State Of Uttarakhand vs Abid Ali @ Asad Ali @ Ajit Singh @ Abu Bakar on 22 September, 2021

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Uttarakhand High Court

State Of Uttarakhand vs Abid Ali @ Asad Ali @ Ajit Singh @ Abu Bakar on 22 September, 2021

Instant Government Appeal is preferred against the judgment and order dated 22.07.2013, passed in Jail Appeal No. 7 of 2013, Asad Ali Vs. State of Uttarakhand, by the court of 2nd Additional Sessions Judge, Haridwar (for short, "the appeal"). By the impugned judgment and order, the conviction and sentence of the respondent Abid Ali @ Asad Ali @ Abu Bakar @ Ajeet Singh (hereinafter referred to as "the accused"), under Sections 419, 420, 467, 468, 469, 471 & 120B IPC, Section 14 Foreigners Act, 1946 (for short, "the Foreigners Act"), Section 12 (1A)(a) of the Passports Act, 1967 (for short, "the Passports Act"), Section 3 of the Official Secrets Act, 1923 (for short, "the Official Secrets Act") and Section 31 of the Representation of the People Act, 1950 recorded on 19.12.2012, in Criminal Case No. 2596 of 2010, State Vs. Abid Ali @ Asad Ali @ Ajeet Singh @ Abu Bakar by the court of Chief Judicial Magistrate, Haridwar (for short, "the case"), has been set aside and the accused has been 2 acquitted of the charges. In the case, the accused has also been convicted of the charge under Sections 4 & 9 of the Official Secrets Act, but the accused was not sentenced thereunder. In appal, no order has been passed about the charge under Sections 4 & 9 of the Official Secrets Act.

2. Facts necessary for the disposal of the instant appeal, briefly stated, are as hereunder:-

(i) PW1 R.B. Chamola was posted as In-charge of ATS Kumbh Mela, 2010, Haridwar. On that date, at about 9:00 in the morning, he received an information that Asad Ali, a Pakistani National had been illegally staying in India and he is in contact with Pakistan's Secret Agency, ISI. He collects military information, photographs and documents, which is dangerous to the integrity and sovereignty of the Nation. According to the information, Asad Ali would reach at about 2:00 PM at BSM Tiraha, Roorkee on that date, to transmit some articles by courier.

Based on this information, the superior officers were informed. A team was constituted, which included PW3 Head Constable, Deepak Arora, PW4 Sub Inspector, Nadeem Atahar, PW5 Sub Inspector, Pradeep Rawat and PW6 Sub-

                Inspector, Vinod Kumar Jetha. The team
                proceeded      at       the      indicated    place.    The
                members       of        the      team   got   themselves

searched to ensure that no one possesses any incriminating article. The informer was with the Police Team. After a while, a person was indicated by the informant that he is Asad 3 Ali. That person was apprehended by the Police Team at 1:50 PM. On being asked, he revealed his name Asad Ali, S/o Barkat Ali, R/o 22 Shahpeer Gate, Meerut, Uttar Pradesh. From his right hand, an envelope was recovered, which had the sketch maps in it, pertaining to Army. Other secrete informations were also there in that envelope. Apart from it, a laptop, mobile phones, ATM cards and various other articles were recovered from him. He was taken into custody and interrogated. Then he revealed that his real name is Abid Ali @ Asad Ali @ Abu Bakar, @ Ajeet Singh, and he is a resident of Mohalla Hazrat Baba, Hazi Shah Saleem, Village Hajjarwal, Police Station Thokar Niyaz Baig, Post Office Mansoora, District Lahore, Pakistan. The accused revealed that he had been sent India by Major Amir Ali @ Rathore and Altaf of ISI. After two months' training in Lahore, he was sent to collect secret information. From Karachi, he was sent Dhaka and Kathmandu and from there with the help of an agent Ash-ur-

Rehman @ Noor-Ul- Iltaf, he entered India. He went Lucknow and under instructions, he met ISI agent Rehan in Meerut. Accused visited Patiala Nabha Cantt. to collect military information, and sent it through his e-mail ID AJEETSINGH-2005 @Yahoo.Com to Amir Rathore at the e-mail ID [email protected].

(ii) According to the accused, he was operating under the instructions of Major Rathore. He 4 was getting information relating to military movements of Meerut, Roorkee, Dehradun and Bikaner. He would receive money through Western Union Money Transfer (for short, "WUMT") from Dubai and Germany. He was also assisted by Jagdish. The accused also revealed that he got various bank accounts opened. A woman named Muskan was with him as his wife and subsequently, he married to Sahista in the year 2009.

According to the accused, on the date of his arrest, he had to dispatch an envelope to Abdul Munaf of United Arab Emirates (for short, "UAE"). According to the prosecution, the accused was arrested and a recovery memo was prepared and Case Crime No. 23 of 2010, under Sections 3, 4 & 9 of the Official Secrets Act, read with 120-B IPC, Section 14 of the Foreigners Act, Section 420, 467, 468, 469 and 471 IPC was lodged against the accused at Police Station Kotwali Gangnahar, Roorkee, District Haridwar. Investigation was carried out.

(iii)   After    investigation,    charge     sheet    under
        various    offences       and    complaint     under

Sections 3, 4 & 9 of the Official Secrets Act read with Section 120-B IPC was submitted. On the basis of which, the proceeding of the case was initiated. Charge sheet was also submitted against co-accused Jagdish Prasad. After trial, he has been acquitted of the charges. The State did not prefer any appeal against his acquittal.

3. Accused was charged for the offences punishable under Sections 419, 420, 467, 468, 469, 471, 120-B IPC, Section 14 of the Foreigners Act, Section 12 (1A) (a) of the Passports Act, Sections 3, 4 and 9 of the Official Secrets Act and Section 31 of the Representation of the People Act, 1950. The accused denied the charges and claimed trial.

4. In order to prove its case, the prosecution, in all, examined as many as 24 witnesses, namely, PW1 Sub Inspector, R. B. Chamola, PW2 Constable, Sanjay Ram, PW3 Head Constable, Deepak Arora, PW4 Sub- Inspector Nadeem Athar, PW5 Sub Inspector, Pradeep Rawat, PW6, Inspector, Vinod Kumar Jetha, PW7 Arun Kumar, PW8 Rakesh Kumar, PW9 Vipin Gupta, PW10 Yogesh Kumar, PW11 B.K. Gupta, PW12 Dhirendra Kumar Singh, PW13 Col., Raju Prasad, PW14 Sub Inspector, Nirvikar, PW15 Superintendent of Police, Janmejay Khanduri, PW16 Sub Inspector, Sachchidanand, PW17 Circle Officer, Kamlesh Upadhyay, PW18 Naveen Chandra Pant, PW19 Prem Singh, PW20 Anuj Kumar, PW21 Sub-Inspector, Darshan Prasad, PW22 Sunil Kumar Rastogi, PW23 Jasveer Singh and PW24 Sanjay Verma. In defence, the accused examined five witnesses, namely, DW1 Afsari, DW2 Sahista, DW3 Dilshad Ahmad, DW4 Saddam Ali and DW5 Mohd. Yameen.

5. The accused was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, "the Code"). He denied the prosecution case. According to him, he has no relations with Pakistan. He never contacted any person in Pakistan. He did not visit Pakistan. He did not receive any money from foreign countries. In his State Bank of India account, Mohd. Yameen, who is his acquaintance, had sent some money.

6. After hearing the parties, by the judgment and order dated 19.12.2012, passed in the case, the accused was convicted of the charge under Sections 419, 420, 467, 468, 469, 471, 120B IPC, Section 14 Foreigners Act, Section 12 (1A) (a) of the Passports Act, Sections 3, 4 and 9 of the Official Secrets Act and Section 31 of the Representation of the People Act, 1950 and sentenced as hereunder:-

               (i)     Under Section 419 IPC, three years
          rigorous imprisonment.
               (ii)    Under Section 420 IPC, seven years

rigorous imprisonment and fine of Rs. 1,000/-. In default of payment of fine, the accused shall undergo simple imprisonment for a further period of two months.

(iii) Under Section 467 IPC, seven years rigorous imprisonment and fine of Rs. 1,000/-. In default of payment of fine, the accused shall undergo simple imprisonment for a further period of two months.

(iv) Under Section 468 IPC, seven years rigorous imprisonment and fine of Rs. 1,000/-. In default of payment of fine, the accused shall undergo simple imprisonment for a further period of two months.

(v) Under Section 469 IPC, three years rigorous imprisonment and fine of Rs. 500/-. In default of payment of fine, the accused shall undergo simple imprisonment for a further period of one month.

               (vi)    Under   Section   471   IPC,   two   years
          rigorous imprisonment.

(vii) Under Section 120-B IPC, seven years rigorous imprisonment and fine of Rs. 1,000/-. In default of payment of fine, the accused shall 7 undergo simple imprisonment for a further period of two months.

(viii) Under Section 14 of the Foreigners Act, five years rigorous imprisonment and fine of Rs. 2,000/-. In default of payment of fine, the accused shall undergo simple imprisonment for a further period of four months.

(ix) Under Section 12(1A)(a) of the Passports Act, six months simple imprisonment.

(x) Under Section 3 of the Official Secrets Act, seven years rigorous imprisonment.

(xi) Under Section 31 of the Representative of People Act, one year rigorous imprisonment.

All the sentences were directed to run concurrently.

7. The accused challenged the judgment and order dated 19.12.2012 in appeal. As stated, by the impugned judgment and order dated 22.07.2013, the judgment and order, by which the accused was convicted and sentenced by the court below has been set aside and accused has been acquitted of the charges. Aggrieved by it, the State is before this Court in appeal.

8. Heard learned counsel for the parties and perused the record.

9. The charges against the accused may be classified under four categories:-

(i) Offences punishable under Section 3, 4 & 9 of the Official Secrets Act and 120-B IPC.

(ii) Offences punishable under the Indian Penal Code for disclosing wrong identity and forging Visa, passport, driving license, PAN card, etc. 8 (offences under Sections 419, 420, 467, 468, 469 and 471 IPC).

(iii) Offences punishable under the Foreigners Act and Passports Act for obtaining the passport by giving false information and staying in India without any valid documents (offence punishable under Section 14 of the Foreigners Act and 12(1A) (a) of the Passports Act.

(iv) Offence punishable under the Representation of the People Act, 1950 for getting the name included in the voter list on the basis of false affidavit.

10. The accused was convicted by the trial court. In appeal the judgment of the trial court has been set aside and the accused acquitted of the charges. The golden rule of criminal jurisprudence in this country presumes the accused innocent, until proven guilty. The acquittal reaffirms this presumption of innocence. Once convicted the presumption goes away. In case of acquittal, it is settled law that if two views are possible, the appellate court should adopt the view which is favourable to the accused. In the case of Govindaraju @ Govinda Vs. State and another, (2012) 4 SCC 722, the Hon'ble Supreme Court, held as hereunder:-

"11. Besides the rules regarding appreciation of evidence, the court has to keep in mind certain significant principles of law under the Indian criminal jurisprudence i.e. right to fair trial and presumption of innocence, which are the twin essentials of administration of criminal justice. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefits of such presumption which could be interfered with by the courts only for compelling reasons and not merely because another view was possible on appreciation of evidence. The element of perversity should be traceable in the findings recorded by the court, either of law or of appreciation of evidence.

12. The legislature in its wisdom, unlike an appeal by an accused in the case of conviction, introduced the concept of leave to appeal in terms of Section 378 CrPC. This is an indication that appeal from acquittal is placed on a somewhat different footing than a normal appeal. But once leave is granted, then there is hardly any difference between a normal appeal and an appeal against acquittal. The concept of leave to appeal under Section 378 CrPC has been introduced as an additional stage between the order of acquittal and consideration of the judgment by the appellate court on merits as in the case of a regular appeal. Sub-section (3) of Section 378 clearly provides that no appeal to the High Court under sub-section (1) or (2) shall be entertained except with the leave of the High Court. This legislative intent of attaching a definite value to the judgment of acquittal cannot be ignored by the courts."

11. In the instant case, leave to appeal was granted by this Court on 22.11.2017.

12. In order to better appreciate the controversy, it would be expedient if under different heads of the charges, the arguments and evidence are appreciated.

OFFENCES UNDER SECTIONS 3, 4 & 9 OF THE OFFICIAL SECRETS ACT AND SECTION 120-B IPC

13. As stated, the prosecution has examined 24 witnesses to prove its case and also produced large number of documents. The accused examined five witnesses in his defence. First and the foremost, the Court takes the charges under Sections 3, 4 & 9 of the Official Secrets Act and Section 120-B IPC. These charges are framed on the allegations that the accused sent various secret documents to the ISI, the secret agency of Pakistan and they were affecting the sovereignty, security and integrity of India. According to these charges on 25.01.2010, when at 01:50 PM, the accused was apprehended, an envelope was recovered from his right hand. It had sketch maps Ex.33 and 10 a telephone directory of military establishment Exs. 35 and 36.

14. It may be noted here that, as such, the documents which were allegedly recovered from the accused, were not individually incorporated in the charge, but, the prosecution has adduced the evidence of recovery during trial. The accused also cross examined the witnesses on his own. He was asked about the recovery made from him on 25.01.2010, particularly, the envelope containing sketch maps of the military establishments and telephone numbers of the military officers (question 3 of the examination of the accused under Section 313 of the Code). The accused denied of any such recovery. The accused was also asked about the evidence of PW13 Col. Raju Prasad, who has stated that the maps and the telephone directory recovered from the accused were secret documents (question 19 to the examination under Section 313 of the Code) and the accused, in reply to it, has stated that PW13 Col. Raju Prasad had given false evidence.

15. The sketch maps Ex. 33, which were recovered from the accused on 25.01.2010, had something written on it. In order to identify the handwriting on it, the Specimen handwriting of the accused was taken before the court on 08.02.2010 and it was sent for forensic examination. The Forensic Science Laboratory (for short, "FSL") report has been proved by PW18 Naveen Chandra Pant. When asked about the statement of PW18 Naveen Chandra Pant (though it was combinedly asked), the accused has stated that PW18 Naveen Chandra Pant gives false evidence. These and other factors, which were brought to the notice of the accused during trial, establish that the accused was aware of the charges against him.

16. On behalf of the State, it is argued that PW1 Sub- Inspector, R.B. Chamola, PW3 Head Constable, Deepak Rawat, PW4 Sub Inspector, Nadeem Atahar, PW5 Sub Inspector, Pradeep Rawat and PW6 Inspector, Vinod Kumar Jetha have proved the recovery of these secret documents from the possession of the accused. Learned State counsel would also submit as follows:-

(i) The sketch maps Ex. 33 had writing also.

Therefore, in order to get expert opinion, specimen writing of the accused was taken and sent for forensic examination, which confirmed that the sketch maps Ex. 33 had handwriting of the accused. It is proved by PW18 Naveen Chandra Pant and PW13 Col.

Raju Prasad, who have stated that the recovered documents are military secrets.

(ii) It is argued that the prosecution has been able to prove that from the possession of the accused, sketch maps of the military establishment as well as the telephone directory of the military officers were recovered and it proves the offence punishable under Section 3 of the Official Secrets Act.

17. It may be noted here that during the course of hearing of this appeal, at one stage, when the accused was not represented, on 13.03.2018, Mr. K.S. Verma, Advocate was appointed as amicus curiae, but he did not represent the accused. Therefore, on 10.10.2019, Mr. S.C. Dumka, Advocate was appointed as amicus curiae. It so happened that subsequently, Mr. B.D. Pandey, Ms. Manisha Bhandari 12 and Mr. H.C. Pathak also represented the accused and learned amicus curiae continued to assist the Court.

18. On behalf of the accused, learned amicus curiae would submit that the statement of PW13 Col. Raju Prasad is not reliable, because he was not aware, as to what was written on the envelope, when he examined it. He would also submit that the evidence of PW18 Naveen Chandra Pant is also not reliable.

19. Ms. Manisha Bhandari, learned counsel appearing for the accused would submit that the offence under Section 3 of the Official Secrets Act is not made out for the following reasons:-

(i) The sketch maps so recovered are meaningless and inconsequential in absence of some authorised person deposing the authenticity of the documents being secret enough that they might benefit the enemy country. It has not been proved.

(ii) According to the allegations, with the help of one Jagdish, information was collected by the accused, but Jagdish has already been acquitted and the State did not prefer to challenge it in appeal.

(iii) Relevant witnesses have been dropped by the prosecution. It implies that had such witnesses been produced, it would have been against the prosecution.

(iv) The documents are not secret, as they are available in the public domain. It is not proved that the accused made any communication. Hence, there is no occasion 13 to attract the provisions of Section 4 of the Official Secrets Act.

(v) As per the prosecution, the accused confessed at the time of recovery, and a laptop, etc. were recovered from him. But, nothing was investigated, which proves it. It is nothing, but a figment of imagination.

20. PW1 R.B. Chamola is the Officer, who had received information. After informing his seniors, a team was constituted and the accused was arrested. He has stated about it that on 25.01.2010, at about 9:00 in the morning, he got information about the arrival of the accused at a particular place. He already had the information that a person named Asad Ali was operating in the area to get military information for further transmission of it to the ISI, the Pakistani Secret Agency. PW1 R.B. Chamola has, in detail, stated as to how he reached at BSM Tiraha, Roorkee, when the informant indicated towards the accused that he was Asad Ali. When arrested, according to PW1 R.B. Chamola, from the right hand of the accused, an envelope was recovered, which had the sketch maps Ex.33 and a telephone directory of military establishment, Exs. 35 & 36. Various other articles were also recovered from the accused at the time of arrest. PW1 R.B. Chamola has stated about it. He proved the recovery memo Ex. A1.

21. The Court does not consider it necessary to enlist all these articles, which are Exs. 1 to 32, Ex. 34 and Exs. 37 to 41. It includes laptop, mobile phones, ATM cards and various other articles. PW3 Deepak Arora, PW4 Nadeem Atahar, PW5 Pradeep Rawat and PW6 Vinod Kumar Jetha have corroborated the statement of PW1 R.B. Chamola. They 14 all are witnesses of recovery and they arrested the accused on 25.01.2010 near BSM Tiraha, Roorkee.

22. PW2 Constable Sanjay Ram was posted at the Police Station Kotwali Gangnahar, Roorkee at the relevant time. According to him, on 25.01.2010, Case Crime No. 23 of 2010 was lodged on the basis of the recovery memo placed by PW1 R.B. Chamola. This witness has proved the chik FIR, Ex. A2 and a copy of the General Diary Entries, by which the case was lodged, which is Ex. A3.

23. A few facts may be mentioned at this stage only. PW1 R. B. Chamola has stated that when arrested, the articles were recovered. Recovery memo Ex. A1 was prepared at the spot. The articles were sealed. The specimen seal prepared (statement of PW1 R.B. Chamola, Page 5, 3rd line from bottom). After arrest of the accused, the accused was lodged on the basis of the recovery memo Ex. A1, at the Police Station Kotwali Gangnahar, Roorkee. Entries were made in the general diary of the police station. It has been proved as Ex.A3 by PW2 Constable, Sanjay Ram. These general diary entries record that alongwith the recovery memo, which was sealed, specimen seal was also filed in the police station, which was kept in the police station.

24. It may be noted that instant is not a case of recovery of any arms or illicit drug, etc. Apart from the telephone directory of military officers, what the case is that the sketch maps of the military establishments were recovered from the accused, which is Ex. 33 and there were writing also on these maps. So, to a certain extent, whether such articles were sealed or not at the spot and the specimen were taken or not, somehow loses importance, because it is the case that the sketch maps had writing on them also. But, 15 as stated, in the instant case, PW1 R.B. Chamola has categorically stated that when the articles, including sketch maps and other documents were recovered from the accused, the recovery memo was prepared, articles sealed and specimen seal taken. Based on the recovery memo, the accused was lodged at the police station. At the time of lodging of the FIR, in the general diary of the concerned police station, it is mentioned that the recovered articles, in a sealed condition alongwith specimen seal were filed at the police station.

25. Things did not stop here. The record of the case is before this Court. There is a letter of the Investigating Officer PW14 Sub Inspector, Nirvikar on the record, dated 07.02.2010, by which, he had requested the concerned court to get him the photocopies of sealed envelope and other articles, which was permitted by the court of Judicial Magistrate, Roorkee on 07.02.2010. Not only this, on 07.02.2010 itself, PW14 Nirvikar had moved an application to the court concerned that the writing on the sketch maps are that of the accused, therefore, his specimen writing may be taken. In page no. 6 of his statement, PW14 Nirvikar has stated about it that he took the specimen signatures of the accused and sent it for forensic examination. The application dated 07.02.2010 of PW14 Nirvikar was allowed on 08.02.2010 by the court of Judicial Magistrate, Roorkee, and the court directed that the specimen handwriting of the accused be taken. The specimen handwriting of the accused was taken in the presence of the Judicial Magistrate, Roorkee on 08.02.2010, which was sent for forensic examination to the FSL, Uttarakhand by the Judicial Magistrate, Roorkee, District Haridwar.

26. The FSL gave its report dated 23.02.2010. It appears that the court again communicated with the FSL Uttarakhand and, therefore, the FSL, Uttarakhand gave another report on 09.03.2010. These reports are Ex. A82 on record, proved by PW18 Naveen Chandra Pant on 09.07.2012 before the court. While proving the report, Ex. A82, PW18 Naveen Chandra Pant at Page 4, 2nd line onwards has stated that the original reports were before him. Thereafter, he proved it. The original reports dated 23.02.2010 and 09.03.2010 of the FSL, Uttarakhand are on the record. The specimen signatures of the accused taken on 08.02.2010 before the court, are part of the report Ex. A-82, which have been marked as Ex. S1 to S6. Three pages of it i.e. S1, S2 and S3 are writing in Hindi and pages 4, 5 and 6 are writing in English. The recovered sketch maps, Ex.33, which was proved on 24.07.2010 by PW1 R.B. Chamola, is on Court's record in original, which are three sketch maps and disputed writing has been marked on them as Q1 to Q14.

27. It may be noted that according to the prosecution case, on 25.01.2010, apart from the sketch maps Ex. 33, the telephone directory of the Army, Exs. 35 & 36, were also recovered. According to the prosecution case, on 07.02.2010 also, at the instance of the accused, from the house of Kabir Ahmad, three more maps were recovered, but for the purpose of the instant charge, prosecution has not relied on these maps. PW14 Nirvikar and PW6 Vinod Kumar Jetha have stated about it. But, recovery of 07.02.2010 is not the basis of the charge under Sections 3, 4 & 9 of the Official Secrets Act and Section 120-B IPC.

28. On 25.01.2010, when maps and other secret documents were recovered from the accused, according to the prosecution, mobile phones, laptop, memory card, etc. 17 were also recovered from him. During the course of arguments, on behalf of the accused, it is argued that such articles were never investigated and not examined forensically. This statement is not correct. In the record of the court below, there is an application dated 22.02.2010 of PW14 Nirvikar, Investigating Officer, by which he requested the court that the recovered laptop, pen-drive, memory card, mobile phone, etc., be sent for forensic examination. In page 11 of his statement, first para, bottom lines, PW14 Nirvikar has stated that on 22.02.2010, he appeared before the court for sending laptop, pen-drive, memory card, mobile phone, etc. for forensic examination. On the application of PW14 Nirvikar, which is dated 22.02.2010, on the record, the Court ordered "permitted in the interest of justice" and passed a detailed order. In fact, the articles were sent for forensic examination to FSL, Chandigarh and a report was received dated 26.04.2010, which is also on record, which has given description of the examined articles, which are as hereunder:-

"Description of parcel(s), exhibit(s) and seals : One cloth parcel sealed with the seal impression corresponding with the specimen seal impressions forwarded.

Parcel No. Description and marking of the exhibit(s) Cloth parcel It contained the following exhibit items:

i. One laptop (HCL, S. No. C084AX222165) in which one hard disk (WD Scopio, S. No. WXEXO8JP0033) of 160 GB was marked as exhibit H-1 in the laboratory.

ii. One pen drive (Kingston - data Traveler) of 1 GB was marked as exhibit PEN-1 in the laboratory. iii. One Pen drive (Kingston - data Traveler) of 4 GB was marked as exhibit PEN-2 in the laboratory. iv. One Cellphone (Nokia, 7610, IMEI No. 357070/00/562628/9) which has one sim card (Aircel, No. 89918110909141269403) and one MMC card (Microsim DV-RS) of 1 GB. They were marked as exhibits N1, MS-1 and SIM-1 respectively in the laboratory.

v. One Cellphone (Nokia, 7610, IMEI No. 354869/02/678944/6) which has one sim card (Aircel, No. 8991560912569926816N-1). They were marked as exhibits N2 and SIM-2 respectively in the laboratory.

7. Purpose of reference: Computer and Cell Phone Forensics Examination.

8. Date(s) of examination: Completed on 23.04.2010.

9. Results of Examination:

The storage media vide exhibits H1, PEN-1, PEN-2 and MS-1 have been forensically imaged onto a sterile storage media and analysed using Encase-6 version of M/s Guidance Software Inc., U.S.A. The data retrieved in/from the exhibits H1, PEN-1, PEN- 2 and MS-1 for pictures, documents, audio/video etc. is provided in three DVDs enclosed herewith.

The exhibits N1, SIM-1 and SIM-2 have been analysed using CelleBrite.

The data retrieved from exhibit N1, SIM-1 and SIM-2 is herewith enclosed vide Annexure-I, Page No. 1-26. However, the exhibit N2 could not be analysed due to technical reasons.

10. After the examination, the parcel(s) containing the exhibit(s)/remnants of the exhibit(s) has been sealed with the seal impression as per specimen seal impression provided below;"

29. The prosecution has not relied upon the FSL, Chandigarh's report dated 26.04.2013. In the impugned judgment and order, observations have been made that the FSL, Dehradun and FSL, Chandigarh's report are not on record. (para 41 of the impugned judgment). This statement is wrong. The FSL, Dehradun report is Ex. A82 on record. Although, there is another document also marked as Annexure A82, which is a letter of the Superintendent of Police, Government of India addressed to PW14 Nirvikar, but the fact remains that Ex.A82, the report of FSL, Dehradun, in original, is before this Court. In fact, on 09.07.2012, when PW18 Naveen Chandra Pant was examined, he also stated that original report was before him.

30. In the impugned order, in para 15, it is recorded that specimen seal is not on record. The court has held that, in fact, after recovery, articles were sealed and specimen seal taken. When the accused was lodged in the Police Station, the specimen seal alongwith recovered articles were given at the police station. On 08.02.2010, the recovered sketch maps and other articles were sent for forensic examination by the court of competent jurisdiction. The court forwarded such documents for forensic examination. At the time of cross-examination, none of the witnesses has ever been 19 asked that the specimen seal was not on record. No objection was taken by the court also, when the articles were forwarded for forensic examination. Under Section 114 Illustration (e) & (f) of the Indian Evidence Act, 1872, it shall be presumed that seal was intact and the court had forwarded it in the normal course of business. This Section 114, Illustration (e) & (f) of the Indian Evidence Act, 1872 are as hereunder:-

"114. Court may presume existence of certain facts. -- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations The Court may presume -

...................

(e) That judicial and official acts have been regularly performed;

(f) That the common course of business has been followed in particular cases."

31. Therefore, this Court concludes that at the time of recovery on 25.01.2010, the sketch maps and other articles were duly sealed and specimen taken and they were deposited at the Police Station, where the accused was lodged. PW14 Nirvikar placed these articles before the court of competent jurisdiction on 08.02.2010 and they were forwarded by the court for forensic examination and the report Ex. A82 received.

32. According to the FSL report, the person, who wrote blue writing in the specimen marked as S1 and S6 also wrote the red enclosed writing. It may be mentioned that S1 to S6 are specimen handwriting of the accused taken before the Magistrate on 08.02.2010, which was forwarded by the Magistrate for forensic examination. Q1 and Q14 marks are on the sketch maps Ex. 33, which were recovered from the possession of the accused on 25.01.2010. It has some Urdu 20 and English writing like RORKEE is marked as Q1, ARMOBGD is marked as Q3 and MECHINE and BEG and 63 are marked on Q2. Similarly, in another map, GHANGORA DEHRADUN is marked as Q8. Similarly, a sketch map pertaining to MEERUT is also marked as Q11 to Q14. So, the expert opinion tells the Court that the sketch maps, which were recovered from the accused had his own handwriting. Now, the question is whether Exs. 33, 35 and 36 are documents which may attract the provision of Official Secrets Act?

33. PW13 Col. Raju Prasad was posted at Roorkee in the year 2010. He was shown Exs. 33, 35 and 36. According to him, Ex. 33 are the sketch maps of restricted military area of Roorkee, IMA Dehradun and Ghanghora Dehradun and Meerut. According to PW13 Col. Raju Prasad, Exs. 35 and 36 are military telephone directory, which are restricted. He has proved his report Ex. A64. According to it, if the information contained in Exs. 33, 35 & 36 is disclosed to an unauthorized person, it will be very much prejudicial to the safety, security and interest of the State.

34. In the impugned judgment and order, it has also been observed that there is no independent witness of the recovery. The Police Officers have deposed about the recovery. They have stated that they tried to get independent witnesses. Merely because public witnesses have not come up to depose about the recovery, the evidence of the Police Officers cannot be discarded. The Police Officers cannot be termed as interested witnesses. It is true that the recovery was made from the public place, which was crowded also. In such a situation, what the rule of prudence require is that the scrutiny of the witnesses should be made cautiously. The statements of PW1 R.B. Chamola, PW3 Deepak Rawat, PW4 21 Nadeem Atahar, PW5 Pradeep Rawat and PW6 Vinod Kumar Jetha are corroborating each other. Nothing is elicited from their cross examination, which may even slightly doubt their credibility with regard to the recovery made from the accused on 25.01.2010 at 1:50 PM. The sketch maps Ex. 33 and telephone directory of military Exs. 35 and 36 were recovered from the accused. Writing on the sketch maps Ex. 33 is that of the accused, which is proved by the forensic report.

35. On behalf of the accused, an argument is advanced that only a competent person would tell that the allegedly recovered documents are secret. PW13 Raju Prasad was posted at Roorkee when the offence occurred. One of the sketch maps pertains to Cantt. Roorkee. He has stated about it. His evidence is reliable. It lends credence. It proves that, in fact, secret information in terms of the sketch maps and telephone directory of military establishment were recovered from the possession of the accused.

36. The accused is charged for the offences punishable under Sections 3, 4 & 9 of the Official Secrets Act & Section 120-B IPC. These sections are as hereunder:-

"3. Penalties for spying.--(1) If any person for any purpose prejudicial to the safety or interests of the State--

(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or

(b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or

(c) 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 an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States;

he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to 22 any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code, to fourteen years and in other cases to three years.

(2) 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 purpose was a purpose prejudicial to the safety or interests of the State, such sketch, plan, model, article, note, document, 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.

4. Communications with foreign agents to be evidence of commission of certain offences.--(1) In any proceedings against a person for an offence under section 3, the fact that he has been in communication with, or attempted to communicate with a foreign agent, whether within or without India shall be relevant for the purpose of proving that he has, for a purpose prejudicial to the safety or interests of the State, obtained or attempted to obtain information which is calculated to be or might be, or is intended to be, directly or indirectly, useful to any enemy.

(2) For the purpose of this section, but without prejudice to the generality of the foregoing provisions,--

(a) a person may be presumed to have been in communication with a foreign agent if--

(i) he has, either within or without India visited the address of a foreign agent or consorted or associated with a foreign agent, or

(ii) either within or without India, the name or address of, or any other information regarding, a foreign agent has been found in his possession, or has been obtained by him from any other person;

(b) the expression "foreign agent" includes any person who is or has been or in respect of whom it appears that there are reasonable grounds for suspecting him of being or having been employed by a foreign power, either directly or indirectly, for the purpose of committing an act, either within or without 23 India, prejudicial to the safety or interests of the State, or who has or is reasonably suspected of having, either within or without India, committed, Or attempted to commit, such an act in the interests of a foreign power;

(c) any address, whether within or without India, in respect of which it appears that there are reasonable grounds for suspecting it of being an address used for the receipt of communications intended for a foreign agent, or any address at which a foreign agent resides, or to which he resorts for the purpose of giving or receiving communications, or at which he carries on any business, may be presumed to be the address of a foreign agent, and communications addressed to such an address to be communications with a foreign agent.

9. Attempts, incitements, etc.--Any person who attempts to commit or abets the commission of an offence under this Act shall be punishable with the same punishment, and be liable to be proceeded against in the same manner as if he had committed such offence."

37. Section 120-B IPC is as hereunder:-

"120B. Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."

38. On behalf of the State, it is argued that possession of the sketch maps and telephone directory itself is enough to convict the accused of the charges. In support of his contention, learned State counsel has placed reliance on the principles of law, as laid down in the case of Govt. of NCT of Delhi Vs. Jaspal Singh, (2003) 10 SCC 586, State Vs. Jaspal Singh Gill, (1984) 3 SCC 555 and Sama Alana Abdulla Vs. State of Gujrat, (1996) 1 SCC 427.

39. In the case of Jaspal Singh (supra), the Hon'ble Supreme Court discussed the scope of Section 3 (1) (c) of the Official Secrets Act and observed that "when the accused was found in conscious possession of the material (map in that case) and no plausible explanation has been given for its possession, it has to be presumed as required by Section 3(2) of the Act that the same was obtained or collected by the appellant for a purpose prejudicial to the safety or interests of the State." In that case, possession of defence telephone directory was also held to be a classified document restricted in use.

40. In the case of Jaspal Singh Gill (supra) the Hon'ble Supreme Court discussed the scope of bail in the cases pertaining to Sections 3, 5, 9 of the Official Secrets Act.

41. In the case of Sama Alana Abdulla (supra), the Hon'ble Supreme Court upheld the view of the High Court that the word "secret" in clause (c) of Section 3 (1) of the Official Secrets Act qualifies only the words "official code or password" and not "any sketch, plan, model, article or note or other document or information". The Hon'ble Supreme Court on this point observed as hereunder:

"7. It was next contended that the High Court has misinterpreted Section 3(1)(c) and erroneously held that the sketch, plan, model, article or note or other document or information need not be secret for establishing an offence under that section. In order to appreciate this contention, it is necessary to refer to Section 3 which reads as follows:

"3. Penalties for spying.-- (1) If any person for any purpose prejudicial to the safety or interests of the State

--

(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or

(b) makes any sketch, plan, model or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or

(c) 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 an enemy or which relates to a matter the 25 disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States."

The High Court held that the word 'secret' in clause

(c) qualifies only the words "official code or password" and not "any sketch, plan, model, article or note or other document or information". The reason given by the High Court is that after the phrase "any secret official code or password", there is a comma and what follows is thus not intended to be qualified by the word 'secret'. The Calcutta High Court in Sunil Ranjan Das v. State, 77 CWN 106 has also taken the same view. It has held that the word 'secret' in the said section qualifies official code or password and not any sketch, plan, model, article or note or other document or information. This is clear from the comma and the word 'or' which comes after the word 'password'.

8. In our opinion, the view taken by the Gujarat High Court in this case and by the Calcutta High Court in the case of Sunil Ranjan Das [77 CWN 106] is correct. We find that the said interpretation also receives support from sub- section (2) of Section 3. While providing for a presumption to be raised in prosecution for the offence punishable under that section the phraseology used by the legislature is "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". From the way the said sub- section is worded it becomes apparent that the qualifying word 'secret' has been used only with respect to or in relation to official code or password and the legislature did not intend that the sketch, plan, model, article, note, document or information should also be secret. As we do not find any substance in the second contention raised on behalf of the appellant it is also rejected. In the result, the appeal fails and is dismissed."

42. In fact, Section 4 of the Official Secrets Act is procedural section, which provides as to what would be relevant for the purpose of proving that the accused has for the purpose prejudicial to the safety or interests of the State obtained or attempted to obtain information, which is calculated to be or might be or is intended to be, directly or indirectly useful to an enemy.

43. Section 9 of the Official Secrets Act prescribes punishment for an attempt or abetment of the offence punishable under the Act. The penal provision is Section 3 of the Official Secrets Act.

44. PW15 Janmejay Khanduri is the Investigating Officer, who filed charge sheet Ex. A80 and complaint under Section 3, 4, 9 of the Official Secrets Act read with Section 120-B IPC (under Section 13 (3) of the Official Secrets Act).

45. On behalf of the accused, it is also argued that there is no evidence that the accused has communicated with any person outside the country to transmit the information. It is true that the prosecution has not adduced any evidence to the effect that accused had ever communicated with anyone outside the country to transmit information, which he had. But, the question is as to whether is it necessary to prove that the accused, in fact, transmitted information outside the country? As discussed, in the case of Jaspal Singh (supra), the Hon'ble Supreme Court has followed the principles of law as laid down in the case Sama Alana Abdulla (supra) and held that "when the accused was found in conscious possession of the material (map in that case) and no plausible explanation has been given for its possession, it has to be presumed as required by Section 3(2) of the Act that the same was obtained or collected by the appellant for a purpose prejudicial to the safety or interests of the State.."

46. Learned counsel for the accused argued that some of the witnesses have not been examined by the prosecution, which doubts the prosecution case. This argument has no force. It is for the prosecution to decide as to what is the best evidence to prove a fact. In the instant case, material witnesses have been examined by the prosecution. If some of the witnesses have not been examined, it does not affect the prosecution case. After all, it is the credibility of a witness, which matters and not the number of witnesses.

47. It is also argued on behalf of the accused that as per prosecution, the accused used to get information through Jagdish. Jagdish has already been acquitted and his acquittal has not been challenged by the prosecution, therefore, it is argued that, the accused is also entitled to acquittal. This argument also does not merit acceptance. The case of the prosecution against the accused is definite and distinct. It is true that initially as per recovery memo, Ex. A- 1, the accused confessed that Jagdish helped him to get information. But, acquittal of Jagdish will not have any bearing on the case of the accused. Therefore, merely because Jagdish has been acquitted, the accused may not derive any benefit out from it.

48. In the instant case, the prosecution has proved beyond reasonable doubt that on 25.01.2010 from the possession of the accused, the sketch maps Ex. 33 and a telephone directory Ex. 35 and 36 were recovered. These articles were sealed and specimen prepared. The sketch maps had handwriting of the accused. It is proved by the FSL, Dehradun's report Ex. A82. It has been proved by PW18 Naveen Chandra Pant. PW13 Col. Raju Prasad has categorically stated that Ex. 33, 35 and 36 are restricted and if this information is disclosed to any unauthorized person, it will be prejudicial to the safety, security and interest of the State. PW13 Col. Raju Prasad has proved this report Ex. A64. Therefore, this Court is of the view that prosecution has been able to prove the charge under Section 3 of the Official Secrets Act against the accused.

49. Section 4 of the Official Secrets Act is a procedural part and it is not the case of abetment or an attempt to commit an offence. Hence, the conviction will be only 28 under Section 3 of the Official Secrets Act and not under Sections 4 & 9 of the Official Secrets Act.

50. The accused has also been charged with the offence punishable under Section 120-B IPC on the ground that the accused shared secret information with ISI. But, there is no evidence to that effect. It has been proved that the accused has secret documents in terms of sketch maps of military establishment and telephone directory of the military. In view of the law as laid down in the case of Sama Alana Abdulla (supra), it has been presumed under Section 3 (2) of the Official Secrets Act that the accused had secret documents with the purpose prejudicial to the safety, security or interests of the State. This presumption proves offence under Section 3 of the Official Secrets Act against the accused. But, no such presumption can be made with regard to Section 120-B IPC, hence, this Court concludes that the prosecution failed to prove the case under Section 120-B IPC against the accused.

OFFENCES UNDER THE INDIAN PENAL CODE, 1860

51. Second category of charge is with regard to offences punishable under IPC. Charge under Section 419 IPC has been framed on the allegations that upon arrest, the accused did not reveal his genuine identity. Charge under Sections 420, 467, 468, 469 and 471 IPC has been framed for forging official passport, driving license, PAN card etc. What the accused has forged? How did he cheat?

Section 419 IPC

52. Section 419 IPC prescribes punishment for cheating by personation. It is as hereunder:-

"419. Punishment for cheating by personation.--Whoever cheats by personation shall 29 be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

53. Whom has the accused cheated by personation?

"Cheating' is defined under Section 415 IPC. It is as hereunder:-

"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."

54. "Forgery" is defined under Section 463 IPC and it is as hereunder:-

"463. Forgery.-- Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."

55. In order to attract the provisions of Section 415 IPC, it must be shown that the person deceived, delivered any property, etc.

56. In the instant case, as stated, charge under Section 419 IPC has been framed on the allegations that at the first instance, the accused did not reveal his genuine identity, when arrested on 25.0.2010 at 1:50 PM. It is the case of the prosecution that initially the accused revealed his name Asad Ali, but when various articles were recovered from him, he was taken into confidence. Thereafter, when 30 interrogated, he revealed his genuine identity. This act does not fall within the definition of "cheating", as defined under Section 415 IPC. The accused, though tried to impersonate, but he did not. Impersonation as such was not complete. No one was deceived and no one was induced to deliver any property, etc. Therefore, definitely, offence under Section 419 IPC is not made out, in any manner, against the accused. Accordingly, this Court is of the view that the prosecution has not been able to prove charge under Section 419 IPC against the accused.

57. The Court now proceeds to examine the applicability of offences punishable under Sections 420, 467, 468, 469 and 471 IPC, to examine as to whether, the prosecution has been able to prove the charges against the accused. In this group of charge, the prosecution has adduced evidence to prove that:-

(i) The accused received money through WUMT from foreign counties.

(ii) While receiving the money through WUMT, the accused produced forged driving licenses in the name of Ajeet Singh and those licenses were not in existence.

58. According to the prosecution, the accused forged four driving licenses, namely, DL No. 49672 in the name of Ajeet Singh, DL No. 26497 and DL No. 26724 in the name of Ajeet Singh and DL No. 99672. The witnesses, who have mainly stated about it, are PW7 Arun Kumar, PW8 Rakesh Kumar, PW11 B.K. Gupta, PW12 Dhirendra Kumar Singh, PW14 Sub Inspector, Nirvikar, PW20 Anuj Kumar, PW23 Jasveer Singh and PW24, Sanjay Verma.

59. At the outset, it may be stated that PW9 Vipin Gupta has stated that the accused had opened an account in 31 the HDFC Bank on 20.07.2007. He proved the documents relating to the bank account, namely, Ex. A49 to A54. These accounts were opened in the name of Asad Ali. In answer to question 15, in his examination under Section 313 of the Code, the accused has admitted it.

60. PW10 Yogesh Kumar has stated that on 28.08.2008, the accused, in the name of Asad Ali, had opened an account in the Subhash Bazar, Meerut Branch of State Bank of India. He proved the record relating to this, which is Ex. A55 to Ex. A57. The accused in his answer to question 16, in his examination under Section 313 of the Code has admitted this fact also.

61. According to PW7 Arun Kumar, on 04.02.2008, he was appointed in the Roorkee Post Office as Postal Assistant. In that Post Office, transactions were made through WUMT. It is admitted on behalf of the accused as well as by the State that the transaction through WUMT is transfer of money electronically. The person, who has to receive money approaches the Post Office or WUMT Agency to get the money. He reveals his ten digit code, name of sender and thereafter, after verification of ID, money is given to such person.

62. PW7 Arun Kumar states that on 14.05.2009, the accused introduced himself as Ajeet Singh and received Rs.9,810.94/- through WUMT, which was received from UAE and sent by Man Mohan Singh. According to this witness, the accused had given driving license for his identity, which bears the photograph of the accused. He proved the voucher, by which the accused received payment, which is Ex. A44. This witness also produced in the court, a copy of the driving license, which was given by the accused, at the time when he 32 received the payment. This driving license, as such, is not marked in the statement of PW7 Arun Kumar. So, it is a little difficult to locate as to which driving license PW7 Arun Kumar is referring to. But, the fact remains that when examined, PW7 Arun Kumar had a copy of the driving license which had photograph of the person, who had received money from him on 14.05.2009. This witness identified the accused in the court and has stated that in the driving license, there is photograph of the accused. The accused has not disputed it. He has not asked even a single question from this witness, in the cross-examination, that the driving license, which PW7 Arun Kumar was referring to, does not bear the photograph of the accused. Had such a question been asked in the cross-examination, perhaps the court would have been in a position to make its observation with regard to the photograph that was affixed on the driving license, which was referred to by PW7 Arun Kumar. The statement of PW7 Arun Kumar lends credence that it is the accused, who had received the payment from him on 14.05.2009. The details of driving licenses, as stated, is not revealed in the statement of the PW7 Arun Kumar.

63. PW8 Rakesh Kumar was an Agent of WUMT at the relevant time. He has stated about the manner, in which the money is received through WUMT. According to him, on different dates, the accused received money from him. The details is as hereunder:-

(i) On 06.01.2009, Rs.1,3757.11/- from a Mahendra Singh of UAE.

(ii) On 05.09.2009, Rs.8000/- from Buta Singh of UAE.

(iii) On 02.08.2009, Rs.19810.13 from Man Mohan Singh of UAE.

(iv) On 14.07.2009, Rs. 6000/- from Gurpal Singh of UAE.

64. This witness has proved the documents related to it, which are Exs. A45 to A48. According to PW8 Rakesh Kumar, the accused had introduced himself as Ajeet Singh, S/o Surjeet Singh. He has identified the accused in the court. Ex. A45 to A48 are receipts. According to PW8 Rakesh Kumar, the accused had given his driving license as an identity, which had his photograph. But, this witness has not filed any driving license before the Court. He has not stated that the driving license is before him or he had come with the driving license. The statement of this witness, insofar as, the identification of the accused in the court is concerned, is based on the memory alone. Definitely to that extent, it would be too much to rely on the oral evidence of this witness. He has deposed in the year 2011 about some transaction done in the year 2009 and identified the accused without any photograph before him in any record of the transaction. It is not wholly reliable statement for this reason alone.

65. PW11 B.K. Gupta was posted as a Senior Post Master on 24.11.2009 at Muzaffarnagar. According to him, on 15.01.2010, through WUMT, accused received Rs.30,000/-, which were sent by Shahid Alam and Abdul Munaf of UAE. The payment was made by PW20 Anuj Kumar. This witness has proved the voucher Ex. A59 and the driving license Ex. A60. PW20 Anuj Kumar has also stated about it. He has stated about the procedure, as to how money was paid. According to him, before making payment to the accused, the accused had given his driving license, which was in the name of Asad Ali, bearing DL No. A35440. His driving license had photograph of the accused and it has the address as Asad Ali, S/o Barkat Ali, 22 Shahpeer Gate Meerut. He proved DL No. A35440 and PAN card i.e. Ex. A108 and 109, respectively. In fact, Ex. A108 is another copy of 34 Ex. A60. This witness identified the accused in the court saying that it is the accused, who as Asad Ali, received money from them.

66. PW14 Nirvikar has also stated about this transaction. In his examination under Section 313 of the Code, the accused has though stated that PW11 B.K. Gupta is giving false evidence. But, in answer to question no. 24, he admits that PW20 Anuj Kumar has rightly stated about the driving license, Ex. A108 and PAN card, Ex. A109. This driving license, Ex. A108 as well as Ex. A60, as stated by PW60 B.K. Gupta, are one and the same. These are copies of DL No. A35440, in the name of Asad Ali S/o Barkat Ali, 22 Shahpeer Gate , Meerut and the date of birth is 16.08.1982. In answer to question 30, the accused had admitted that in his State Bank of India account, money was received from Mohd. Yameen, who was his acquaintance.

67. The statements of PW11 B.K. Gupta and PW20 Anuj Kumar are reliable. They have identified the accused in the court. They have said that based on the driving license No. DLA 35440, the accused introduced himself as Asad Ali and received money. In answer to question no. 18, the accused in his examination under Section 313 of the Code has admitted that he had DL No.A 35440. Therefore, based on the statement of PW11 B.K. Gupta and PW20 Anuj Kumar, it is proved beyond reasonable doubt that on 15.01.2010, the accused received Rs. 30,000/- through WUMT, out of which, Rs.10,000/- were sent by Shahid Alam and Rs.20,000/- were sent by Abdul Munaf, both from UAE and the accused had given copy of the driving licenses, Ex. A60 and A108, which were in the name of Asad Ali. It is not the case of the prosecution that these driving licenses were forged.

68. It is the case of the prosecution that the accused also forged the Driving License No. 49672 to receive money through WUMT. PW24 Sanjay Verma has stated about it. According to him, he was an Agent of WUMT and in the year 2007, he was posted at Roorkee. According to him, on 02.04.2009, a person named Ajeet Singh approached them with his ID, as Driving License No. A49672 and received Rs.12,000/- which was sent by Gurpal Singh of UAE. According to this witness, following transactions were also done by the Ajeet Singh:-

(i) On 30.05.2009, received Rs.15,000/- which was sent by Jaidev Singh of UAE through WUMT.

(ii) On 31.10.2009, received Rs.20,000/-, which was sent by Man Mohan Singh of UAE through WUMT.

(iii) On 24.11.2009, received Rs. 2000/- which was sent by Kuldeep Singh of UAE through WUMT.

69. PW 24 Sanjay Verma identified the accused in the court and told that he received the money in the name of Ajeet Singh by producing Driving License No. 49672. According to him, PW14 Nirvikar had received the documents from him including driving license. PW14 Nirvikar has also stated about it. PW24 Sanjay Verma has proved all these documents, which are Exs. A119 to A123.

70. Exs. A123, is a copy of the driving license, which according to PW24 Sanjay Verma, the accused had produced before him to receive money. Original of this driving license is not before the Court. The Court will advert to the issue relating to non production of original, at a later stage. Ex. A123 is the driving licenses in the name of Ajeet Singh, S/o Surjeet Singh. It has number A49672. PW24 Sanjay Verma has stated that the photograph on this exhibit is that 36 of the accused present in the court. This witness has not been cross-examined to assail that the photograph on the driving license is not that of the accused. Has it been so questioned, perhaps the court would have an occasion to make any observation with regard to the photograph on the driving license. This witness has identified the accused with the help of the photograph. It cannot be said that in such a situation, the witness could not identify the person, who had received money from him. The transaction was done by PW24 Sanjay Verma. He had documents with him. Based on photographs, he identified the accused. It proves beyond reasonable doubt that on the dates, as stated by PW24 Sanjay Verma, the accused introduced himself as Ajeet Singh by producing a copy of Driving License No. A49672, received money which was sent through WUMT from UAE by different persons.

71. The another transaction was made by PW23 Jasveer Singh, who was also working with the WUMT. According to him, on 23.09.2008, the accused introducing himself as Ajeet Singh and producing different identity as DL No.26497 and 26724 received the following money which was received through WUMT:-

(i) On 23.09.2008, received Rs. 8,981/-, which was sent by Gurpal Singh of UAE.

(ii) On 18.11.2008, received Rs.5000/-, which was sent by Jaspal Singh of UAE

(iii) 18.11.2008 received Rs. 9,373/-, which was sent by Gurpal Singh of UAE

72. This witness identified the accused in the court saying that the photograph on the driving license is that of the accused, which categorically matches. This witness proved the documents, which are Ex. A112 to 118. Ex. A113 is the copy of the DL No. A26497. Ex. A117 is the copy of DL 37 No. 26724. Both are in the name of Ajeet Singh S/o Surjeet Singh and the date of birth in Ex. A113 is 16.10.1984 and in Ex. A117 it is 16.08.1982, the date of birth which otherwise the accused claims. PW14 Nirvikar has also stated about it. The statement of PW23 Jasveer Singh is based on the documents. Based on the identity given by the person, who received money from him, he identified the accused in the court. It proves beyond reasonable doubt that it is the accused, who introduced himself as Ajeet Singh to PW23 Jasveer Singh and received money through WUMT, as stated hereinabove. The accused does not claim that he is Ajeet Singh. He claims that he is Asad Ali. How did he get the driving license in the name of Ajeet Singh?

73. PW12 Dhirendra Kumar Singh is the Officer in the Transport Department. He has stated that DL No. A-26724 and DL No. 26497 were not issued in the name of Ajeet Singh. According to him, these two driving licenses were issued in the name of different persons. These are two driving licenses, on the basis of which, the accused received money through WUMT from PW23 Jasveer Singh on various dates in the name of Ajeet Singh, as stated by PW23 Jasveer Singh.

74. PW12 Dhirendra Kumar Singh also tells that the Driving License No. A35440 is genuine. It is this driving license, which was used by the accused, as the identity proof, while taking money from PW20 Anuj Kumar, as stated by PW20 Anuj Kumar and PW11 B.K. Gupta.

75. PW12 Dhirendra Kumar Singh has also stated that DL No. A99672 was not issued from their department. It is forged. PW12 Dhirendra Kumar Singh has given the details of DL No. A99672/Year 2007 dated 22.06.2007 after perusing the record. In fact, the details are in Ex. A123. It 38 appears to be an error that instead of DL No. 49672, PW12's statement records DL No. 99672. In fact, PW24 Sanjay Verma has told that the accused produced DL No. A49672 to him as identity proof of Ajeet Singh to receive money. A copy of this DL is Ex. A123. Even otherwise, according to PW 12 Dhirendra Kumar Singh, the series of DL was stopped at A416781. Thereafter DL numbers were in 10 digits. PW12 Dhirendra Kumar Singh also proved his report Ex. A63.

76. It is established from the statements of the witnesses that the accused used these four driving licenses to get money, which was transferred through WUMT from UAE by different persons. PW12 Dhirendra Kumar Singh has stated that, in fact, DL No. A26724 (Ex. A117) was issued in the name of Ashadeep. Similarly, this witness says that Driving License No. 26497 (Ex. A113) was issued in the name of Arvind Kumar and not in the name of the accused. Driving License No. A-49672 (Ex. A123) was not at all issued from their department. It is totally forged. The statement of PW12 Dhirendra Kumar Singh is based on record. It is not even claimed by the prosecution that DL No. A 35440 was forged. According to PW 12 Dhirendra Singh, DL No. A 35440 was issued by their department.

77. From the statements of PW12 Direndra Kumar Singh, PW23 Jasveer Singh, PW24 Sanjay Verma and PW14 Sub Inspector Nirvikar Singh, it is proved beyond reasonable doubt that the accused produced DL Nos. A26724, A26497 and A49672 to receive money through WUMT in the name of Ajeet Singh. These were forged documents.

78. An argument has been raised that these are not original documents. Best evidence has to be adduced.

79. PW23 Jasveer Singh and PW24 Sanjay Verma have stated that based on these driving licenses, it is the accused, who received money from them. Therefore, identity of the accused is not in question. The original was not given by the accused to PW23 Jasveer Singh and PW24 Sanjay Verma. The prosecution could not have obtained original. They had the best evidence in the form of identity proof i.e. photocopy of the driving license given by the accused. It has been proved by the prosecution. Therefore, definitely, it is proved beyond reasonable doubt that the accused forged the DL Nos. A26497, A26724 and A49672, copies of which are Ex. A113, Ex. A117 and Ex. A123, respectively, on the record.

80. On behalf of the defence, it is argued that the signature on the vouchers by which the payment was received could have been examined by the FSL, but it was not done. In absence of it, it cannot be presumed that the accused received the money. It has also been argued that the prosecution could have conducted Test Identification Parade for identification of the accused.

81. Even if, the signatures on the vouchers by which the accused received money was not examined forensically, it does not make the prosecution case weak because after all the report of handwriting expert is also an opinion. It could have helped the Court to adjudicate the matter. In the instant case, the witnesses have identified the accused in the court based on his photograph, which was affixed on the driving license produced by him, when he received the money and based on the memory of the witnesses. Therefore, merely because the signatures of the accused were not identified by the handwriting expert, does not make the prosecution case doubtful in this context. Insofar as Test Identification Parade 40 is concerned, it also does not affect the credibility of the prosecution case. Test Identification of an accused during investigation only guides the investigation.

82. This Court has held that the prosecution has been able to prove that the accused forged three driving licenses i.e. Exs. A113, A117 & A123. He has committed forgery. This forgery was done for impersonation. The forgery is not with regard to any valuable security or will. It is not done for cheating or harming the reputation. The accused forged these driving license to impersonate as Ajeet Singh to receive money. He did not cheat the sender of the money. He used the forged documents as genuine.

83. Therefore, on the basis of forgoing discussion, this Court is of the view that the prosecution has not been able to prove the charge under Sections 420, 467, 468 & 469 IPC against the accused, but prosecution has been able to prove the charge under Sections 465 and 471 IPC beyond reasonable doubt against the accused. Though, the accused has not been charged for the offence under Section 465 IPC, but he may be punished thereunder because he has been charged for the offences relating to forgery under Sections 467, 468, 469, IPC. Offence under Section 465 IPC is an offence which is lesser than the offence under Sections 467, 468, 469 IPC. Keeping in view the facts and circumstances of the case, this Court is of the view that the interest of justice would be served if the accused is sentenced to rigorous imprisonment for 2 years under Section 465 of IPC.

OFFENCES UNDER THE FOREIGNERS ACT, THE PASSPORTS ACT & THE REPRESENTATION OF THE PEOPLE ACT 41

84. The accused has also been charged for the offences under Section 14 of the Foreigners Act, Section 12 (1A) (a) of the Passports Act and Section 31 of the Representation of People Act, 1950.

85. The charge under Section 31 of the Representation of People Act, 1950 has been levelled on the ground that the accused filed false affidavit to get his name listed in the voter list, but during the course of argument, it has not been argued and it has not been shown as to which affidavit was filed by the accused. Therefore, prosecution utterly failed to prove the charge under Section 31 of the Representation of People Act, 1950 against the accused.

86. Learned State counsel would submit that the accused is a resident of Pakistan. He entered India without any valid document and by giving false information obtained passport. He has no documents of his stay in India. In applications, he gave his address of Village Bhattawala, District Yamuna Nagar, but the accused is not a resident of that village. It is argued that the burden is on the accused to prove that he is not a foreigner.

87. On the other hand, learned counsel for the accused would submit that there is no evidence that the accused is a citizen of Pakistan. There is no evidence at all. Learned counsel raised the following points:-

(i) According to the prosecution, the accused revealed that he is a resident of Mohalla Hazrat Baba, Hazi Shah Saleem, Village Hajjarwal, Police Station Thokar Niyaz Baig, Post Office Mansoora, District Lahore, 42 Pakistan. If it is so, the prosecution would have verified these details from Pakistan, but it was not done. No evidence was led except alleged confession before the Police, which is not admissible.

(ii)    As per the prosecution, the accused entered
        India    through       Dhaka   and   Nepal   and

thereafter, reached Lucknow. But, no travel information has been produced before the Court to substantiate it.

(iii) According to the prosecution, the accused was sent by Col. Rathore of ISI, but there is no evidence on this count.

(iv) There is no forged passport or Visa in the Court.

(v) The accused did not contravene any provision of the Foreigners Act.

(vi) The accused did not furnish any wrong information to obtain the passport.

(vii) The accused applied for his passport, when he was staying in Meerut. He categorically revealed his address in Meerut as well as his place of birth, Bhattawala, Yamuna Nagar, Haryana in the affidavit.

(viii) He did not conceal anything.

(ix) When the matter reached at the local police station, the Local Intelligence Unit reported that the accused is a resident of Bhattawala.

(x) The accused has placed on record his identification in terms of driving license, PAN card, passport, ration card. The ration card of the accused has been cancelled, but how was it cancelled and why was it cancelled? There was no evidence to that effect.

88. Learned counsel for the accused would submit that the prosecution utterly failed to prove the charge under Section 14 of the Foreigners Act and Section 12 (1A) (a) of the Passports Act.

89. According to the prosecution, the accused is a foreign national. He is a foreigner. He obtained passport by furnishing false information. Whereas, according to the accused, he has no relations with Pakistan. He is an Indian national.

90. The accused has filed certain documents including driving license, PAN card, ration card, etc. during investigation. But, does it mean that the accused has discharged his onus? Such documents definitely could have been taken into consideration provided they belong to the place, where the person belongs to. It is admitted case that in the year 2008, the accused gave an application for passport and again on 13.08.2008, he moved an application to the Passport Officer to the effect that earlier he was a resident of Village Bhattawala, District Yamuna Nagar, and now for the last 15 years, he had been staying alongwith his family at 22 Shahpeer Gate, Meerut, therefore, his passport be sent at his address at Meerut (Ex. A105 on record).

91. Reference has been made to the report of Local Intelligence Unit on the verification documents of the passport. It is Ex. A90, proved by PW19 Prem Singh, the Passport Officer. But, this report dated 12.05.2008 of LIU does not prove that the accused is a resident of Village Bhattawala, Haryana or he is not a foreigner. In fact, when the Passport Office sent the documents for verification to the Police at Meerut, the LIU reported that since the accused is a 44 resident of Village Bhattawala, District Yamuna Nagar, Haryana, inquiry may be conducted from his place of residence. The LIU did not report that, in fact, the accused is a resident of Village Bhattawala, District Yamuna Nagar. The LIU had given this report on the basis of the application of the accused for obtaining the passport, which is Ex. A93. In it, the accused had disclosed his place of birth as Village Bhattawala, District Yamuna Nagar, Haryana. In this application, the accused had not mentioned police station Bhattawala and merely Village Bhattawala is written. In support of this application for passport, the accused also filed an affidavit, which is Ex. A97. In it, the accused writes that he was born on 16.08.1982 at Village Bhattawala, District Yamuna Nagar Haryana, India. In order to get confirmation of the details of the accused, the LIU on verification, on 12.05.2008, recommended that the verification be get done from Haryana.

92. PW19 Prem Singh, the Passport Officer has stated that alongwith the application form, the accused had given his ration card, driving license, voter list, income tax returns. According to PW19 Prem Singh, after the Police returned the verification by report dated 12.05.2008 reporting that the accused is a resident of Village Bhattawala, Yamuna Nagar, Haryana, therefore, inquiry be get done from there only. The accused gave an application on 13.08.2008 ( Ex. A105) to the effect that since he is a resident of Meerut itself for the last 15 years, passport be issued to him. On this application, according to PW19 Prem Singh, the matter was again sent for verification to Senior Superintendent of Police, Meerut, who reported that the accused is originally a resident of Village Bhattawala, Police Station Bhattawala and has been staying in Meerut for the last 6-7 years. Therefore, passport be issued to him. This report of the LIU Meerut is Ex. A-88 on 45 the record. It says that the accused is originally resident of Village Bhattawala, District Yamuna Nagar, Haryana and has been staying in Shahpeer Gate Meerut for the last 6-7 years. This report Ex. A88 also does not prove that the accused is a resident of Haryana. The LIU had earlier given a report that the inquiry be got done from Haryana. If the report of LIU dated 12.05.2008, which is Ex. A90 is read alongwith Ex. A88 (received in passport office on 12.09.2008), it is clear that subsequently, the LIU at Meerut simply verified that the accused was staying in Meerut for the last 6-7 years. The LIU did not verify it from Yamuna Nagar, Haryana. The passport was issued to the accused.

93. In his application given to the Passport Officer on 13.08.2008, the accused had stated that he had been staying in Meerut for the last 15 years. Whereas, LIU in its subsequent report, Ex. A-88 records that the accused had been staying in Meerut for the last 6-7 years. What is the correct duration for which the accused had been staying in Meerut, when he filed application dated 13.08.2008 to the passport office (Ex. A105)? Had he been staying in Meerut 15 years prior to then, which means, he had been staying in Meerut from the year 1993 or had he been staying in Meerut 6-7 years prior to then, in which case, it means, he had been staying in Meerut from the year 2000-2001.

94. The burden of proof in the cases of the Foreigners Act is most important. Section 9 of the Foreigners Act provides for it. It is as hereunder:-

"9. Burden of proof.--If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall 46 notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.

95. In the case of Sarbananda Sonowal Vs. Union of India and another, (2005) 5 SCC 665, the Hon'ble Supreme Court interpreted and observed about the importance of burden of proof in such cases. In para 26, the Hon'ble Supreme Court observed as hereunder:-

"26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

96. In the case of Ibrahim Vs. State of Rajasthan, AIR 1965 SC 618, the Hon'ble Supreme Court observed that under Section 9 of the Foreigners Act the onus is upon the person who is accused under the Act to prove that he is not a foreigner.

97. It is the accused to show that he is not a foreigner. The accused has relied on certain documents like his driving license, ration card, PAN card, etc. The ration card issued in favour of the accused has already been cancelled as stated by PW22 Sunil Kumar Rastogi. It has less relevance because he has not stated as to why and how and under what circumstances the ration card was cancelled.

98. The documents which the accused has relied upon to discharge onus under Section 9 of the Foreigners Act does not record that they were issued at the address of Bhattawala, Yamuna Nagar, Haryana. All the documents were issued at the given address of Meerut by the accused. He himself states that he had been staying in Meerut for 15 year prior to 2008 (Ex. A105). He was born in the year 1982, 15 years back from the year 2008, means in the year 1993 he came to Meerut. When according to the documents, the accused was 11 years old. Was he there with his parents?

99. In the instant case, all the attending factors are to be taken into consideration. In the case of Muninder Biswas Vs. Union of India and others (WPC 7426 of 2019), the Guwahati High Court has held that election photo identity card is not conclusive for citizenship and it cannot be considered while adjudicating as to whether a person is a foreigner.

100. In WPC 7451 of 2019, Jubeda Begam @ Jubeda Khatoon Vs. Union of India and others, the Guwahati High Court has held voter list, sale deed, electoral photo identity card are not sufficient to prove citizenship.

101. Accused does not claim that he has no relative (blood, by marriage or otherwise).

102. PW21 Darshan Prasad Kala is the Sub-Inspector, Police, who on 21.02.2010 visited Village Bhattawala, Police Station Bhattawala, District Yamuna Nagar, Haryana to get details of the accused. But, he did not get any traces of the accused. It appears that the accused told it to the police that he was tenant in the house of a Sharma Ji. PW21, Darshan 48 Prasad Kala did not find any person like Sharma Ji. PW21 Darshan Prashad Kala has been extensively cross-examined by the accused on his own. He asked question as to how did PW21 Darshan Prasad Kala reach Yamuna Nagar. But, he did not even suggest this witness as to the house, where his family was residing in Village Bhattawala. He did not suggest the name of landlord or location of the house of his parents. He did not suggest the names of his neighbours to discredit the statement of PW1 21 Darshan Prasad Kala. As a general rule, an accused may remain silent and the burden is always on the prosecution to prove a criminal case beyond reasonable doubt. But, in the case, which also involves offences punishable under Foreigners Act, the onus has always been on the accused, under Section 9 of the Foreigners Act to prove that he is not a foreigner. Needless to say, "foreigner" is defined under Section 2(a) of the Foreigners Act, which means a person, who is not a citizen of India. The accused could have discharged the burden either by adducing separate evidence or by discrediting the evidence of prosecution witnesses.

103. Prosecution alleges that the accused is not a citizen of India, he is a foreigner. He obtained passport on false information. He forged the DL for receiving money from foreign countries. The accused did not have even one document from the place of his origin, which he alleges is in Village Bhattwala.

104. It is true that prosecution did not adduce positive evidence to the fact that the accused belongs to a place in Pakistan, as confessed by him, when arrested. But, it would be much to expect from the prosecution to get positive evidence of residence of a person, who, the prosecution claims is a spy of that country. But, as stated, the onus has 49 been upon the accused also to prove that he is not a foreigner. He was not required to prove by adducing any negative evidence. The basic rule of burden of proof is that a person must prove the facts, which he asserts. Section 101 of the Indian Evidence Act lays down the general rule of burden of proof. It is as hereunder:-

"101. Burden of proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

105. But the question is as to how the prosecution could prove that the accused is not an Indian citizen? Perhaps it is lawful to shift onus on the person, who claims positive assertion in such cases. This appears to be a reason for shifting onus on the accused charged under Foreigners Act (Section 9). Even otherwise, it is general rule of evidence also that the fact, which is specially within the knowledge of any person should be proved by that person. Section 106 of the Indian Evidence provides for it. It is as hereunder:-

"106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

106. The accused could have adduced positive evidence to the fact that he is the resident of the Village Bhattwala, District Yamuna Nagar. He did not adduce even a single evidence. Even he did not suggest anything to PW21 Darshan Prasad Kala with regard to the name, address, house of landlord, location, etc. of his house in Village Bhattawala, District Yamuna Nagar. At this stage only, it would be expedient to examine the witnesses, who have been examined on behalf of the accused.

107. DW2 Sahista is wife of the accused. According to her, she was married to the accused sometime about 3 years prior to the day, when she deposed (She deposed on 13.08.2012). It means she married the accused sometime in the year 2009. In her cross-examination DW2 Sahista would submit that she does not know where the other family members of the accused reside. At one stage, she has stated that the parents of the accused stay in Meerut. She never met the parents and any other relatives of the accused. In her statement (bottom lines page 1) DW2 Sahista would speak that she had inquired about the family members of the accused and in reply to it, the accused had told it to her that when they beget a child, he would introduce her to his family members.

108. DW1 Afsari is mother-in-law of the accused. She also expressed ignorance about the details of the parents of the accused. She does not know where his parents stay. In the last line at page 1 of her statement, DW1 Afsari would speak that the accused had told it to her that he is a resident of Meerut. According to DW1 Afsari, when she inquired about the family members of the accused from him, he would assure her that he would introduce her with the family members after the marriage, but he did not. This witness even told that she could not say as to whether he is a resident of Pakistan or not.

109. DW3 Dilshad Ahmad is the neighbour of the accused. He expressed ignorance as to which country the accused belongs to. Similarly, DW4 Saddam Ali and DW5 Mohd. Yameen have also expressed ignorance about the country to which the accused belongs to. The accused tried to discharge his onus. He examined his wife DW2 Sahista and DW1 Afsari, the mother-in-law, but both did not know 51 much about the accused. The accused never introduced them to his parents despite assurance, why? Why the accused did not examine his parents in the court? Why the accused did not examine any witness, who happens to be his relative? Why the accused did not have a single witness of Village Bhattawala, Police Station Bhattawala, District Yamuna Nagar, Haryana? The accused did not claim that he has no one related to him in this world. There may be such case also, but it is not such a case.

110. When did the accused come Meerut? In his application dated 13.08.2008 given to the Passport Officer (Ex. A105), he claims that he had been staying in Meerut, 15 years prior to then. But, LIU, Meerut in its report, Ex. A 88 confirms that the accused had been staying in Meerut 6-7 years prior to then. So, according to the accused, he had been staying in Meerut sometimes since 1993, when he was only 11 years old. Whereas, according to the LIU, Meerut, he had been staying in Meerut sometime from 2000-2001. What is the correct picture? If the accused had come at the age of 11 years in Meerut, did he took a room on rent then? Who gave him the house on rent, when he was only 11 years of age? (It may be noted that it is admitted case of the accused that his date of birth is 16.08.1982). The accused could have positively elaborated it.

111. In his affidavit dated 08.05.2008 (Ex. A-97) given to the Passport Officer, the accused deposed that "I am an illiterate person but know only signature". This statement given in the affidavit by the accused is false in view of other factors which are narrated, hereinafter. The accused had given specimen writing in the court on 08.02.2010, on an application of the Investigating Officer PW14 Nirvikar. The specimen writing of the accused runs in 6 pages, which 52 forms the part of FSL Dehradun report Ex. A82, as proved by PW18 Naveen Chandra Pant. This report is before the Court. First three pages contain specimen writing in Hindi, which is marked by letters S1 to S3. The next three pages contain specimen writing in English, which is marked by letters S4 to S6.

112. It is not the case of the accused that he learnt writing skills after filing the affidavit Ex. A97 on 08.05.2008 before the Passport Officer. The accused was arrested on 25.01.2010. The specimen handwriting of the accused definitely reflects that he is not an illiterate person. He writes in English and in Hindi both with much ease. He is a literate person.

113. In the instant case, PW1 R.B. Chamola was examined on 26.07.2010. An amicus curiae was appointed to assist the Court in this matter by the trial court. But, on 24.07.2010, the accused gave an application to the court (50B/1 on record) stating therein that he would defend himself on his own. This application was allowed by the order. The trial court in its order sheet dated 26.07.2021 recorded about these chain of events and further records that the accused cross-examined PW1 on his own.

114. It may be noted that in his application for passport (Ex. A93), the accused records his profession as "Painter". In his statement recorded under Section 313 of the Code, he claims that he is an advertiser of flash boards. The affidavit dated 08.05.2008 (Ex. A97) was given in support of the application of passport. In it, the accused claims to be illiterate. In this background, the Court is examining and appreciating the evidence.

115. The accused himself cross-examined PW1 R.B. Chamola and other witnesses. PW1 R.B. Chamola has been cross-examined extensively touching upon various aspects of the case. The cross-examination done by the accused is not formal in nature. It is detailed one. Cross-examination of PW4 Sub Inspector, Nadeem Atahar by the accused is much in detail. Cross-examination done by the accused further reveals that he is much well versed with the intricacies of the cross-examination. Instead of amicus curiae, he cross-examined the witnesses himself. The accused was not illiterate. He is not illiterate. The accused gave false information in the affidavit dated 08.05.2008 (Ex. A 97) that he is an illiterate person. As stated, the accused also did not discharge his onus to prove that he is not a foreigner. The accused gave another false information that he is a resident of Village Bhattawala, Police Station Bhattawala, District Yamuna Nagar, Haryana.

116. The accused claims to be a Painter in the application given for passport (Ex. A93). He admittedly received money through WUMT. This Court has already held that the accused forged three DLs i.e. DL No.26497, (Ex.A

113), A26497 (Ex. A117) and DL No. 49672 (Ex. A123) to receive money sent by various persons from UAE. PW23 Jasveer Singh and PW24 Sanjay Verma have stated about it. The details of the money, which the accused received have also been given in the preceding paragraphs. The court found the evidence of PW23 Jasveer Singh and PW24 Sanjay Verma reliable. They have rightly identified the accused in the court. It is not a charge against the accused as to why did he receive money. It is also not a charge against the accused as to what was the consideration for money which he received. But, the prosecution has adduced this evidence to show that the accused is a foreigner and working for foreign country as 54 a spy, who in return did get money. Since the accused has been charged under Section 14 of the Foreigners Act, the onus is upon him to disprove it. In this light, it was also the onus upon the accused to clarify in the court as to who were the persons sending him the money through WUMT? Why was he receiving huge amounts from various persons through WUMT? The accused was the Painter. What business transactions did he have with those persons sending money from UAE?

117. Accused has admitted that he opened the accounts in HDFC Bank and State Bank of India. He also admitted in his statement under Section 313 of the Code that in his State Bank of India account, the money which came from foreign countries was sent by Mohd. Yameen, who was his acquaintance.

118. PW11 B.K. Gupta and PW20 Anuj Kumar have stated about the transactions through WUMT by which, the accused received Rs.30,000/-. The accused has admitted that he received money in his State Bank of India account. The question further is as to what was the reason for someone to send money to the accused from abroad? It has relevance. It is not that the court would be probing to get the source of the money, which is not charged, but the Court looks at it as an opportunity for the accused to discharge his onus and clarify in the court as to why did he get money? The accused failed here also.

119. In view of the forgoing discussion, this Court is of the view that the prosecution has been able to prove beyond reasonable doubt that the accused gave false information in the affidavit Ex. A97, dated 08.05.2008 in support of his passport application. The prosecution has been able to prove, 55 beyond reasonable doubt, that the accused is a foreigner. The accused did not adduce any evidence that he is a resident of Village Bhattawala, Police Station Bhattawala, District Yamuna Nagar, Haryana. He even did not clarify as to when did he come to Meerut (in the year 1993, as claimed by him (Ex. A-105), or in the year 2000-2001, as claimed by LIU, Meerut Ex. A88). The accused did not examine any witness from Village Bhattawala. He did not examine his parents, his brothers and sisters, if any, staying in Village Bhattawala or in any other place in India. He did not examine any of his blood relatives. He examined DW2 Sahista, his wife and DW1 Afsari his mother-in-law, but both did not know much about the accused. They did not know his parents. The accused did not introduce them to his parents. The accused did not discharge onus that he is not a foreigner.

120. In view of it, this Court is of the view that the prosecution has been able to prove the charge against the accused under Sections 12 (1A) (a) of the Passports Act and Section 14 of the Foreigners Act.

CONCLUSION

121. In view of the aforesaid discussions, the Court concludes as hereunder:-

(i) The prosecution has been able to prove beyond reasonable doubt the charge under Section 3 of the Official Secrets Act, 1923, Section 14 of the Foreigners Act, 1946, Section 12(1A) (a) of the Passports Act, 1967 and Sections 465 and 471 IPC against the accused.

(ii) While passing the impugned judgment in appeal, the appellate court erred in law in 56 acquitting the accused of the charge under Section 3 of the Official Secrets Act, 1923, Section 14 of the Foreigners Act, 1946, Section 12(1A) (a) of the Passports Act, 1967 and Section 471 IPC. Hence, to that extent the impugned judgment and order is set aside.

(iii) The conviction and sentence of the accused for the offence under Section 3 of the Official Secrets Act, 1923, Section 14 of the Foreigners Act, 1946, Section 12(1A) (a) of the Passports Act,1967, Section 471 IPC, as recorded on 19.12.2012, by the court of Chief Judicial Magistrate, Haridwar in Criminal Case No. 2596 of 2010, State v. Abid Ali @ Asad Ali @ Ajet Singh @ Abu Bakar is upheld.

(iv) The accused is also convicted under Section 465 IPC. The accused is sentenced to rigorous imprisonment for a period of two years under Section 465 IPC. The sentence shall run concurrently.

(v) The prosecution has not been able to prove charge under Sections 120-B, 419, 420, 467, 468, 469 IPC, and Section 31 of the Representation of the People Act, 1950 against the accused.

(vi) The impugned judgment passed in appeal is upheld to the extent it acquits the accused of the charge under Sections 120-B, 419, 420, 467, 468, 469 IPC and Section 31 of the Representation of the People Act, 1950.

(vii) Since charge under Section 3 of the Official Secrets Act, 1923 has been proved beyond reasonable doubt against the accused, there is no question of attracting the provision of Section 9 of 57 the Official Secrets Act, 1923 against him. The conviction of the accused under Section 9 of the Official Secrets Act, 1923 is set aside. The accused is acquitted of the charge under Section 9 of the Official Secrets Act, 1923.

(viii) Section 4 of the Official Secrets Act, 1923 is not a penal provision.

122. The Appeal is partly allowed, accordingly.

123. The accused has been admitted to bail under Section 390 of the Code. His bond is cancelled and sureties discharged. Let the accused be taken into custody to serve out the sentences.

124. Let a copy of this judgment along with the trial court record be sent to the court concerned for onward compliance.

(Ravindra Maithani,J.) 22.09.2021 Avneet/

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Uttarakhand High Court