Delhi District Court
State vs Kafait Ullah Khan Etc on 20 May, 2026
IN THE COURT OF MS. SHEFALI BARNALA TANDON,
ADDITIONAL SESSIONS JUDGE-06, NEW DELHI DISTRICT,
PATIALA HOUSE COURT, NEW DELHI
Session Case No. 109/2018
FIR No. 166/2015
PS Crime Branch
CNR No. DLND01-004022/2018
State
Vs
1. Kafait Ullah Khan
S/o Late Qudrat Ullah Khan
R/o H. No. 27, Village Kalali,
PO&PS Manjhekote, Jammu & Kashmir.
2. Abdul Rashid Khan
S/o Fajal Hussain
R/o Village Kalali, PO & PS Manjhekote,
District - Rajouri, Jammu & Kashmir.
3. Manawer Ahmed Mir
S/o Nasir Ahmed Mir
R/o Village Khablan, District-Rajouri,
Jammu & kashmir.
4. Mohammad Saber
S/o Mohammad Hafiz
Village Kakora, District-Rajouri,
Jammu & Kashmir.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 1 of 124
5. Farid Ahmed @ Surgeon
S/o Basheer Ahmed
R/o Village Khablan, District-Rajouri,
Jammu & kashmir.
Date of Institution 24.02.2016
Date of Committal 03.04.2017
Date of Charge 19.03.2018
Charge framed under section Under Section 3 & 9 of Official
Secret Act
Date of reserving Judgment 04.05.2026
Date of Judgment 20.05.2026
Final Judgment All accused persons are acquitted
of the charges punishable under
Sections 3 and 9 of the Official
Secrets Act, 1923.
JUDGMENT
Brief facts of the case:
1. All the accused persons have been facing trial for the charge punishable under Section 3 & 9 of Official Secret Act that prior to 16.11.2015 on the strength of the secret information to the effect that Anti-
National activities supported by Pakistan based intelligence operatives are being carried out in which the information regarding development of the Army and BSF in Jammu & Kashmir and also across the border are being State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 2 of 124 passed on to the Pakistan Intelligence Operatives, which can be highly detrimental for national security, the concerned mobile phones were taken on interception pursuant to which names of accused persons i.e. Kafaitullah Khan and Abdul Rashid surfaced.
Registration of FIR and investigation conducted:
2. As per the case of the prosecution, a rukka was received from Inspector P. C. Yadav stating that a secret informer met him and gave information regarding anti national activities supported by Pakistan based Intelligence Operatives (hereinafter referred to as 'PIO'). As per the said information, the PIO is having an Indian handler, who is collecting information regarding the deployment of Army and BSF in Jammu & Kashmir and passing the same across the border which can be hugely detrimental for national security. The handler is believed to have a pan-
India network of informers who comprise of security personnels and private persons. Being a matter of national security, the concerned mobile numbers were taken on interception and names of Kafaitullah Khan and Abdul Rasheed had surfaced. As per the intercepts, Kafaitullah Khan was based in Rajouri District of Jammu & Kashmir and Abdul Rasheed was serving in Border Security Force. It was revealed that Kafaitullah Khan was working as per the instructions of PIO and Abdul Rasheed was passing on secret information to Kafaitullah Khan in lieu of money and Kafaitullah Khan is forwarding the same to PIO. The information contained could be directly or indirectly used by the enemy country. On the basis of aforesaid State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 3 of 124 rukka, the present FIR under Section 3 & 9 of Official Secret Act was registered.
2.1 During investigation, local addresses of both the alleged persons were verified through their available mobile numbers and it was found that alleged Kafait Ullah was resident of Manjhakot, Distt- Rajouri, J&K and alleged Mohd. Rashid was a serving BSF official and was staying in a rented accommodation outside the BSF Campus. Permission for search warrants of houses of the alleged persons were obtained. However, information was received that Kaifaitullah was planning to travel somewhere out of Manjakote. It was further revealed that on 25/11/15, he would be going from Jammu to Bhopal by Malwa Express Train via Delhi. On the basis of said information, on 25.11.15, a team apprehended him from New Delhi Railway Station. During his search some important/sensitive documents related to the Army were recovered from his possession. Kafaitullah Khan was taken to the office of ISC, Crime Branch and he was put to interrogation wherein he admitted his involvement in spying for Pakistan and also the involvement of some security personnel. A mobile phone used by him for communicating with his associates was recovered. His further interrogation revealed that he had traveled to Pakistan and he was again planning to visit Pakistan. His passport having details of his Pakistan visit was recovered. One recommendation letter from one so-called Jammu Kashmir Freedom Movement organization, requesting the Pakistan High Commission to issue a Visa to him was also recovered. His interrogation further revealed that he was doing all this at the instance of one Faizal Ur Rehman, an agent of ISI in Pakistan and he State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 4 of 124 was getting money for the same. Thereafter, the accused was arrested in the instant case on 26.11.2015 and his disclosure statement was recorded.
2.2 The accused Kafaitullah Khan was taken to Jammu and Rajouri for further investigation. During investigation, search was conducted at the premises of Kafaitullah Khan and from the house search of accused Kafaitullah one CD containing conversation of accused persons regarding passing of secret information across the border was recovered. A copy of the CD was prepared by using own laptop and the original recovered CD was kept in a brown envelope and sealed with the seal of SKY and was seized as a piece of evidence.
2.3 Further, search was also conducted at the residence of Abdul Rashid, who is serving as Head Constable in the Intelligence Wing of BSF posted at the office of DIG, Sector-HQ, Rajouri, J&K, which had led to recovery of important documents related to the Indian Army. Thereafter, on 29.11.2015, accused Abdul Rashid Khan was arrested in the present case. The accused Abdul Rashid Khan also admitted his involvement in spying for PIO and he was in contact with PIO Faisal Ur Rehman through Whatsapp, viber and skype. On checking of the mobile phone, having number as 9697668716 belonging to and registered in the name of Abdul Rashid Khan, some WhatsApp messages between Kafaitullah and Abdul Rashid Khan were found, which are as "Iss k barey mein koi khabar milti hai tu batain k border area k gaon ke kuch logon ko train ker rahay hain k who check kerein k agar koi fauji nazar aye tu usey check kerein k who asal mein fouji hai ya militant cross ker k a raha hai", "Check kerein k army State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 5 of 124 walay LOC k villages main kitney logon ko training dey rahay hain... villages ka naam pata hain tu batain, Bhai jan border area pay army walay kuch villagers ko training dey rahay hain", "Laser light security system lagaya hai border pay iss k barey main pata ker k batao". The mobile phone of Abdul Rashid Khan containing the above said messages was seized.
2.4 During interrogation, accused Kafaitullah Khan & Abdul Rashid disclosed the names of three persons namely (1) Mohd. Saber Khan, as the mastermind a Cyber expert who is a teacher in Distt. Rajouri and posted in Election Cell in Distt. Rajouri, J&K, (2) Manawar Ahmed Mir, an Ex. Army official and (3) Fareed Ahmed, a serving army official who provides information related to deployment of Indian Army. The information collected by different agents was being passed across the border by Mohd. Saber Khan through E-Mail, Whats app & Viber. The accused Abdul Rashid Khan was also taken into police custody.
2.5 On 01.12.2015, IO along with Inspector P.C.Yadav, HC Dinesh Singh, HC Ajay, Ct. Rakesh and Ct. Mohit moved to Distt. Rajouri, J&K to trace the hideouts of spy Manawar Ahmed Mir & Mohd. Saber above said. On the basis of disclosure statement made by accused persons Kafaitullah Khan and Abdul Rashid, on 05.12.2015 accused Mohammad Saber, a school teacher, was arrested from his house in Fatehpur Aity, Distt. Rajouri and found indulging in anti-national activities.
2.6 Accused Manawer Ahmed Mir and Mohammad Saber Khan were taken to Delhi on transit remand. On the basis of disclosure statement made State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 6 of 124 by accused persons namely Kafaitullah Khan and Abdul Rashid, on 06.12.2015, accused Farid Ahmad @ Fareed Khan @ Surgeon, an army official, was arrested from 17 JAK LI Unit, Sukna, Siliguri, West Bengal and found indulging in anti-national activities. During PC remand, all accused persons were confronted and their disclosure statements were recorded.
2.7 During the course of investigation and arrest of accused persons one mobile phone Micromax containing two SIM cards of mobile Numbers 9086312425 & 9697048899 was recovered from the possession of accused Kafaitullah, one mobile phone make Samsung containing two SIM cards of numbers 9697668716 & 9086318625 was recovered from the possession of accused Abdul Rashid, one mobile phone Nokia containing two SIM cards of numbers 9796642812 & 8803856573 was recovered from the possession of accused Manawer, one mobile phone Samsung containing two SIM cards of numbers 8803223123 & 9018516106 was recovered from the possession of accused Saber and two mobile phones (one Mobile phone Samsung without SIM and one mobile phone XOLO containing SIM of number 8991171014) of accused Farid Ahmed were produced by Sh. Satnam Singh of his battalion. All were seized in the case accordingly.
2.8. During further investigation, Call Details of the recovered numbers and other numbers of accused persons and ISI agent Faizal Ur Rehman for the period of last one year were obtained from the concerned mobile operators and scrutiny revealed that accused Kaifatullah Khan (8493850853) was in contact with Faizal Ur Rehman (9858772953 & State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 7 of 124 8860912547), Kafaitullah Khan (9697048899) was in contact with accused Abdul Rashid (9697668716), Kafaitullah Khan (8493850853 & 9086312425) was in contact with accused Saber (8803223123), accused Farid Ahmed (9622314136 & 9086107860) was in contact with Saber (8803223123) & Manawer (9796642812) respectively, Accused Manawer (9796642812) was in touch with accused persons Kaifatullah (9697048899) & Farid Ahmed (9086107860) & Saber (8803223123 & 9018516106), Abdul Rashid (9697668716) was in contact with accused Kaifatullah (9697048899), and accused Saber (8803223123 & 9018516106) was in contact with accused Kaifatullah (8493850853 & 9086312425), Farid Ahmed (9622314136) and Manaawer (9796642812) which goes to show that all the accused persons were in contact with each other either directly or indirectly. During investigation, it is revealed that Mobile No. 8860912547 of PIO Faizal Ur Rehman was issued on the fake ID.
2.9 Bank Account details of all accused persons were obtained from the concerned Banks to prove that they received the amount from PIO Faisal Ur Rehman for providing him information regarding Indian Forces. On scrutiny of bank statements, it is found that Rs.40,000/- were deposited in Account No. 50100044094259 of accused Kafaitullah, Rs.10,000/- were deposited in Account No. 20038937712 of Joginder Singh for accused Farid Ahmed, Rs.20,000/- were deposited in Account No. 11397771810 of accused Abdul Rashhid, Rs.10,000/- were deposited in Account No. 32301596571 of accused Md. Saber Khan and Rs.20,000/- were deposited in Account No.20042996761 of accused Manawer Ahmed. State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 8 of 124 2.10 Record regarding travel of accused Kafaitullah Khan from Jammu to Bhopal via Delhi by train No. 12920-Malwa Express on dated 25.11.2015 was obtained from Chief Ticket Inspector, Indore to prove his journey from Jammu to Delhi as he was apprehended from NDLS on 25.11.2015.
2.11 Indian Army related documents recovered from the accused persons were sent to concerned authorities for providing report about the nature of documents and a report regarding the nature of documents was received from Military Intelligence. As per report, the recovered document from accused Kafaitullah i.e. " Organisation Structure of Various Formations"
are classified in nature. As regard as documents recovered from accused Abdul Rashid MI opined that "The information in the documents recovered from head Constable Abdul Rashid of BSF Sector HQ, Rajouri, though not classified in nature, gives out the process of making a fire plan, which may have been copied from some training material of Indian Army. This document is a replication of the one (Fire Plan) recovered from Kafaitullah Khan. Laptop and mobile recovered from the accused persons were deposited with FSL, Rohini for the retrieval of data. Voice samples of the all five accused persons were taken by FSL, Rohini for the match with the voice in the CD recovered from the residence of accused Kafaitullah.
Charge:
3. On 19.03.2018, charge for the offences punishable under Sections 3 & 9 of Official Secret Act was framed against all accused persons by the Ld. Predecessor Court, to which they pleaded not guilty and claimed trial.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 9 of 124 The Trial Prosecution evidence:
4. To prove its case against the accused persons, the prosecution had examined 29 witnesses, that is, PW-1 ASI Rakesh Kumar (prepared transcript of conversation); PW-2 Inspector P. C. Yadav (Complainant), PW-3 ASI Ajay Kumar (prepared transcript of conversation/Arrest of accused Kafait Ullah), PW-4 Ct. Mohit Kumar (Witness of Investigation), PW-5 Lt. Col. Vivek Sheel (To prove opinion on nature of documents); PW-6 HC Vijender Singh (Witness of Investigation), PW-7 Sh. Pawan Singh (Nodal Officer, Idea Cellular Ltd.), PW-8 Sh. Kuldeep Singh (To prove bank statements of accused persons), PW-9 Col. Rohit Sambyal (To prove opinion on nature of documents), PW-10 SI Data Ram (Witness of Investigation), PW-11 Sh. Amit Kumar Sharma (Nodal Officer, Reliance Communication Ltd.), PW-12 ASI Deep Chand (Witness of Investigation), PW-13 Sh. Amit Kumar (To prove bank account of accused Kafait Ullah), PW-14 Inspector Surender Sandhu (Witness of Investigation), PW-15 ASI Raj Kumar (Duty Officer), PW-16 Inspector Neeraj Kumar (Witness of Investigation), PW-17 Vivek Kumar (Forensic Officer examined mobile phones of accused persons), PW-18 Major Rajnikant Rai (Witness of Investigation), PW-19 Sh. Niraj Singh (Witness of Investigation), PW-20 Subedar Major (Retd.) Sh. Satnam Singh (Witness of Investigation), PW-21 Sh. Mansoor Ali Haideri (Witness of Investigation), PW-22 Sh. Sanjay Singh (Nodal Officer, Aircel Ltd.), PW-23 Sh. Surender Kumar (Nodal Officer, Bharti Airtel Ltd), PW-24 Sh. Sunil Kumar Retd. Principal State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 10 of 124 Staff Officer, MHA ((Witness of Investigation), PW-25 Sh. M. A. Rizvi (Witness of Investigation), PW-26 Dr. Bharti Bhardwaj (Examined five audio cassettes and one Compact Disc), PW-27 Inspector Satvinder Singh (Witness of Investigation), PW-28 Sh. Alok Kumar (Witness of Investigation) and PW-29 HC Sikander (Witness of Investigation). The relevant portion of their testimonies are discussed under the succeeding paragraphs.
5. PW-1 HC Rakesh Kumar deposed that in the year 2015 he was posted as Constable in Inter State Cell, Crime Branch, Chanakyapuri. He stated that Inspector P.C. Yadav had deputed him to hear the conversations of intercepted calls pertaining to certain mobile numbers. He used to hear the intercepted conversations and brief Inspector P.C. Yadav from time to time regarding the contents thereof. According to the witness, Inspector P.C. Yadav also personally heard the intercepted conversations. He further deposed that on 17.11.2015 Inspector P.C. Yadav instructed him to prepare transcripts of the intercepted conversations and accordingly, with the assistance of HC Ajay, he prepared transcripts on computer of the intercepted conversations pertaining to mobile phone No. 9697048899 belonging to accused Kafaitullah and handed over the same to Inspector P.C. Yadav. He further stated that accused Kafaitullah used to converse with accused Manawer on mobile number 9796642817 and with accused Abdul Rashid on mobile numbers 9697668716 and 9086318625. He also stated that photocopies of CAFs pertaining to the mobile numbers of Kafaitullah, Manawer and Abdul Rashid were supplied to Inspector P.C. Yadav.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 11 of 124 5.1 PW-1 further deposed that on 25.11.2015 Inspector P.C. Yadav informed him that accused Kafaitullah would be travelling to Bhopal by Malwa Express through New Delhi and that he was seated in Coach No. A-1. Accordingly, Inspector P.C. Yadav along with the witness, HC Ajay and other staff members reached New Delhi Railway Station at about 6:45 PM. At about 7:30 PM, Malwa Express arrived and accused Kafaitullah was apprehended from Coach No. A-1. The IO requested 4-5 public persons to join the proceedings but none agreed. Search of the bag carried by accused Kafaitullah resulted in recovery of certain documents including secret Government documents. The accused failed to furnish any satisfactory explanation regarding possession of the said documents and the IO seized the recovered documents vide seizure memo Ex. PW1/A bearing signatures of the witness at point A. 5.2 He further deposed that accused Kafaitullah was thereafter brought to the office of Inter State Cell, Crime Branch where he was interrogated. During interrogation, accused Kafaitullah produced one letter of Jammu Kashmir Federation requesting issuance of Pakistan visa in his favour. The said letter was seized vide memo Ex. PW1/B bearing signatures of the witness at point A and the said letter was Mark-X. The IO also seized the passport of accused Kafaitullah and one Micromax mobile phone having dual SIMs vide seizure memos Ex. PW1/C and Ex. PW1/D respectively, both bearing his signatures at point A. The passport was exhibited as Ex. PW1/E. The witness further deposed that the IO arrested accused Kafaitullah vide arrest memo Ex. PW1/F and conducted his personal search vide personal search memo Ex. PW1/G, both bearing his signatures at point State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 12 of 124 A. During interrogation, accused Kafaitullah made disclosure statement Ex. PW1/H bearing signatures of the witness at point A. The IO also seized the bag of accused Kafaitullah vide seizure memo Ex. PW1/I bearing his signatures at point A. Thereafter, accused Kafaitullah was medically examined and seven days' police custody remand was obtained from the concerned Court.
5.3 PW-1 further deposed that on 28.11.2015 he again joined investigation along with other staff members. On that day, accused Kafaitullah Khan was taken to PS Manjakot, Rajouri, Jammu & Kashmir where certain proceedings were conducted by Inspector Sanjeev Yadav. Thereafter, they along with local police and accused Kafaitullah proceeded towards his house. The IO requested 3-4 neighbours to join investigation but none agreed. During search of the house of accused Kafaitullah, one CD kept in an iron almirah in one room was recovered. According to the witness, accused Kafaitullah disclosed that the said CD contained conversations between him, Abdul Rashid and other associates which could have been used by him whenever required. The IO prepared a copy of the said CD onto another CD through his laptop. The original CD was kept in a brown envelope, sealed with the seal of SKY and the seal after use was handed over to the witness. The envelope containing the CD was seized vide seizure memo Ex. PW3/A bearing signatures of the witness at point B. 5.4 He further deposed that thereafter they reached BSF Camp, Rajouri where inquiries were made regarding accused Abdul Rashid, however he could not be traced. Thereafter, they proceeded to the rented State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 13 of 124 accommodation of accused Abdul Rashid at Rajouri where he was not found present. His wife and father, however, were present there. The IO requested 3-4 neighbours to join the proceedings but none agreed. Search of the house was conducted in the presence of wife and father of accused Abdul Rashid and during such search eight documents were recovered from an iron box kept in one room. The IO seized the said documents vide seizure memo Ex. PW3/B bearing signatures of the witness at point B. The witness identified the said documents as Ex. PW3/C-1 to Ex. PW3/C-8, bearing his signatures at point B on the reverse side. Thereafter, the police party returned to Jammu and stayed there for the night.
5.5 PW-1 further deposed that on 29.11.2015 accused Abdul Rashid was interrogated at BSF Camp, Jammu and his mobile phone was checked. During checking of the mobile phone, certain messages were found revealing that accused Abdul Rashid had forwarded secrets relating to BSF and Army to accused Kafaitullah Khan. The IO reduced the said messages into writing and the document so prepared was exhibited as Ex. PW3/D bearing signatures of the witness at point B. Thereafter, accused Abdul Rashid was interrogated and arrested vide arrest memo Ex. PW3/E and his personal search was conducted vide memo Ex. PW3/F, both bearing signatures of the witness at point B. His disclosure statement was exhibited as Ex. PW3/G. The IO also seized the mobile phone of accused Abdul Rashid vide seizure memo already Ex. PW1/D bearing signatures of the witness at point B. Information regarding his arrest was given to his wife and superior officers and thereafter he was medically examined. The State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 14 of 124 witness stated that on the same day they returned to Delhi along with both accused persons and other staff members.
5.6 PW-1 further deposed that on 01.12.2015 the IO again interrogated accused Kafaitullah Khan and Abdul Rashid at Delhi and recorded their further disclosure statements Ex. PW3/H and Ex. PW3/I respectively, both bearing signatures of the witness at point B. Thereafter, the IO played the copy of the CD recovered from the house of accused Kafaitullah and the recordings were heard by both accused persons. After hearing the recordings, both accused persons disclosed that apart from themselves, their associates namely Munnawar, Saber, Fareed Ahmed and Faizal-ur- Rehman were also having conversations in the said CD. 5.7 He further deposed that on 01.12.2015 he again joined investigation with Inspector Sanjeev Yadav, Inspector P.C. Yadav, HC Dinesh, HC Ajay and Ct. Mohit and left for Jammu, where they reached on 02.12.2015. Efforts were made to locate accused Munnawar and Saber who had allegedly left their respective addresses. On 04.12.2015 accused Munnawar was apprehended from Thanamandi, Rajouri, Jammu & Kashmir. The IO interrogated him and arrested him vide arrest memo Ex. PW3/J and conducted his personal search vide memo Ex. PW3/K, both bearing signatures of the witness at point B. The disclosure statement of accused Munnawar was exhibited as Ex. PW3/L bearing signatures of the witness at point B. His mobile phone was seized vide seizure memo Ex. PW3/M bearing signatures of the witness at point B. Information regarding his arrest was given to his family members and after medical examination he was lodged in lock-up at PS Rajouri.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 15 of 124 5.8 PW-1 further deposed that accused Saber was apprehended on the next morning i.e. 05.12.2015 from his house at Atti Village, Rajouri. During apprehension he attempted to escape from police custody and sustained injuries on his leg. The IO got him medically examined though complete medical examination could not be conducted due to gathering of crowd at the spot. The IO interrogated and arrested him vide arrest memo Ex. PW3/N and conducted his personal search vide memo Ex. PW3/O, both bearing signatures of the witness at point B. His disclosure statement was exhibited as Ex. PW3/P bearing signatures of the witness at point B. The IO also seized one Samsung Duos mobile phone of white colour vide seizure memo Ex. PW3/Q and seized one Compaq laptop after sealing the same vide seizure memo Ex. PW3/R, both bearing signatures of the witness at point B. Since the atmosphere at Rajouri was not conducive, both accused persons were brought to Pathankot where they were produced before the concerned Judicial Magistrate and transit remand was obtained. Thereafter, they were brought to Delhi and medically examined. 5.9 PW-1 further stated that on 09.12.2015 the IO interrogated accused Abdul Rashid, Kafaitullah Khan, Munnawar, Saber and Fareed and recorded disclosure statements of accused Fareed Ahmed, Munnawar and Saber vide Ex. PW3/U, Ex. PW3/S and Ex. PW3/T respectively, all bearing signatures of the witness at point B. He further deposed that on 18.01.2016, on the instructions of the IO, he with the assistance of HC Ajay prepared transcripts from the copy of the CD recovered from the house of accused Kafaitullah Khan. The transcripts running into 56 pages were exhibited as State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 16 of 124 Ex. PW3/V-1 to Ex. PW3/V-56 bearing his signatures at point B and were handed over to the IO through HC Ajay.
5.10 The witness correctly identified accused Kafaitullah Khan, Saber and Fareed present before the Court and also identified accused Abdul Rashid and Munnawar through video conferencing from Mandoli Jail. 5.11 In his cross-examination on behalf of accused Munnawar, PW-1 stated that on 01.12.2015 they had gone from Delhi to Jammu in three private cars hired by the IO, though he does not remember the make and registration numbers thereof. He admitted that accused Munnawar was interrogated in Jammu but his disclosure statement was recorded in Delhi. He stated that accused Munnawar was apprehended from Police Compound, Thanamandi in the presence of local police. He does not remember whether signatures of local police officials were obtained on any document or whether local police had formally joined investigation. He denied the suggestion that accused Munnawar had been called to Thanamandi Police Compound by local police after telephonic communication. He admitted that accused Munnawar was apprehended pursuant to disclosure statement of accused Kafaitullah, though intercepted conversations between Kafaitullah and Munnawar had already been heard by them. He denied the suggestion that no incriminating material had surfaced during intercepted conversations between accused Kafaitullah and Munnawar. He further stated that one keypad mobile phone, approximately Rs.1120/-, two ATM cards and one ID card were recovered from accused Munnawar and apart from these articles nothing else was recovered. He admitted that accused Munnawar did not attempt to escape from custody.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 17 of 124 He denied the suggestion that the transcripts dictated by him were incorrect. He further admitted that no videography of proceedings was conducted in his presence. He stated that from a keypad mobile phone no WhatsApp, video or text chats could be exchanged or transmitted. He denied the suggestion that no CD was recovered at the instance of accused Kafaitullah or that the same had been prepared by the IO after making accused persons read out pre-prepared transcripts. He admitted that the CD did not contain any date, time or phone number. He denied the suggestion that accused Munnawar had been falsely implicated merely on the basis of call details of accused Kafaitullah.
5.12 In his cross-examination on behalf of accused Saber, PW-1 stated that he does not remember the Court before which accused Kafaitullah was produced after his arrest or the exact date on which police remand had been obtained. He stated that he could not say whether recovery of the CD on 28.11.2015 had been informed to the concerned Magistrate as the same pertained to investigation by the IO. He further stated that he did not remember the dates on which he prepared transcripts from the recovered CD though the same were submitted to the IO on 18.01.2016. He stated that the source for identification of voices in the CD was that the speakers themselves used names during conversation and some voices were identifiable as he had heard them earlier. He stated that he could identify the voice of accused Mohd. Saber. He further stated that Rajouri was at a distance of approximately 200-250 kilometres from Pathankot and that the accused persons were produced at Pathankot as there was sufficient time to produce them before the concerned Magistrate. He denied the suggestion State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 18 of 124 that disclosure statement Ex. PW3/T of accused Saber was involuntary. He further denied the suggestion that no CD had been recovered from the house of accused Kafaitullah or that transcripts Ex. PW3/V-1 to Ex. PW3/V-56 had first been prepared from imagination and thereafter accused persons were made to read out the same while giving voice samples. He also denied the suggestion that accused Saber had not been arrested on 05.12.2015.
5.13 In his cross-examination on behalf of accused Fareed Ahmed, PW-1 stated that on 09.12.2015 the IO interrogated accused Fareed along with co- accused persons at ISC, Chanakyapuri, Crime Branch, Delhi though he did not remember the exact time thereof. He stated that the recovered CD had been played once in his presence before accused Kafaitullah and Abdul Rashid. He did not remember whether the same CD was played in presence of accused Fareed. He stated that the conversation recorded in the CD was in Dongri (Pahari) language and that he knew the said language. He further stated that the IO had not supplied him a copy of the original CD but had supplied only a copy thereof for the purpose of transcription. He did not remember whether any memo had been prepared regarding handing over of copy of the CD. He further stated that he had not personally compared the copy supplied to him with the original CD since the original CD had already been sealed by the IO. He admitted that he had never heard the conversations recorded in the original CD. He stated that the transcripts Ex. PW3/V-1 to Ex. PW3/V-56 had been prepared by HC Ajay on his dictation. He further stated that when he heard the copied CD played before accused Kafaitullah and Abdul Rashid, accused Fareed had not yet been State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 19 of 124 arrested. According to him, persons named "Fareed" and "Surgeon" in the CD were the same persons whose voices were that of accused Fareed Ahmed. He denied the suggestion that the recovered CD had been planted or fabricated by the IO during investigation.
5.14 In his cross-examination on behalf of accused Kafaitullah Khan and Abdul Rashid, PW-1 stated that the intercepted calls referred to in his examination-in-chief had actually been intercepted by other officers who were in-charge of interception and he only used to hear the conversations in the interception room on interception equipment. He stated that no copies of the conversations in the form of CD or any other media were handed over to him. He used to orally brief Inspector P.C. Yadav regarding the conversations heard by him over a period of about 45-60 days and had briefed him on about 8-10 occasions whenever anything significant emerged. During one such briefing, Inspector P.C. Yadav directed him to prepare transcripts of the intercepted conversations. He further stated that the conversations were heard by him and dictated to ASI Ajay who typed the same and presented them to the IO. He stated that the dictation work was completed in two days and the transcripts were completed on 18.11.2015 and submitted to the IO on the same day after checking the typed matter. He denied the suggestion that he had not heard the intercepted conversations or that the transcripts had been prepared by him on his own.
5.15 He further stated that Coach No. A-1 had approximately 30-40 passengers and accused Kafaitullah himself identified his luggage. He denied the suggestion that no bag had been identified by accused State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 20 of 124 Kafaitullah or that the bag did not belong to him. He stated that the police team which conducted search at the house of accused Kafaitullah was accompanied by local police. He did not know whether any notice had been issued to neighbours who had refused to join investigation. He stated that there were 2-3 rooms in the house of accused Kafaitullah and only one iron almirah therein. He denied the suggestion that nothing had been recovered from the almirah or that the CD and other articles had been planted. He further denied the suggestion that the CD had been prepared by the investigating team while accused persons were in custody by forcing them to read a script. He further stated that the house of Abdul Rashid consisted of two rooms though he did not remember the number of almirahs or storage places apart from one iron box. He denied the suggestion that no search had actually been conducted and that documents and articles had been planted. He stated that accused Abdul Rashid was found in BSF Camp when they had gone there in search of him. He denied the suggestion that no messages as reflected in Ex. PW3/D had been seen by him on the mobile phone of accused Abdul Rashid or that the same had been fabricated. He further denied the suggestion that he was deposing falsely at the instance of the investigating agency.
5.16 In his further cross-examination on behalf of accused Fareed Ahmed, PW-1 stated that after 18.01.2016 he had done no work with the recovered CD. Prior to the present case, he had heard recorded conversations in other cases but had never prepared any transcription. He stated that he had undergone training regarding voice recording and transcription as part of his duty though he could not specify the course and possessed no certificate State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 21 of 124 in that regard. He further stated that at the time of his deposition he did not remember any distinctive feature of the voices heard in the CD. He stated that deceased IO Inspector Sanjeev Kumar did not know or understand Dongri language. He admitted that seizure memo Ex. PW3/A did not mention that the voices of associates of accused Kafaitullah and Abdul Rashid were also contained in the CD. He did not know why the CD had been sent to FSL on 15.02.2016. He denied the suggestion that the CD had not been seized from accused Kafaitullah or that transcription had not been prepared after hearing the CD. He further denied the suggestion that the CD had been sent belatedly to FSL because it had been created after obtaining voice samples of the accused persons.
6. PW-2 Inspector P.C. Yadav deposed that on 07.09.2015 he was posted as Inspector at Inter State Cell, Crime Branch, Chanakyapuri, Delhi. He stated that on that day a secret informer came to his office and informed him regarding anti-national activities allegedly supported by Pakistan- based Intelligence Operatives. The informer disclosed that certain Indian nationals were involved in anti-national activities and were procuring information regarding deployment of Army, BSF and Para Military Forces at the border and were passing the same to Pakistan-based Intelligence Operatives. The informer also provided certain mobile numbers allegedly being used by the persons involved in such anti-national activities.
6.1 PW-2 further deposed that he conveyed the said information to senior officers who directed him to further develop the information as such activities could be detrimental to the security of the nation. He recorded the State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 22 of 124 said information vide DD No. 22 dated 07.09.2015, exhibited as Ex. PW2/A. Thereafter, he obtained lawful orders for interception of the concerned mobile numbers and deputed Ct. Rakesh Kumar to listen to the intercepted conversations. According to the witness, upon listening to the intercepted conversations, the names of Kafait Ullah and Abdul Rashid surfaced. It was revealed that Kafait Ullah was based in Rajouri area of Jammu & Kashmir and Abdul Rashid was serving in Border Security Force. He further stated that the intercepted conversations revealed that Kafait Ullah was acting under the instructions of Pakistan-based Intelligence Operatives and that Abdul Rashid used to supply information regarding deployment of BSF and other forces at the borders to Kafait Ullah in lieu of money, which information was allegedly further passed on by Kafait Ullah to Pakistan-based Intelligence Operatives. 6.2 PW-2 further deposed that as the acts of Kafait Ullah and Abdul Rashid were against the interest and security of the nation, on 16.11.2015 he prepared rukka Ex. PW2/B bearing his signatures at point A and sent the same through SI Data Ram for registration of the present case. He further stated that investigation of the case was thereafter marked to Inspector Sanjeev Kumar.
6.3 In his cross-examination on behalf of accused Saber, PW-2 stated that he could not inform the exact period for which the calls were intercepted, though voluntarily stated that interception had commenced after receipt of secret information and prior to sending of rukka. He further stated that as per the transcripts available on record, interception was carried out during the period from 16.09.2015 to 06.11.2015. On being State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 23 of 124 asked to identify the portions of the transcripts on the basis of which he concluded that information was being passed to ISI in lieu of money, he referred to pages 70 to 78 of the transcript annexed with the charge-sheet. He stated that the transcripts had been typed by another person and that Ct. Rakesh had been deputed to listen to the intercepted calls. According to him, whenever Ct. Rakesh informed him about important intercepted conversations, he himself heard the relevant portions thereof. He admitted that he had not personally heard the conversations between accused Kafait Ullah and accused Saber.
6.4 He further stated that interception of calls had commenced even prior to the order appearing at page 320 of the charge-sheet. He clarified that the order dated 17.09.2015 was a regular order for interception for a period of 60 days from 12.09.2015, whereas prior thereto interception had been authorized by senior officers under Section 419 of the Indian Telegraph Act for a period of seven days. He, however, stated that he did not remember the exact date from which interception had commenced though according to the record it must have begun from 12.09.2015. He denied the suggestion that no authority had sanctioned interception of calls or that no authority had been consulted before preparation of rukka Ex. PW2/B. 6.5 In his cross-examination on behalf of accused Kafait Ullah Khan and Abdul Rashid Khan, PW-2 stated that he had received the secret information at about 6:00-6:30 PM and that the informer had provided only the mobile numbers of suspects. On the basis of those numbers, he obtained subscriber details from the service providers through official e-mail. He admitted that copies of such e-mails were not part of the charge-sheet. He State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 24 of 124 stated that he did not remember all the mobile numbers provided by the informer but on seeing the record stated that the numbers were 9858601622, 9697668716, 8803223123, 9697048899, 8493850853, 9622314136, 9086107860, 910334136 and 9766642812. He admitted that the said mobile numbers had not been mentioned in DD entry Ex. PW2/A but denied the suggestion that no such numbers had been supplied by the informer.
6.6 PW-2 further stated that as per the record mobile number 9697048899 was being used by accused Kafait Ullah though the subscriber thereof was one Mohd. Zaheer s/o Mohd. Sarwar, resident of Mankajot, Rajouri, Jammu & Kashmir. He further deposed that before moving an application seeking permission for interception through ACP, he had obtained subscriber details and analyzed the call detail records. He admitted that he had not obtained any information regarding the names or identities of any Pakistan-based Intelligence Operatives. According to him, the intercepted conversations only revealed that the accused persons were in contact with some Pakistan-based Intelligence Operatives. He reiterated that intercepted conversations were primarily heard by Ct. Rakesh and he himself heard only such relevant portions as were pointed out by Ct. Rakesh. He denied the suggestion that interceptions had been obtained illegally or without sufficient material.
7. PW-3 ASI Ajay Kumar deposed that in the year 2015 he was posted as Head Constable in Inter State Cell, Crime Branch, Chanakyapuri. He stated that prior to 17.11.2015, Inspector P.C. Yadav had instructed Ct.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 25 of 124 Rakesh to hear the intercepted and recorded conversations of certain mobile phone numbers. On 17.11.2015, on the instructions of the IO and at the instance of Ct. Rakesh, he prepared transcripts on computer of the intercepted conversations pertaining to mobile number 9697048899 belonging to accused Kafait Ullah and handed over the same to the IO. He further stated that accused Kafait Ullah used to converse with accused Manawar on mobile number 9796642812 and with accused Abdul Rashid on mobile numbers 9697668716 and 9086318625.
7.1 He further deposed that on 25.11.2015 the IO informed him that accused Kafait Ullah had boarded Malwa Express Train No. 12920 from Jammu and would reach New Delhi Railway Station in the evening. Accordingly, he along with Inspector Sanjeev Kumar Yadav, Ct. Rakesh and other staff members reached New Delhi Railway Station. At about 7:30 PM, Malwa Express arrived and accused Kafait Ullah was apprehended from Coach No. A-1. The IO requested 4-5 co-passengers to join the proceedings but none agreed. Search of the luggage of accused Kafait Ullah led to recovery of important Government documents and other documents. The accused failed to furnish any satisfactory explanation regarding possession of the said documents and the IO seized the same vide seizure memo Ex. PW1/A. He identified the recovered documents Ex. PW3/A-1 to Ex. PW3/A-17. He further deposed that accused Kafait Ullah was brought to the office of Inter State Cell, Crime Branch where one recommendation letter issued by Jammu Kashmir Freedom Movement Organization for issuance of Pakistan visa was recovered from his possession and seized vide Ex. PW1/B. The witness identified the said State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 26 of 124 recommendation letter Mark-X. He further stated that the passport and Micromax mobile phone having dual SIMs of accused Kafait Ullah were seized vide seizure memos Ex. PW1/C and Ex. PW1/D and the passport was exhibited as Ex. PW1/E. 7.2 PW-3 further deposed that accused Kafait Ullah confessed during interrogation that the recovered documents were meant for supply to Pakistan. The IO arrested accused Kafait Ullah vide arrest memo Ex. PW1/F and conducted his personal search vide Ex. PW1/G. His disclosure statement Ex. PW1/H was recorded and the bag belonging to him was seized vide Ex. PW1/I. On 26.11.2015, accused Kafait Ullah was medically examined and produced before the concerned Court, from where seven days' police custody remand was obtained.
7.3 He further deposed that on 28.11.2015 he again joined investigation and accompanied the IO along with accused Kafait Ullah to Manjakot Police Station. Thereafter, they proceeded to the house of accused Kafait Ullah where neighbours were requested to join investigation but none agreed. During search of the house, one CD was recovered from an iron almirah. According to the witness, accused Kafait Ullah disclosed that the CD contained conversations between him, Abdul Rashid and other associates. The IO copied the CD onto another CD through laptop and sealed the original CD in a brown envelope with the seal of SKY. The same was seized vide Ex. PW3/A. 7.4 He further deposed that thereafter the police party reached BSF Camp, Rajouri in search of accused Abdul Rashid but he could not be State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 27 of 124 found. Subsequently, they reached the rented accommodation of accused Abdul Rashid where his wife and father were present. During search of the premises, eight documents were recovered from an iron box kept in one room. The said documents were seized vide memo Ex. PW3/B and identified by the witness as Ex. PW3/C-1 to Ex. PW3/C-8. 7.5 PW-3 further stated that on 29.11.2015 the IO interrogated accused Abdul Rashid at BSF Camp, Jammu and checked his mobile phone. The messages contained therein allegedly revealed that accused Abdul Rashid was forwarding secrets of BSF and Army to accused Kafait Ullah. The IO reduced the said messages into writing, which was exhibited as Ex. PW3/D. Accused Abdul Rashid was arrested vide arrest memo Ex. PW3/E and his personal search was conducted vide Ex. PW3/F. His disclosure statement Ex. PW3/G was recorded and his mobile phone was seized vide Ex. PW1/D. 7.6 He further deposed that on 01.12.2015 the IO again interrogated accused Kafait Ullah and Abdul Rashid and recorded their disclosure statements Ex. PW3/H and Ex. PW3/I. Thereafter, the copy of the CD recovered from the house of accused Kafait Ullah was played before both accused persons and after hearing the same, they disclosed the names of their associates namely Manawar, Saber, Fareed Ahmed and Faizal-ul- Rehman.
7.7 PW-3 further deposed that on 01.12.2015 he again joined investigation along with Inspector Sanjeev Yadav, Inspector P.C. Yadav, HC Dinesh, Ct. Rakesh and Ct. Mohit and left for Jammu. On reaching there, efforts were made to trace accused Manawwar and Sabir. Accused State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 28 of 124 Manawwar was apprehended from Thanamandi and arrested vide arrest memo Ex. PW3/J. His personal search was conducted vide Ex. PW3/K and his disclosure statement Ex. PW3/L was recorded. His mobile phone was seized vide Ex. PW3/M. The accused was medically examined and lodged in lockup at PS Rajouri.
7.8 He further stated that accused Sabir was apprehended from his house on the next morning. During apprehension he attempted to flee and sustained injuries. The IO got him medically examined and thereafter arrested him vide Ex. PW3/N. His personal search was conducted vide Ex. PW3/O and his disclosure statement Ex. PW3/P was recorded. His mobile phone was seized vide Ex. PW3/Q and his laptop was sealed with the seal of SKY and seized vide Ex. PW3/R. Due to non-conducive atmosphere in Rajouri, both accused persons were brought to Pathankot where they were produced before the Judicial Magistrate and transit remand was obtained. Thereafter, they were brought to Delhi and medically examined. 7.9 PW-3 further deposed that on 09.12.2015 the IO interrogated accused Abdul Rashid, Kafait Ullah, Manawwar, Sabir and Farid and recorded disclosure statements of accused Manawwar, Sabir and Farid vide Ex. PW3/S, Ex. PW3/T and Ex. PW3/U respectively. 7.10 He further deposed that on 18.01.2016, on the instructions of the IO, he along with Ct. Rakesh prepared transcripts from the CD recovered from the house of accused Kafait Ullah. The transcript running into 56 pages was exhibited as Ex. PW3/V-1 to Ex. PW3/V-56.
7.11 PW-3 further stated that on 19.01.2016 he along with Ct. Mohit and Inspector Sanjeev Kumar visited FSL Rohini where voice samples of State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 29 of 124 accused Kafait Ullah, Abdul Rashid, Manawwar, Sabir and Farid Ahmed were recorded by FSL experts. Voice sample of accused Kafait Ullah was taken into two audio cassettes while voice samples of other accused persons were recorded in one cassette each. Copies of the original audio cassettes were also prepared by the FSL experts. The IO sealed the cassettes separately and seized them vide seizure memos Ex. PW4/A to Ex. PW4/E. 7.12 The witness correctly identified all accused persons present before the Court. He further identified the recovered CD Ex. PW3/P1, the voice sample cassettes Ex. PW4/P-1 to Ex. PW4/P-6, various mobile phones Ex. PW3/P2 to Ex. PW3/P5, digital handycam Ex. PW3/P6, digital camera Ex. PW3/P7, laptop Ex. PW3/P8 and bag Ex. PW3/P9.
7.13 In his cross-examination on behalf of accused Farid Ahmed, PW-3 stated that he was not aware from where accused Farid Ahmed had been brought and except recording of disclosure statement and voice sample, he was not part of the investigation qua accused Farid Ahmed. He admitted that he could not say whether the CDs provided by FSL were checked for blankness before recording of voice samples. He further admitted that no mobile phone was seized from accused Farid Ahmed in his presence. He denied the suggestion that he was deposing falsely. 7.14 In his cross-examination on behalf of accused Manawwar Ahmed Mir, PW-3 stated that he did not recollect the exact date when he reached Jammu & Kashmir. He stated that they had travelled in private vehicles along with Inspector Sanjeev Yadav, Inspector P.C. Yadav, HC Dinesh, Ct. Rakesh and Ct. Mohit. He admitted that except disclosure statements and State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 30 of 124 intercepted conversations, he could not state the evidence against accused persons. He clarified that Ct. Rakesh heard the intercepted calls and he prepared transcripts thereof. He stated that accused Manawwar was arrested from the compound of PS Thanamandi and one Nokia mobile phone was recovered from him. He admitted that the recovered phone was not a smartphone and no videography of recovery proceedings was conducted. He denied suggestions that accused Manawwar had not been arrested in the manner alleged or that no incriminating material was recovered from him. He further stated that voice sample of accused Manawwar was recorded in his presence at FSL Rohini. He admitted that he had not personally heard intercepted calls of accused Manawwar but had prepared transcript of a few days' conversations. He further denied suggestions that no CD was recovered from the house of accused Kafait Ullah or that the same had been prepared later at the instance of the IO. 7.15 In his cross-examination on behalf of accused Sabir, PW-3 admitted that he himself had not heard the intercepted conversations and only typed what Ct. Rakesh dictated to him after hearing the recordings. He admitted that no conversation between accused Sabir and anyone else was directly heard by him. He stated that the copy of the CD was prepared at Manjakot and thereafter the original CD was sealed in a brown envelope with seal of SKY. He admitted that local police accompanied the police party during search proceedings at the house of accused Kafait Ullah. He denied suggestions that a fabricated script was prepared first and thereafter accused persons were made to utter the same while recording voice samples. He admitted that multiple copies of audio cassettes containing State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 31 of 124 voice samples were prepared by FSL experts but stated that he did not remember what happened to those copies thereafter. He further denied suggestions that the police team had manipulated or merged the audio recordings after obtaining voice samples from FSL.
7.16 In his cross-examination on behalf of accused Kafait Ullah and Abdul Rashid, PW-3 stated that he did not remember the exact date when Inspector P.C. Yadav instructed Ct. Rakesh to hear the recorded conversations, though the instructions were given in his presence. He stated that Ct. Rakesh heard already recorded intercepts and dictated the conversations to him for typing. He admitted that he was not aware of the identities of accused persons before preparing the transcripts. He further stated that accused Kafait Ullah himself identified his luggage at the railway station. He denied suggestions that no documents were recovered from the luggage of accused Kafait Ullah or that the recommendation letter Mark-X was not recovered from him. He further stated that accused Kafait Ullah had disclosed that the CD recovered from his house contained conversations between him, Abdul Rashid and other associates. He also stated that accused Kafait Ullah identified the documents recovered from the house of Abdul Rashid as copies of documents earlier supplied by Abdul Rashid to him. He admitted that he himself had not heard the messages on the mobile phone of accused Abdul Rashid. He denied suggestions that no CD was played before the accused persons or that accused persons were made to read out contents of transcripts while recording voice samples. He further denied suggestions that no CD had State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 32 of 124 been recovered or that he was deposing falsely at the instance of the investigating agency.
7.17 PW-3 was recalled to prove the documents prepared by the deceased IO Inspector Sanjeev Kumar Yadav, who had expired during the Covid-19 pandemic. He stated that he was acquainted with the handwriting and signatures of the deceased IO as he had worked with him during investigation. He identified signatures and handwriting of Inspector Sanjeev Kumar Yadav on various arrest memos, personal search memos, disclosure statements, seizure memos, voice sample memos and other exhibited documents including Ex.PW3/X, Ex. PW1/H, Ex. PW3/H, Ex. PW3/U, Ex. PW3/L, Ex. PW3/S, Ex. PW3/P, Ex. PW3/T, Ex. PW3/G, Ex. PW3/I, Ex. PW3/A, Ex. PW4/A to Ex. PW4/E, Ex. PW1/A, Ex. PW3/A-1 to Ex. PW3/A-17, Ex. PW3/B, Ex.PW3/C-1 to Ex. PW3/C-8, Ex. PW1/B, Ex. PW3/D, Ex. PW1/C, Ex.PW1/D, Ex. PW3/M, Ex. PW3/Q, Ex. PW3/R, Ex. PW20/A, Ex. PW3/Y, Ex. PW1/I, Ex. PW1/F, Ex. PW3/E, Ex. PW3/J, Ex. PW3/N, Ex. PW1/G, Ex. PW3/F, Ex. PW3/K, Ex. PW3/O, Ex. PW3/Z and Ex. PW3/Z1.
7.18 In his further cross-examination, PW-3 admitted that he was not a handwriting expert and had never earlier testified regarding handwriting or signatures of any person in any trial. He however maintained that he was fully acquainted with the handwriting and signatures of deceased Inspector Sanjeev Kumar Yadav. He denied suggestions that he was falsely identifying the signatures or that he had signed documents at the instance of the investigating agency.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 33 of 124
8. PW-4 Ct. Mohit Kumar has deposed that on 06.01.2016, he was posted as Constable in Inter State Cell, PS Crime Branch. On that day, IO/Insp. Sanjeev Kumar has handed over to him a forwarding letter with directions to collect the exhibits from the MHC(M), PS Crime Branch and deposit the same at FSL, Rohini. Pursuant thereto, he collected seven exhibits, including one pullanda containing a laptop duly sealed with the seal of "SKY", from the MHC(M), PS Crime Branch vide RC No. 8/21 and deposited the same at FSL, Rohini. After deposit, he returned the receipt to the MHC(M), PS Crime Branch. He further stated that so long as the case property remained in his custody, the same was not tampered with in any manner.
8.1 The witness further deposed that on 19.01.2016, he along with HC Ajay and Insp. Sanjeev Kumar went to FSL, Rohini, where accused persons namely Kafait Ullah, Abdul Rasheed, Manawar, Mohd. Sabir and Farid Ahmad were produced for recording of their voice samples. He stated that the voice sample of accused Kafait Ullah was recorded in two audio cassettes, whereas the voice samples of the remaining accused persons were recorded in one audio cassette each. He further stated that one copy each of the said six audio cassettes was also prepared by the FSL Expert, making the total number of cassettes twelve.
8.2 PW-4 has further stated that the IO kept the two original audio cassettes of accused Kafait Ullah in one pullanda and the remaining four original audio cassettes of the co-accused persons in separate pullandas. The IO marked the pullandas as Mark-1 to Mark-5 and took the same into State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 34 of 124 possession vide separate seizure memos Ex.PW4/A to Ex.PW4/E, all bearing his signatures at point A. He also stated that he had signed on all the twelve audio cassettes and that his statement was recorded by the IO in this regard.
8.3 The witness further deposed that on 15.02.2016, Insp. Sanjeev Kumar handed over to him five white envelopes duly sealed with the seal of "SKY" along with the Exhibit Examination Request Form and other documents. As per the directions of the IO, he collected one brown coloured pullanda duly sealed with the seal of "SKY" from the MHC(M), PS Crime Branch vide RC No. 42/21 and deposited the same along with the five envelopes at FSL, Rohini. Thereafter, he returned the receipt to the MHC(M), PS Crime Branch. He categorically stated that the case property remained untampered while in his custody.
8.4 PW-4 further stated that he could identify the audio cassettes if shown to him. During his examination, five parcels duly sealed with the seal of "FSL" and bearing particulars of the present case were produced before the Court by the MHC(M). Parcel No. 2 was opened and two audio cassettes bearing the name of accused "Kafait Ullah" marked O-1 and O-2 were shown to the witness, who correctly identified the same and stated that the cassettes bore his signatures at point A. The said cassettes were exhibited as Ex.PW4/P-1 and Ex.PW4/P-2. Similarly, from Parcel No. 3, one audio cassette bearing the name of accused Abdul Rasheed Khan was produced and identified by the witness as bearing his signatures at point A and the same was exhibited as Ex.PW4/P-3. From Parcel No. 4, one audio State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 35 of 124 cassette bearing the name of accused Manawar was produced and identified by the witness and exhibited as Ex.PW4/P-4. From Parcel No. 5, one audio cassette bearing the name of accused Mohd. Sabir was produced and identified by the witness and exhibited as Ex.PW4/P-5. From Parcel No. 6, one audio cassette bearing the name of accused Farid Ahmad was produced and identified by the witness and exhibited as Ex.PW4/P-6.
8.5 During his cross-examination for accused Mohd. Sabir, the witness stated that he was present in the room when the voice samples were recorded. He stated that after the IO took possession of the cassettes vide seizure memos Ex.PW4/A to Ex.PW4/E, he did not see the said cassettes till they were shown to him in Court. He further stated that he did not remember whether he had signed on the pullandas containing the cassettes.
8.6 In his cross-examination for accused Munawar Ahmad Mir, the witness stated that he did not recollect the exact time when he along with Insp. Sanjeev Kumar and HC Ajay left for FSL, Rohini on 19.01.2016. He stated that he could not comment as to whether the voice samples were recorded pursuant to permission of the Court. He further stated that apart from them and the accused persons, 2-3 FSL Experts were present at the time of recording of voice samples. He deposed that the samples were taken separately by calling each individual into the room. He further stated that he did not remember till what time they remained at FSL, Rohini. He denied the suggestion that the voice samples were not recorded by the FSL Experts or that the same had been fabricated using other voices.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 36 of 124 8.7 In his cross-examination for accused Farid Ahmad, the witness stated that the cassettes used for recording the voice samples were unwrapped by the IO in his presence. He admitted that the cassettes were not played in his presence prior to recording of voice samples. He further stated that the instruments available at FSL, Rohini were used for recording the samples. He denied the suggestion that the cassettes used for recording the voice samples were not empty or that they already contained previously recorded voices. He voluntarily stated that had there been any previously recorded voice, the FSL Experts would have cautioned them. The witness further stated that he could not tell the sequence in which the voice samples of the accused persons were recorded, though according to him the sample voice of accused Kafait Ullah Khan was recorded first. He further stated that he did not remember whether the FSL Experts had played the cassettes after recording the voices to confirm proper recording. He also stated that he could not tell the duration of the entire process. He further deposed that after sealing the cassettes, the IO retained the same with him. He stated that he could not say whether the IO had brought the pullandas of the cassettes with him while returning, though he admitted that he had returned with the IO. He denied the suggestion that the voice samples had been manipulated or fabricated to suit the prosecution case.
8.8 During his cross-examination for accused Kafait Ullah Khan and Abdul Rashid, the witness stated that the room in which the sample voices were recorded was equipped with FSL recording instruments. He stated that he could not tell the make of the equipment used for recording the voice samples. He further stated that he did not recollect what exactly was State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 37 of 124 spoken by the accused persons during recording of the voice samples. He stated that no instrument was handed over to the accused persons during recording. He further deposed that though he did not check whether the machine was on or off, the lights on the machine were blinking. He stated that the machine was not demonstrated before recording of the voice samples and that the FSL Experts had confirmed the recording of the voice samples. He denied the suggestion that the voice samples of the accused persons were not recorded or that the cassettes had been fabricated. He further denied the suggestion that he had deposed falsely.
9. PW-5 Lt. Col. Vivek Sheel has deposed that a letter bearing reference no. 217-R-ACP/ISC/Crime Branch dated 12.01.2016, sent by the ACP, Inter State Cell, Crime Branch, was received in the office of Director, MI-9, Directorate of Military Intelligence, Army Headquarters, Sena Bhawan, along with certain recovered documents regarding which the investigating agency had sought opinion as to the nature of the documents. He identified the said letter, which was exhibited as Ex.PW5/A. 9.1 The witness further deposed that the said documents were examined by the concerned official in the Military Operations Directorate, who submitted his opinion regarding the documents to his office. On the basis of the opinion furnished by the examining officer, he prepared a forwarding letter and conveyed the opinion to the ACP, Inter State Cell, Crime Branch. He identified the forwarding letter Ex.PW5/B bearing his signatures and official stamp at point A. State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 38 of 124 9.2 PW-5 further stated that the complete record file containing the opinion of the examining officer and other relevant documents was lying in the office of MI-9, Directorate General of Military Intelligence, Army Headquarters, Sena Bhawan, New Delhi. He further stated that the documents in respect of which opinion had been sought and furnished were already on record and had been exhibited as Ex.PW3/A/1 to Ex.PW3/A/17 and Ex.PW3/C1 to Ex.PW3/C8.
9.3 During his cross-examination for accused Mohd. Sabir, the witness admitted that he had not personally given any opinion in the matter.
9.4 On being questioned whether the "comments" mentioned in paragraph 2 of Ex.PW5/B were on record, the Court observed that the question was not clear as paragraph 2 of Ex.PW5/B referred to comments which, according to the witness, had not been given by him. The Court accordingly sought clarification from the witness regarding the author of the comments forming the basis of document Ex.PW5/B. In response, the witness stated that the comments had been obtained from MO-3A i.e. Military Operations 3-A and were given by GSO-1, MO3A, namely Lt. Col. Rohit Sambyal, who was posted there at the relevant time.
9.5 Upon the question being reframed by learned defence counsel as to whether the letter written by Lt. Col. Rohit Sambyal containing the so- called comments was on the Court record, the witness initially stated that he was not aware and that he would have to see the Court record. After seeing the Court record, he stated that the said letter was not on record.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 39 of 124 9.6 The witness was further asked whether he was aware of the meaning of the word "classified". In response, he stated that the classification in the present case had been given by GSO-1, MO3A and, therefore, he would not be able to comment on the meaning of the word "classified".
9.7 Accused Munawar Mir, Abdul Rasheed, Kafait Ullah Khan and Farid Ahmad, adopted the cross-examination conducted by learned counsel for accused Mohd. Sabir.
10. PW-6 HC Vijender Singh has deposed that on 01.12.2015, he was posted at ISC, Crime Branch, Chanakya Puri, New Delhi. On that day, he joined the investigation of the present case along with IO Insp. Surender Singh Sandhu, HC Deep Chand, HC Resham, Ct. Vinod, Ct. Ranvir and Ct. Rajender. He further stated that in connection with the investigation of the present case, the police team proceeded to New Jalpaiguri, West Bengal and reached there on 04.12.2015.
10.1 The witness further deposed that on 06.12.2015, IO Insp. Surender Singh Sandhu approached Captain Rajnikant Rai at 17 JAKLI, Sukna, West Bengal and interrogated accused Ct. Farid Ahmed, Rifleman, who was correctly identified by the witness in Court. He stated that during interrogation, accused Farid Ahmed confessed his involvement in the present case. Thereafter, accused Farid Ahmed was arrested and his personal search was conducted vide arrest memo Ex.PW6/A and personal search memo Ex.PW6/B, both bearing his signatures at point A. He further stated that the disclosure statement of accused Farid Ahmed was recorded State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 40 of 124 vide Ex.PW6/C bearing his signatures at point A. Thereafter, they returned to Delhi and on 07.12.2015, the IO recorded his statement in this regard.
10.2 During his cross-examination for accused Farid Ahmed, the witness stated that they had travelled from Delhi to Jalpaiguri by Rajdhani Express, though he did not remember its departure time. He admitted that if the Rajdhani train departed from Delhi on a particular day, it would ordinarily reach Jalpaiguri the following day. He stated that they did not visit the office of 17 JAKLI on the same day they reached Jalpaiguri, though they had visited there on 04.12.2015. He further stated that they had reached Jalpaiguri on 02.12.2015 and that the IO had contacted 17 JAKLI telephonically on 03.12.2015.
10.3 The witness further deposed that upon visiting the office of 17 JAKLI, they met Captain Rajnikant Rai in his office and two ICs along with certain other staff members were also present there. He stated that the IO had given a written request to Captain Rajnikant Rai seeking permission for interrogation of accused Farid Ahmed and that the said request had been prepared by the IO in his presence. He further stated that when they visited the office of 17 JAKLI on 04.12.2015, only Captain Rajnikant Rai and other officers met them and the accused was not produced for interrogation. However, the accused was interrogated on 06.12.2015. He further stated that they had again visited the office of 17 JAKLI on 05.12.2015. He stated that he could not say what communication took place between Captain Rajnikant Rai, other officers and the IO during the visits on 04.12.2015 and 05.12.2015. According to him, the IO had only State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 41 of 124 informed him that accused Farid Ahmed had not been produced for interrogation on those dates.
10.4 PW-6 further stated that on 06.12.2015, they reached the office of 17 JAKLI at about 10:00 a.m. and the accused was produced for interrogation after their arrival. They remained there till about 02:00-02:30 p.m. He further stated that accused Farid Ahmed was interrogated in the presence of Captain Rajnikant Rai and other officers of 17 JAKLI and that the police officials accompanying the IO were also present there. According to the witness, accused Farid Ahmed disclosed his involvement in the present case in his presence and the same was recorded by the IO. He further stated that signatures of Captain Rajnikant Rai and HC Deep Chand were also obtained on the disclosure statement of the accused.
10.5 The witness further deposed that after arresting accused Farid Ahmed, the IO attempted to produce him before the local Court, but since the concerned Magistrate was unavailable due to holiday, they brought the accused to Delhi because there was shortage of time to catch the train. He stated that they left Jalpaiguri for Delhi by Rajdhani Express, though he did not remember the departure time. After reaching Delhi, they directly went to the concerned Court and produced the accused there. He stated that he did not remember the exact time when they reached Delhi or the Court, but since the other accused persons were also being produced on the same day, they hurriedly produced accused Farid Ahmed before the Court. He further stated that the personal search of the accused was conducted at the office of 17 JAKLI.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 42 of 124 10.6 The witness denied the suggestion that he had not accompanied the IO to Jalpaiguri. He further denied the suggestion that he had not joined the investigation qua accused Farid Ahmed at 17 JAKLI. He also denied the suggestion that the disclosure statement was prepared by the IO independently and that his signatures were obtained subsequently. He further denied the suggestion that no personal search was conducted in his presence or that he was deposing falsely.
10.7 Despite opportunity being granted, no cross-examination was conducted on behalf of accused Kafait Ullah, Abdul Rashid, Mohd. Sabir and Munawwar Ahmed.
11. PW-7 Sh. Pawan Singh has deposed that in the year 2005, he was working as a Nodal Officer in Idea Cellular Ltd. at A-26/5, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi. He further stated that after the merger of Idea Cellular with Vodafone in September 2018, he was working as Alternate Nodal Officer at Vodafone Idea Ltd. at the aforesaid address.
11.1 The witness deposed that he had brought the original Customer Application Form (CAF) and Call Detail Records (CDR) pertaining to mobile number 9086312425 (Idea), issued in the name of Asif Ali, son of Mohd. Latif, resident of Mangal Nar, PO Mangakote, District Rajouri, J&K. He proved the CAF along with the supporting identity proof, namely a student certificate issued by Government Higher Secondary School, Manjakote, Rajouri, as Ex.PW7/A (colly.) comprising two pages (OSR), bearing his attesting signatures and stamp at point A on each page. He State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 43 of 124 further proved the CDR of the said mobile number running into 17 pages as Ex.PW7/B, bearing his attesting signatures and stamp at point A on each page.
11.2 PW-7 further deposed that he had also brought the original CAF and CDR pertaining to mobile number 9086107860 (Idea), issued in the name of accused Kafait Ullah Khan, son of Badar Hussain, resident of Manjakote, PO Manjakote, District Rajouri, J&K. He proved the CAF along with supporting identity proof in the form of a service certificate as Ex.PW7/C (colly.) comprising two pages (OSR), bearing his attesting signatures and stamp at point A on each page. He further proved the CDR running into 15 pages as Ex.PW7/D, bearing his attesting signatures and stamp at point A on each page thereof.
11.3 The witness further deposed that he had brought the original CAF and CDR pertaining to mobile number 9086318625 (Idea), issued in the name of Abdul Rashid Khan, son of Fazal Hussain, resident of HQ BSF, District Rajouri, J&K, C/o 56 APO. He proved the CAF along with supporting identity proof in the form of a service certificate as Ex.PW7/E (colly.) comprising two pages (OSR), bearing his attesting signatures and stamp at point A on each page. He further proved the CDR running into four pages as Ex.PW7/F, bearing his attesting signatures and stamp at point A on each page.
11.4 PW-7 further stated that he had also furnished a certificate under Section 65B of the Indian Evidence Act in respect of the aforesaid records, State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 44 of 124 which was proved as Ex.PW7/G bearing his signatures and stamp at point A. 11.5 The witness further deposed that owing to the merger of Vodafone with Idea, he had also brought the original CAF and CDR pertaining to mobile number 9796642812 (Vodafone), issued in the name of Ms. Jabna Akhter, wife of Munawar Hussain, resident of Khablam, PO Barakoti, PS Mandi, Rajouri, J&K. He proved the CAF along with supporting identity proof in the form of voter identity card as Ex.PW7/H (colly.) comprising four pages (OSR), bearing his attesting signatures and stamp at point A on each page. He further proved the CDR running into 38 pages (both sides) as Ex.PW7/J (colly.), bearing his attesting signatures and stamp at point A on each page.
11.6 The witness further deposed that he had also brought the original CAF and CDR pertaining to mobile number 8860912547 (Vodafone), issued in the name of Ms. Rohini Gomes, daughter of Francis, resident of N-11, N Block, Narayan Nagar, Gali No.1, Laxmi Nagar, Delhi. He proved the CAF along with supporting identity proof in the form of voter identity card as Ex.PW7/K (colly.) comprising two pages (OSR), bearing his attesting signatures and stamp at point A on each page. He further proved the CDR as Ex.PW7/L, bearing his attesting signatures and stamp at point A on each page.
11.7 PW-7 further proved the certificate under Section 65B of the Indian Evidence Act in respect of the aforesaid Vodafone records as Ex.PW7/M bearing his signatures and stamp at point A. State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 45 of 124 11.8 Despite opportunity being granted, no cross-examination was conducted on behalf of accused Mohd. Sabir, Munawar Ahmed Mir, Farid Ahmed, Kafait Ullah Khan and Abdul Rashid.
12. PW-8 Sh. Kuldeep Singh has deposed that he had seen the attested copy of the statement of account pertaining to Account No. 20042996761 in the name of Naik Manawar Ahmed Mir maintained at SBI, Thana Mandi Branch, Code No. 17260, for the period from 01.01.2013 to 22.02.2016. He proved the same as Ex.PW8/A running into four pages.
12.1 The witness further deposed that he had also seen the attested copy of the statement of account pertaining to Account No. 20038937712 in the name of Joginder Singh maintained at SBI, Sunderbani Branch, Code No. 02491, for the period from 24.10.2014 to 22.02.2016. He proved the same as Ex.PW8/B running into ten pages.
12.2 PW-8 further deposed that he had seen the attested copy of the statement of account pertaining to Account No. 32301596571 in the name of Mohd. Saber Khan maintained at SBI, Rajouri Branch, Code No. 01575, for the period from 25.04.2012 to 25.12.2015. He proved the same as Ex.PW8/C running into three pages.
12.3 The witness further deposed that he had also seen the attested copy of the statement of account pertaining to Account No. 11397771810 in the joint names of Abdul Rashid and Tazim Akhter maintained at SBI, Rajouri, J&K, Code No. 01575, for the period from 01.01.2013 to 22.02.2016. He proved the same as Ex.PW8/D running into thirty-seven pages.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 46 of 124 12.4 PW-8 further deposed that in respect of the aforesaid accounts, he had brought the certificate issued under Section 2(8) of the Bankers' Books Evidence Act, 1891 certifying the genuineness of the accounts as per bank records. He proved the said certificate as Ex.PW8/E bearing his signatures at point A and the official stamp encircled at point B. 12.5 During his cross-examination for accused Munawar Ahmed Mir, the witness stated that he could not tell as to who had deposited the amount in respect of the credit entry of Rs.20,000/- by cash dated 07.07.2014 reflected in Ex.PW8/A. He voluntarily stated that the same could be ascertained upon perusal of the voucher from the concerned branch of SBI.
12.6 Despite opportunity being granted, no cross-examination was conducted on behalf of accused Mohd. Sabir, Farid Ahmed, Kafait Ullah Khan and Abdul Rashid.
13. PW-9 Col. Rohit Sambyal has deposed that that in the year 2016, he was posted as General Staff Officer Grade-1 in the Military Operations Branch. He deposed that on 21.01.2016, certain documents, as mentioned in the letter Ex.PW5/A of Shri K.P.S. Malhotra, ACP, Inter Estate Cell/Crime Branch, Chanakyapuri, New Delhi, were received in the office of Directorate MI-9 and forwarded to the Military Operations Branch for verification. The said documents were entrusted to him for examination.
13.1 He further deposed that he examined the documents carefully and prepared para-wise detailed comments on the same in response to the queries raised by the investigating agency in Ex.PW5/A. The comments prepared by him were forwarded to the MI-9 Branch. On the basis of his State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 47 of 124 examination and comments, a detailed report Ex.PW5/B was prepared. He identified the documents Ex.PW3/A1 to A17 and Ex.PW3/C1 to C8 as the very same documents he had examined and commented upon for preparation of the report Ex.PW5/B. 13.2 During his cross-examination for accused Mohd. Sabir, the witness admitted that the location of the RR Battalion as mentioned in para 2(a)(i) of Ex.PW5/B is not a classified document; Precis books, used in Army training institutes, exist, but no such document exists in the precis books that provides the location as mentioned in para 2(a)(i) of Ex.PW5/B (Ex.PW3/A1); The fire plan referred to in para 2(a)(v) of Ex.PW5/B is not a classified document; the copy exhibited appears to be part of an exercise during a course, though the actual fire plan is classified; Training institutes, such as those at Mhow and Wellington, use precis books.
13.3 The witness stated that he could not comment on the involvement of civilians in these institutes. He admitted that the document referred to in para 2(a)(iii) of Ex.PW5/B is part of training material, but the structure of the document (Ex.PW3/A4-A8) differs from the officers' precis books of his rank.
13.4 PW-9 could not confirm the actual existence of Ex.PW3/A4-A8 in reality but opined that the details could not have been prepared by someone unaware of the organizational structure. He explained that the term "classified," as used in Ex.PW5/B, refers to information not shared with the public. He confirmed that sharing a document like Ex.PW3/A4-A8 presupposes its existence in military records. He further stated that he had State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 48 of 124 not seen any such document before sending his comments leading to the report Ex.PW5/B and could not ascertain whether he had ever come across identical documents. Finally, he confirmed that "open source," as used in Ex.PW5/B, means information available openly to the public through the internet or other media.
14. PW-10 SI Data Ram has deposed that on 16.11.2015, he was posted as SI at ISC Crime Branch, Chanakyapuri, Delhi. On that day, at about 8 p.m., Inspector P.C. Yadav handed over a rukka to him with directions to get an FIR registered at PS Crime Branch, Malviya Nagar.
14.1 PW-10 deposed that he proceeded to PS Crime Branch, Malviya Nagar, and handed over the rukka to the Duty Officer. The Duty Officer registered the FIR and handed over to him a computer copy of the FIR, the rukka, and a certificate under Section 65B of the Indian Evidence Act. PW-10 stated that he returned to the office of PS Crime Branch, Chanakyapuri, at about 10:30 p.m., and handed over the documents to the IO, Inspector Sanjeev Kumar Yadav.
14.2 During his cross-examination, he has denied the suggestions that there was any tampering with the rukka; that he did not go to PS Malviya Nagar and was deposing falsely at the instance of the IO; and that he was deposing falsely as an official witness.
15. PW-11 Sh. Amit Kumar Sharma was examined as the representative of Reliance Communication Ltd. on behalf of Sh. Yogesh Tripathi, the then Nodal Officer, who had left the services of the company. He deposed that State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 49 of 124 he had seen the record pertaining to mobile number 9018516106 and the documents issued by Sh. Yogesh Tripathi to the police. As per the company record, the said mobile number was issued in the name of one Nureen. He proved the certified copy of the Customer Application Form (CAF) as Ex. PW11/A and stated that the original CAF was not available as, in terms of the guidelines of the Department of Telecommunications (DOT), original CAFs are retained only for three years after permanent termination of the mobile number. He further proved the certified copy of the Election Identity Card submitted by the subscriber as Ex. PW11/B, the certified copy of the Call Detail Records (CDR) as Ex. PW11/C (colly. 14 pages), and the certificate under Section 65B of the Indian Evidence Act as Ex. PW11/D bearing the signatures of Sh. Yogesh Tripathi at point A. He also proved the reply furnished to the police by Sh. Yogesh Tripathi as Ex. PW11/E and identified the signatures of Sh. Yogesh Tripathi on the basis that he had worked with him and had seen him signing during the ordinary course of business. The copy of the DOT guidelines was marked as Mark PW11/1.
15.1 During cross-examination for accused Fareed Ahmad and Munawer Ahmed Mir, the witness stated that he could not comment whether the Investigating Officer had made any request for preservation of the CAF. He further stated that he had brought the complete available record and no such request was found therein.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 50 of 124 15.2 No cross-examination was conducted on behalf of accused Kafait Ullah Khan, Abdul Rashid Khan and Mohd. Saber despite opportunity having been granted.
16. PW-12 ASI Deep Chand deposed that on 01.12.2015, while posted at PS Crime Branch, Chanakyapuri, he along with Inspector Surender Sandhu, HC Vijender, Ct. Vinod and other staff proceeded to Siliguri, West Bengal in connection with investigation of the present case for the purpose of tracing accused Fareed Ahmed, who was stated to be posted in the JAKLI Unit of the Defence Force. He stated that after reaching Siliguri on 04.12.2015, efforts were made to trace the accused. On 06.12.2015, they went to the office of the JAKLI Unit where the Station Officer was informed about Fareed Ahmed, who was thereafter produced before them. The witness stated that accused Fareed Ahmed was interrogated by Inspector Surender Sandhu and subsequently arrested vide arrest memo Ex. PW6/A bearing his signatures at point B. The personal search memo Ex. PW6/B and disclosure statement Ex. PW6/C also bore his signatures at point B. He further deposed that intimation of arrest was given to the Commanding Officer and thereafter the accused was brought back to Delhi. The witness correctly identified accused Fareed Ahmed before the Court.
16.1 During cross-examination for accused Fareed Ahmed and Munawer Ahmed Mir, the witness stated that the police team had travelled to West Bengal by Rajdhani Express from New Delhi Railway Station and that a DD entry had been made prior to departure by the Investigating Officer. He stated that they reached West Bengal on 04.12.2015 at about 2:00 PM and State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 51 of 124 met accused Fareed Ahmed on 06.12.2015 at about 9:00-9:30 AM. He further deposed that initially they had gone to Darjeeling where the JAKLI Unit was posted, but later learnt that the main office was situated at Siliguri and permission from senior officers was required to meet the accused. He stated that on 04.12.2015 they stayed at a hotel in Darjeeling and on 05.12.2015 in the Unit mess at Siliguri. He denied the suggestion that the accused had been detained on 04.12.2015 in a detention room at Siliguri. He further stated that no article was recovered during the personal search of the accused and that they returned to Delhi by Rajdhani Express, reaching at about 12 noon to 1 PM. He admitted that family members of the accused were not informed about the arrest, though the senior officials of the accused were informed. He further stated that the accused was not produced before any Judicial Magistrate in West Bengal and that interrogation was conducted in the office of the Station Officer and lasted approximately two hours. He denied the suggestions that the arrest and interrogation proceedings were false or concocted and that he was deposing falsely. No cross-examination was conducted on behalf of accused Kafait Ullah Khan, Abdul Rashid Khan and Mohd. Saber.
17. PW-13 Sh. Amit Kumar has deposed that he had brought the original bank record pertaining to Account No. 50100044094259 standing in the name of accused Kafait Ullah Khan. He stated that the account had been opened at Rajouri, Jammu & Kashmir Branch. He proved the certified copy of the account opening form and related account documents as Ex. PW13/A (OSR) (colly. 12 pages). He further proved the certified copy of the pay-in slip dated 04.02.2015 reflecting deposit of Rs.40,000/- in the State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 52 of 124 account at Daryaganj Branch as Ex. PW13/B and also proved the certified statement of account for the period 01.06.2014 to 30.11.2015 as Ex. PW13/C. He stated that he was deposing in his official capacity.
17.1 During cross-examination for accused Kafait Ullah Khan and Abdul Rashid Khan, the witness stated that from the pay-in slip Ex. PW13/B he could not ascertain who had deposited the amount of Rs.40,000/- as only initials appeared at the place meant for depositor's signature. He further stated that no separate record regarding the identity of the depositor was maintained by the bank.
17.2 No cross-examination was conducted on behalf of accused Mohd. Saber, Fareed Ahmed and Munawer Ahmed Mir.
18. PW-14 Inspector Surender Sandhu deposed that on 01.12.2015, while posted at Interstate Cell, Chanakyapuri, he along with HC Deep Chand, Ct. Vijender and Ct. Vinod had proceeded to Siliguri, West Bengal on the instructions of Inspector Sanjeev in connection with investigation of the present case and in search of accused Fareed Ahmed. He stated that after reaching Siliguri on 04.12.2015, they contacted the Commanding Officer of the JAKLI Unit and informed him about the purpose of their visit. Thereafter, accused Fareed Ahmed was produced before them and interrogated in the presence of one Army official namely Rajnikant Rai. The witness deposed that he arrested the accused vide arrest memo Ex. PW6/A bearing his signatures at point C, conducted his personal search vide memo Ex. PW6/B and recorded his disclosure statement Ex. PW6/C, both bearing his signatures at point C. He further proved the intimation of State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 53 of 124 arrest given to the Commanding Officer as Ex. PW14/A. Thereafter, the accused was brought to Delhi and handed over to the Investigating Officer Inspector Sanjeev Kumar Yadav. The witness correctly identified accused Fareed Ahmed before the Court.
18.1 In cross-examination for accused Fareed Ahmed and Munawer Ahmed Mir, the witness stated that the police party had travelled by Rajdhani Express from Hazrat Nizamuddin Railway Station and reached Siliguri on 04.12.2015 at about 6:00-6:15 AM. He stated that they stayed at a hotel in Siliguri, though he did not remember its name. He further stated that he verbally informed the Commanding Officer on 05.12.2015 regarding the purpose of visit and that a DD entry had been made prior to departure from Delhi, though he did not remember its number. He admitted that instructions received from Inspector Sanjeev Yadav were oral and not in writing. He denied the suggestion that no instructions had been received for interrogation or arrest of the accused or that there was insufficient evidence for his arrest. He admitted that no family member or friend of the accused was informed about the arrest, though the Commanding Officer was informed. He further stated that no article was recovered in the personal search and that the disclosure statement was recorded by him in English in his own handwriting. He also deposed that the accused was medically examined at a Government Hospital in Siliguri. He denied the suggestions that no disclosure statement had been recorded or that the accused had not been medically examined. He further stated that they reached Delhi on 08.12.2015 at about 1:00-2:00 PM and handed over custody of the accused to the Investigating Officer the same afternoon. He State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 54 of 124 admitted that the accused was produced before a Magistrate at Siliguri. He denied the suggestion that signatures of the accused had been obtained on blank papers while returning to Delhi. He further admitted that local police of the place of arrest were not informed. He denied the suggestion that he was deposing falsely.
18.2 No cross-examination was conducted on behalf of accused Kafait Ullah Khan, Abdul Rashid Khan and Mohd. Saber.
19. PW-15 ASI Raj Kumar deposed that on 16.11.2015, while posted as Duty Officer, he received rukka from SI Datta Ram sent by SI P.C. Yadav and, on its basis, got FIR No.166/2015 under Sections 3/9 of the Official Secrets Act registered through the computer operator. He proved the FIR as Ex. PW15/A bearing his signatures at point A, the endorsement on rukka as Ex. PW15/B and the certificate under Section 65B of the Indian Evidence Act in respect of computer-generated FIR as Ex. PW15/C. 19.2 No material cross-examination was conducted on behalf of any of the accused persons.
20. PW-16 Inspector Neeraj Kumar deposed that on 23.12.2016, while posted as SI in ISC Crime Branch, Chanakyapuri, he filed FSL Result No.2016/CFU-103 dated 29.07.2016 through supplementary chargesheet, which was exhibited as Ex. PW9/A, and subsequently filed another FSL result bearing No.2016/P-1229, PHY-49/16 dated 23.01.2017, exhibited as Ex. PW9/B. 20.1 In cross-examination on behalf of accused Fareed Ahmed, the witness stated that all exhibits had been sent to FSL by the previous State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 55 of 124 Investigating Officer and he could not comment upon the delay in sending the CD to FSL. No further material cross-examination was conducted.
21. PW-17 Sh. Vivek Kumar has deposed regarding examination of seven sealed parcels received in the laboratory on 06.01.2016 bearing seal "SKY". He detailed the contents of each parcel, including various mobile phones, SIM cards, memory cards and one laptop with hard disk. He stated that after examination, data was retrieved from exhibit HDD1, MP1, MP2, MP4, MP5, SC1 to SC9, MC2 and MC3 and copied into a hard disk marked "copy of data". He further stated that no data could be retrieved from MC1, MP3 and MP6. He proved his detailed FSL report dated 29.07.2016 as Ex. PW9/A. The witness also identified the case property produced before the Court and the same was exhibited accordingly.
21.1 Despite opportunity, no cross-examination was conducted on behalf of any of the accused persons.
22. PW-18 Major Rajnikant Rai deposed that on 04.12.2015, while posted as Captain in 17 JAKLI at Sukhna, Siliguri, West Bengal and functioning as Adjutant, Inspector Surender Sandhu of Interstate Cell, Crime Branch, New Delhi arrived in the Unit with copy of FIR No.166/2015 under Sections 3/9 of the Official Secrets Act and requested permission to interrogate Rifleman Fareed Ahmed. He stated that Fareed Ahmed was interrogated in the presence of Army Intelligence officials and thereafter, upon receipt of request from Inspector Surender Sandhu and after clearance from Army authorities, accused Fareed Ahmed was handed over to the Crime Branch on 06.12.2015. He proved his signatures on arrest State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 56 of 124 memo Ex. PW6/A, personal search memo Ex. PW6/B and disclosure statement Ex. PW6/C at point C. He correctly identified accused Fareed Ahmed before the Court.
22.1 During cross-examination for accused Fareed Ahmed, the witness stated that he was not personally present during interrogation, though Army Intelligence officers were present and he himself remained in the Unit office situated about ten metres away from the interrogation room. He admitted that the disclosure statement Ex. PW6/C was not recorded in his presence and that Inspector Surender Sandhu obtained his signatures thereon after producing the document before him. He further stated that he did not recollect the sequence in which he signed the arrest memo, personal search memo and disclosure statement, though all were signed on the same day. He also stated that he could not comment upon movement details of the Unit. He admitted that no written request for interrogation had been personally given to him, though the same may have been given to higher authorities. He further stated that as per protocol, accused Fareed Ahmed was not required to report daily to him and therefore he had no occasion to know his leave or duty status.
22.2 No material cross-examination was conducted on behalf of the remaining accused persons.
23. PW-19 Sh. Niraj Singh has deposed that on 17.03.2016, while functioning as Under Secretary (Internal Security-I), the Ministry received a proposal from the Government of NCT of Delhi seeking authorization under Section 13(3) of the Official Secrets Act, 1923 for prosecution of the State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 57 of 124 accused persons. He stated that after examination of the proposal and documents received from the State Government, authorization order dated 22.04.2016 was issued authorizing Sh. M.A. Rizvi, DCP Crime Branch, to file complaint before the competent court. He proved the authorization order as Ex. PW19/A and forwarding letter as Ex. PW19/B. 23.1 In cross-examination, the witness explained the procedure followed upon receipt of the proposal and stated that the file, along with relevant documents and notes, was examined and placed before the competent authority. He admitted that some physical items mentioned in Ex. PW19/A had not been physically received by the Ministry and that statements under Section 161 Cr.P.C. and seizure memos were not specifically referred to in the authorization order. He, however, stated that such documents were considered while examining the case. He further stated that a prima facie case appeared to be made out against the accused persons on the basis of documents received from the State Government, including Military Intelligence reports. He admitted that he had not seen the original documents or mobile phones. He denied the suggestions that the authorization order had been issued mechanically or without proper application of mind.
23.2 PW-20 Subedar Major (Retd.) Satnam Singh deposed that on 10.12.2015, while posted as Naib Subedar at 17 JAKLI Battalion, Sukhna, West Bengal, he had brought two mobile phones belonging to accused Fareed Ahmed, namely Samsung Duos and Xolo, to the Interstate Cell, Crime Branch, Chanakyapuri, New Delhi and handed over the same to State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 58 of 124 Inspector Sanjeev Kumar Yadav, who seized them vide seizure memo Ex. PW20/A bearing his signatures at point A. He stated that the said mobile phones had already been exhibited during examination of PW-3 and PW-17.
23.3 In cross-examination for accused Fareed Ahmed, the witness stated that he did not remember the name of the officer who had handed over the mobile phones to him for carrying them to Delhi. He further stated that the phones were received from 17 JAKLI Unit in sealed condition, possibly in one or two envelopes, and that he had signed an acknowledgment at the time of receipt. He admitted that no other documents were handed over by him to the Investigating Officer along with the phones and stated that he was unaware about the truth or falsity of allegations mentioned in Ex. PW20/A. No further material cross-examination was conducted.
24. PW-21 Sh. Mansoor Ali Haideri, Retired Chief Ticket Inspector, Western Railway, Ratlam Division has deposed that on 19.02.2016 he was posted as Chief Ticket Inspector in Indore Western Railway, Ratlam Division. He further deposed that pursuant to a notice under Section 91 Cr.P.C. issued by Inspector Sanjeev Kumar Yadav of ISC, Crime Branch, Chanakyapuri, seeking the working chart of Train No.12920 Malwa Express dated 25.11.2015 and details regarding passenger K.U. Khan (Kafait-Ullah Khan), he had supplied the reservation/working chart along with an official forwarding letter to the Investigating Officer. He proved the reservation/working chart running into three pages as Ex.PW-21/A (collectively) and the forwarding letter as Ex.PW21/B. He further deposed State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 59 of 124 that as per the record, passenger K.U. Khan had travelled on 25.11.2015 and the same was reflected in the chart Ex. PW21/A at berth No.18.
24.1 During cross-examination for accused Kafaitullah Khan and Mohd. Sabir, the witness admitted that he had not physically seen the said passenger travelling in the train on 25.11.2015 and that the full name of passenger K.U. Khan was not mentioned in the record produced by him. He also stated that the endorsement appearing at point 'X' on Ex.PW20/A did not bear signatures of any railway official. He denied the suggestion that there was no confirmation regarding the existence of passenger K.U. Khan in the record produced by him and there was no confirmation regarding handing over of the said passenger to Crime Branch officials by Railway Police officials, or that he was deposing falsely.
25. PW-22 Sh. Sanjay Singh, Nodal Officer, Aircel Ltd. has deposed that he had been working as Nodal Officer with Aircel Ltd. since the year 2014 and as per record, vide letter dated 17.02.2016, their office had furnished to Delhi Police the ownership details, CAFs, CDRs and location charts pertaining to mobile numbers 9858772953, 9697048899, 9697668716, 9697022785 and 8803223123. He proved the said letter as Ex.PW-22/A bearing signatures of the then Nodal Officer Sh. Shishir Malhotra at points 'A' and 'B', whose signatures he identified having seen him signing and writing during official duties. He further deposed that Sh. Shishir Malhotra had left the company in the year 2018. He proved the CAFs of mobile number 9858772953 in the name of Sarwar Begum as Ex. PW-22/B, mobile number 9697048899 in the name of Mohd. Zahir as Ex. PW-22/C, State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 60 of 124 mobile number 9697668716 in the name of Rashid Khan as Ex.PW-22/D and mobile number 8803223123 in the name of Sabir as Ex.PW-22/E, all running into two pages each and duly attested by Sh. Shishir Malhotra. He further deposed that certified CDRs were also supplied to the police and were available on the judicial file, details whereof were mentioned in Ex.PW-22/A. He identified the signatures of Sh. Shishir Malhotra on the relevant pages referred to in paragraphs 4 and 5 of Ex.PW-22/A. He also identified the signatures of Sh. Shishir Malhotra on the certificate under Section 65-B of the Indian Evidence Act, proved as Ex.PW-22/F. 25.1 The witness further deposed that vide letter dated 19.02.2016, their office had supplied ownership details, CAF, CDR and location chart pertaining to mobile number 8803856573. He proved the said letter as Ex.PW-22/G bearing signatures of Sh. Shishir Malhotra at point 'A'. He stated that as per the record, the said mobile number was registered in the name of Munnawar Hussain. The CAF thereof was proved as Ex. PW-22/H and the CDR running into 128 pages was also identified by him. He further identified the signatures of Sh. Shishir Malhotra on the relevant pages referred to in paragraphs 3, 4 and 5 of Ex.PW-22/G and on the certificate under Section 65-B of the Indian Evidence Act proved as Ex. PW-22/J. 25.2 During cross-examination on behalf of accused Fareed Ahmed, the witness stated that he did not know whether any other person had assisted Sh. Shishir Malhotra in compilation and submission of the record. He further stated that he was not present at the time of compilation of the State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 61 of 124 record and therefore had no personal knowledge regarding the procedure adopted for compilation and submission thereof.
25.3 Learned counsels for accused Munawar Ahmed Mir and accused Mohd. Sabir and Kafaitullah Khan adopted the cross-examination conducted on behalf of accused Fareed Ahmed.
25.4 During cross-examination on behalf of accused Abdul Rashid, the witness stated that he had not seen the CAF of mobile number 8803856573 in the judicial file though as per their covering letter the said number was registered in the name of Abdul Rashid Khan. He further stated that the record pertaining to the said number could neither be produced nor retrieved as the same had been dumped by the company.
26. PW-23 Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd., deposed that he had been working as Nodal Officer with Bharti Airtel Ltd. since 03.08.2015. He stated that as per record, mobile numbers 9622314136 and 8493850853 were activated by Airtel and stood in the names of Mohd. Islam and Maqbool Hussain respectively. He proved the CAFs thereof as Ex. PW23/A and Ex. PW-23/B and CDRs of both mobile numbers as Ex.PW-23/C. The certificate under Section 65-B of the Indian Evidence Act regarding correctness and genuineness of the data preserved in the system without manipulation was proved as Ex.PW-23/D. He further deposed that with regard to mobile number 8170065025, as per their record the said number had not been activated during the relevant period and therefore no data pertaining thereto was available.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 62 of 124 26.1 Opportunity to cross-examine the witness on behalf of accused Abdul Rashid and Munawar Ahmed Mir was given, however, no questions were put.
26.2 During cross-examination on behalf of accused Fareed Ahmed, the witness stated that another Nodal Officer namely Sh. Chander Shekhar Tiwari was also posted at that time, though he had not worked on the present case. He stated that besides the documents already exhibited, no other CDR related documents had been submitted by him in the present case. He further stated that the record had been physically handed over to the police after obtaining acknowledgment, though he did not remember the name of the official to whom the same had been handed over. He stated that he had not brought the receipt thereof to Court but could produce the same if required. He further stated that as a Nodal Officer his responsibilities were confined to providing the requisite data and attending Court proceedings. He stated that he had generated the data from a DELL computer system and could not provide details of any other data stored in the system apart from CAF and CDR. He further stated that no register was maintained regarding data entered into the computer system and no person other than him had worked on his system. He stated that there was a dedicated IT department for rectification of system errors, though no record regarding complaints made to the IT department was maintained. He further stated that while preparing the certificate under Section 65-B of the Indian Evidence Act, he had relied upon the data stored in the system and not upon any other office record or register. He denied the suggestion that State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 63 of 124 the certificate under Section 65-B had been prepared mechanically and not in accordance with law.
26.3 The cross-examination conducted on behalf of accused Fareed Ahmed was adopted by learned counsel appearing for accused Mohd. Sabir and Kafaitullah Khan.
27. PW-24 Sh. Sunil Kumar deposed that during the year 2014-2015 he was serving as Principal Staff Officer in the Ministry of Home Affairs and retired from the said post on 28.02.2017. He stated that the section of MHA dealing with interception of telephones of the concerned mobile numbers was under his supervision and interception orders were issued upon receipt of requests from law enforcement agencies. He further stated that order No.15/14/3/97/T dated 15.09.2015 had been issued from their office, though he could identify the contents thereof even after perusing the same. Thereafter, in compliance with order dated 20.04.2023, replies Ex. P-22/1 and Ex. P-22/2 were received for identification purposes. The witness identified order No.15/14/3/97/T dated 15.09.2015 issued by their office and stated that the said order had been destroyed / weeded out as per the Indian Telegraph Amendment Rules and SOP after six months from issuance.
27.2 During cross-examination on behalf of accused Farid Ahmad, the witness stated that he had not maintained any independent record or noting of communications and documents during his tenure as Principal Staff Officer, though office records relating to transactions and communications were maintained for the review committee. He admitted that he had not State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 64 of 124 personally reviewed the said records before deposing in Court since he had already retired from service. He further stated that at the relevant time he was posted as Principal Staff Officer equivalent to the post of Director and not as Joint Secretary or Secretary. He admitted that under the Indian Telegraph Act and Rules, interception orders are to be passed by an officer of the rank of Secretary or Joint Secretary and further admitted that he himself had not passed any interception order in the present case, the same having been passed by the Union Home Secretary.
27.3 In response to a question regarding the basis for his statement that order No.15/14/3/97/T dated 15.09.2015 had been issued for interception in the present case, the witness stated that interception orders are normally issued on the basis of requests made by the Commissioner of Police, Delhi. He further stated that due to lapse of time of more than ten years, he did not remember the date of the interception request received from Delhi Police, any other interception request or order in the present case, the exact date of weeding out of the order, or the contents of the interception order. He denied the suggestions that he was deposing falsely at the instance of the investigating agency or that he did not recollect whether order No.15/14/3/97/T dated 15.09.2015 had actually been issued from their office in relation to interception of the phone numbers relevant to the present case.
27.4 The cross-examination conducted on behalf of accused Farid Ahmad was adopted on behalf of accused Mohammad Sabir, Kafait Ullah Khan, Munawar Ahmad Mir and Abdul Rashid Khan.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 65 of 124
28. PW-25 Sh. M. A. Rizvi has deposed that in April 2016, he was posted as DCP, Crime Branch, Delhi Police. He stated that FIR No. 166/2015 was registered at PS Crime Branch under Sections 3/9 of the Official Secrets Act. He further deposed that his office had received official order No. 17017/4/2016-IS-I dated 22.04.2016, already exhibited as Ex. PW-19/A, whereby he was authorized by the Ministry of Home Affairs, Government of India, to make complaint against accused persons namely Kafaitullah Khan, Abdul Rashid, Fareed Ahmed, Munnawar Ahmed and Mohd. Sabir Khan. He further stated that on 12.05.2016 he filed a detailed complaint under Section 13(3) of the Official Secrets Act, 1923 against the aforesaid accused persons. The said complaint was exhibited as Ex.PW-25/A (running into five pages), bearing his signatures at point A. 28.1 During his cross-examination on behalf of accused Fareed Ahmed, the witness stated that Ex.PW-25/A was the only document signed by him in the present case. He deposed that he had applied his own mind while drafting and making the complaint on the basis of the material available with them. He stated that he did not remember whether he had filed any other complaint under the Official Secrets Act. He further stated that it was not his task to identify the voices and that he was not technically competent to compare voice samples of the accused persons with the recordings. He denied the suggestions that there were no incriminating recoveries from accused Fareed Ahmed, that there were no incriminating witness statements against him, and that the complaint had been filed in a mechanical manner resulting in false prosecution.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 66 of 124 28.2 The accused Munnawar Ahmed Mir and Abdul Rashid adopted the cross-examination conducted on behalf of accused Fareed Ahmed.
28.3 During cross-examination on behalf of accused Mohd. Sabir Khan and Kafaitullah Khan, the witness stated that he did not remember the source or document regarding transaction of documents allegedly forwarded by accused Kafaitullah Khan to Pakistan based Intelligence Operatives, which he had perused at the time of filing the complaint. He further stated that, as far as he remembered, accused Sabir was a teacher, though he did not remember about accused Kafaitullah Khan. He admitted that there was no mention of certificate under Section 65-B of the Indian Evidence Act regarding the CD and volunteered that the same was not required at that stage. He further stated that he himself had not double checked the information/documents provided by higher agencies. He denied the suggestions that the complaint was filed mechanically without going through the documents and information, that he had not dictated or drafted the complaint himself, that the complaint had simply been placed before him by the IO for signatures, or that he was deposing falsely.
29. PW-26 Dr. Bharti Bhardwaj has deposed that she had been posted as Senior Scientific Officer (Physics), FSL Rohini, Delhi since January 2000 and that she possessed a Ph.D. degree in Physics. She stated that on 15.02.2016, six duly sealed envelopes were received in their office and the seals thereon were intact and tallied with the specimen seals as per the forwarding letter/FSL form. She stated that she opened the parcels and mentioned the description of the articles contained therein while preparing State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 67 of 124 her report. She further deposed that she examined five audio cassettes and one compact disc and, after analysing and examining the same, prepared her report mentioning the result of examination and opinion therein. The said report was already exhibited as Ex.PW-9/B bearing her signatures at point A on each page and running into five pages.
29.2 During cross-examination on behalf of accused Fareed Ahmed, the witness stated that she had received training in forensic voice analysis from Dr.C.P. Singh, who introduced Audio Video Analysis in India, and that her training lasted for two months. She stated that during the said training programme she had gone through both the literature and experimental aspects by assisting the trainer in conducting forensic voice analysis. She further stated that she had prepared forensic voice analysis reports in more than 300 cases for court purposes.
29.3 The witness was asked regarding the number of cases in which she had submitted negative forensic analysis reports. However, the said question was disallowed by the Court with observations that it did not concern the merits of the case or the competence of the witness as an expert.
29.4 The witness further stated that, as far as she remembered, she had not prepared any other report in the present case and that she was not involved in the process of taking voice samples in the case. She stated that she did not have any personal notes relating to the case and volunteered that the examination had been conducted as per the laboratory manual. She further stated that though she had not brought the worksheets, the same were State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 68 of 124 available in the file kept in the record room. She stated that she had perused the forwarding letter and that every detail about the voice samples had been mentioned therein. She further stated that she did not receive any voice sample in the case from her own office as far as she could remember.
29.5 Regarding the reference of "Fareed Ahmed @ Surgen" mentioned at Exhibit No. 5 at page 4 of her report, she stated that the same had been taken from the forwarding letter. She stated that she had not brought the forwarding letter on that day. She further stated that while preparing the report she had considered the distinctive features of the accused persons as mentioned in paragraph 5 at page 5 of her report. She denied the suggestion that the said paragraph did not indicate any distinctive feature of Fareed Ahmed's voice and was merely a copy-paste of the preceding paragraphs. She stated that she had not considered any foil speakers while preparing the report and volunteered that the analysis had been done as per the laboratory manual. She further stated that she did not remember whether she had considered if the voice of the person was typical of the region from which he came and volunteered that if there was any peculiar regional language consideration, the same would be mentioned in the worksheets and not in the report. She also stated that she could provide the worksheets if required.
29.6 The witness further deposed that she had not considered the age of the questioned voice in the report and volunteered that the same had not been asked. She stated that she had considered the speaking rate of the tested voice though the same had not been mentioned in the report. She further stated that she had not considered the quality of the electronic State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 69 of 124 devices, namely the CD and audio cassettes, as they were in working condition. She deposed that she had considered background noise, if any, though it was not necessary to mention the same in the report. She further stated that fear in a person's voice could affect the volume but did not affect the analysis and that in the present case she could not say anything about fear as she had only analysed the voices. She stated that she was not much familiar with the Pahari language. She denied the suggestions that her lack of familiarity with the Pahari language affected her analysis or that she had conducted the analysis in a routine and mechanical manner.
29.7 During cross-examination on behalf of accused Kafaitullah Khan, the witness stated that no date and time had been mentioned on the files of the CD analysed by her while preparing the report and volunteered that the same had not been asked. She further stated that the parcels had been unsealed by her and her assistant, though she did not remember the name of the assistant. She deposed that no videography of the unsealing process was conducted though photographs had been clicked. She stated that the software used to analyse the voices was mentioned in the report and that she had checked the validity of the software including the anti-virus, though she did not remember the make of the anti-virus. She further stated that after completing the analysis she prepared her report on 23.01.2017 though the forwarding letter and sealed parcels had been received on 15.02.2016.
29.8 Accused Munnawar Ahmed Mir and Abdul Rashid adopted the cross-examination conducted on behalf of accused Kafaitullah Khan. No State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 70 of 124 cross-examination was conducted on behalf of accused Mohd. Sabir Khan despite opportunity.
30. PW-27 Inspector Satvinder Singh has deposed that he had perused the photocopies of dispatch letters Nos. 4135-37, 4138, 4139, 4140 and 4142, all dated 17.09.2015, which had been sent to telephone service providers for interception of phone numbers mentioned therein and which bore the signatures of Sh. Alok Kumar, the then Additional Commissioner of Police, Delhi. He further stated that no original record regarding the aforesaid letters was available at the Interception Cell, Crime Branch as the same had been destroyed/weeded out since no request for retention had been received from the concerned section/IO. He further deposed that the record had been destroyed as per Appendix-A of the SOP for interception issued by the Ministry of Home Affairs, Government of India vide No. 14/7/2011-T dated 19.05.2011. The copy of the said SOP was exhibited as Ex. PW-27/A. 30.1 During cross-examination on behalf of accused Mohd. Sabir, the witness stated that they did not themselves intercept calls and only processed requests and sent them to the competent authority for obtaining orders. He further stated that he was not aware whether any call involving Mohd. Sabir had been intercepted.
30.2 During cross-examination on behalf of accused Fareed Ahmed, the witness stated that he was posted as In-charge, Interception Cell, Crime Branch in September 2015. He further stated that there was no record of destruction of records carried out in the year 2016 and that he was not State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 71 of 124 aware of any documents related to the present case in the absence of original record.
30.3 During cross-examination on behalf of accused Kafaitullah Khan, the witness stated that Sh. Alok Kumar, the then Addl. CP, Delhi had signed the aforesaid reference letters in his presence. He admitted that no date had been mentioned below the signatures indicating when the said letters were signed and that his own signatures were also not present on the letters. He denied the suggestion that the signatures of the Addl. Commissioner of Police had not been made in his presence and volunteered that he himself was not competent to sign the same. He further stated that, as per the SOP, the record of phone interception was required to be destroyed every six months. He admitted that under the SOP, letters/orders were destroyed with the approval of the Head of the Security and Law Enforcement Agencies or Designated Officers and further stated that no such approval record presently existed as no previous record regarding destruction undertaken earlier was maintained as per the SOP.
30.4 Accused Munnawar Ahmed Mir adopted the cross-examination conducted on behalf of accused Fareed Ahmed and Kafaitullah Khan.
30.5 During cross-examination on behalf of accused Abdul Rashid, the witness stated that he had been serving as Inspector, Interception Cell, Crime Branch since 2011 and that he was not aware of the facts of the present case. He further stated that after approval of the competent authority for destruction of interception records, the records were destroyed by him in the presence of the Nodal Officer/DCP Crime. He further stated State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 72 of 124 that he was not certain about the retention period of the aforesaid record. He adopted the remaining cross-examination conducted on behalf of accused Fareed Ahmed and Kafaitullah Khan.
31. PW-28 Sh. Alok Kumar has deposed that on 17.09.2015 he was posted as Additional Commissioner of Police, Crime Branch, New Delhi. He stated that upon receiving requests for interception of certain telephone numbers, the same were sent, after due process, to the Union Home Secretary, Government of India through proper channel for authorization. He further stated that after receipt of authorization, authority letters under his signatures were issued to various service providers for interception for a limited period as per the Telegraph Act. The said authority letters were exhibited as Ex.PW-28/A to Ex.PW-28/F bearing his signatures at point A on each exhibit. He further deposed that the originals were retained in the office and destroyed after the mandatory period prescribed under the Telegraph Act.
31.1 During cross-examination on behalf of accused Farid Ahmed @ Surgeon, the witness stated that Order No. 15/14/3/97-T dated 15.09.2015 was the only interception order in the present case. He further stated that contemporaneous records of communications/orders relating to interception had been maintained in the Crime Branch but would have been destroyed as per the Telegraph Act after expiry of the mandatory period. He stated that he had not maintained any personal notes regarding the same. He further stated that the actual order i.e. Order No. 15/14/3/97-T dated 15.09.2015 and communications regarding interception were not on record State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 73 of 124 as the same were kept in the Crime Branch office and only authority letters under his signatures had been issued to the Investigating Officer. He further stated that any interception conducted before receipt of the said order would have been illegal and that no such interception was ever carried out.
31.2 The witness further stated that he did not find any request from the Investigating Officer in the file for retention of records under Rule 419- A(18) of the Indian Telegraph Rules, 1951 and therefore the records would have been destroyed after the mandatory period. He further stated that had there been any requirement, the records would have been retained upon request by the Investigating Officer. He denied the suggestions that there had been no interception order by the competent authority or that the Crime Branch had intercepted calls without lawful authority.
31.3 During cross-examination on behalf of accused Kafaitullah Khan, the witness stated that all requests to the Ministry of Home Affairs for authorisation regarding interception of calls were sent in writing and that the written requests and replies from the Ministry of Home Affairs were entered in the records of the Crime Branch. He further stated that orders issued by the Union Home Secretary for interception were retained in the Crime Branch office for administrative purposes and that service providers were only issued authority letters under his signatures containing reference to the order of the Union Home Secretary. He further stated that he had not supplied a copy of the interception order issued by the Union Home Secretary to the IO as the same was retained in the Crime Branch office for administrative reasons. He denied the suggestions that no interception order State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 74 of 124 had been issued by the Union Home Secretary, that no relevant entries existed in the Crime Branch records, that interception of the accused persons' mobile numbers was illegal, or that he was deposing falsely. He adopted the remaining cross-examination conducted on behalf of accused Farid Ahmed @ Surgeon.
31.4 During cross-examination on behalf of accused Abdul Rashid Khan, the witness stated that for retention of letters dated 17.09.2015 beyond the prescribed period contained in Appendix 'A' of the SOP for interception issued by the Ministry of Home Affairs, a request from the concerned section/IO was required. He further stated that no such request had been received from the IO as the same was not available in the file. He further stated that the role of the Interception Cell, Crime Branch was limited to processing requests and sending them to the competent authority for obtaining interception orders. He also stated that the period and continuation of interception were governed by the Telegraph Act. Regarding the authorisation for destruction of records in the year 2016, he stated that such records should be available in the office of the Crime Branch. He adopted the remaining cross-examination conducted on behalf of accused Farid Ahmed @ Surgeon and Kafaitullah Khan.
31.5 Accused Mohammad Saber adopted the cross-examinations conducted on behalf of accused Farid Ahmed @ Surgeon, Kafaitullah Khan and Abdul Rashid Khan. No cross-examination was conducted on behalf of accused Manawer Ahmed Mir despite opportunity.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 75 of 124
32. PW-29 HC Sikandar has deposed that on 26.10.2018 he was posted as Constable at ISC, Crime Branch, Chanakyapuri, New Delhi. He stated that on that day he joined the investigation of the present case along with SI Neeraj and ASI Jag Narayan. He further stated that in pursuance of court order dated 11.10.2018, a compact disc was copied into a laptop for preparation of duplicate copies for the accused persons and, after copying, the CD along with both envelopes was placed in an envelope and sealed with the seal of "NK". He further deposed that IO SI Neeraj prepared the panchnama regarding copying and sealing of the compact disc, which was exhibited as Ex.PW-29/A bearing his signatures at point A. 32.1 No cross-examination was conducted on behalf of accused Abdul Rashid Khan, Mohd. Saber Khan, Kafaitullah Khan, Farid Ahmed @ Surgeon or accused Manawer Ahmed Mir despite opportunity. Thereafter, prosecution evidence was closed.
Statements of the accused persons under Section 351 BNSS:
33. In the statements under Section 351 of BNSS, all accused persons had denied all the allegations put to them in their statements and stated that they are innocent and have been falsely implicated in the present case. Accused Kafait Ullah Khan examined himself as DW-1 in his defence.
Defence evidence
34. DW-1 accused Kafait Ullah Khan examined himself as a defence witness pursuant to the order passed on his application under Section 315 Cr.P.C. He deposed that he had been working as a Government Teacher State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 76 of 124 since the year 1995. He stated that on 25.11.2015 he was travelling to Bhopal by Malwa Express via New Delhi and was seated in coach A-1 of the train. According to him, when the train reached New Delhi Railway Station between 6:00 PM to 7:00 PM, about 7-8 persons in civil clothes approached him, covered him with a cloth and thereafter an altercation took place between them. He further deposed that he was forcibly taken out of the train and thereafter taken to a police station in a vehicle. He stated that the said persons disclosed their identities and made several inquiries from him. He further stated that he informed them that he was going to Bhopal to attend Tabliki Jamaat and was also questioned regarding the purpose of his visit. According to him, he was forced to sign certain blank papers.
34.1 The witness further deposed that he had also informed the police officials regarding his visit to Pakistan, stating that his elder brother, who was residing in Pakistan, had expired. He stated that he had stayed in Pakistan for 19 days after obtaining NOC from the Government of India. He further deposed that he had been falsely implicated in the present case and that nothing was recovered either at his instance or from his house. He stated that he had been facing trial in the present case since the year 2015 and claimed himself to be innocent.
34.2 During cross-examination by learned Addl. PP for the State, the witness denied the suggestion that prior to 16.11.2015, police officials or Special Cell officials had intercepted his mobile calls as well as those of co-accused Abdul Rashid Khan, revealing involvement in anti-national activities supported by Pakistan-based Intelligence Operatives and sharing State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 77 of 124 information regarding deployment of the Army and BSF in Jammu & Kashmir and across the border. He further denied the suggestion that on the basis of such interception, he was apprehended on 25.11.2015 from coach A-1 of Malwa Express Train No.12920 and that during search of his bag certain secret Government documents were recovered for which he failed to furnish any satisfactory explanation.
34.3 The witness further denied the suggestion that on 28.11.2015 he was taken to his house at Manjakot, Rajouri, Jammu & Kashmir and that during search of his house a CD containing conversations between him and co- accused Abdul Rashid Khan was recovered from an iron almirah. He also denied the suggestion that he had led the police officials to the house of co- accused Abdul Rashid Khan where certain documents were recovered from an iron box kept in a room. He further denied the suggestion that the CD recovered from his house contained voice recordings of himself, Abdul Rashid Khan and other co-accused persons. He also denied the suggestion that during search the police had seized his passport and one dual SIM Micromax mobile phone. He further denied the suggestion that he along with his co-accused had acted against the interest and security of the nation. Lastly, he denied the suggestion that he was deposing falsely being an accused in the present case.
Arguments addressed on behalf of State
35. Learned Addl. PP for the State argued that the intercepted conversations, transcripts, recoveries, electronic evidence and conduct of State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 78 of 124 accused persons clearly establish that they were acting in concert to pass sensitive information concerning national security to Pakistan based operatives. It was submitted that the testimonies of police witnesses are trustworthy and corroborated by documentary and electronic evidence. It was further argued that the recovery of Army related documents from accused Kafait Ullah and Abdul Rashid coupled with financial transactions and contact with Pakistani numbers establishes the offences beyond reasonable doubt.
35.1 To substantiate his arguments, Ld. Addl. PP for the State has placed reliance upon following judgments :
a. Hon'ble High Court of Delhi in Crl. Appeal No. 428/2017 titled as Asif Hussain Vs. State (Dated 07.11.2019), has observed that :
41. During the course of arguments, Ex.PW-2/A1, Ex.PW-2/A2 and Ex.PW-2/A3 were removed from the sealed cover and perused. The said documents were also shown to the counsel. Mr Hashmi is correct in pointing out that the said documents do not bear the notation 'restricted'. This, essentially, Court is unable to accept that the said documents are unclassified. Lieutenant Col.
Chander Shekhar had submitted a report (Ex.Pw-14/C) after examining the documents in question. In his opinion, the documents in question were classified as restricted, which essentially meant that the same were for official use only and were not to be published or communicated to anyone except for official purposes. He also expressed his opinion that the information contained in the document, if disclosed to unauthorised persons, could be prejudicial to the safety, security and interest of the State. He State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 79 of 124 unequivocally stated that the information contained could be directly or indirectly useful to an enemy country.
42. A plain reading of the documents indicate that information contained therein relates to defence matters. The documents relate to arms and ammunition and the manner in which the ammunition stores are to be used. Undeniably, the said information cannot be considered as one which is required to be disseminated or published to unauthorized persons. The information contained in these documents is, indisputably, only for the use of officials.
43. xxxx
44. In the given circumstances, this Court has no doubt that the documents in question are classified as restricted documents."
b. Hon'ble Supreme Court of India in case titled as The Government of NCT of Delhi Vs. Jaspal Singh reported in 2003 (10) SCC 586, has held that:
"So far as the scope of Section 3(1) (c)of the Act is concerned, it was urged for the respondent that unless the articles enumerated are shown to be 'secret' document or material and that besides their collection they were published or communicated to any other person, the charge under the said provision could not said to have been made out. Apparently, the inspiration for such a submission was the judgment of a learned Single Judge of the Bombay High Court reported in State of Maharashtra Vs. B. K. Subba Rao & Another (1993 Crl.L. J. 2984). We are unable to agree with this extreme submission on behalf of the respondent. This Court in Sama Alana Abdulla Vs. State of Gujrat [(1996) 1 SCC 427] had held: (a) that the word 'secret' in clause (c) of sub-section (1) of Section 3 qualified official code or password and not any sketch, plan, model, article or note or other document or State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 80 of 124 information and (b) 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. Further, each one of the several acts enumerated in clause (c) of sub-section (1) of Section 3 of the Act, by themselves will constitute, individually, an offending act to attract the said provision and it is not necessary that only one or more of them and particularly publishing or communication of the same need be conjointly proved for convicting one charged with the offence of obtaining or collecting records or secret official code or password or any sketch, plan, model, article or note or other document or information. Any such interpretation would not only amount to doing violence to the language, scheme underlying and the very object of the said provision besides rendering otiose or a dead letter the specific provision engrafted in sub-section (2) of Section 3 of the Act. In view of this, the decision of the Single Judge of the High Court in 1993 Crl. L. J. 2984 (supra) cannot be said to lay down the correct position of law on the scope of Section 3 (1) (c) of the Act.
xxxxxx When so much of solid proof was available as to his possession, a restricted document prohibited for the general use of others and the information contained therein is not to be communicated directly or indirectly to the press or to any person not holding any official position in the Government for the reason that it contained the names, number of fields formation and units of each individual officer they being also sensitive information from the defence point of view of the country, no further proof is required and his possession sufficiently substantiates that he or somebody on his behalf obtained or collected it for him. The mode of consideration and method of proof in a State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 81 of 124 case like this, cannot be on the lines of a crime under the provisions of IPCinasmuch as sub-section (2) of Section 3 and Section 4 of the Act engrafts the statutory presumptions to be drawn from the facts and that this would make all the difference in the nature of consideration required in respect of offences committed under the Official Secrets Act, 1923 and the criminal conspiracies relating to such offences, be it punishable under Section 120-B, IPC. For all the reasons stated above, we are satisfied that the Verdict of Acquittal recorded by the High Court in favour of A-4, by way of reversal, suffers patent error of law and perversity of approach and consequently require to be set aside. We, accordingly, set aside the judgment of the High Court, so far as the acquittal of respondent A-4, by allowing Crl. Appeal No.248 of 2003 and restore the judgment of learned Additional Sessions Judge, New Delhi, convicting him for offences under Section 3 (1)(c) of Official Secrets Act, 1923 and Section 120-B, IPC. "
c. Hon'ble Supreme Court of India in case titled as Sana Alana Abdulla Vs. The State of Gujrat reported in 1996 SCC (1) 427, has held that:
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 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 State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 82 of 124 '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.
Arguments addressed on behalf of accused Kafait Ullah Khan and Mohammad Sabeer (A-1 & A-4)
36. Ld. Counsel for accused persons submitted that they have been falsely implicated in the present matter and they are not connected in the alleged offence in any manner; that they have clean antecedents; that out of the alleged documents recovered from possession of accused Kafait Ullah Khan, only one document is stated to be 'Classified' and rest of the documents does not fall within the ambit of Official Secret Act, 1923 being readily available in public domain and cannot constitute 'Secret' and by no stretch of imagination likely to affect the sovereignty and integrity of India, security of the State or friendly relations with foreign States; that Right to Information Act, 2005 has an overriding effect over Official Secrets Act, 2923 if public interest in disclosure outweighs the harm to the protected interests; that the prosecution failed to prove the interception order dated 15.09.2015 under Section 5(2) of Telegraph Act, 1885 which amounts to blatant misuse of process of law; that the arrest of accused Kafait Ullah Khan was illegal as he was arrested while traveling in train to attend one religious seminar and no Railway Police or local police was inducted into said raid; that the recovery of alleged CD from the house of accused Kafait State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 83 of 124 Ullah Khan was fabricated and planted into his house; that no independent witnesses were inducted while alleged recovery of CD was made; that prosecution failed to induce the source of the alleged CD till date along with certificate under Section 65B of the Indian Evidence Act; that the voice samples of accused Kafait Ullah Khan was sent to FSL after about delay of 03 months which points towards that the same were forged and fabricated by IO in order to strengthen the case of the prosecution; that the bank transaction of Rs.40,000/- does not show any huge amount of funding from any illegal person rather the said amount was deposited from Central Delhi by his friend for some personal requirement of funds; the CDR connectivity among the accused persons does not prove any conspiracy as they live in the same locality; that prosecution failed to bring on record any piece of evidence to show that accused Kafait Ullah Khan visited Pakistan illegally and even failed to examine any independent witness to prove the alleged meeting with ISI Operatives;
36.1 To substantiate his arguments, Ld. Counsel for accused Kafait Ullah Khan has placed reliance upon following judgments:
a. Hon'ble Supreme Court of India in case titled as Sama Alana Abdulla (Supra), has held that:
"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 State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 84 of 124 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."
b. Hon'ble High Court of Bombay in case titled as State of Maharashtra Vs. B. K. Subbarao reported in 1993 CriLJ 2984, has observed that "16. For purposes of appreciating the validity or otherwise of the submissions that have been raised in the course of the arguments before me, it is equally essential for me to advert to certain provisions of the two statutes under which the present prosecution has charged the Accused.
The first of these is the Official Secrets Act, 1923. This is an Act that was placed on the statute book for purposes of dealing with cases relating to official secrets. A perusal of the provisions of the Act will indicate that it is essentially concerned with security of the country and for this purpose, therefore, lays down stringent provisions in relation to all matters that come within the compass of the definition of the Official Secrets Act. That the Act also takes into account the possession of documents or material that may be associated with matters of defence or other secrets of the State is self-evident and the Act also makes a very clear mention of the fact that if a person obtains such material for a purpose prejudicial to safety or interest of the State, or if a person discloses such material to persons or agents in such manner as the safety, interest or security of the State may be prejudiced, the law will deal with him very stringently as provided for in this Act. A general reference to the scheme of the Act has been adverted to by me for the reason that the gravamen of the charge against the Accused in this proceeding relates to his having allegedly obtained and allegedly having been found in possession of material that could and would conform to the definition of official secrets. This alone is State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 85 of 124 insufficient for a charge under the Official Secrets Act because the law requires that such acts must necessarily be accompanied by attempts at disclosing or disseminating such material to unauthorised persons who, in the Act, have been referred to as "foreign agents". In short, it is very essential for the safety and security of any country that stringent provision be made in respect of any act or attempt that may endanger the safety or interest of the country. What follows, therefore, is that the basic ingredients for any charge under the Official Secrets Act is that the investigation must disclose from very cogent fact placed before the Court that the purpose for which the secret material was obtained or retained or carried or disposed of was directed or prompted by an objective that was prejudicial to the safety and interest of the State. In addition, where the charge is that such material was intended to be misused, this last aspect has to be borne out from material elicited in the course of investigation. Even in a criminal proceeding of the present type where the consequences to a person charged under the Official Secrets Act are extremely grave, it is condition precedent that a scrutiny of the totallity of the material placed before the Court must justify all the aforesaid ingredients.
c. Judgment rendered by Hon'ble Supreme Court of India in case titled as Jaspal Singh (Supra).
d. Hon'ble Supreme Court of India in case titled as Prem Chand Vs. Union of India reported in (1981) 1 SCC 639, has held that:
"8. The petitioner's reply affidavit makes startling disclosures about the police methods of implicating innocent people. However, the version of the petitioner can hardly be swallowed since he is a self-confessed perjurer. Nevertheless, it is not too much to ask Government to take effective measures to prevent Police State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 86 of 124 methods straying into vice. We hopefully remind the State about what Justice Brandieis once observed :
"Crime is contagious. If the government becomes a law breaker, it breeds contempt for law." .. "TO declare that in the administration of the criminal law the end justifies the means -to declare that the government may commit crimes in order to secure the conviction of a private criminal- would bring terrible retribution. Against that pernicious doctrine this court must resolutely set its face."
In the same American decision we have just mentioned Justice Holmes observed; "We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part."
e. Hon'ble Supreme Court of India in case titled as Tarseem Kumar Vs. Delhi Administration reported in 1994 Supp (3) SCC 367, has held that:
"The only remaining circumstance to be dealt with is the alleged disclosure made by the appellant and recovery of blood stained clothes belonging to the appellant at his instance. In view of Section 27 of the Evidence Act, there was no difficulty in accepting this evidence and to consider the same along with other circumstances if proved beyond all reasonable doubt. But the unfortunate feature of the present case, which has also been noticed by the Trial Court, is that many witnesses who can be said to be the stock witnesses to the police, have been produced on behalf of the prosecution to prove important circumstances. In this back-ground the Court has to be very cautions about the investigation done by the police in this case. The circumstance regarding the recovery of the blood stained clothes belonging to the appellant, on the disclosure made by him, has to be examined in the background of the witnesses like PW9, PW8 and 30, PWs2 and 3, on whom it is difficult to place any reliance State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 87 of 124 for the reasons mentioned above. It is not possible to hold that the vital links of the prosecution case which are necessary to be proved before a finding can be recorded, that the chain of evidence is complete, have been proved beyond reasonable doubt. If the evidence of PWs2 and 3 are rejected, then the main circumstantial evidence that the appellant was in exclusive possession of the room in question and he had got the pit dug by PWs2 and 3 in which the dead body of the victim was found in the night of 18.10.1974, shall be deemed to have not been proved."
f. Hon'ble Supreme Court of India in case titled as Rajesh Jagdamba Awasthi Vs. State of Goa reported in (2005) 9 SCC 773, has held that:
"16. There is one other aspect of the matter. PW-2, the panch witness associated in this case appears to be a stock witness. The other panch witness has not been examined. PW-2 admitted in very clear terms that he was earlier associated in two other cases under N.D.P.S. Act as panch witness. In both those cases, PSI Thorat was the investigating officer. On 14 th December, 1994, he had been summoned by PSI Thorat and acted as a panch witness in the case against P.C. Kulbi, who as noticed earlier disclosed the complicity of the appellant. Thereafter, in the instant case, he was requested by PW-4 to act as a panch witness. It appears that PSI Thorat was also associated with this case as he was present with PW-4 when P.C. Kulbi was apprehended and thereafter when the appellant herein was apprehended and searched at the instance of the aforesaid Kulbi."
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 88 of 124 g. Hon'ble Supreme Court of India in case titled as Renuka Prasad Vs. State reported in 2025 SCC OnLine SC 1074, has held that:
"48. Though Chandrappa1 was specifically noticed by the High Court, the principles were not rightly appreciated, while setting aside the order of acquittal. It has been emphasized that when there are two reasonable views possible from the evidence led, the one favouring the accused should be adopted, especially since the presumption of innocence of the accused until proved guilty, a fundamental tenet of criminal jurisprudence, stands further strengthened by the order of acquittal. In the present case, we are afraid that there are not even two views coming forth from the evidence. The only view that comes forth is that the prosecution completely failed to prove the allegations raised and charged against each of the accused, more by reason of all the witnesses paraded before Court, at the trial, having turned hostile for reasons unknown. Whatever be the reason behind such hostility, it cannot result in a conviction, based on the testimony of the Investigating Officers which is founded only on Section 161 statements and voluntary statements of accused; the former Crl. A. Nos. 3189-90 of 2023 etc. violative of Section 162 of the Cr.P.C and the latter in breach of Section 25 & 26 of the Evidence Act.
h. Hon'ble Supreme Court of India in case titled as State of Lokayukhta Police, Davangere Vs. C.B. Nagaraj reported in 2025 SCC OnLine SC 1175, has held that:
"26. Moreover, the testimony of the Complainant, as discussed supra, does not inspire confidence, inasmuch as, for reasons best known to him alone, he completely denied the visit of the Respondent for spot inspection, that too, just two days prior to the date of the trap and immediately State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 89 of 124 changed such stance by accepting such visit and admitting the spot report as also identifying his own, his father's and the witness's signatures. In the considered opinion of this Court, such conduct is sufficient to render his testimony unreliable."
i. Hon'ble Supreme Court of India in SLP (Crl.) No. 14087/2025 titled as Anwar Hussain Vs. State of Madhya Pradesh, has held that:
"2. Carrying forward from where this Court left last time, we find that the issue of stock witnesses and the casual manner in which the witnesses are shown initially in the FIR, as also later made chargesheet witnesses has raised serious issues of concern. The reason is that the witnesses are basically included in the FIR and the chargesheet by way of a formality and in majority of cases, the witnesses resile from supporting the prosecution case for the reason that they may actually not have been at the spot and have been shown as a witness to complete a formality and/or under duress.
3. Be that as it may, we are not going into the said aspect. However, to ensure that there is confidence at the very time when the FIR is instituted and also in the investigation process and most importantly during trial, in the considered opinion of the Court, a standard procedure has to be laid down with regard to how witnesses are introduced, either in the FIR, or ultimately reflected in the chargesheet, more so, to ensure that they are authentic and genuine witnesses to the incident, as may be alleged. Some suggestions have come from the DGP, Madhya Pradesh as has been pointed out by the learned ASG on the previous occasion. However, to make the exercise reliable and fruitful, as basically the same law is applied all over India, this Court would like the exercise to be more spread-out so as to include the suggestions/opinions from the States and Union Territories of India, including the Union Government."
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 90 of 124 j. Hon'ble Supreme Court of India in case titled as Sharif Ahmed & Ors. Vs. State of Uttar Pradesh & Ors. reported in (2024) 14 Supreme Court Cases 122, has held that:
"25. In support of our reasoning, we would refer to the very next paragraph in the judgment of Shetty, J. in K. Veeraswami (Supra) which reads as under:
"76. The charge-sheet is nothing but a final report of police officer under Section 173(2) of the CrPC. The Section 173(2) provides that on completion of the investigation the police officer investigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government and stating therein (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom (e) whether the accused has been arrested;
(f) whether he had been released on his bond and, if so, whether with or without sureties; and (g) whether he has been forwarded in custody under Section 170.
As observed by this Court in Satya Narain Musadi V. State of Bihar that the statutory requirement of the report under Section 173 (2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the magistrate that upon investigation into a cognizable offence the Investigating Officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. In fact, the report under Section 173 (2) purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the court. The report is State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 91 of 124 complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5). Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case by adducing acceptable evidence.
This paragraph examines the contents of the chargesheet and on elaboration of the same holds that it is in accordance with the terms of Section 173(2) of the Code as well as the provisions of the penal enactment. In furtherance of this, reference is made to Satya Narain Musadi and Others v. State of Bihar20, in stating that the chargesheet should comply with the statutory requirements, and the various details prescribed therein should be included in the report.
xxxxxxxxxx
31. Therefore, the investigating officer must make clear and complete entries of all columns in the chargesheet so that the court can clearly understand which crime has been committed by which accused and what is the material evidence available on the file. Statements under Section 161 of the Code and related documents have to be enclosed with the list of witnesses. The role played by the accused in the crime should be separately and clearly mentioned in the chargesheet, for each of the accused persons."
k. Hon'ble Supreme Court of India in case titled as People's Union of Civil Liberties (PUCL) Vs. Union of India (UOI) & Ors. reported in AIR 1997 SC 568, has held that:
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 92 of 124 "28. Section 5(2) of the Act permits the interception of messages in accordance with the provisions of the said Section. "Occurrence of any public emergency" or "in the interest of public safety" are the sine qua non. for the application of the provisions of Section 5(2) of the Apt.
Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said Section. Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression "public safety" means the state or condition of freedom from danger or risk for the people at large. When either of these two conditions are not in existence, the Central Government or a State Government or the authorised officer cannot resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of sovereignty and integrity of India etc. In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or public order or for preventing incitement to the commission of an offence, it cannot intercept the messages or resort to telephone tapping unless a public emergency has occurred or the interest of public safety or the existence of the interest of public safety requires. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.
29. The first step under Section 5(2) of the Act, therefore, is the occurrence of any public emergency of the existence of a public-safety interest. Thereafter the competent authority under Section 5(2) of the Act is empowered to pass an order of interception after recording its satisfaction that it is necessary or expedient so to do in the interest of (i) sovereignty and integrity of India, (ii) the State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 93 of 124 security of the State, (iii) friendly relations with foreign States, (iv) public order or (v) for preventing incitement to the commission of an offence. When any of the five situations mentioned above to the satisfaction of the competent authority require then the said authority may pass the order for interception of messages by recording reasons in writing for doing so.
30. The above analysis of Section 5(2) of the Act shows that so far the power to intercept messages/conversations is concerned the Section clearly lays-down the situations/conditions under which it can be exercised. But the substantive law as laid down in Section 5(2) of the Act must have procedural backing so that the exercise of power is fair and reasonable. The said procedure itself must be just, fair and reasonable. It has been settled by this Court in Maneka Gandhi Vs. Union of India, that "procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself". Thus, understood, "procedure" must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalised only by civilised processes".
l. Hon'ble Supreme Court of India in case titled as Hukam Chand Shyam Lal Vs. Union of India & Ors. reported in AIR 1976 SC 789, has held that:
"Section 5(1), if properly construed, does not confer unguided and unbridled power on the Central Government/State Government/Specially Authorised Officer to take possession of any telegraph. Firstly, the occurrence of a 'public emergency' is the sine qua non for the exercise of power under this section. As a preliminary step to the exercise of further jurisdiction under this section the Government or the authority concerned must State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 94 of 124 record its satisfaction as to the existence of such an emergency. Further, the existence of the emergency which is a pre-requisite for the exercise of power under this section, must be a 'public emergency' and not any other kind of emergency. The expression 'public emergency' has not been defined in the statute, but contours broadly delineating its scope and features are discernible from the section which has to read as a whole. In sub- section (1) the phrase 'occurrence of any public emergency' is connected with and is immediately followed by the phrase "or in the interests of the public safety". These two phrases appear to take colour from each other. In the first part of sub-s. (2) these two phrases again occur in association with each other, and the context further clarifies, with amplification, that a 'public emergency' within the contemplation of this section is one which raises problems concerning the interest of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or the prevention of incitement to the commission of an offence. It is in the context of these matters that the appropriate authority has to form an opinion with regard to the occurrence of a 'public emergency' with a view to taking further action under this section. Economic emergency is not one of those matters expressly mentioned in the statute. Mere 'economic emergency'-as the High Court calls it-may not necessarily amount to a 'public emergency' and justify action under this section unless it raises problems relating to the matters indicated in the section.
m. Hon'ble High Court of Madras in case titled as P. Kishore Vs. Secretary of Govt. of India & Ors. reported in 2025 SCC OnLine Mad 3053, has held that:
"40. From a reading of the decisions of the Hon'ble Apex Court in Hukam Chand Shyam Lal and People's Union for State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 95 of 124 Civil Liberties, it is clear that to invoke Section 5(2) of the Act, the following conditions must be cumulatively satisfied:
• The first step under Section 5(2) is the occurrence of a public emergency or where interest of public safety so demands. Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression "public safety" means the state or condition of freedom from danger or risk for the people at large. Neither the occurrence of public emergency nor the interest of public safety is a secretive condition or situation. Either of the situations would be apparent to a reasonable person.
• It is only when the above two situations exist that the Authority may then pass an order directing interception of messages after recording its satisfaction that it is necessary or expedient so to do in the interest of (i) the sovereignty and integrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, (iv) public order or
(v) for preventing incitement to the commission of an offence.
• In other words, unless and until there is a public emergency or it is necessary in the interests of public safety, the Central Government or a State Government or the Authorised Officer cannot resort to telephone- tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of sovereignty and integrity of India etc.
41. xxxxxx
42. A reading of the impugned order shows that the Secretary to Government has mechanically repeated the wordings of Section 5(2) of the Act without adverting to any factual basis. When an Authority is required to set out its satisfaction while passing an order, the order must disclose that there has been application of mind to the State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 96 of 124 facts of the case. This is all the more important since the order passed under Section 5(2) of the Act by the Secretary is subject to a review under Rule 419-A(17) of the Rules before the Review Committee.
43. There appears to be no serious application of mind by the first respondent since the order recites that it is passed for "reasons of public safety", which the Court is required to presume is "in the interests of public safety" as provided under Section 5 (2) of the Act. But, the invocation of this ground in this case is clearly unsustainable since the Hon'ble Supreme Court in the case of People's Union for Civil Liberties clearly held as follows:
"The expression "public safety" means the state or condition of freedom from danger or risk for the people at large. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to a reasonable person."
44. Admittedly, the entire operation in this case involves covert surveillance of the mobile phone of the petitioner and consequent interception of conversations between the accused persons. This was clearly a covert operation. The term 'interests of public safety' as explained in the decision of the Hon'ble Supreme Court in People's Union for Civil Liberties contemplates a situation, which is not secretive and is apparent to a reasonable person. By no stretch of imagination, can the facts of this case be characterised to meet the aforesaid requirements so as to bring it within the rubric of 'interests of public safety' as explained by the Supreme Court.
xxxxxx
47. He would further submit that the terms 'public emergency' and 'public safety' have been interpreted by the Hon'ble Supreme Court to mean problems concerning State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 97 of 124 the interests of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States or public Order or for preventing the incitement to the commission of an offence and hence, the allegation questioning the validity of the order passed by the first respondent is irrational.
xxxxxxxx
57. The aforesaid Press Note is self-explanatory and correctly sums up the Government's own understanding of the position of law laid down in the decision of the Hon'ble Supreme Court in People's Union for Civil Liberties, which states that no phone tapping can be authorized in the absence of a public emergency or in the interests of public safety even though there is satisfaction that it is necessary or expedient to do so in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with sovereign States, public order or for preventing incitement to the commission of an offence. It has also understood the legal position that neither of the above conditions viz., 'public emergency' or in the 'interests of public safety' is a secretive condition or situation. Though a press note is not a legal instrument, it is well settled that such documents reflect the understanding of the legal provisions by the Executive.
xxxxxxxx
67. In view of the above discussions and having regard to the meaning ascribed to the expressions 'public emergency' and 'interests of public safety' in paragraph 28 of the decision of the Hon'ble Supreme Court in People's Union for Civil Liberties as affirmed by the Constitution Bench of the Hon'ble Supreme Court in K.S.Puttaswamy (Aadhaar-5J) Vs. Union of India [reported in 2019 (1) SCC 1], it is clear that in the facts on hand, the impugned order does not pass muster under any of the two condition precedents i.e., 'public emergency' and 'interests of public safety' required for exercise of State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 98 of 124 jurisdiction under Section 5(2) of the Act. Consequently, the impugned order is, on the face of it, without jurisdiction and is liable to be quashed on this short ground.
xxxxxxxx
87. Mr.AR.L.Sundaresan, learned Additional Solicitor General of India appearing on behalf of the respondents would submit that even assuming that the order under Section 5 (2) of the Act was without jurisdiction, the evidence so collected is admissible since it is a well settled proposition of law that even illegally collected evidence is admissible provided it is relevant. He placed strong reliance on the decision of the Hon'ble Supreme Court in R.M.Malkani.
97. The result of the above discussions can be summed up as follows:
"i. The right to privacy is now an integral part of the right to life and personal liberty guaranteed under Article 21 of The Constitution of India.
ii. Telephone tapping constitutes a violation of the right to privacy unless justified by a procedure established by law. Section of the Act authorizes interception of telephones on the occurrence of a public emergency or in the interests of public safety. Both these contingencies are not secretive conditions or situations. Either of the situations would be apparent to a reasonable person. As laid down in paragraph 28 of the decision of the Hon'ble Apex Court in People's Union for Civil Liberties, it is only when the above two situations exist that the Authority may pass an order directing interception of messages after recording its satisfaction that it is necessary or expedient so to do in the interest of (1) the sovereignty and integrity of India, (2) the security of the State, (3) friendly relations with foreign States, (4) public order or (5) for preventing incitement to the commission of an offence.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 99 of 124 iii. In the instant case, the impugned order dated 12.8.2011 does not fall either within the rubric of "public emergency" or "in the interests of public safety" as explained by the Hon'ble Supreme Court in the case of People's Union for Civil Liberties.
The facts disclose that it was a covert operation/secretive situation for detection of crime, which would not be apparent to any reasonable person. As the law presently stands, a situation of this nature does not fallwithin the four corners of Section 5(2) of the Act as expounded by the Hon'ble Supreme Court in the case of People's Union for Civil Liberties, which has been approved by the Constitution Bench of the Hon'ble Supreme Court in K.S.Puttaswamy (Aadhaar-5J) Vs. Union of India [reported in 2019 (1) SCC 1].
iv. The respondents have also contravened Rule 419-A(17) of the Rules by failing to place the intercepted material before the Review Committee within the stipulated time to examine as to whether the interception was made in compliance with Section 5(2) of the Act.
v. As a consequence of (iii) and (iv) above, the impugned order dated 12.8.2011 must necessarily be set aside as unconstitutional and one without jurisdiction. Besides violating Article 21, it is also ultravires Section 5(2) of the Act besides being in violation of the mandatory provisions of Rule 419-A of the Rules.
vi. It follows that the intercepted
conversations collected pursuant to the
impugned order dated 12.8.2011 in violation of Section 5(2) of the Act and Rule 419-A(17) of the Rules shall not be used for any purposes whatsoever.
vii. It is, however, made clear that the above direction shall have no bearing on the other material that have been collected by the CBI subsequent to and independent of the intercepted call records, which shall be considered by the State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 100 of 124 Trial Court on its own merits without being influenced by any of the observations made in this order."
n. Hon'ble High Court of Gujrat at Ahmedabad in case titled as Akhil Dineshbhai Parmar & Ors. Vs. State of Gujrat & Ors , reported in 2017: GUJHC:4886 , has held that:
"49. I am not impressed by the submission canvassed on behalf of the applicants that nothing "secret" was recovered from the possession of the applicants so as to meet the requirements of section 3(1)(c) of the Act is concerned. The qualifying word "secret" in section 3(1)(c) has been used only with respect to the official code or password and, therefore, other documents or information need not be secret for establishing the offence under section 3(1)(c) of the Act."
o. Hon'ble High Court of Bombay in case titled as State of Maharashtra Vs. B. K. Subbarao & Ors. , reported in 1993 CriLJ 2984, has held that:
"16. For purposes of appreciating the validity or otherwise of the submissions that have been raised in the course of the arguments before me, it is equally essential for me to advert to certain provisions of the two statutes under which the present prosecution has charged the Accused. The first of these is the Official Secrets Act, 1923. This is an Act that was placed on the statute book for purposes of dealing with cases relating to official secrets. A perusal of the provisions of the Act will indicate that it is essentially concerned with security of the country and for this purpose, therefore, lays down stringent provisions in relation to all matters that come within the compass of the definition of the Official Secrets Act. Tha the Act also takes into account the possession of documents or material that may be associated with matters of defence or other State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 101 of 124 secrets of the State is self-evident and the Act also makes a very clear mention of the fact that if a person obtains such material for a purpose prejudicial to safety or interest of the State, or if a person discloses such material to persons or agents in such manner as the safety, interest or security of the State may be prejudiced, the law will deal with him very stringently as provided for in this Act. A general reference to the scheme of the Act has been adverted to by me for the reason that the gravamen of the charge against the Accused in this proceeding relates to his having allegedly obtained and allegedly having been found in possession of material that could and would conform to the definition of official secrets. This alone is insufficient for a charge under the Official Secrets Act because the law requires that such acts must necessarily be accompanied by attempts at disclosing or disseminating such material to unauthorised persons who, in the Act, have been referred to as "foreign agents". In short, it is very essential for the safety and security of any country that stringent provision be made in respect of any act or attempt that may endanger the safety or interest of the country. What follows, therefore, is that the basic ingredients for any charge under the Official Secrets Act is that the investigation must disclose from very cogent fact placed before the Court that the purpose for which the secret material was obtained or retained or carried or disposed of was directed or prompted by an objective that was prejudicial to the safety and interest of the State. In addition, where the charge is that such material was intended to be misused, this last aspect has to be borne out from material elicited in the course of investigation. Even in a criminal proceeding of the present type where the consequences to a person charged under the Official Secrets Act are extremely grave, it is condition precedent that a scrutiny of the totallity of the material placed before the Court must justify all the aforesaid ingredients.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 102 of 124 Arguments addressed on behalf of accused Abdul Rashid (A-2)
37. Ld. Counsel for accused Abdul Rashid submitted that the alleged transcript of the conversation allegedly intercepted by unknown officials and dictated by PW-1 and typed by PW-3 and in the absence of the original intercepted audio files forensic report of the original media and certificate under Section 65B with respect to the recording equipment, the said transcript is inadmissible; that the recovery of alleged CD from the house of co-accused Kafait Ullah Khan is highly doubtful rather unreliable as per the theory of prosecution stating that the accused persons used to record their conversation;
37.1 To substantiate his arguments, Ld. Counsel for accused Abdul Rashid has placed reliance upon following judgments.
a. Hon'ble Supreme Court of India in case titled as Yusufalli Esmail Nagree Vs. State of Maharashtra reported in 1967 SCC OnLIne SC 87, has held that :
"5. Shaikh was the only eye-witness to the offer of the bribe on August 2, 1960. Mahajan the radio mechanic and other per- sons who kept themselves concealed in the inner room of Shaikh's residence did not witness the offer of the bribe, nor did they hear the conversation between Shaikh and the appellant. The High Court was not inclined to accept the evidence of Shaikh without corroboration. But the High Court found that his evidence was sufficiently corroborated by the tape recorder. The appellant handed over Rs 100 to Shaikh on August 2, 1960. The contemporaneous dialogue between them formed part of the res gestae and is relevant and admissible under S. 8 of the Indian Evidence Act. The dialogue is proved by Shaikh. The tape record of the dialogue corroborates his testimony. The process of. tape, State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 103 of 124 recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant.incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under S. 7 of the Indian Evidence Act.
6. The Rup Chand V. Mahavir Parshad and Another [A.I.R. 1956 Punj. 173], a tape record of a former statement of a witness was admitted in evidence to shake the credit of the witness under S. 155(3) of the Indian Evidence Act. The case was followed in Manindra Nath V. Biswanath Kundu [67 C.W.N. 191.]. In S. Pratap Singh Vs. The State of Punjab [1996 ILLJ 458 SC), the tape record of a conversation was admitted in evidence, to corroborate the evidence of witnesses who had stated that such a conversation had taken place. In R. v. Maqsud Ali(4) a tape record of a conversation was admitted in evidence, though the only witness who overheard it was not conversant with the language and could not make out what was said. If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. One. of the features of magnetic tape recording is the ability to erase and re-use the recording medium. 'Because of this facility of erasure and re-use, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with.
7. The radio mechanic did not hear the conversation but he proved that the tape recorded all the sounds produced in the room where only Shaikh and the appellant were present. The voices of the appellant and Shaikh were properly identified. The tape was not sealed and was kept in the custody of Mahajan. The absence ,of sealing naturally gives rise to the argument that the recording medium might have been tampered with before it was replayed. However, it was not suggested either in the cross State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 104 of 124 examination of the prosecution witnesses or in the answers under s. 342 Criminal Procedure Code, that any tampering had taken place with the Recording. While admitting the accuracy of material parts of the conversation reproduced by the tape recorder, the appellant in his examination under s. 342 attempted to explain the conversation and the object of his visit and- said that-tie had gone to Shaikh's 'residence for obtaining repayment of a loan of Rs. 100 which he had advanced to Shaikh on July 19, 1960. The High Court rejected the appellant's explanations. Mr. Mistry was right in saying that the High Court could-not accept the inculpatory ,part and reject the exculpatory part of the appellant's answers under S. 342. But there was other evidence showing that the tape recording 'was not tampered with. The fact that the defence did not suggest any tampering lends assurance to the credibility of the other evidence. The courts below rightly held that the tape recorder faithfully recorded and reproduced the actual conversation."
b. Hon'ble Supreme Court of India in case titled R. M. Malkani Vs. State of Maharashtra reported in (1973) 1 SCC 471, has held that:
"15. Four questions were canvassed in this appeal. The first contention was that the trial Court and the High Court errect in admitting the evidence of the telephonic conversation between Dr. Motwani and the appellant which was recorded on the tape. The evidence was illegally obtained in contravention of Section 25 of the Indian Telegraph Act and therefore the evidence was inadmissible. Secondly, the conversation between Dr. Motwani and the appellant which was recorded on the tape took place during investigation inasmuch as Mugwe asked Dr. Motwani to talk and therefore the conversation was not admissible under section 162 of the Code of Criminal Procedure. The third contention was that the State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 105 of 124 appellant did not attempt to obtain gratification. Fourthly. it was said that the sentence of six months imprisonment Should be interfered with because the appellant has already paid Rs. 10,000 as fine. The appellant suffered heart attacks and therefore the sentence should be modified.
16. The trial Court as well as the High Court found that the evidence of Dr. Motwani and Dr. Adatia needed corroboration. The High Court found that the conversation recorded on the tape corroborated their evidence. The evidence of Dr. Motwani is that on 7 October, 1964 Mugwe accompanied by Sawant and members of the Police staff went to the residence of Dr. Motwani. Mugwe directed Sawant to record Dr. Motwani's statement. Mugwe had instructed his staff to bring a tape recording machine. After the statement of Dr. Motwani Mugwe connected the tape recording machine to Dr. Motwani's phone and asked Dr. Motwani to talk to any one he liked in order to test whether the tape recording machine was in order. Motwani was then asked to talk to the appellant. Motwani talked with the appellant. That conversation was recorded on the tape. This tape recorded conversation is challenged by counsel for the appellant to be inadmissible because it infringes Articles 20(3) and 21 of the Constitution and is an offence tinder section 25 of the Indian Telegraph Act."
c. Hon'ble Supreme Court of India in case titled as Ram Singh & Ors. Vs. Ram Singh reported in 1985Supp SCC 611, has held that :
31. Thus, so far as this Court is concerned the conditions for admissibility of a tape recorded statement may be stated as follows:
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 106 of 124 for the admissibility of such a statement is to identify the voice of the speaker.Where the voice has been denied by the maker it will require very strick proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of con text and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
32. The view taken by this Court on the question of admissibility of tape recorded evidence finds full support from both English and American authorities. In R. v. Maqsud Ali, [1965] All. E.R. 464., Marshall, J., observed thus:-
"We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 107 of 124 question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.
xxxxx It Would thus appear that the two witnesses for the respondent, who were government servants and therefore official witnesses, clearly and categorically d denied having made any such statement in The cassette. P.W.. 7 HIMSELF has very fairly and frankly stated that he was not in a Position to identify the voices either of the respondent or of the witnesses for the respondent (R.Ws. 1 and 3) at the time of giving his evidence. This, therefore, throws a considerable doubt on the truth of the statement made by these witnesses in the cassette recorder. The law which has been analysed and examined by us is very clear that identification of the voices is very essential. In this view of the matter, the tape recorded statements lose their authenticity apart from other infirmities which we shall give later while appreciating the evidence of the respondent in this court."
Arguments addressed on behalf of accused Manawar Ahmed Mir (A-3)
38. Ld. Counsel for accused Manawar Ahmed Mir adopted the arguments addressed on behalf of other accused persons and further argued that the entire case is founded upon illegally intercepted conversations and fabricated transcripts. It was argued that no independent public witness was joined at any stage despite availability. Serious discrepancies were pointed out regarding recovery proceedings, preparation of transcripts, handling of CDs and electronic evidence. It was further argued that no material has been produced to show actual transmission of any classified information to any enemy agent or that the alleged documents were secret in nature within State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 108 of 124 the meaning of the Official Secrets Act. It was also argued that the prosecution failed to prove the chain of custody and authenticity of electronic evidence in accordance with law.
Arguments addressed on behalf of accused Fareed Ahmad (A-5)
39. Ld. Counsel for accused Fareed Ahmad also argued that accused has been falsely implicated in the present matter as there is neither direct nor circumstantial evidence has been brought on record by the prosecution to connect him with the alleged offence; that nothing was recovered from the possession of the accused Fareed Ahmad; that accused Fareed Ahmad was not in contact with co-accused persons or documents seized; that the alleged CD recovered from the house of accused Kafait Ullah Khan is doubtful in the absence of any independent witness; that the alleged interception was illegal and done as per the mandates of law; that prosecution failed to bring on record any iota of evidence to connect accused Fareed Ahmad with the alleged Pakistani agent Faisal; that even prosecution failed to bring on record of procuring and sending of information to alleged agent Faisal; that only one document indicated to be as 'Classified Document', however prosecution failed to bring on record that the documents seized falls under the definition of spying and placed reliance upon Section 3 of Official Secrets Act; that as per the case of the prosecution, accused Fareed Ahmad gave account number of Joginder Singh to accused Kafait Ullah Khan, who deposited Rs.10,000/- in the said account, however, no evidence of any transaction as relevant to his case has been brought on record.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 109 of 124 39.1 To substantiate his arguments, Ld. Counsel for accused Fareed Ahmad has placed reliance upon following judgments :
a. Hon'ble High Court of Delhi in case titled as Nishant Vs. Anti Terrorist Sqad, through I.O. & Anr. reported in 2025 SCC OnLine Bom 4836, has held that :
"116. As far as section 3(1) of Act of 1923 is concerned, as observed, under Section 3(2) of the said Act, there is a presumption that if a person, without lawful authority, makes, obtains, collects, records, publishes or communicates any secret or prohibited defence-related material, it is deemed to have been done with a purpose prejudicial to the safety or interests of the State. However, for this presumption to arise, the prosecution must first establish the circumstances of the case, the conduct of the accused, or his known character; once these are proved, it is not necessary to show that the accused committed any specific act demonstrating a prejudicial purpose. "
b. Hon'ble Supreme Court in case titled as Koppula Venkat Rao Vs. State of A.P. reported in (2004) 3 Supreme Court Cases 602, has held that :
"8. The plea relating to applicability of Section 376 read with Section 511 IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the Act, Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 110 of 124 and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.
9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence, if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word "attempt" is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it, and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 111 of 124 c. Hon'ble Supreme Court of India in case titled as State of Maharashtra Vs. Mohd. Yakub & Ors. reported in AIR 1980 SC 1111, has held that :
"13. Well then, what is an "attempt" ? Kenny in his 'Outlines of Criminal Law' defined "attempt" to commit a crime as the "last proximate act which a person does towards the commission of an offence, the consummation of the offence being hindered by circumstances beyond his control."
This definition is too narrow. What constitutes an "attempt" is a mixed question of law and fact, depending largely on the circumstances of the particular case. "Attempt" defies a precise and exact definition. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be 'criminal' need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. As pointed out in Abhayanand Mishra Vs. State of Bihar [1961 CriLJ 822] there is a distinction between 'preparation' and 'attempt'. Attempt begins where preparation ends. In sum, a person commits the offence of 'attempt to commit a particular offence' when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.."
d. Hon'ble Supreme Court of India in case titled as State of Madhya Pradesh Vs. Mukesh & Ors. reported in 2006 (10) SCALE 346, has held that:
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 112 of 124 "9. The term 'abetment' has not been defined in the Railways Act. What would constitute abetment is contained in Section 107 of the Indian Penal Code, which reads, thus:
'107. Abetment of a thing - A person abets the doing of a thing, who First.- Instigates any person to do that thing; or Secondly. Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission lakes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.-- Intentionally aids, by any act or illegal omission, the doing of that thing.'
10. A person, it is trite, abets by aiding, when by any act done either prior to, or at the time of, the commission of an act, he intends to facilitate and does in fact facilitate, the commission thereof would attract the third clause of Section 107 of the Indian Penal Code. Doing something for the offender is not abetment. Doing something with knowledge so as to facilitate him to commit the crime or otherwise would constitute abetment. ` Admittedly, the first and second part of the said provision has no application. No illegal omission on the part of Respondents has been established.
Admittedly in issuing the tickets, Respondents have not violated any rules. Ex facie, they have also not violated any direction contained in any circular issued by an appropriate authority in that behalf.
The entire prosecution is based on the purported confession of Suresh Shah. A statement of an accused would be admissible against a co-accused only in terms of Section 30of the Indian Evidence Act. Such a statement of co- accused was required to be corroborated by adduction of independent evidence. The prosecution has not adduced any independent evidence to show that Respondents had intentionally aided the said Suresh Shah and thereby abetted him in commission of an offence under Section 143(1) of the Indian Railways Act.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 113 of 124 Analysis and Findings
40. The Court has heard the arguments advanced by the learned Public Prosecutor for the State as well as the learned counsels appearing on behalf of all the accused persons. The Court has also carefully perused the entire material available on record, including the testimonies of prosecution witnesses, documentary evidence, electronic evidence, forensic reports and the statements of accused persons recorded under Section 313 Cr.P.C. as well as written submissions filed.
41. At the outset, it is pertinent to note that the gravamen of the allegations against the accused persons pertains to offences punishable under Sections 3 and 9 of the Official Secrets Act, 1923. Section 3 of the Act criminalizes obtaining, collecting, recording, publishing or communicating any secret official code, password, sketch, plan, model, article, note, document or information which may be directly or indirectly useful to an enemy or prejudicial to the safety or interests of the State, whereas Section 9 deals with attempts, abetment and acts facilitating the commission of offences under the Act.
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 State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 114 of 124
(c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, 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 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 State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 115 of 124 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, 3[information, code or pass word shall be presumed to have been made], obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State.
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.
42. The prosecution case, in essence, is founded upon the following circumstances:
(i) interception of telephonic conversations of accused persons pursuant to secret information regarding anti-national activities;
(ii) recovery of allegedly sensitive and classified Army related documents from accused Kafait Ullah and accused Abdul Rashid;
(iii) recovery of a Compact Disc allegedly containing incriminating conversations amongst accused persons;
(iv) WhatsApp conversations allegedly retrieved from the mobile phone of accused Abdul Rashid;
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 116 of 124
(v) Call Detail Records reflecting inter se connectivity amongst accused persons and alleged Pakistan based Intelligence Operatives;
(vi) alleged monetary transactions in the accounts of accused persons; and
(vii) forensic examination of electronic devices and voice samples.
43. The settled principle of criminal jurisprudence is that the prosecution is required to establish its case beyond reasonable doubt and the burden never shifts upon the accused. Suspicion, however grave, cannot substitute legal proof. More particularly, in cases involving allegations under the Official Secrets Act carrying serious ramifications upon personal liberty and national security, the evidence brought on record must inspire confidence and satisfy the strict standards of admissibility and reliability.
44. The first circumstance relied upon by the prosecution is the interception of telephonic conversations. PW-2 Inspector P.C. Yadav deposed that on the basis of secret information, interception of certain mobile numbers was undertaken after obtaining permission from competent authorities. However, during cross-examination, the witness admitted that interception had commenced even prior to the formal order dated 17.09.2015 and according to him, earlier authorization had allegedly been granted under Section 5(2) of the Indian Telegraph Act for seven days. Significantly, neither the original interception orders nor the foundational satisfaction note authorizing such interception have been duly proved in accordance with law. The prosecution has also failed to place on record the State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 117 of 124 complete chain demonstrating compliance with mandatory procedural safeguards governing interception of telephonic communications.
45. The evidence of PW-1 and PW-3 further reveals that neither of them had themselves intercepted the calls. PW-1 merely stated that he used to hear conversations in the interception room and orally brief PW-2 from time to time. PW-3 admittedly only typed transcripts at the dictation of PW-1. Neither witness possessed any technical expertise in voice identification or forensic transcription. The intercepted conversations themselves were never produced before the Court in their original form. What has been brought on record are merely typed transcripts prepared internally by police officials. The evidentiary value of such transcripts, in absence of proper certification and foundational electronic record, becomes highly doubtful.
46. The Hon'ble Supreme Court of India in Anvar P.V. v. P.K. Basheer reported in (2014) 10 SCC 473 and thereafter in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal reported in (2020) 7 SCC 1 has categorically held that electronic evidence is admissible only upon strict compliance with Section 65B of the Indian Evidence Act. In the present matter, the prosecution has failed to establish the foundational requirements regarding the intercepted conversations. No original recording device, server extraction process, mirror image, hash value or proper Section 65B certification pertaining to the intercepted audio recordings has been proved.
47. The prosecution has next relied upon recovery of documents allegedly containing sensitive military information from accused Kafait State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 118 of 124 Ullah and Abdul Rashid. The alleged recovery from accused Kafait Ullah at New Delhi Railway Station is stated to have been affected in the presence of police officials alone. Though the railway coach admittedly contained several passengers, no independent public witness was joined. Similar is the position with respect to the alleged recoveries from the houses of accused Kafait Ullah and Abdul Rashid at Rajouri. Both PW-1 and PW-3 admitted that neighbours were requested to join proceedings but none agreed and no notice was served upon such persons. While non- joining of public witnesses may not by itself be fatal, in a case of such grave nature where recoveries form the backbone of prosecution case, absence of any independent corroboration assumes significance.
48. More importantly, the prosecution was under an obligation to conclusively establish that the recovered documents were in fact "secret", "classified" or of such nature as could be useful to the enemy or prejudicial to the safety and interests of the State. For this purpose, reliance has been placed upon testimony of PW-5 Lt. Col. Vivek Sheel and the opinion Ex. PW5/B.
49. However, PW-5 candidly admitted during cross-examination that he had not himself examined the documents nor rendered any opinion. He merely forwarded the comments allegedly received from another officer namely Lt. Col. Rohit Sambyal. PW-5 further expressed inability even to explain the meaning of the expression "classified". Such testimony substantially weakens the prosecution case regarding the sensitive nature of documents.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 119 of 124
50. It is also noteworthy that the opinion itself, insofar as documents recovered from Abdul Rashid are concerned, specifically states that such documents were "not classified in nature". The prosecution has therefore failed to conclusively establish that the documents allegedly recovered were secret official records within the meaning and ambit of Section 3 of the Official Secrets Act.
51. Another vital circumstance relied upon by the prosecution is the alleged recovery of a Compact Disc from the residence of accused Kafait Ullah. According to prosecution witnesses, the said CD contained incriminating conversations amongst accused persons. However, the manner in which the CD was recovered, copied, sealed, preserved and sent to FSL creates substantial doubt regarding its sanctity and integrity.
52. PW-1 admitted that the original CD did not contain any date, time or phone number. He further admitted that the IO had supplied him only a copied CD for preparation of transcripts and that he had never personally heard the original CD. He also admitted that the deceased IO did not understand Dongri language, which was allegedly used in the conversations.
53 The prosecution has also failed to establish an unbroken chain of custody of the CD. Though the CD was allegedly recovered on 28.11.2015, it was sent to FSL only on 15.02.2016. No satisfactory explanation for such delay has emerged on record. The defence suggestion that the CD may have been prepared subsequently after obtaining voice samples therefore cannot be brushed aside lightly.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 120 of 124
54. The voice identification process also suffers from serious infirmities. PW-1 admitted that identification of voices was based largely on the fact that speakers allegedly addressed each other by names during conversation. No expert witness has conclusively identified the voices of accused persons in the CD. Though voice samples were taken, the prosecution has failed to place on record any categorical forensic opinion conclusively matching the questioned voices with specimen voices of accused persons.
55. The prosecution has further relied upon WhatsApp messages allegedly found in the mobile phone of accused Abdul Rashid. However, no proper extraction certificate, mirror imaging report or independent forensic validation has been proved. The witness who allegedly saw the messages merely reduced them into writing. Such manually reproduced electronic conversations, unsupported by statutory certification and technical proof, cannot be accorded conclusive evidentiary value.
56. The Call Detail Records produced by prosecution merely establish that certain mobile numbers were in contact with each other. Mere telephonic connectivity between accused persons, absent proof regarding contents of conversations or unlawful intent, cannot by itself establish commission of offences under the Official Secrets Act. Human interactions and communications, without more, cannot constitute incriminating evidence.
57. Similarly, the alleged bank deposits relied upon by prosecution are relatively small amounts and no cogent evidence has been produced to establish that the said amounts were proceeds received for espionage State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 121 of 124 activities. No witness from concerned banks or remitting entities has linked such deposits with any Pakistan based Intelligence Operative. The prosecution has also failed to establish the source of such deposits beyond reasonable doubt.
58. The disclosure statements allegedly made by accused persons while in police custody are inadmissible except to the limited extent permissible under Section 27 of the Indian Evidence Act. No substantial recovery directly attributable to such disclosure statements has been proved in a manner free from doubt. Confessional portions of disclosure statements cannot be read in evidence.
59. It is equally important to note that much of the investigation was conducted by deceased IO Inspector Sanjeev Kumar, whose signatures and handwriting have been identified by PW-3. However, PW-3 admittedly was not a handwriting expert. Several crucial steps in investigation therefore remain unsupported by direct testimony of the investigating officer himself.
60. Upon cumulative appreciation of the entire evidence, this Court is of the considered view that the prosecution has succeeded in creating suspicion regarding the conduct and associations of accused persons, however, suspicion howsoever strong cannot take the place of proof. The evidence led by the prosecution suffers from material infirmities relating to admissibility of electronic evidence, authenticity of transcripts, proof regarding classified nature of documents, chain of custody of electronic material, independent corroboration and forensic conclusiveness.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 122 of 124
61. The prosecution was required to establish beyond reasonable doubt that the accused persons had consciously collected, transmitted or communicated information prejudicial to the safety and interests of the State and useful to an enemy nation. The evidence brought on record falls short of the rigorous standard required in criminal law.
62 It is a settled principle of criminal jurisprudence that suspicion, however grave, cannot take the place of proof. The burden lies entirely upon the prosecution to establish its case beyond reasonable doubt.
63. In the present case, the prosecution has failed to establish:
(i) authenticity and admissibility of intercepted conversations and transcripts;
(ii) integrity and chain of custody of the alleged CD recordings;
(iii) that the recovered documents were "secret" or "classified"
within the meaning of the Official Secrets Act;
(iv) actual communication of protected information to enemy agents;
(v) reliable forensic linkage between accused persons and alleged recordings.
64. The cumulative effect of the aforesaid deficiencies creates substantial doubt regarding the prosecution version. Such doubt necessarily ensures to the benefit of the accused persons.
65. Accordingly, all accused persons namely (i) Kafait Ullah Khan, (ii) Abdul Rashid Khan, (iii) Manawer Ahmed Mir, (iv) Mohammad Saber, State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 123 of 124 and(v) Farid Ahmed @ Surgeon are acquitted of the charges punishable under Sections 3 and 9 of the Official Secrets Act, 1923 by giving them benefit of doubt.
66. Bail bonds and surety bonds of the accused persons are cancelled. However, they shall furnish fresh bonds under Section 437A Cr.P.C., if not already furnished.
67. Case property be dealt with as per rules after expiry of period of appeal/revision.
68. File be consigned to Record Room after due compliance.
SHEFALI Digitally signed by SHEFALI BARNALA BARNALA TANDON Date: 2026.05.20 TANDON 17:08:08 +0530 ANNOUNCED IN THE OPEN (SHEFALI BARNALA TANDON) COURT ON: 20.05.2026 ASJ-06, New Delhi District Patiala House Court, New Delhi It is certified that this Judgment contains 124 pages and each Digitally signed page bears my signatures. by SHEFALI SHEFALI BARNALA BARNALA TANDON TANDON Date:
2026.05.20 17:08:12 +0530 (SHEFALI BARNALA TANDON) ASJ-06, New Delhi District Patiala House Court, New Delhi State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime Branch Pages 124 of 124