/s 161 CrPC does not in any way lead this court to draw any adverse impact. He has already proved his signatures on the recovery memo and have narrated and detailed down the entire episode in his testimony on oath. The version of PW5 Baljeet Chaudhary is also corroborated by the IOPW23 Dy. SP Surender Kumar who was heading the Judgment CBI Vs Salam Singh Rathore 82 raiding team for the purposes of search.
Though the Ld. Counsel for the accused has relied upon the judgments of Hon'ble Supreme Court of India in 2005 (3) Supreme 136 Hemraj and Ors. Vs State of Haryana and also in Criminal Appeal No. 513 of 1991 titled as Kochu Maitheen Kannu Salim Versus State of Kerala 1998(1) Crimes 1 (SC) Decided on 05.03.1998; Criminal Appeal No. 409 410/1996 titled as State of U.P. Versus Arun Kumar Gupta 2003(1) Supreme 175 Decided on 08.01.2003 and Criminal Appeal No. 61 of 1992 titled as Sahib Singh Vs State of Punjab 1996(6) Supreme 774 Decided on 13.09.1996 with respect to the non joining of the independent witnesses but the dictum of the said judgments are not squarely applicable in this case. It was laid down by Hon'ble Supreme Court that non examination of independent witness by itself may not give rise to adverse suggestion, but evidence of alleged eye witness who was related to deceased ranged serious doubts on their presence, unexplained omission in examining independent witness will assume significance. Here in this case, the ld. PP for CBI has specifically given reasons for non joining the independent witnesses from locality as the matter related to the security of State. The PW23 Dy. SP Surender Kumar has admitted that he had not joined the witnesses from locality, but he was cautious enough to join the PW5 Baljeet Chaudhary who was from DDA as an independent witness.
Regarding discrepancies in the testimony of PW5 Baljeet Chaudhary who was the witness to the recovery as highlighted by ld. Counsel for the accused, it appears to this court that discrepancies are minor in nature and can be ignored. The law regarding the discrepancies in the testimonies of the witnesses is well clear and the Hon'ble Supreme Court has laid down in Judgment CBI Vs Salam Singh Rathore 83 Munshi Prasad & Ors. Vs State of Bihar AIR 2001 Supreme court 3031 (supra) as under:
" 24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant detail. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in the jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
25. It is a common practice in trial courts to make out contradictions from the previous stated of a witness for confronting him during cross examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the Section would indicate that all inconsistent statements are not sufficient to impeach Judgment CBI Vs Salam Singh Rathore 84 the credit of the witness."
With respect to the arguments of Ld. Counsel for accused Salam Singh Rathore that the testimony of police officials with respect to recovery can't be relied upon, at the outset, this court is not in agreement with the submissions of Ld. Counsel that no reliance can be placed on the evidence of the police officials who are interested witnesses as the law is well settled in this regard. There is no rule that requires the court to view the testimony of the police witnesses and official witnesses with any suspicion. The evidence of witnesses on oath in the court of law cannot be thrown away merely because they belong to any particular service or profession. Their version cannot be disbelieved just because they happen to serve in a government agency. These witnesses are as good as any other witness and their testimony stand on the same footing as that of other witnesses. The yardstick to test their credibility is the same as that of any other witness, though in matters where the case is based only on the evidence of such officials, the court has to remain extra cautious and careful while appreciating the evidence.
In State Government of NCT of Delhi vs Sunil and another (2001) 1 SCC 652, it has been observed:
"In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable Judgment CBI Vs Salam Singh Rathore 85 inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code.
Section 100(5) of the Code requires that such search shall be made in their presence and 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. It must be remembered that search is made to find out a thing or document which the searching officer has no prior idea where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helterskelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But, recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commissioner, Andhra Pradesh, Judgment CBI Vs Salam Singh Rathore 86 Hyderabad & anr. Vs. S. Sardar Ali & Ors. (1983 SC 1225). Following observations of Chinnappa Reddy J. can be used to support the said legal proposition: Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures.
In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of subsection (4) and (5) of section 100 of the Criminal Procedure Code. In the case of a seizure [under the Motor Vehicles Act], there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of vehicle itself. Hence, it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any articles it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But, if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The Court has to consider the evidence of the investigating Judgment CBI Vs Salam Singh Rathore 87 officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.
We feel that it is in archaic notion that actions of the police officer should be approached with initial distrust.
We are aware that such a notion was lavishly entertained during British period and policeman also knew about it.
Its hang over persisted during postindependent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through crossexamination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But, it is not a legally approvable Judgment CBI Vs Salam Singh Rathore 88 procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
It is clear from the abovesaid judgment that there is no rule of law which enjoins upon the Court not to rely upon the testimony of the police officials in the absence of any independent / public witness. The only concern is to be more cautious and circumspect before placing any reliance on their testimonies. In other words, their testimony is to be subjected to careful scrutinization and assessment as compared to the testimony of any other public person.
In Karamjit Singh v. State [AIR 2003 SC 1311], the Hon'ble Supreme Court has held as under:
"The testimony of the police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds."
The Hon'ble Apex Court reiterated the above position in a later precedent titled as Girija Prasad v. State of M.P. [AIR 2007 SC 3106] and Judgment CBI Vs Salam Singh Rathore 89 held as under:
"It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that the police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence."
Needless to say that the present case is not solely based on the testimonies of police officials as independent witness PW5 Baljeet Chaudhary was also joined by CBI during raid. Moreover, it is settled law that merely because a case is based only on the testimonies of the police officials, no infirmity can be attributed to the case so as to attach falsity to the entire version in terms of aforementioned dictum. The court has to see if the witnesses are reliable and trustworthy.
Judgment CBI Vs Salam Singh Rathore 90 Similar is the position with respect to nonjoining of public persons. Merely because no other person could corroborate the version of the police officials, their version cannot be said to be false. No doubt, the joining of neighbourers would have helped the prosecution case, but mere absence of the same would not demolish the prosecution case altogether. The court is not oblivious of the fact that ordinarily, people are reluctant in joining such legal proceedings which involve lengthy paper work, tedious formalities and strict future commitments. Witnesses in this case have admitted the presence of public persons at the spot but stated that they had declined to join the proceedings. Considering the urgency of the matter, it was certainly not feasible for CBI to apprehend such public persons, give them notices to join the proceedings and then to take action against them for refusing to join the proceedings. Just because no notice in writing was given to them, no action was taken against them and their names were not recorded, that would be a separate matter altogether, but as far as nonjoining of public witness from locality is concerned, that would not prove fatal or falsify the prosecution case only on this count. The court cannot refuse to rely on the evidence of the police officials given on oath in the court just on hypothetical assumption of their being interested witnesses.
As far as the credibility of the witnesses in the case at hand is concerned, this court finds no reason to disbelieve them. There is nothing on record that the witnesses were having any enmity or illrelations with the accused. No ulterior motive has been shown to exist between the witnesses and the accused. Even the accused did not allege any previous dealing or rivalry, monetary or social, psychological or professional, so as to hint towards any illintention for the witnesses to depose against him. Thus, the court is Judgment CBI Vs Salam Singh Rathore 91 bound to believe such evidence when there is nothing to doubt. There is nothing in evidence of witnesses which could destroy the prosecution case.
Regarding the sealing of documents, ld. Counsel has relied upon the judgment of Hon'ble Supreme Court of India in Surender Vs State of Haryana, 1994 (2) Crimes SC 953 as well as Ousaph Vs State of Kerala 2004 (10) SCC 647 with plea that since the documents were not sealed, the recovery becomes doubtful. When this court went through the judgments, it was found that the recovery in both the cited judgments pertained to recovery of pistol and cartridges in one case and recovery of contraband in another case. Here in this case, there was recovery of incriminating documents and it has been mentioned in the memo that it was a bunch of documents. Sealing of the said documents could have been a futile exercise as the documents were repeatedly and intermittently could have been needed by the IO for sifting the same and for identifying the same for the purposes of classification of documents. As already said, the IO has taken an abundant precaution vide which he had obtained the signatures of independent witness from the PW5 Baljeet Chaudhary. Therefore, the dictum laid down in the said judgments relied upon by ld. Counsel for the defence on this issue with due respect is not applicable in the facts of this case.
Now coming to issue regarding the recovery of the documents from accused Salam Singh Rathore, as contained in the memo Ex.PW5/A. The following documents were stated to have been recovered, vide the memo Ex.PW5/A:
1. One bunch of loose papers containing pages pertaining to standard clauses of contract, procedure for defense procurement, defence procurement Judgment CBI Vs Salam Singh Rathore 92 organization, amplification notes, brief of contract negotiation committee, registration of agents etc. containing pages 1 to 74.
2. One bunch of loose papers containing cost guard requirement, patrol boat, defence procurement procedure, paper of Ministry of Defence (finance) etc. containing pages 1 to 93.
3. One spiral binding book of Defence procurement procedure, 2005 containing pages 1 to 186 excluding index contents 1 to 7.
4. One bunch of loose papers containing defence procurement manual, telephone bill of telephone no. 2536155, call details etc. containing pages 1 to
13.
5. One bunch of papers containing/pertaining to Induction of material, Ministry of Defence etc. pages 1 to 96.
6. One bunch loose papers related to procurement of Navy and Army containing pages 1 to 182.
7. One passport no. B5099222 in the name of Salam Singh Rathore valid upto 24.04.2011 issued by Passport Officer, Delhi.
8. One diary titled Ajanta Spiral Pad no. 5 containing various telephone no.'s page 1 to 9.
9. One passbook of SB Account no. 9055010035295 in the name of Capt. Judgment CBI Vs Salam Singh Rathore 93 S.S. Rathore held in Syndicate Bank, South Block, Delhi.
10. One passbook of SB Account no. 10569726587 in the name of jointly S.S. Rathore, Smt. Sadhana Rathore and Miss Shivani held in SBI, IMS India, Delhi.
Ld. Counsel for the accused Salam Singh Rathore has taken plea that the CBI has not taken care to specify the documents in the search list and has simply mentioned that the bunch of loose papers etc. besides other documents were recovered from the premises of the accused Salam Singh Rathore. He further claimed that since there is no specification of documents, the possibility cannot be ruled out that the CBI might have implicated the accused Salam Singh Rathore in this case by later manipulating the things in such a manner that the documents specified as contained in the chargesheet could falsely shown to have been recovered from the possession of accused Salam Singh Rathore.
After hearing Ld. Counsel for accused Salam Singh Rathore on this point, this court is of considered opinion that since the PW5 Baljeet Chaudhary has categorically mentioned in his testimony on oath before this court that he had signed all the documents which were recovered, and in his cross examination carried on by ld. Counsel for the accused Salam Singh Rathore, the PW5 Baljeet Chaudhary has termed it to be incorrect to suggest that the search list was prepared in the CBI office or that he was made to sign in the office of CBI, the plea of Ld. Counsel is not sustainable. In the cross examination carried on by ld. Counsel for the coaccused Jarnail Singh Kalra, the PW5 Baljeet Chaudhary also reiterated the same fact and termed it to be incorrect to suggest that he had signed the documents at the office of the CBI Judgment CBI Vs Salam Singh Rathore 94 or that at the asking of the CBI officers or that no proceedings were conducted at the spot. He also stated that he signed many documents without going through the contents of the same. No questions could be highlighted to have been put up by any of the ld. Counsel for both the accused to the PW5 Baljeet Chaudhary that the documents recovered were not the same as being filed in the court. No suggestions have been put up by the accused persons to the witness that the CBI had made the witness PW5 Baljeet Chaudhary to sign some other documents again in the office. Therefore, when the PW5 Baljeet Chaudhary had signed all the documents recovered, the issue raised by ld. Counsel for the accused Salam Singh Rathore that the bunch of loose papers as highlighted in search list Ex.PW5/A were not the documents shown in the chargesheet remains of no relevance and hence credence can't be given to this plea of Ld. Counsel for accused Salam Singh Rathore.
The Ld. Counsel for the accused Salam Singh Rathore has further taken the plea that the documents allegedly recovered from accused Salam Singh Rathore were all photocopies of the documents as the bunch of documents claimed to have been recovered and he is astonished as to why the CBI could not produce the originals of the same as CBI claims that the accused was retaining the copies of the documents. It was further highlighted by Ld. Counsel that when source of the documents is not clear, how can CBI prosecute the accused under Official Secrets Act. He further claimed that for want of the production of the originals, the CBI has utterly failed to establish its case beyond the shade of doubt and the prejudice has been caused to the accused by unauthorized actions of the CBI. It was further urged that by not examining the owner of the documents, there is missing link as no witness has been produced to show that in fact there was custodian of these documents as Judgment CBI Vs Salam Singh Rathore 95 the relevant witness has not been examined by the CBI. It was further stressed that the accused never dealt with the documents allegedly recovered during his official position.
Ld. Counsel also raised doubts about the classification of documents by stating that though the CBI has filed the report regarding analysis of document Ex.PW19/B, but it is not clear as to who had examined the documents. He referred to the letter Ex.PW20/A written by one Ms. Namita Mehrotra, Director Vigilance, Ministry of Defence to DIG CBI wherein it has simply been mentioned that she is enclosing the comments relating to 14 documents out of 17 documents and intimation regarding remaining three documents will be forwarded as and when received from the concerned wing of Ministry. He stated that the officer/official who had examined the allegedly recovered documents for the purpose of classification has not been examined by the CBI and hence the document Ex.PW19/B has no sanctity in the eyes of law which relates to the classification of documents. It was further highlighted that accused Salam Singh Rathore has lost a chance as he could have derailed the classification of documents purportedly done by Ministry of Defence as the same has been done in violation of law.
It is further stated that the CBI has not been able to explain the delay in lodging the FIR as the raid was conducted in June, 2006 but FIR could be registered only in November, 2006 and that there has been unexplained delay in lodging the FIR. It was further argued that the CBI had ample time to contrive and confabulate the story before lodging the FIR as it had got ample time.
Judgment CBI Vs Salam Singh Rathore 96 Ld. Counsel for accused Salam Singh Rathore has relied upon the statement of D2W2/2 Pitambar Dutt who stated that the copies of Force Magazine and Janes Magazine are freely available in the defence library. D2W2/2 also proved the photocopies of the Janes Weapon System Magazine 198687 as Ex.D2W2/A. He further deposed in his cross examination that these magazines are available in research library and not available in book shops. But he again said that he cannot say whether they are available in book shops or railway stations. He further stated that anyone can purchase these magazined from agents or online. Ld. Counsel stated that when all the information was in public domain there is no violation of official secret act and the charges qua the accused Salam Singh Rathore may be quashed. He stated that the accused Salam Singh Rathore already remained in custody of around three years without any of his fault.
During the course of arguments, ld. PP for CBI submitted that the document Ex.PW19/B is unsigned because of the fact that this relates to comments on different letters and when the office of CBI contacted Ministry of Defence for showing the originals vide which the comments were given, the Ministry of Defence refused to divulge the same being highly sensitive. He also submitted that Ministry of Defence also refused to provide any communication in this regard. He has fairly conceded that CBI has not done written communication in this regard.
Ld. Sr. PP for CBI has drawn the attention of this court towards document Ex.PW2/A in order to rebut the claim of the ld. Counsel for accused Salam Singh Rathore that the originals of the document allegedly recovered from the accused were not produced. He stated that the PW2 Col. K.V. Kuber was called in the witness box from whom certain original documents were seized as contained in the production cum seizure memo Ex.PW2/A. It was Judgment CBI Vs Salam Singh Rathore 97 stated that PW2 Col. K.V. Kuber was also examined at length by CBI and was crossexamined by defence in detail. He stated that various documents as listed upto from serial no. 1 to 3 of the charge besides other documents in Ex.PW2/A were seized from Col. K.V. Kuber by CBI which were originals of some of the documents recovered from the accused Salam Singh Rathore. Regarding delay in lodging the FIR, the Ld. PP for CBI stated that CBI never tends to be in hurry in implicating the accused and therefore before registration of FIR it had taken time to establish the fact that in fact the documents recovered from accused Salam Singh Rathore were secret, top secret, confidential and restricted documents. He asked the ld. Counsel for the defence as to explain as to how the said documents were in possession of accused Salam Singh Rathore even after his retirement.
Ld. Sr. PP for CBI submitted that the accused Salam Singh Rathore retired only on 31.01.2006 from defence services and some of the documents were found dated so near to his date of retirement that it cannot be placed in the category of outdated documents. He has further submitted that in the defence library no information regarding the secret documents are being placed though certain books has been placed which details down the specifications of the weapon logistics etc. He argued that the details of purchases etc. is never flashed in public domain.
I have heard the Ld. Sr. PP for CBI as well as ld. Defence counsel for the accused Salam Singh Rathore on the above noted issues.
Now I shall deal with the issue regarding the non production of original documents as claimed by ld. Counsel for accused Salam Singh Rathore. Contrary to the argument of Ld. Defence Counsel for accused Salam Singh Rathroe, the Ld. Sr. PP for CBI had clarified the matter during the Judgment CBI Vs Salam Singh Rathore 98 arguments itself through the records that the originals of various recovered documents were also produced. However, in order to have more clarity, this court would like to reproduce certain part of the production cum seizure memo Ex.PW2/A vide which certain documents in original were seized by CBI from PW2 Col. K.V. Kuber. The said documents are listed as under:
Description of documents produced and taken over:
1. Comments for DAC Brief for Acquisition of Six Medium Lift Utility Helicopter of NSS Parmar, Commander, JDNAS dated 10.03.2006 and its enclosure 21 pages Provisional Staff Requirements (PSR) for Medium Lift Utility Helicopters (printed on both sides of the page) (Total 13 pages).. Pages in file: 131 to 153.
2. Comments for DAC Brief for Acquisition of 37 Multi Role Helicopters of Deepak Adhar, Commander, JDNAS dated 10.03.2006 and its enclosure 34 pages Revised Naval Staff Qualitative Requirements for Ship Borne Multirole Helicopters (MRD) and 21 pages Provisional Staff Requirements (PSR) for Medium Lift Utility Helicopters (Printed on both side of pages) (Total 29 pages).
Pages in file 154 till last.
3. Comments for DAC Brief for Mid Life Upgrade of Seaking 42B Naval Helicopter of Sh. NSS Parmar, Commander, JDNAS and its enclosure 2 page brief on Mid Life Upgrade of Seaking 42B Naval Helicopter, 2 pages of HAL Letter dated 30.8.05 and Analysis of Requirement, 27 pages Preliminary Naval Staff Qualifying Requirements for ship Borne Seaking 42 B Mid Life Upgrade (SK MLU). (Total 19 pages). Pages in file 15 to 67.
4. Attested photocopy of Ministry of Defence ID No. 9(42)/2005/DAC/DP Judgment CBI Vs Salam Singh Rathore 99 (PlgIX) dated 05.12.2005 placed at page No. 3 of file No. 18(2)/2005/NAVY/Corres./DP(Plg.V) titled "Capital Acquisition Plan (Navy) Correspondence. (One page)
5. Dispatch Register of PO(CAP) for the period from 06072004 to 1612 2005 containing entry at page No. 39 of dispatch Ministry of Defence ID No. 9(42)/2005/DAC/DP(PlgIX) dated 05.12.2005 sent to JS(HAL) (Total written pages 40).
I have also gone through the testimony of PW2 Col. K.V. Kuber wherein he deposed before this court that he joined Directorate of Planning and Coordination Department, Ministry of Defence in the year 2005. In the year 2006, CBI officers had come to his office in the Ministry of Defence and vide seizure memo Ex.PW2/A he had handed over certain documents (the details of which have already referred herein above) to the CBI. This court has tallied the original documents seized from PW2 Col. K.V. Kuber by CBI as well as the photocopies of the documents recovered from accused Salam Singh Rathore. Though, copies of some of the original documents which are part of the documents seized by the CBI from PW2 Col. KV Kuber like the Revised Naval Staff Qualitative Requirements Ex.PW1/C was not recovered from the accused Salam Singh Rathore but the copies of rest of the original documents as contained in the seizure memo Ex.PW2/A from serial no. 1 to 3 were recovered from the possession of accused Salam Singh Rathore. The document at serial no. 5 of seizure memo Ex. PW2/A is the dispatch register of documents. The documents recovered from the accused Salam Singh Rathore are the photocopies of the original one. The recovered documents i.e. photocopies Ex.PW2/E (Mark PW1/4) which pertained to Mid Life Upgrade of Judgment CBI Vs Salam Singh Rathore 100 Seaking 42B Naval Helicopter and Ex.PW2/G (Mark PW1/2) which pertained to acquisition of 6 medium lift utility helicopter tallied with the seized original documents Ex.PW1/F and Ex.PW1/D respectively. The recovered document Ex.PW2/E dated 05.12.2005 was originated by Commodore NSS Parmar with respect to the comments for DAC Brief, Midlife Upgrade of Seeking 42B Naval Helicopter. The PW2 Col. KV Kuber has specifically proved the documents recovered from the accused Salam Singh Rathore i.e. Ex.PW2/G and Ex.PW2/E and has stated in his testimony that documents(Ex.PW2/G) Mark PW1/2 & Mark PW1/4 (Ex.PW2/E) are the same which were shown to him by CBI officers when he visited the office of CBI and he exhibited the documents as Ex.PW2/G and Ex.PW2/E respectively. The originals of these photocopies of documents (i.e. Ex.PW2/G and Ex.PW2/E) were proved as Ex.PW1/D and Ex. PW1/F respectively.
The photocopy document Ex.PW1/A recovered from accused Salam Singh Rathore pertained to acquisition of 37 multirole helicopter. The document Ex.PW1/A of whom the original was produced by CBI was proved by the PW1 Deepak Adhar. The recovered document dated 10.03.2006 photocopy Ex.PW1/A was originated by PW1 Commodore Deepak Adhar and it concerns with Comments for DAC Brief, Acquisition of 37 Multirole Helicopters. The original Ex.PW1/B of the said phtocopy of document Ex.PW1/A was seized by the CBI and was proved by PW1 Deepak Adhar. As per PW1 Deepak Adhar, the CBI had shown to him the original Ex.PW1/B in the CBI office. The PW2 Col. K.V. Kuber has mentioned that the original document Ex.PW1/B was seized from him vide seizure memo Ex.PW2/A. The PW1 Cdr. Deepak Adhar was also shown original annexures Ex.PW1/C collectively of the letter Ex.PW1/B relating to the purchase of 37 multirole helicopters. He proved the original annexures as Ex.PW1/C and termed it to Judgment CBI Vs Salam Singh Rathore 101 be secret. The said original annexures are of no relevance in this case as no photocopy of the annexures was recovered from accused Salam Singh Rathore.
The PW2 Col. KV Kuber also proved original documents pertaining to acquisition of 6 Medium Lift Utility Helicopters Ex.PW1/D bearing his initials along with date on page no. 1 at point X; original documents Ex.PW1/E (colly.) which are annexures to acquisition of Six medium Lift Utility Helicopters bearing his initials alongwith date on last page at point X; original document Ex.PW1/B pertaining to 37 multirole helicopters bearing his initials along with date on page no. 1 at point X and its original annexures Ex.PW1/C(colly.) bearing his initials along with date on the last page (reverse of page no. 21) at point X; original document Ex.PW1/F pertaining to upgradation of 42B Naval Helicopters bearing his initials along with date on page no. 1 at point X and its annexures; Ex.PW1/G(colly.) bearing his initials along with date on the last page (reverse of page no. 27) at point X. He also proved dispatch register Ex.PW2/C bearing his initials along with date on page no. 39 at point X. The PW2 Col. K.V. Kuber further deposed that the documents Ex.PW1/B to Ex.PW1/G were received in his office from Indian Navy and deposed that Directorate of Planning & Co ordination was the Nodal Agency for handling all Capital Acquisition Plans of the Services on behalf of the Department of Defence Production. He also deposed that the document Ex.PW2/B was originated by him.
The PW2 Col. K.V. Kuber also proved the document D14 Ex.PW2/D and deposed that the note dated 30.03.2006 was initiated by him. He also identified his signatures on the said note at point A. He further deposed that vide noting Ex.PW2/D the documents Ex.PW1/D, Ex.PW1/E and Ex.PW1/C were forwarded to Director, Planning & Coordination as well as to Judgment CBI Vs Salam Singh Rathore 102 the Joint Secretary (HAL).
Though various documents were recovered from the possession of accused Salam Singh Rathore, but out of those documents, CBI could produce only 3 seized documents vide seizure memo Ex.PW2/A beside one photocopy of some document and dispatch register which were seized from PW2 Col. K.V. Kuber. The details of the documents recovered from accused Salam Singh Rathore and seized from PW2 Col. K.V. Kuber shall be elaborated hereinafter in the coming paras.
The PW1 Cdr. Deepak Adhar was posted as Jt. Director in the Directorate of Naval Air Staff New Delhi. As per his testimony, as a Jt. Director, job of PW1 Cdr. Deepak Adhar was to look after procurement of weapons and equipments for Naval aircrafts. The requirement of weapons and equipments used to be received in the Directorate from field and after receiving requirement from staff, the Directorate of Naval Staff used to prepare provisional staff requirement which then used to be converted into Naval Staff qualitative requirement. The Naval Staff Qualitative Requirement then used to be sent to Ministry of Defence and after its approval, it was used to be sent to Directorate of Procurement, Ministry of Defence. The PW1 Cdr. Deepak Adhar specifically stated that the photocopy of document Defence Acquisition Council (DAC) Brief for Acquisition of 37 Multirole Helicopters was shown to him by CBI. The said document i.e. the photocopy of the document "Integrated Headquarter of Ministry of Defence (Navy) Staff Branch2, Directorate of Naval Air Staff) Comments for DAC briefacquisition of 37 multirole helicopters dated 10.03.2006 marked as "Secret" as well as the original documents were shown to him in the court as a witness wherein he proved the photocopy of the document running into two pages as Ex.PW1/A (File D2). The original of this document "Integrated Headquarter Judgment CBI Vs Salam Singh Rathore 103 of Ministry of Defence (Navy) Staff Branch2, Directorate of Naval Air Staff) Comments for DAC briefacquisition of 37 multirole helicopters" dated 10.03.2006 marked as Secret brought by CBI and seized vide seizure memo Ex.PW2/A (D10 Vol. 8) from Col. K.V. Kuber/PW2 was proved by the PW1 Cdr. Deepak Adhar as Ex. PW1/B. He also proved his signatures on the said document Ex.PW1/B at point A. The PW1 Cdr. Deepak Adhar further deposed that the original document Ex.PW1/B relating to acquisition of 37 multirole helicopter dated 10.03.2006 was prepared by him and after its preparation Ex.PW1/B was sent by him to DDP&S i.e. Directorate of Planning and Coordination. The original annexures to the said letter Ex.PW1/B running into 57 pages were also shown to the witness. He proved the said annexures as Ex.PW1/C. This document does not require any further elaboration as the photocopy of the annexures of Ex.PW1/B i.e. Ex.PW1/C was not recovered from accused Salam Singh and it is the recovery of photocopy Ex.PW1/A of the original document Ex.PW1/B relating to acquisition of 37 multirole helicopters which was effected from accused Salam Singh Rathore.
The PW1 Cdr. Deepak Adhar specifically stated that the original document "Integrated Headquarters of Ministry of Defence (Navy) Staff BranchII, Directorate of Naval Air Staff) Comments for DAC briefMid Life Upgrade of Seaking 42B Naval Helicopter dated 05.12.2005 marked as Secret was shown to him at CBI office and he proved the same as Ex.PW1/F bearing signatures of Cdr. NSS Parmar stating that he is familiar with the signatures of Sh. NSS Parmar as he was his colleague and both of them were posted together in the Directorate of Naval Staff in the year 2006. It is pertinent to mention that the photocopy Ex.PW2/E of this original document Ex.PW1/F marked as 'secret' was recovered from the possession of accused Judgment CBI Vs Salam Singh Rathore 104 Salam Singh Rathore. Further, the PW1 Cdr. Deepak Adhar also proved the originals annexures Ex.PW1/G of the original document Ex.PW1/F relating to Mid Life Upgrade of Seaking 42B Naval Helicopter dt. 05.12.05. The said annexures were running into 33 pages of which the contents of 27 pages are deposed to be marked as secret. The photocopies of these annexures collectively exhibited as Ex.PW2/F were also recovered from the accused Salam Singh Rathore.
This original document Ex.PW1/F "Integrated Headquarter of Ministry of Defence (Navy) Staff Branch2, Directorate of Naval Air Staff) Comments for DAC brief Mid Life Upgrade of Seaking 42B Naval Helicopter dated 05.12.2005 marked as Secret brought by CBI and seized vide seizure memo Ex.PW2/A (D10 Vol. 8) from Col. K.V. Kuber/PW2.
The PW1 Cdr. Deepak Adhar further stated that the original documents "Integrated Headquarters of Ministry of Defence (Navy) Staff BranchII, Directorate of Naval Air Staff) Comments for DAC briefacquisition of six medium lift utility helicopters dated 10.03.2006 was shown to him in the court and he proved the same as Ex.PW1/D. He proved the signatures of Sh. NSS Parmar, the originator of this letter who was the then Joint Director (Naval Staff) at point A. PW1 Cdr. Deepak Adhar further stated that he was familiar with the signatures of Sh. NSS Parmar as he was his colleague and both of them were posted in Directorate of Naval Staff in the year 2006. This original document "Integrated Headquarter of Ministry of Defence (Navy) Staff Branch2, Directorate of Naval Air Staff) Comments for DAC brief acquisition of six medium lift utility helicopters" dated 10.03.2006 marked as Secret was brought by CBI before the court which was seized vide seizure memo Ex.PW2/A (D10 Vol. 8) from Col. K.V. Kuber/PW2. The photocopy Ex.PW2/G of this original document Ex.PW1/D relating to acquisition of six Judgment CBI Vs Salam Singh Rathore 105 medium lift utility helicopter was proved by PW2 Col. K.V. Kuber. Accordingly, it is clear that the photocopy Ex.PW2/G recovered from accused Salam Singh Rathore was in fact the copy of the original document Ex.PW1/D proved by PW1 Cdr. Deepak Adhar.
The PW1 Cdr. Deepak Adhar was also shown the original annexures Ex.PW1/E of the original documents Ex.PW1/D relating to the acquisition of six medium lift utility helicopters dated 10.03.2006. He deposed that the said annexures Ex.PW1/E (to the original document Ex.PW1/D) running into 33 pages is also secret document. The photocopy of their annexures Ex.PW2/H which was recovered from the accused Salam Singh Rathore and was proved as Ex.PW2/H. Therefore, the plea of Ld. Counsel for the defence that the original documents or the source of documents allegedly recovered from accused Salam Singh Rathore were not proved is not correct. Also since the original documents of certain photocopies recovered from the possession of accused Salam Singh Rathore have been produced by the CBI, the plea of Ld. Counsel for the defence that the original documents or the source of documents allegedly recovered from accused Salam Singh Rathore were not proved does not bear any force at all.
Now I shall come to the arguments regarding the classification of the documents as raised by Ld. Counsel for both the accused.
Ld. Counsels for the accused Salam Singh Rathore and for accused Jarnail Singh Kalra further urged before this court that at the time when the documents were allegedly recovered from the possession of accused Salam Singh Rathore, their secretness, confidentiality etc. was already lost as the information was already available in the defence library. They have drawn Judgment CBI Vs Salam Singh Rathore 106 the attention of this court towards the fact that the periodicity and validity of the documents has not been proved, and that if a document is secret today it may not be of the same status tomorrow. It was further argued that everything was in public domain and all the documents were outdated.
During the recording of the testimony of the various prosecution witnesses while exhibiting the documents, the ld. Defence counseld had taken objections on the ground of mode of proof of the documents as the documents were claimed to have never been supplied to the accused and nor the accused was aware of the content/character/classification of these documents.
Regarding the argument of non supply of documents as raised by Ld. Counsel for accused Salam Singh Rathore, the record reflects that the controversy has been set at rest by Hon'ble Supreme Court of India in Crl. Appeal 2215/2014 dt. 14.10.2014 in a petition filed by one of the accused namely Salam Singh Rathore before Hon'ble Apex Court seeking its intervention for a direction to this court to furnish the copies of the documents which are classified as official secret documents in the case in hand. The Hon'ble Supreme Court while rejecting the plea of accused Salam Singh Rathore ordered as under:
"We do not propose to deal with each rival contention urged on behalf of the parties in this order as the same are not necessary for the disposal of the instant appeals. On 10.07.2007, the trial court has allowed the application filed by the CBI and held that certain documents need not be supplied to the accused persons. But, though we uphold the order, it would be just and proper for this Court to permit the appellant(s) a joint inspection of the official Judgment CBI Vs Salam Singh Rathore 107 secret documents in question which are necessary, according to the prosecution, to prove the charge against them and further permitting the appellant(s) to take notes of the documents for the purpose of preparing their defence so as to defend them effectively in the proceedings. We also deem it necessary to direct the appellant(s) to file an undertaking in this Court to the effect that at the time of joint inspection, they shall not take copy of the official secret documents and circulate the same, which is an offence under Section 5 of the Act."
Accordingly, in terms of the orders of the Hon'ble Apex Court, at times the cross examination of witnesses was even deferred by Ld. Predecessor of this court at request of the accused for the purpose of going through the judicial records in which documents were lying. Therefore, the objection of Ld. Defence Counsel taken at the time of recording of evidence regarding non supply of documents has already been disposed of by the Hon'ble Supreme Court and executed by this court.
Section 3 of the Official Secrets Act deals with the penalties for spying and sub clause (c) states that if any person for any purpose prejudicial to the safety and interest of the State obtains, collects, records or publishes or communicates to any other person any 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 any enemy (or which relates to a matter the disclosure of which is likely of affect the sovereignty or integrity of India, security of the State or friendly relations with the foreign States shall be punishable with imprisonment Judgment CBI Vs Salam Singh Rathore 108 prescribed in the said section.
The sub clause 2 of section 3 Official Secrets Act is a presumption class which prescribes that on a prosecution for offence punishable u/s 3 Official Secrets Act it shall not be necessary to show that the accused persons were guilty of any particular act, tending to show a purpose prejudicial to the safety and interest of the State, and, not withstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interest of the State and if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or password is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State, such sketch, plan, model, article, note, document, ¹[information, code or password shall be presumed to have been made], obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State.
Ld. Counsels for accused Salam Singh Rathore and Jarnail Singh Kalra urged that though there is a legislative presumption attached to Section 3 in its sub clause 2 in Official Secrets Act with respect to the fact that if from the circumstances of the case or his conduct or his known character as proved, it appears to the court that purpose was a purpose prejudicial to the safety or the interest of the State, then it shall not be necessary to show that the accused persons were guilty of any particular act tending to show a purpose prejudicial to the safety or interest of the State and he may be convicted, but Judgment CBI Vs Salam Singh Rathore 109 simultaneously the Ld Counsel has relied upon the judgment of Hon'ble Superior Courts in order to justify his claims that inferences cannot be presumed blindly and the same are required to be based upon the material on record. In this case, as per ld. Counsel, the CBI has tried to blindly follow the presumption on the basis of conjectures and surmises without taking into account the fact that there were no adverse circumstances against the accused and neither any adverse conduct or known character of the accused Salam Singh Rathore was proved. He further submitted that in a case titled "State through CBI vs Dr. Narayan Waman Nerukar & Anr. Crl. Appeal No. 858/02 DOD 26.08.2002", the factual position was that at the relevant time the accused was advisor in Department of Electronics who parted with copy of sensitive secret documents "User evaluation trial report on RATACS Battlefield Surveillance Radar PhaseI" and who had dispatched the same to France. He has also relied upon another judgment G.S. Dhillon Vs State, DOD 17.05.2002 and has drawn the attention of this court towards the facts mentioned therein where the accused was apprehended while he was going to family quarters Pakistan with four documents containing sensitive and secret information pertaining to the country. As per ld. Counsel, the basic purpose of his reliance on these two judgments is that for an accused to be convicted u/s 3 Official Secrets Act, there must be some overt or covert act on the part of the accused which may lead the court to believe that he was spying which is missing in the case in hand unlike the cited judgment in Narayan Waman Nerukar case (supra) and G.S. Dhillon case (supra).
Ld. Sr. PP for the CBI on the other hand stated that the Ld. Counsel for the accused is simply reading the facts contained in the said judgments and as such Ld. Sr. PP could not find any ratio being laid down in the cited judgments to the effect that some overt or covert act is mandatorily Judgment CBI Vs Salam Singh Rathore 110 required on the part of the accused to make the case u/s 3 of Official Secrets Act given the circumstances when he was found in possession of secret incriminating documents pertaining to sovereignty and security of India. He stated that ld. Counsel is trying to confuse the position of law given the circumstances when the legislature has itself made clear in Section 3 (2) Official Secrets Act that it shall not be necessary to show that accused persons were guilty of any particular act tending to show purpose prejudicial to the safety of the State and he shall be convicted not withstanding that no such act was proved against him.
I have taken note of the rival submissions of the parties and have gone through the judgments filed by the accused Salam Singh Rathore.
In the cited judgment in Dr. Narayan Waman Nerukar case (supra), the Hon'ble High court of Delhi had quashed the proceedings against the accused primarily on the ground that there was unnecessarily delay in conclusion of trial. At the outset, this court could not find any ratio being laid in the cited judgment regarding the provisions of Section 3(2) Official Secrets Act which deals with presumption against the accused. Same is the fate in another judgment in G.S. Dhillon case (supra) where the order was passed by Hon'ble Supreme Court in a bail matter. Therefore, this court do not find any force in the arguments advanced by Ld. Counsel for accused Salam Singh Rathore that there must be some overt or covert act on the part of the accused of his alleged possession of the secret documents. The legislative mandate has already made the position clear by virtue of section 3(2) of Official Secrets Act wherein the courts by virtue of legislative mandate have been given liberty to convict the accused if from the circumstances of the case or his conduct or his known character, as proved it appears that his purpose was a purpose Judgment CBI Vs Salam Singh Rathore 111 prejudicial for the safety or interest of the State.
Regarding the plea with respect to availability of information contained in alleged documents to be in public domain, Ld. Sr.PP for the CBI referring to the availability of the literature of the helicopters which was proposed to be acquisitioned in the documents recovered from the possession of the accused Salam Singh Rathore explained that for the purposes of the commercial advertisements, different international companies who are engaged in manufacturing aeronautics or other Army/Naval/Air defence equipments tend to publish the details of the said equipments for the purpose of optimum sale. He submitted since the entire literature is available in the said books or in case the said books are available in the library of the defence, it can't be taken to mean that the documents recovered from the possession of accused Salam Singh Rathore were in public domain. He further elaborated that no magazine in the world or India during the processing of acquisition of defence equipments by navy/army/air force had published the said documents recovered from the possession of the accused Salam Singh Rathore supplied by the accused Jarnail Singh Kalra. He submitted that the defence is trying to lead the court to the path of confusion in order to raise a vague defence in their favour against the actual position. He also highlighted the relevant para of the Force magazine Ex.D2W1/B and referred the same as to the general plans of the Navy for purchase of the helicopters etc. and the publishing of article by an author does not mean that what are the actual plans of the defence services regarding purchase. He also stated that the articles can be written on the basis of permutations and combinations and the said articles have no sanctity in the eyes of law. He stated that the said article does not contain anywhere as to the name of the documents in which the plan was mentioned and more specifically the total number of equipments required. He Judgment CBI Vs Salam Singh Rathore 112 also highlighted that even though the specifications etc. for the purpose of commerce has been mentioned by different companies in different magazines, but the secrecy angle lies within the number of the equipments i.e. how many numbers of equipments/ helicopters are proposed to be acquisitioned. He also highlighted that in case the enemy get to know about the number of defence equipments/helicopters proposed to be acquisitioned, it can be a purpose prejudicial to the safety or interest of the State. He also stated that all the documents have been marked as 'secret', 'confidential' etc. on the basis of the Indian Naval Book of Records (INBR).
Rebutting the argument of Ld. Counsel for accused Salam Singh Rathore and ld. Counsel for accused Jarnail Singh Kalra, Ld. Sr. PP further submitted that the classification of the documents has been done on the basis of its contents by the appropriate authority and even the experts in the Ministry of Defence had given a report Ex.PW19/B in which the classification has been verified. Ld. Sr. PP for CBI submitted that the PW1 Cdr. Deepak Adhar on a question being specifically put by the Ld. Counsel for accused Salam Singh in the crossexamination part has answered the same to be in affirmative that the information regarding various combat equipments, aircraft is readily available in the open market in the world such as Internet, Google, Janes Publication and in military magazines. The ld. Sr.PP elaborated that this question was put to the witness in the crossexamination carried on 03.09.2014 without specifically asking the witness as to whether the same was available in the year 2006 when the secret documents were recovered from possession of accused Salam Singh Rathore or nearby. He stated that information might have been available in public domain after eight years in 2014 but not in 2006 as in the defence mechanism lots of development takes place on day to day basis and eight years is a period which is very large and by Judgment CBI Vs Salam Singh Rathore 113 that time the possibility can't be ruled out that the said helicopters might have been outdated. He again explained that it is not the specification of the defence equipment which matters for secrecy because it may be available in different magazines or Internet but it is the number of equipments and the time of its purchase with planning for purchase which matters and for that purpose it is kept secret.
Regarding the arguments raised by the ld. Defence counsels that the Minister of Defence in the Parliament or otherwise the Chief of the Naval Staff or Navy has given some statement with respect to purchase of the equipments, the Ld. Sr. PP for CBI stated that the said statements are made time to time by the executive or the political power in government in order to sustain the confidence of the general public at large and that the statement is never made at the time of acquisition as to how many number of equipments are proposed to be acquisitioned. He stated that therefore merely the statement being given by a Minister or Chief of Defence services does not ipso facto taken to mean that the information was available in the open market or that the documents recovered from or supplied by the accused as to the marking of the same as to secret or confidential.
Ld. Sr. PP further strenuously taken this court to the statement of PW1 Cdr. Deepak Adhar whose job was to look after procurement of weapons / equipments for naval aircraft. Ld. Sr. PP further stated that PW1 Cdr. Deepak Adhar had specifically mentioned that the documents are classified secret because of nature of the document and the procedure to be adopted for handling documents and as per standard procedure are treated as secret and that the classification is done on the basis of Naval Secret Instructions from Indian Naval Book of Reference1800, extract of which running into 8 pages was marked as Mark PW1/I. Judgment CBI Vs Salam Singh Rathore 114 I have heard the Ld. Sr. PP as well as ld. Counsels for both the accused on the point regarding the classification of documents allegedly recovered from the possession of accused Salam Singh Rathore and as to its availability in public domain.
First of all, this court shall deal with the issue as to whether the documents recovered from the accused Salam Singh Rathore were in public domain or not as plea has been taken by the accused persons that the descriptions of the said equipments as contained in the allegedly recovered documents in Force magazines Ex.D2W1/A, Ex.D2W1/B and Marked as Mark A, B & C and in other magazines like Jane's Weapon Systems 198687 Ex.D2W2/2A or that the Minister of Defence or the Chief of Army staff had made certain public statements regarding acquisition of the equipments, the details of which are mentioned in the allegedly recovered documents. I have also gone through some of the articles in the Force magazine Ex.D2W1/B and also other documents relied upon by the defence. A bare reading of the said articles categorically goes to suggest that though the descriptions of helicopters etc. or that of its modifications etc. have been published by its manufacturer through an article in Force magazine written by an author, but the exact details of its description as well as its number of equipment required for purpose of upgradation as contained in the recovered documents could not find mention in the said article. I find force in the arguments advanced by Ld. Sr. PP for CBI that from the commercial point of view different manufacturers may like to publish the details of their own product by different mediums, may be an article or advertisement etc. but the main secrecy lies in the number of the equipments proposed to be acquisitioned.
I further find force in the arguments of Ld. Sr. PP for CBI that though the PW1 Cdr. Deepak Adhar on a question being specifically put by Judgment CBI Vs Salam Singh Rathore 115 the ld. Counsel for accused Salam Singh in the crossexamination part has answered the same to be in affirmative that the information regarding various combat equipments, aircraft is readily available in the open market in the world such as Internet, Google, Janes Publication and in military magazines, but this question was put to the witness in the crossexamination carried on 03.09.2014 without specifically asking the witness as to whether the information was available in the year 2006 or nearby. Possibility can't be ruled out that the witness might have given the answer to the same thinking it to be as if the ld. Counsel was putting up the said question regarding the position of the availability of the literature in the year 2014 instead of 2006. I also find force in the claim of the CBI that it is not the specification of the defence equipment which matters for secrecy because it may be available in different magazines or Internet but what matters is the actual number of equipments and the time of its purchase and the purchase planning which matters for the purpose of secrecy. The views of Ld. Sr. PP for CBI also can't be ignored to the fact that sometimes the political Minister of the Chief of the Defence Services may make statement regarding purchases of a particular equipment for the purposes of building confidence in the public at large in order to show that we have a secured and a compact defence system to maintain sovereignty and integrity of country. Therefore, the plea of the ld. Defence counsels for both the accused that the documents allegedly recovered having classified as 'secret' were not secret because its contents were available in public domain is not tenable. The plea regarding by virtue of statement made by the Minister of Defence, the documents have lost its credibility as secret document is also not tenable for the reasons herein above mentioned.
Further, the Ld. Counsel for the accused Salam Singh heavily relied upon the judgment of Hon'ble High Court of Delhi in Criminal Revision Judgment CBI Vs Salam Singh Rathore 116 Petition No. 936/2003 titled K.C.Saini Vs State wherein Single Bench of Hon'ble High Court while dealing with the issue regarding framing of charges under Official Secret Act has held as under:
"Even otherwise the existence of the Official Secret Act 1923 have been the subject matter of discussion before the National Press as well as Human Organization because of its misuse which was framed in the British Regime to safeguard information by the Colonial Rulers. The Courts should be careful in framing charges in relation to Official Secrets Act more particularly when the Act e complains or the document termed as secret is so readily available at the Internet that everybody can have easy access to it.
The Official Secrets Act 1923 rather become an obsolete which was enacted during the British Regime, therefore, this Act is of Colonial time. Therefore, the courts should be extracautious while dealing with the matter of Official Secrets Act.
It was urged before me that if any information relating to Indian Armed forces and their weaponries are required to be taken the same can be easily downloaded from the Internet. This Court, therefore, in order to find out whether such like information was readily available on the Internet had an occasion to find out such information. This Court had undertaken an exercise and found that up to date information relating to Indian forces and their weaponries are readily available at Internet therefore this Court is of conclusion that any information relating to defence service which is commonly available at Internet cannot be treated as classified document or restricted document as such documents are Judgment CBI Vs Salam Singh Rathore 117 known to the public at large. Therefore with the changing scenario any information which is available to the public on the Internet should not be taken as secret document. The Courts should be on its guard while invoking the Provisions of the Official Secrets Act. The same principle shall apply to the documents which are found to be unauthentic or in genuine document obtained not secretly or clandestine manner but in normal course of nature."
The Ld. Counsel for accused Salam Singh Rathore after referring to the said judgment in KC Saini case (supra), urged that in view of the judgment delivered by Hight Court of Delhi that no charges under Official Secrets Act is made as the Act has become obsolete. Ld. Sr. PP countered the arguments by stating that the facts in KC Saini's case were entirely different as in that case the accused was arrested in Official Secrets Act only on the basis of disclosure statement and there was no other evidence available.
Having taken note of the rival submissions and having gone through the judgment in KC Saini's case and after carefully perusing the useful guidelines laid down therein this court is of opinion that first of all that judgment pertains to the framing of charges only on one part and for classification of documents if information is available on public domain on other part. Regarding first part, I find force in the arguments advanced by Ld. Sr. PP for CBI that in K.C. Saini's case the only evidence available against the accused was the disclosure statement and nothing else. The charges have already been framed under the Official secrets Act and it is already been opined by this court that the documents were not available in the public Judgment CBI Vs Salam Singh Rathore 118 domain in the pre paras of this judgment. The facts in the cited case are entirely different from the case in hand as the recovery of incriminating material was effected from the possession of accused Salam Singh Rathore. The recovery has also been duly proved. However, this court after observing the guidelines in KC Saini case this court has made itself very careful for appreciating the provisions of Official Secrets Act.
Now coming to the point regarding classification of certain documents recovered from accused as secret, the ld. Sr. PP for CBI have categorically mentioned that the same has been done on the basis of Indian Naval Book of Reference1800 whereas the ld. Counsel for both the accused have stated that the documents were not secret as they were in public domain and that the classification if any has been done, is being done on the basis of wrong hypothesis.
To deal with the argument of both the accused regarding classification, this court has gone through the testimony of PW1 Cdr. Deepak Adhar who had detailed down and explained as to how the classification of a document is being done. It has been mentioned by PW1 Cdr. Deepak Adhar in his testimony before this court that in the year 2006 he joined as Director in the Directorate of Naval Air Staff, his job was to lookafter procurement of weapons and equipments for Naval Air Craft. He also proceeded further with the details as to how the weapons are procured and stated that the requirements for weapons and equipments are received from field. After receiving the same, the Directorate of Naval Air Staff used to prepare preliminary/provisional staff requirement (PSR). The PSR then used to be converted into Naval Staff Qualitative Requirment (NSQR). PSR was internally deliberated in the integrated headquarter of ministry of Defence Judgment CBI Vs Salam Singh Rathore 119 (Navy) and after approval of the vice chief of the naval staff, the PSR was converted into NSQR. The NSQR then used to be sent to Ministry of Defence, Government of India. After the approval of Ministry of Defence about the NSQR the same was sent to Directorate of Procurement, Ministry of Defence. He categorically mentioned in his statement before this court that the Preliminary/Provisional Staff Requirement (PSR) and Naval Staff Qualitative Requirement (NSQR) are secret documents. The PW1 Cdr. Deepak Adhar further went on to depose that he was aware of the classification and categorization of documents which are classified as:
(I) Top Secret (II) Secret (III) Confidential (IV) restricted (V) unclassified and that the classification of the documents is based on the sensitivity of documents which as per Naval Security Instructions mentioned in Indian Naval Book of Reference1800, the extract of 8 pages of the same were proved by PW1 Cdr. Deepak Adhar as Mark PW1/I. The PW1 Cdr. Deepak Adhar stated that in the CBI office he was shown with the photocopy of Defence Acquisition Council (DAC) Brief for acquisition of 37 multirole helicopters. The photocopy Ex.PW1/A of this document dated 10.03.2006 regarding acquisition of 37 multirole helicopters was recovered from the possession of accused Salam Singh Rathore. The PW 1 Cdr. Deepak Adhar was shown with the photocopy of this document recovered from the possession of accused Salam Singh Rathore who proved the same as Ex.PW1/A as well as the original of this document proved as Ex.PW1/B both running into two pages each back to back. The PW1 Cdr.
Deepak Adhar stated that Ex.PW1/A is the same copy which was shown to him at CBI office when he was called there and also proved his signatures in photocopy on page 2 at point A. He also proved his signatures on the original of this document ex.PW1/B at point A on page 2. He also mentioned that the Judgment CBI Vs Salam Singh Rathore 120 original document Ex.PW1/B was shown to him in the CBI office and that it was prepared by him and after its preparation Ex.PW1/B was sent by PW1 to the Directorate of Planning and Coordination.
On a question being put by ld. Counsel for accused Salam Singh Rathore to the PW1 Cdr. Deepak Adhar during crossexamination, the PW1 Cdr. Deepak Adhar stated that as per standard operating procedure at Naval headquarters, Naval Staff Qualitative Requirement (NSQR) are marked as "secret" and hence he had marked the document Ex.PW1/B (concerning purchase of 37 Multirole helicopters) as "secret". The other question put by ld. Counsel for accused Salam Singh Rathore to the PW1 Cdr. Deepak Adhar was as under:
Q Whether marking of document Ex.PW1/B as 'secret' is as per Naval Headquarter guidelines for making classified document? A Yes the marking of document Ex.PW1/B was as per Naval Headquarter Guidelines for marking classification documents.
While answering one other question put by ld. Counsels during crossexamination, the PW1 Cdr. Deepak Adhar stated that the guidelines are that the secret documents are the documents or information, the unauthorized disclosure of which endanger nations security, cause serious injury to national interest or prestige or be of great advantage to foreign nation. To another question being reproduced below, the PW1 Cdr. Deepak Adhar explained in the answer as under:
Q Whether any content of Ex.PW1/B (this document was relating to 37 multirole helicopters) contain anything which would prejudice the security of the nation or national interest?
A Present status is helpful to enemy nation as it is giving the current preparedness of Indian Navy.
Judgment CBI Vs Salam Singh Rathore 121 From overall testimony of the PW1 Cdr. Deepak Adhar it is as crystal clear as sky that the photocopy Ex.PW1/A recovered from the accused Salam Singh Rathore was in fact copy of the original Ex.PW1/B (pertaining to acquisition of 37 multirole helicopters) and that the said document was "secret" one. Though the PW1 Cdr. Deepak Adhar have also proved the original annexures Ex.PW1/C attached to the original document Ex.PW1/B, but copy of the annexures of the original annexures Ex.PW1/C was not recovered from accused Salam Singh Rathore.
Now coming to other document i.e. the photocopy Ex.PW2/G recovered from the accused Salam Singh Rathore, the original of which was proved as Ex.PW1/D (pertaining to 6 Medium Lift Utility Helicopters). This document was concerning the comments for DAC brief for acquisition of 6 Medium Lift Utility Helicopters. The photocopy Mark PW1/2 of the original Ex.PW1/D was shown to the witness PW1 Cdr. Deepak Adhar in this court wherein he stated that he cannot identify whether the photocopy Mark PW1/2 is the same photocopy which was shown to him in CBI office but stated that Mark PW1/2 is the copy of the document Ex.PW1/D. He further elaborated that so far he remembers, photocopy of document Ex.PW1/D was shown to him but he stated that he cannot say that the same was Mark PW1/2. Later on, when the PW2 Col. K.V. Kuber came in the witness box, he stated that Mark PW1/2 was shown to him in the CBI office when the CBI officers visited his office. The PW2 Col. K.V. Kuber further stated that Mark PW1/2 is the correct copy of original documents Ex.PW1/D except the page no. 131 which could not be compared being torn. Although the PW1 Cdr. Deepak Adhar could not identify the photocopy Mark PW1/2 recovered from the possession of accused Salam Singh Rathore as the same copy which was shown to him in the court, but he could identify the same as to be copy of the original Judgment CBI Vs Salam Singh Rathore 122 Ex.PW1/D. However, the PW2 Col. K.V. Kuber identified the said photocopy Mark PW1/2 as the same photocopy which was shown to him when CBI officers visited his office and also identified the same as to be the photocopy of the original Ex.PW1/D. The photocopy Mark PW1/2 was accordingly proved by him as Ex.PW2/G. Now coming to another document i.e. the photocopy Ex.PW2/H recovered from the accused Salam Singh Rathore, the original of which was proved as Ex.PW1/E. This document was in fact the annexures to the original documents Ex.PW1/D regarding comments for DAC brief for acquisition of 6 Medium Lift Utility Helicopters. The position with respect to this document was also same as that of the document Ex.PW1/D and Ex.PW2/G. The photocopy Mark PW1/3 of the original Ex.PW1/E was shown to the witness PW1 Cdr. Deepak Adhar in this court wherein he stated that he cannot identify whether the photocopy Mark PW1/3 is the same photocopy which was shown to him in CBI office but stated that Mark PW1/3 is the copy of the document Ex.PW1/E. He further elaborated that so far he remembers, photocopy of document Ex.PW1/E was shown to him but he stated that he cannot say that the same was Mark PW1/3. Later on, when the PW2 Col. K.V. Kuber came in the witness box, he stated that Mark PW1/3 was shown to him in the CBI office when the CBI officers visited his office. He further stated that Mark PW1/3 is the correct copy of original documents Ex.PW1/E. Although the PW1 Cdr. Deepak Adhar could not identify the photocopy Mark PW1/3 recovered from the possession of accused Salam Singh Rathore as the same copy which was shown to him in the court, but he could identify the same as to be copy of the original Ex.PW1/E. However, the PW2 Col. K.V. Kuber identified the said photocopy Mark PW1/3 as the same photocopy which was shown to him when CBI officers visited his office and also Judgment CBI Vs Salam Singh Rathore 123 identified the same as to be the photocopy of the original Ex.PW1/E. He proved photocopy Mark PW1/3 as Ex.PW2/H. The next document recovered from the possession of accused Salam Singh Rathore was Ex.PW2/E the original of which was proved as Ex.PW1/F by PW1 Deepak Adhar. These documents were concerning integrated headquarters Ministry of Defence (Navy) Staff BranchII, Directorate of Naval Air Staff, Comments for DAC Brief Midlife Upgrade of Seaking 42B Naval Helicopters dated 05.12.05 marked Secret. The prosecution witness PW2 Col. K.V. Kuber stated that the document Ex. PW1/F which is the original of Mark PW1/4 was handed over by him to CBI officers along with other documents vide seizure memo Ex.PW2/A. He also explained that document Ex.PW1/F have some remarks made by him in encircled portion A in red ink. It was also explained that the document Mark PW1/4 and annexures Mark PW1/5 (photocopies recovered from accused Salam Singh Rathore) were the same which were shown to him by the CBI officers when they visited his office. These photocopy documents Mark PW1/4 and Mark PW1/5 were exhibited by PW2 Col. K.V. Kuber as Ex.PW2/E and Ex.PW2/F. The photocopy of document Ex.PW2/E was concerning the purchase of Mid Life Upgrade of Seaking 42B Naval Helicopter and Ex.PW2/F were the anenxures contained therein. The original of photocopy document Ex.PW2/E was Ex.PW1/F and the original of photocopy document Ex.PW2/F was Ex.PW1/G as proved by PW1 Cdr. Deepak Adhar. The originator of this document was also Sh. NSS Parmar.
The PW1 Cdr. Deepak Adhar has specifically mentioned that the document Ex.PW1/D, Ex.PW1/E, Ex.PW1/F and Ex.PW1/G which all originated from Cdr. NSS Parmar are also classified as secret because they all pertained to NSQR and they also effects combat readiness and preparedness Judgment CBI Vs Salam Singh Rathore 124 for war. It has also been explained that in case such like documents falls in the hands of anti national elements, they can affect the security of the nation.
As already said the originator of these documents was Sh. NSS Parmar whose signatures have already been identified by PW1 Cdr. Deepak Adhar in his testimony on oath before this court as both were posted together in the Directorate of Air Naval Staff. The PW1 has specifically stated that both these original documents i.e. Ex.PW1/D and Ex.PW1/E which were concerning the acquisition of six medium lift utility helicopters and its annexures were 'secret' documents.
The Ld. Counsel for both the accused persons have already taken the plea that since the originator of these documents i.e. NSS Parmar has not been produced in court, the defence has lost an opportunity to get an assessment from the said Sh. NSS Parmar as to whether the said documents were in fact "secret" documents. It was urged that for want of production of the said Sh. NSS Parmar as witness, the defence could not cross examine him on the aspect of his classification of the documents as "secret".
Regarding the non production of the originator of the document Sh. NSS Parmar, Ld. Sr. PP for CBI submitted that it is not the number of witnesses which weighs but it is the credibility of the evidence which matters in a criminal trial. It has been submitted that though Sh. NSS Parmar has not been examined as a witness in this case, but his signatures have been proved by the other witnesses. Ld. Sr.PP for CBI further refuted the arguments by stating that as per the Naval Security Instructions which has already been proved as Ex.PW1/DA2 and Mark PW1/I which is an extract of INBR, Section 65 of which categorically states that the originator of document is responsible for marking the correct security classification of the document. He submitted that though Sh. NSS Parmar has not been produced by the prosecution, but Judgment CBI Vs Salam Singh Rathore 125 his signatures have already been identified by his colleagues who are produced as prosecution witnesses. He stated that the said Sh. NSS Parmar has classified the documents as "secret" on the basis of Rule 63 Chapter 4 of Naval Security Instructions.
After hearing the parties at length, this court feels that it would be appropriate first to reproduce Rule 63 B of Chapter 4 of Naval Security Instructions as contained in INBR1800 which is as under:
" SecretDocuments or information, the unauthorized disclosure of which would endanger national security, cause serious injury to national interest or prestige, or be of great advantage to a foreign nation. Examples are:
(i) Particulars of operations in progress.
(ii) Knowledge concerning foreign countries, the value of which depends upon the country not being aware that it is known.
(iii) Adverse reports on general morale affecting major operations.
(iv) Photography of vital installations.
(v) Details of causalities suffered or effects from enemy's action until publicly announced."
The Rule 65 of the said Chapter (Security of Classified Documents) prescribes that originator of a document is responsible for making the correct security classification on the document. If it is found to be incorrectly classified or if additional information is added to it to warrant a higher classification, the first officer to notice it is to reclassify the document initial and date of the alteration and inform the originator. Even the INBR1800 is a secret document as is stamped on Ex.PW1/DA2 Mark PW1/I. Once a document has been classified as secret by its originator and the document is concerning the defence services regarding purchases of Judgment CBI Vs Salam Singh Rathore 126 helicopters etc. and when a specific procedure regarding the reclassification has also been contained in Section 65 of the INBR, this court is not able to buy the arguments of the ld. Counsels for the accused persons that since the originator of the documents Sh. NSS Parmar could not be produced in the witness box by the prosecution, they have lost a chance to establish that the documents Ex.PW1/D and Ex.PW1/E were not properly classified or that they were not secret. This court is of opinion that once a defence document has been classified for a particular category by originator who is a defence personnal, even the courts find itself reluctant to go into meticulous details in order to have its own assessment regarding its proper classification. The defence services have the responsibility to maintain the security and sovereignty of the nation and are experts in their own arena. There might have been hundred eventualities, past experiences and the intelligence available which generally do not remain available in public domain which might have been basis of declaring a document as secret by the originator and after following the procedure laid down in INBR1800. Once a document has been classified as "secret", it is always remain secret unless otherwise the accused is able to establish that it was really in public domain.The ld. Counsel for the accused Salam Singh Rathore have already failed to establish this fact that these documents were in public domain. Moreover, the PW1 Cdr. Deepak Adhar has specifically mentioned that the document Ex.PW1/D, Ex.PW1/E, Ex.PW1/F and Ex.PW1/G which all originated from Cdr. NSS Parmar are also secret and he also reasonably explained as to why they have been classified as secret. The explanation of PW1 Cdr. Deepak Adhar is of worth considerable as he was also retaining a responsible position in Navy and was an officer of the rank of Commodore. He stated that the above noted documents are classified as 'secret' as they pertains to NSQR and they also combat readiness and preparedness for war.
Judgment CBI Vs Salam Singh Rathore 127 He further opined that in case such like documents falls in the hands of anti national elements, they can affect the security of the Nation.
The manner of classifications as contained in Naval Security Instructions were produced by CBI and were proved by PW13 Cdr. KS Phogat wherein he in his statement before this court has stated that he had seen D5 Ex.PW13/A i.e. letter dated 25.01.2007 written to Ms. Sonali Mishra, SPCBI which bears his signatures. Vide the said letter Ex.PW13/A he had forwarded a copy of Naval Security Instructions wherein all security classifications were laid down. He further stated that he had seen the extract of Naval Security Instructions running into 8 pages already Ex.PW1/DA2 and were the same instructions which were handed over to CBI by him with a covering letter Ex.PW13/A. He also stated that vide letter Ex.PW13/B he had forwarded the posting details of accused Salam Singh Rathore and Jarnail Singh Kalra.
In his cross examination the PW13 Cdr. K.S. Phogat termed it to be correct that Ex.PW13/A does not contain any information which is classified as Secret but the word 'secret' has been mentioned therein as it pertained to Naval War Room Leak Case. In the cross examination itself, it was further stated by the PW13 Cdr. K.S. Phogat that Ex.PW1/DA2 i.e. Naval Security Instructions has stamp of INSKunjali which is in Mumbai and that INBR1800 would definitely be available in his department at Naval Headquarters. He further stated that Ex.PW1/DA2 might have been called by him from Naval police and regulating school at INSKunjali and that the said document has been termed as secret only because of communication with CBI and not with its contents.
This court is of the opinion that even if Sh. NSS Parmar has not been produced by the prosecution, considering the overall available evidence lead by CBI, the court may draw a presumption under the Indian Evidence Judgment CBI Vs Salam Singh Rathore 128 Act, 1872 u/s 114 which states that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to common course of natural elements, human conduct and public and private business in their relation to the facts of the particular case. The illustration 'e' to the said Section 114 of Indian Evidence Act specifically states that the judicial and official acts have been regularly performed with illustration 'f' that the common course of business have been followed in particular cases. The ld. Counsel for accused Salam Singh Rathore has not been able to rebut the presumption.
The Ld. Counsel for accused Salam Singh Rathore further argued that even for the sake of gospel truth it is presumed that the secret documents were recovered from the possession of the accused, still the provisions of Section 3 & 5 of Official Secrets Act are not attracted as some overt or covert act should have been attributed to the accused Salam Singh for the purposes of establishing his guilt under the said provisions of Official Secrets Act. He has highlighted different cases in which these provisions could be attracted against a person when the said person was going to Pakistan Embassy for supplying documents or when he was trying to flee the country and the documents were recovered at the airport etc. He submitted that the presumption as mentioned u/s 3 of the Official Secrets Act though is a rebuttable presumption but it does not lead any rule of evidence nor does it anyway dilute the degree of proof required for suing a criminal case which includes a case under the Official Secrets Act as well.
Ld. Sr. PP for CBI on the contrary argued that the defence has not been able to rebut the presumption as contained in Section 3 of the Official Secrets Act and the prosecution has proved its case beyond the shade of doubt.
Judgment CBI Vs Salam Singh Rathore 129 Upon hearing the parties at length on this issue, this court recalls a judgment of Hon'ble Delhi High Court in Crl. Appeal no. 247/1984 titled as Amin Chand and others Vs State, DOD 18.11.1986 wherein the Hon'ble High Court of Delhi held as under:
"9. The learned trial Judge seems to be labouring under the impression that subsec. (2) of S.2 of the Official Secrets Act lays down a rule of evidence, which in fact it does not. Nor does it in any way dilute the degree of proof required for proving the criminal case which includes a case under the provisions of Official Secrets Act as well. It is this strange and curious notion of the learned trial Judge which has resulted in absolutely wrong approach to the case. Subsec. (2) of S.3 of the Official Secrets Act, 1923 reads as under:
"On a prosecution for an offence punishable under this section it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State and, notwithstanding that no such act is proved against him he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State; and if any sketch, plan, model, article, note, document, or 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, and from the circumstances of the case or his conduct or his known character as proved it appears that his purposewas a purpose prejudicial to the safety or interests of the State, such sketch, plan, Judgment CBI Vs Salam Singh Rathore 130 model, article, note, document, information, code or pass word shall be presumed to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interest of the State."
10. A plain reading of the aforesaid provision would show that it lays down a rule of presumption. In a trial of this nature the prosecution need not prove any particular act of the accused tending to show a purpose prejudicial to the safety or interest of the State. In the absence of proof of any such particular act, it entitles the Court to convict an accused if from the proved circumstances of the case or from the proved conduct of the accused or his proved character it appears that his purpose was a purpose prejudicial to the safety or interest of the State. Here again, this inference can only be drawn if there is some proof, admissible material on the record and not otherwise.
11. By no stretch of imagination subsec. (2) of S.3 of the Official Secrets Act, has in any way diluted the burden of the prosecution to prove its case. A case under this Act has also to be proved like any other criminal case and the burden on the prosecution is in no way lessened. The principle that no conviction can be based on assumptions and conjectures or on suspicion, however, strong equally applies to a case under the Official Secrets Act."
The aforenoted judgment categorically provides useful guidelines to the effect that the inference regarding presumption can be drawn if there is Judgment CBI Vs Salam Singh Rathore 131 some proof, admissible material on record and not otherwise. Here in the case in hand, not only there is recovery of "secret" documents from the possession of the accused Salam Singh Rathore pertaining to period when he was not even posted in the department to which the said documents belongs but recovered documents includes one document which is having a date on which even the accused Salam Singh Rathore was not in service i.e. the document was originated only after his retirement from services.
Moreover, there are some documents like Ex.PW2/E which is a photocopy of a secret document with respect to upgradation of seaking 42B Naval Helicopters and which contains the original dispatch entry at point B in blue ink. The said entry was also proved by PW3 Gautam Kumar as being made by him. Various other secret documents were recovered from his possession as highlighted herein above, the possession of which could not be explained by accused Salam Singh Rathore. Accordingly, there is ample evidence on record, inference has been drawn under the presumption clause of Section 3 of Official Secrets Act after following the aforementioned judgment in Amin Chand case (supra).
Moreover, the PW1 Cdr. Deepak Adhar had specifically mentioned that the documents are classified secret because of nature of the document and the procedure to be adopted for handling documents and as per standard procedure are treated as 'secret' and that the classification is done on the basis of Naval Secret Instructions from Indian Naval Book of Reference1800, extract of which running into 8 pages was marked as Mark PW1/I. Further, unlike the coaccused Jarnail Singh Kalra, the accused Salam Singh Rathore was also facing charges that he was found in possession of 17 documents while raid was conducted at his residence and some of whom were secret. Most of the documents which were secret have already been Judgment CBI Vs Salam Singh Rathore 132 discussed herein above in this judgment. The prosecution though has failed to prove that the coaccused Jarnail Singh Kalra had supplied the three documents as contained in charge to the accused Salam Singh Rathore, but the prosecution has been successfully and beyond reasonable doubt has been able to prove the fact that in fact 17 documents were recovered from the possession of accused Salam Singh Rathore out of which some documents discussed herein above pertained to Indian Navy were "secret" documents.
As already discussed, the CBI has not been able to prove the conspiracy angle between the accused Jarnail Singh Kalra and the accused Salam Singh Rathore as it has not proved the fact that the three documents as contained in the charge were received or communicated by the accused Jarnail Singh Kalra to the accused Salam Singh Rathore. The accused Salam Singh Rathore is facing charges that he entered into conspiracy with the co accused Jarnail Singh Kalra and in furtherance of that conspiracy, he received three documents from the accused Jarnail Singh Kalra and that incriminating documents were recovered as per details given in the search list of which three documents were supplied by the accused Jarnail Singh Kalra and that the information and documents were communicated by the accused Jarnail Singh Kalra to the accused Salam Singh Rathore. Since the CBI has not been able to prove the conspiracy between the accused Jarnail Singh Kalra and the accused Salam Singh Rathore, therefore, the CBI has not been able to prove charges that the accused Salam Singh Rathore and coaccused Jarnail Singh Kalra entered into criminal conspiracy vide which the three documents pertaining to Indian Navy as contained in charge were supplied by accused Jarnail Singh Kalra to accused Salam Singh Rathore in furtherance of criminal conspiracy or that the three documents were communicated by accused Jarnail Singh Kalra or these three documents were received by accused Salam Singh Rathore from Judgment CBI Vs Salam Singh Rathore 133 Jarnail Singh Kalra. Therefore, the CBI has not been able to substantiate the charges for the offences u/s 120B IPC r/w Section 3 & 5 of Official Secrets Act and the charge under Section 5(2) of Official Secrets Act against both the accused.
However, coming to the charge against accused Salam Singh Rathore as contained in serial no. 2 of the charge wherein it has been mentioned that on 23.06.2006 in a search conducted at the residence of accused Salam Singh Rathore, 17 incriminating documents were recovered as contained in the charge sheet /search list of which the accused Salam Singh Rathore was in unauthorized possession, the CBI has duly proved this factum. Out of the 17 documents recovered from the possession of accused Salam Singh Rathore from his residence, certain documents were duly proved as 'secret', as discussed in the above noted paras more specifically the documents relating to the acquisition plans or modification of the equipments like 42B Naval Helicopters, Six Medium Lift Utility Helicopters and 37 Multi Role Helicopters. It has also been proved that some of the documents recovered from the possession of accused Salam Singh Rathore even pertained to a time when he was not even posted in the department to which the document belonged and some of the documents were dated to a period during which the accused Salam Singh Rathore was not even in defence services and had retired. One document Ex.PW2/E which is a photocopy of a secret document with respect to upgradation of seaking 42B Naval Helicopters was recovered from the accused Salam Singh Rathore which contains the original dispatch entry at point B in blue ink. The said entry was also proved by PW3 Gautam Kumar as being made by him. No explanation has come forward as to from where the documents were procured by the accused Salam Singh Rathore. The said documents pertained to the acquisition plans of defence equipments Judgment CBI Vs Salam Singh Rathore 134 which have already been proved as secret and were obviously secret.
Now coming to the testimony of PW12 Sanjay Gupta who immediately after his retirement from the services, joined Virat Consultants & Traders Pvt. Ltd. as Senior Executive. The Virat Consultants & Traders Pvt. Ltd. was dealing in service provider jobs. The PW12 Sanjay Gupta elaborated that M/s Virat Consultants & Traders Pvt. Ltd. was providing services to local support in India to foreign companies which were supplying equipments and systems to Indian Navy and that the company was helping foreign companies dealing with Indian Navy in arranging their visits, serving the Indian Market for local industry support and helping them to understand the procedures that they were required to follow for fulfilling the commitments of their contracts with Indian Navy. It was further highlighted that the Virat Consultants & Traders Pvt. Ltd. was primarily dealing with two foreign companies namely Atlas Electronik of Germany and Fincantieri of Italy. The PW12 Sanjay Gupta had named another company as M/s Calzoni, an Italian company dealing with ship steering systems, auto pilots etc. The Virat Consultants & Traders Pvt. Ltd. used to provide assistance in the stay of technicians, engineers and logistics for the work of Atlas Electronik for facilitating contracts between Atlas Electroniks and Indian Navy.
Regarding the role of accused Salam Singh Rathore in Virat Consultants & Traders Pvt. Ltd., the PW12 Sanjay Gupta detailed down that he was assigned to look into defence procurement procedure for future offset requirements, in case required. In his cross examination upon a question being put by Ld. Defence counsel for accused Salam Singh Rathore, he stated that accused Salam Singh while with Virat Consultants & Traders Pvt. Ltd. was learning the functions of various groups and did not have any specific Judgment CBI Vs Salam Singh Rathore 135 assignments. It was further clarified that he was not directly dealing with foreign vendor regarding procurement and acquisition.
Though it has been mentioned by PW12 Sanjay Gupta that accused Salam Singh Rathore was in learning stage and was not directly dealing with the foreign companies as mentioned herein above, but since he was working with a company that was dealing with foreign vendors that itself is sufficient to give credence to the presumption as contained in Section 3 (2) of the Official Secrets Act that it shall not be necessary to show that the accused person shall guilty of a particular act tending to show a purpose prejudicial to the safety or interest of State and notwithstanding that no such fact is proved against him he may be convicted if from the circumstances of the case it appears that his purpose was a purpose prejudicial to the safety or interest of the State.
Regarding the contradictions and omissions, as highlighted by ld. Counsel for the defence, I gain guidance from the judgment of Hon'ble Apex Court in Mritunjoy Biswas vs. Pranab @ Kuti Biswas and anr. reported at 2013, Vol. 12 SCC 796, in which the Hon'ble Apex Court has held as under:
"As is evincible, the High Court has also taken note of certain omissions and discrepancies treating them to be material omissions and irreconcilable discrepancies. It is worthy to note that the High Court has referred to the some discrepancies which we find are absolutely in the realm of minor discrepancies. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot Judgment CBI Vs Salam Singh Rathore 136 be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission."
Accordingly, the omission, as highlighted by ld. Counsels during the course of arguments does not create any serious doubt about the truthful and creditworthiness of the witnesses examined by the CBI qua the accused Salam Singh Rathore.
Further, regarding proof of case beyond reasonable doubt, Ld. Counsel had mainly stressed upon the word 'beyond' just before the word 'reasonable' and as per his interpretation 'beyond' means farther more than reasonable. In this connection, I am being guided by the judgment of Hon'ble Supreme Court of India in Inder Singh vs. State (Delhi Administration) 1978 Crl. Law Journal 766 wherein Hon'ble Mr. Justice V.R. Krishna Ayyarhas held that:
"Credibility of testimony, oral circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond Judgment CBI Vs Salam Singh Rathore 137 reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial, if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline,not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of foolproof concoction. Why fake up? Because the court asks for manufacture to make truth look true? No, we must be realistic."
Further, the Hon'ble Supreme Court of India in another judgment with respect to the word 'reasonable doubt' in Trimukh Maroti Kirkan V State of Maharashtra [(2006) 10 SCC 681] had held as under:
"the law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible/difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading having regard to facts and circumstances of the case."
Having taken guidance from the judgments of Superior Courts and having discussed all the relevant evidence and documents made available and proved and having considered the arguments of ld. Defence counsels as well as Ld. Sr. PP for CBI, it appears to this court the prosecution has proved Judgment CBI Vs Salam Singh Rathore 138 beyond reasonable doubt the charges framed against accused Salam Singh Rathore to the effect that 17 incriminating documents were recovered from him and out of which 3 documents being classified as "secret" pertained to Indian Navy. The said document could be directly or indirectly useful to an enemy and were retained by accused Salam Singh Rathore prejudicial to the safety and interest of State.
Accordingly, the accused Salam Singh Rathore is convicted for the offence u/s 3(1)(c) of the Official Secrets Act, 1923. The accused Salam Singh Rathore is however acquitted of the charges u/s 120B IPC r/w Section 3 & 5 and also for the offence u/s 5(2) of the Official Secrets Act, 1923.
The CBI has not been able to collect enough material against the accused Jarnail Singh Kalra and hence failed to prove any of the charges framed against him. Accordingly, accused Jarnail Singh Kalra stands acquitted of all the charges framed against him. His regular bail bond stands cancelled, surety discharged.
In terms of Section 437A CrPC as well as judgment titled as DRI Vs Mike Chimezi, CRL.L.P. 3/2015, both the accused have already furnished bail bonds to the tune of Rs. 25,000/ each with one surety each in the like amount in compliance of Section 437A CrPC, as per which before conclusion of trial and before disposal of the appeal, the accused is required to execute bail bond with surety to appear before the higher court as and when such court issues notice in respect of any appeal or petition filed against the judgment of the respective court and such bail bond shall remain in force for a period of six months. Respective bail bonds in this regard have been Judgment CBI Vs Salam Singh Rathore 139 accepted.
Let the convict Salam Singh Rathore be heard separately on the point of sentence for which date is given vide order sheet of the even date.
Announced in the open court SANJAY KUMAR Digitally signed by SANJAY KUMAR AGGARWAL on this 07th day of July, 2018. AGGARWAL Date: 2018.07.12 10:30:45 +0530 (SANJAY KUMAR AGGARWAL) Special Judge03, (PC ACT) CBI, Tis Hazari Courts: Delhi. Judgment CBI Vs Salam Singh Rathore