Delhi District Court
State vs . Anil Kumar Dubey on 9 December, 2011
IN THE COURT OF SH. O.P. GUPTA DISTRICT JUDGE & ASJ I/C
(WEST), DELHI
SC No. 09/2007
Unique ID No. 02401R0002962007
State Vs. Anil Kumar Dubey
S/o Sh. Chander Shakher Dubey
R/o 1385, Near Holi Chowk
Mahipal Pur, Delhi
Village - Khem Raj Pur
PO - Shankar Pur, PS Chhawni
District Basti (U.P.)
FIR No. 79/06
PS Special Cell
U/S 3/9 Official Secrets Act
R/w Section 468/471/474/
120B IPC
Date of Institution : 18.12.2006
Date of Arguments : 30.11.2011
Date of Order : 08.12.2011
JUDGMENT
Before adverting to the merits of the case, it will be desirable to mention that as per decision of our own Hon'ble High Court in FD Lorkin vs. State 1985 Criminal Law Journal 377 cases under Official Secrets Act SC No.09/2007 Page 1 of 47 were triable by Court of Sessions. Vide notification dated 06.03.1998 powers to try cases under said Act were conferred upon CMM. Subsequently said notification was revoked vide another notification dated 21.06.2006. This is how this case is before this Court.
2. The accused has been sent to face trial for offence under Section 3/9 Official Secrets Act read with Section 468/471/474/120B, IPC on the averments that few days before 20.10.2006/the date of apprehension of the accused, there was information with SI Dharmender Kumar that one Anil Kumar Dubey posted with AGI Directorate, Delhi was involved in espionage activities. He was working on the direction of intelligence agency of Pakistan, he was collecting information regarding movement and deployment of Indian Army and transmitting secret information to Pakistan. He was transmitting sensitive and secret information regarding Indian Army to the enemy country which is directly or indirectly useful to foreign enemy country. Passing of such information was likely to affect sovereignty, integrity and security of India. On 20.10.2006 at 3:00 P.M., SI Dharmender Kumar received specific information that one Pakistan intelligence officer SC No.09/2007 Page 2 of 47 posted with Pakistan High Commission, New Delhi will come at House No. 1385 near Holi Chowk, Mahipal Pur, Delhi at about 7:00 PM to collect the secret documents pertaining to Indian Army from Anil Kumar Dubey. The said information was brought to the notice of senior officers who directed Inspector Rajender Singh to take immediate necessary action. The information was entered vide DD No. 10. A raiding party comprising of Inspector Rajender Singh, SI Dharmender Kumar, SI Deshraj, SI Dinesh Pal, HC Pawan Kumar and HC Naresh Kumar was constituted which made departure along with informer. On reaching Dhaula Kuan at about 4:00 PM, SI Dharmender Kumar and Inspector Rajender Singh requested 45 passerby to join the raiding party but none agreed due to their personal compelling reasons and left without disclosing their identity. The raiding party proceeded further and reached main road Mahipal Pur at about 4:30 PM and again requested 45 passerby to join but to no use. Keeping in view the secrecy and importance of operation as well as shortage of time, the raiding party proceeded further and reached near House No. 1385 (Supra). At about 7:00 PM the informer pointed out towards a tall well built person SC No.09/2007 Page 3 of 47 going towards enterance of House No. 1385 (Supra). Said man kept waiting for receipt of documents. After few minutes another person came down and after having exchange of few words, handed over a black rexin bag. Both the persons were apprehended and their names were disclosed as Anil Kumar Dubey and Mohd. Farooq. During search of black rexin bag possessed by Mohd. Farooq, 2 CDs and 4 photocopies of restricted documents were recovered. The same were sealed with the seal of DK and taken into possession. Seal after use was handed over to SI Dinesh Pal. In cursory search of Mohd. Farooq, one I.Card of Pakistan High Commission issued by MEA, one key of car, debit card of ABN Amro Bank and two driving licence in the name of Ramesh Yadav and Mohd. Farooq were recovered. Since, Mohd. Farooq was having diplomatic immunity, he was handed over to SI Deshraj and HC Naresh Kumar to be handed over to Pakistan High Commission through MEA, Govt. of India. The belongings of Mohd. Farooq were also handed over to SI Deshraj. Rukka was sent through HC Pawan Kumar for registration of case with request to mark investigation to SI Videsh Singhal as per directions of senior officers who reached the spot. SC No.09/2007 Page 4 of 47
3. During investigation, SI Videsh Singhal prepared site plan at the instance of SI Dharmender Kumar. He conducted house search of the accused. The accused was interrogated at the spot and arrested. Case property was deposited in the Mallkhana. The IO conducted search of office desk of the accused and some documents were taken into possession. Recovered driving licence was verified from concerned transport authorities. Driving licence in the name of Ramesh Yadav was found fake. Supplementary statement of the accused was recorded. The secret/sensitive documents were deposited with MI9, Sena Bhawan, New Delhi for expert opinion.
4. After completion of investigation challan was filed. Copies were supplied. The case was committed to the Court of Sessions.
5. A prima facie case for offence U/S 120B IPC and Section 3(1)(c) Official Secrets Act read with Section 120B IPC was found by Ld. predecessor of this Court. Separate charges were framed to which accused pleaded not guilty.
6. In order to substantiate its case the prosecution examined 28 SC No.09/2007 Page 5 of 47 witnesses.
7. PW1 SI Avdesh Oraon, Duty Officer proved copy of FIR as Ex.PW1/A and endorsement regarding registration of FIR as Ex.PW1/B.
8. PW2 Brijpal Singh, Motor Vehicle Inspector, IP Estate, New Delhi deposed that he informed the police that driving licence in the name of Mohd. Farooq was issued in lieu of Pakistan driving licence which was valid upto 06.04.2007, copy of same was proved as Ex.PX. The another driving licence in the name of Ramesh Yadav was not issued from the office of Transport Department, New Delhi copy of which was Ex.PY.
9. PW3 Sunita Devi is the landlady of the accused. She stated that she did not know her house number as she was illiterate. Accused present in Court had lived in a room in her house. She had not seen anybody coming to the room of the accused to meet him. She was crossexamined by Ld. APP in which she stated that her statement was not recorded by the police. However her thumb impression were obtained on some written papers after 23 days, contents of which she did not know. She did not state to the police that one Mohd. Farooq @ Ramesh used to visit the accused to meet him. SC No.09/2007 Page 6 of 47 She volunteered that she did not see anybody coming to meet him. She was confronted with statement Mark PW3/A where it was so recorded. She denied that she was concealing the facts or that police had not obtained her thumb impression on any paper.
10. PW4 M.S. Yadav, Inspector Head Quarter, Operation stated that driving licence in the name of Ramesh Yadav was sent to him for verification. He gave information Ex.PW4/A that the licence was fake.
11. PW5 SI Dinesh Pal is one of the members of the raiding party. He deposed that on 20.10.2006 he was posted in Special Cell, New Friends Colony. He joined investigation with SI Dharmender Kumar who was having prior information about Anil Kumar Dubey being involved in espionage activities. A secret information was received by SI Dharmender Kumar that one employee of Pakistan High Commission would come to the house of Anil Kumar Dubey at 1385, Mahipal Pur, Near Holi Chowk to collect some secret documents relating to Indian Army. A raiding party was organized consisting of Inspector Rajender Singh, SI Dharmender Kumar, SI Deshraj, HC Naresh Kumar, HC Pawan and himself. The raiding party SC No.09/2007 Page 7 of 47 left office at 4:00 PM in Govt. vehicle No. DL1CF713 and one private vehicle number of which he did not remember. On reaching Dhaula Kuan at about 4:30 PM SI Dharmender tried to join public witnesses after telling them secret information but none agreed and left without telling their names and address. At 4:50 PM the raiding party reached main chowk, Mahipal Pur where SI Dharmender asked 45 passerby to join the raiding party but none agreed. The raiding party reached H.N. 1385, Supra at about 5:25 PM and took the position. At about 7:00 PM one person was seen going towards entrance gate of house No. 1385 (Supra). Secret informer pointed out said person to be the employee of Pakistan High Commission. Thereafter one person came down holding one black colour rexin bag in his hand and both talked to each other. The person who came down was accused present in Court. Accused handed over the bag to employee of Pakistan High Commission. Both of them were apprehended. The rexin bag was checked and was found containing two CD and four photocopies of notification relating to Indian Army pertaining to counter insurgency. CDs were kept in separate pulandas and sealed with the seal of DK. On notifications seal of SC No.09/2007 Page 8 of 47 DK in ink was put. The recovered articles were taken in possession vide Memo Ex.PW5/A. Copies of notification have been proved as Ex.PW5/A1 to A4. Seal after use was handed over to him. The employee of Pakistan High Commission was searched and subsequently deported. Personal search memo of said employee is Ex.PW5/B. The accused made disclosure statement Ex.PW5/C and his personal search was conducted vide Memo Ex.PW5/D. Arrest memo of the accused is Ex.PW5/E. In house search of the accused, three cheque books were recovered out of which two belonged to Mohd. Farooq and third belonged to Shamshad Hussain. All the cheque books were of ABN Amro Bank. One pen drive, some documents relating to bank and one passbook of the accused were also recovered. The same were seized vide memo Ex.PW5/F. He identified the CDs as Ex.P1 and P3, pen drive as Ex.P3/1, rexin bag as Ex.P4.
12. In crossexamination he stated that no surveillance was kept on accused from 3:00 PM to 5:30 PM even after receiving the information. He was not aware if Mahipal Pur had a separate police station or whether Mahipal Pur came under Vasant Kunj or IGI. They did not inform local SC No.09/2007 Page 9 of 47 police regarding raid or information. SI Dharmender did not tell them if he had kept accused under Surveillance but informed them that he could identify the accused. When a person was seen coming with bag, SI Dharmender identified said person as Anil Kumar Dubey. This witness was not informed whether mobile phone of the accused or of Farooq was tapped by SI Dharmender. Mobile was recovered from personal search of the accused. The accused was apprehended outsie the main gate. It was a single storeyed house. Landlady was living at the ground floor. She came later on and her statement was recorded. When the accused was apprehended, the landlady was not called. They remained at the spot till 12:30 AM next day. No other public person was associated in the investigation. Wife of the accused was present in the house. Arrest was made at 11:30 PM. They met the landlady at 11:30 PM. Signature of wife of the accused was also obtained on the arrest memo. The arrest memo Ex.PW5/E did not bear signatures of wife of accused but she was informed. He denied that arrest memo was prepared at the police station or that is why it does not bear the signature of wife of the accused. There is cutting at point 'X' (regarding SC No.09/2007 Page 10 of 47 time) on arrest memo. Disclosure of the accused was written after 11:30 PM. SI Videsh Singhal took 15 to 20 minutes to reduce into writing disclosure statement of the accused. He did not remember if any currency was recovered from Mohd. Farooq from the spot. He denied that no raid was conducted or that the accused was falsely implicated to settle scores with Pakistan or that he was made scapegoat. He returned the seal back to the IO in OctoberNovember 2008. He was not aware if SI Videsh Singhal conducted investigation in another case or sealed other documents in another case during period till return of seal. He did not remember if anything was written in hand in any of the leaf of the cheque book. The cheque book of ABN Amro Bank issued to Mohd. Farooq contained two leaves partly filled and unsigned. IO did not take sample handwriting of Mohd. Farooq or accused in his presence. He denied that no such cheque book was recovered from accused or that accused did not make any disclosure statement or that this witness signed the disclosure statement as a witness at the behest of the IO. He did not know if any investigation pertaining to Shamshad Hussain was conducted. He denied that seizure SC No.09/2007 Page 11 of 47 memo was prepared in police station or that signatures of accused were obtained on blank papers forcibly. IO can tell how he mentioned FIR number on the site plan which was prepared prior to registration of FIR.
13. PW6 HC Pawan Kumar is another member of the raiding party. He made statement similar to that of PW5. He added that his signatures were not obtained on memos and disclosure statements. In crossexamination he stated that he could not tell whether envelope No. 3 containing CD and pen drive was in rexin bag or not as he had seen only the documents and CDs. He did not see the contents of envelope No.3 being recovered from the bag. He did not state in statement U/S 161 Cr.PC that seal of DK was put on the pulandas. He denied that he was not present at the spot or that nothing was recovered or sealed in his presence.
14. PW7 SI Dharmender Kumar is the person who received secret information. He proved copy of DD No. 10 regarding conveying of information to senior officers as Ex.PW7/A. He made statement on the lines of statements of PW5 and PW6. He proved rukka as Ex.PW7/B and site plan as Ex.PW7/C. In cross examination he stated that they were watching SC No.09/2007 Page 12 of 47 accused from distance since the day of receipt of information. He did not record any DD pertaining to the same as it was on preliminary stage and not a confirmed information. He did not know before 20.10.2006 that the man on whom he was keeping watch was Anil Kumar Dubey. He did not record the statement of driver who was driving the private WagonR. He did not know whether there was a bangle shop or grocery/vegetable shop near the house of the accused. He did not remember the colour of paint of that house but it was a double storeyed house. He did not try to ask or join any public person in that area along with the raiding team. Though rukka reached at 9:30 PM., instructions to SI Videsh Singhal were given earlier by Inspector Rajender Singh who was at the spot with the team. In the entire raiding team, only he knew who Anil Kumar Dubey was as he could identify him. He volunteered that informer also knew regarding Anil Kumar Dubey. He had sealed both the CDs in one white pulanda. No white cloth pulanda was seen by him in the case property. The FIR number or section or name of the police station was not written in his presence in the site plan. He volunteered that only FIR was not written in his presence. He could not say SC No.09/2007 Page 13 of 47 who wrote "CCH145/2007, CCH1452007, Q2, FIR No. 79/2006, Special Cell, New Delhi" on the CD but he had not written the same. It was not there when he sealed the same. Even 'back up MIS seal, main office on 20.08.2005' was not written when he sealed the CD Ex.P3. He denied that Ex.P1 and P2 had been planted upon the accused to falsely implicate him in this case. He had not received back his seal from SI Dinesh Pal till his cross examination on 31.03.2008. Many public persons from locality gathered at the spot after apprehension of the accused. He did not consider it necessary to ask them to witness the recovery proceedings. He denied that accused was picked up at 6:30 PM from Mahipal Pur Bus Stand or that is why neither the landlady nor the wife of the accused was aware of any such raid or were not made recovery witnesses.
15. PW8 SI Vishnu Dutt took pulandas sealed with the seal of DK along with pen drive and documents from MHCM GIQD, Hyderabad on 19.11.2006 vide RC No. 148/21 but the same could not be deposited there due to some objection. He came back to Delhi on 27.11.2006 and handed over the pulanda, pen drive and documents to MHCM. So long the case SC No.09/2007 Page 14 of 47 property remained in his custody, the same was not tampered with.
16. PW9 Col. R.S. Kharb, Director, MI3, Army Head Quarters, New Delhi examined the documents and gave opinion Ex.PW9/A according to which the documents were restricted and confidential documents. In cross examination he denied that he gave opinion in mechanical manner at the behest of Special Cell. He did not compare the photocopies with originals and gave opinion on the basis of photocopies.
17. PW10 ASI Paramjeet Singh was Incharge Mallkhana. He proved copies of relevant entries in Register No. 19 as Ex.PW10/A to C, copy of objection letter as Ex.PW10/D. According to him so long the case property remained in his custody, the same was not tampered with.
18. PW11 Sh. Alok Kumar, DCP, Special Cell proved complaint U/S 195 Cr.PC as Ex.PW11/A and authority letter from Ministry of Home Affairs in his favour as Ex.PW11/B. He also proved the intimation to Director, Military Intelligence Directorate regarding arrest of the accused as Ex.PW11/C. PW 13 Sh. Virender Kumar, Under Secretary, Ministry of Home Affairs, Govt. of India proved the authorization letter in favour of Sh. SC No.09/2007 Page 15 of 47 Alok Kumar DCP as Ex.PW11/B.
19. PW12 Constable Jagdev Singh, Colonel Records and Commanding Officer stated that on 26.06.2006 police party along with the accused came to AGI Bhawan and table desk of the accused was searched in his presence. One AGI journal of 2005 was recovered which was seized vide memo Ex.PW12/A. The journal is Ex.PW12/B. In cross examination he stated that officials of his department could keep the journal with him to be familiar with the rules.
20. PW14 Mrs. Deepa Verma, Assistant Director (Documents), FSL, Rohini examined documents and found that the person who wrote specimen writings S1 to S32 also wrote questioned documents Q5 to Q9. She proved her report as Ex.PW14/A and the documents as Ex.PW14/B. In cross examination she denied that she had not conducted the test for analysing or comparing the questioned writing herself or that she signed on preprepared report.
21. PW15 Col. N.D. Joshi, Commanding Officer forwarded the information regarding nature of documents vide letter Ex.PW15/A. In cross SC No.09/2007 Page 16 of 47 examination he stated that he was not aware if any departmental action had been taken against the accused in connection with this case. He denied that documents were neither confidential nor restricted as mentioned in report Ex.PW9/A.
22. PW16 Prem Kumar, Assistant PAI Division, Ministry of External Affairs proved handing over memo regarding Mohd. Farooq as Ex.PW16/A.
23. PW17 Inspector Deshraj Yadav was given up by Ld. APP being repetitive in nature.
24. PW18 SI Gopal Dutt collected the reports and the exhibits from GEQD Hyderabad and handed over the same to the IO who deposited the same in Mallkhana on 20.12.2007. So long the report remained in his custody the same remained intact.
25. PW19 ASI Ved Prakash was given up by Ld. Addl. PP being unnecessary.
26. PW20 Constable Sanjeev Kumar prepared RC No. 107/21/09 and handed over the pulanda sealed with the seal of DK to HC Pawan Kumar for SC No.09/2007 Page 17 of 47 being sent to Hyderabad for expert opinion along with CFSL form.
27. PW21 Lt. Col. Ajit Lambiar stated that documents were examined by study group which gave report Ex.PW21/A. In crossexamination he admitted that the contents of those documents did not have any effect on the Army Operations. However he volunteered that if various details given in the hands of inimical interest or falls in wrong hands, it can bring out details of administrative function of the Army.
28. PW22 Lt. Col. Kundan Sharma proved order dated 09.06.2007 as Ex.PW22/A.
29. PW23 Sh. Krishna Sastry Pendyala, Asstt. Govt. Examiner (Documents), Govt. of India examined two CDs and one pen drive Q1 to Q3 and gave report Ex.PW23/A and Annexure 'A' regarding digital evidence exhibits as Ex.PW23/B. He added that the exhibits were also examined by Sh. M. Krishna independently who came to the same result. In cross examination he stated that notes were not hand written but computer generated. Pen drive was not found containing relevant data pertaining to the case.
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30. PW24 Inspector Videsh Singhal is IO. He deposed that on 27.10.2006 Lt. Col. Vishal Mathur handed over five office files containing some documents which were seized vide memo Ex.PW23/B. Those files are Ex.PW23/X1, Ex.PW14/B and new dialing scheme PW9/B3. He obtained sanction U/S 197 Cr.PC which is Ex.PW22/A. He collected statement of accused, Mohd. Farooq and Shamshad Hussain which are Ex.PW25/A and 25/B. In cross examination he stated that he received DD No. 12 on 20.10.2006 at 7:40 PM. Inspector Rajender Singh has requested that he should be sent to spot for further investigation. Rukka was dispatched within five minutes of his reaching spot. He had prepared site plan, arrest memo, personal search memo and disclosure statement before registration of FIR. In the next breath he stated that he had prepared only site plan before registration of FIR and rest of the documents were prepared after FIR. He did not search the house of the accused before disclosure statement. Disclosure statement was recorded after 11:30 PM. The disclosure statement was recorded by him outside the house of the accused at ground floor. Wife of the accused was present in the house at that time. Landlady SC No.09/2007 Page 19 of 47 was present in her portion at ground floor. She did not accompany him to the portion of the accused. He did not request the landlady to join the search. No neighbourer was requested to join the search. Signatures of wife of the accused were not obtained on the seizure memo Ex.PW5/F. There is no cheque in the name of the accused in the cheque books seized by him. One cheque contains digit 25 in the column of the amount and is signed by Mohd. Farooq. He did not send the said cheque for comparison to FSL as the writer of the cheque was not available and his specimen could not be taken. He did not remember after how many days Mohd. Farooq was deported to Pakistan. He did not request Pakistan Embassy to obtain speciment handwriting of Mohd. Farooq. He did not obtain call details of mobile phone of accused or of Mohd. Farooq for the period January 2006 to 20.10.2006. He admitted copies of notification issued by Commissioner of Police as Ex.PW24/DA and PW24/DB. He denied that in view of the same, he was not competent to investigate the case or that the investigation was defective on that account. He admitted that no recovery was effected on 22.10.2006 in the presence of the accused. Signatures of the accused were SC No.09/2007 Page 20 of 47 not obtained on handing over memo Ex.PW23/B on 27.10.2006. He denied that the accused was not present at that time. He resides in jurisdiction of PS Mahipal Pur. After 27.10.2006, he sought police remand of the accused as he was to interrogate suspects named by the accused viz. M.P. Singh, S.P. Singh, Manoj Dubey, Subhash Chand and one more person whose name he did not recollect. He did not record statement of said suspects U/S 161 Cr.PC. He denied that accused did not name any suspects or that he incorporated their names of his own in the disclosure statement of the accused. Perhaps the desk of the accused was not locked. About ten persons were sitting in the hall where the desk of the accused was situated. He did not obtain search warrant from magistrate U/S 11 of Official Secrets Act. Shamshad Hussain and Mohd. Sadiq Khan were officials of Pakistan Embassy. The cheque books were in their names but they did not contact them for investigation.
31. In reexamination by Ld. PP, he stated that seizure memo Ex.PW5/F bears thumb impression of landlady of accused at point 'C'. In cross examination he admitted that he stated so on seeing the seizure memo. He SC No.09/2007 Page 21 of 47 volunteered that he had also recollected the same.
32. PW25 Sh. Anupam Goel, Manager (Operations) Royal Bank of Scotland (earlier known as ABN Amro Bank) proved details of account in the name of Mohd. Farooq which is Ex.PW25/A. Copies of documents prepared at the time of opening account were supplied to the police which are Ex.PW25/B. The details were forwarded vide letter PW5/C.
33. PW26 Sh. K.J.S. Oberoi, Commandant, Infantry School, MHOW Madhya Pradesh granted sanction U/S 197 Cr.PC which has already been proved as Ex.PW22/A. In cross examination he stated that he did not raise query to the IO as to any monetary benefit made by the accused. He denied that he did not raise any query as he did not apply his mind to the file and signed on the lines at the behest of the prosecution.
34. PW27 Gurjeet Singh Bhachhal, Lt.Col. Assistant Director deposed about handing over memo of the documents given by Lt.Col. Vishal Mathur which is Ex.PW27/A. According to him Col. Vishal Mathur had been transferred to Pune.
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35. PW28 Col. Vishal Mathur is the person who handed over the documents vide memo Ex.PW27/A. In cross examination he stated that he was not aware as to how many employees used to sit in the room where the accused had his desk. He stated that the number of desks could be more than two. The documents were not seized in his presence. The seizure was in the presence of Board detailed for that purpose. He could not say if the documents were not recovered from the desk of the accused or were recovered from any other almirah. After going through the seizure memo Ex.PW27/A, he stated that documents were recovered from the almirah.
36. In his statement U/S 313 Cr.PC the accused admitted that he was posted at AGI Directorate as Army Jawan. He denied that SI Dharmender Kumar had information about his involvement in espionage activities or that one employee of the Pakistan High Commission was to come to his house to collect serious documents relating to Indian Army. He denied that any raiding party was organized or that public persons were asked to join or that he refused. He denied that he was residing at house No.1385, Holi Chowk, Mahipal Pur, Delhi. He was picked up by police at 6:30 PM from Mahipal SC No.09/2007 Page 23 of 47 Pur Bus Stop. He denied that he came down from the stairs or was having black colour rexin bag or started talking Mohd. Farooq. He denied that he handed over the bag to Mohd. Farooq. He denied recoveries or sending of rukka or preparation of site plan. However he admitted that Sunita Devi was his landlady. He denied having made disclosure statement. He was arrested from Mahipal Pur Bus Stand in the presence of his brother Sunil Kumar Dubey. According to him, he was falsely implicated to settle scores with Pakistan and he had been made scapegoat. PWs have deposed falsely as they are interested witnesses. He pleaded innocence and stated that SI Videsh Singhal was not competent to investigate the case. He opted to lead DE.
37. The accused actually examined two witnesses in defence. DW1 Manorma Dubey is his wife. She deposed that in July 2006 she came to Delhi and started living at Bhaiya Chowk Mahipal Pur. Accused used to leave the house at 8:30 PM and come back at 6:30 PM. Her landlady was Sunita Devi. On 20.10.2006 it was Chhoti Diwali and her dewar was to come from village. At about 7:00 PM her dewar Sunil came in perplexed SC No.09/2007 Page 24 of 47 condition and told her that accused had been taken away by Special Cell from Mahipal Pur Bus Stand to New Friends Colony. She waited for some time and after that she and her dewar went to police station Special Cell. The police told that they had taken the accused for investigation of some case. In cross examination she denied that her husband was arrested from house or that her dewar did not come to Delhi or that they have cooked up a false story. She denied that she was informed about arrest of the accused or that she refused to sign the papers prepared at the spot.
38. DW2, Munna Dubey @ Sunil Kumar Dubey is brother of the accused. He made statement similar to that of DW1. He deposed that he reached at his brother's office at about 5:00 PM. He and his brother took bus and started for Mahipal Pur. In cross examination he stated that he had not brought the ticket of the Train as he did not preserve the same. He admitted that while entering the Army Headquarters an entry is made in the register at the entry gate of the office. He did not make entry as he did not go inside. He was asked to wait outside. He could not tell the number of the house where the accused used to live. It was in Bhaiyya Chowk, Mahipal SC No.09/2007 Page 25 of 47 Pur. He denied that he did not come to the office of his brother or did not know the number of the house of the accused as he did not come. He and his Bhabhi did not inform the office of accused on that day that the accused was taken away by police of Special Cell. The police officers who took away his brother were in plain clothes. His brother was having a mobile phone but his phone was replying 'switched off'. He did not try to inform his bhabhi from any STD booth from Mahipal Pur Bus Stand that accused was taken by the police.
39. I have gone through the material on record and heard arguments at length. The Ld. APP submitted that it is the case based on recovery of documents. The documents have been opined to be confidential in nature by PW9 Col. R.S. Khurb. The defence of the accused is that of total denial. According to him neither he knew Mohd. Farooq nor was apprehended from his house nor recovery was effected. But he had not disclosed any motive as to why the police implicated him. Simply suggesting that he was made scapegoat is not enough.
40. Ld. APP also submitted that simply because no public witness had SC No.09/2007 Page 26 of 47 been joined in recovery is no ground to disbelieve the statements of police witnesses. The documents have been found to be in the handwriting of the accused and cannot be believed to have been planted upon the accused. It is not the case of the accused that he was forced to write those documents and that is why the same have been found to be in his handwriting.
41. On the other hand the Ld. counsel for the accused submitted that for offence U/S 120B IPC there has to be two persons at least. In the present case it is not that Mohd. Farooq could not be apprehended or that he has been declared PO. Rather according to case of prosecution he was handed over to Pakistan Embassy and was deported. There is no reason why he has not been prosecuted. In nutshell he wanted to urge that the accused cannot be punished for offence U/S 120B IPC as he alone has been sent to face trial. In support of his submission he relied upon decision of Hon'ble Supreme Court in B.H. Narsimha Rao vs. Govt. of Andhra Pradesh 1995 Supplementary (4) SCC 704. In para 4 it has been held that there has to be another with whom the accused get in communion to conspire for the commission of an offence. When the remaining six accused have been SC No.09/2007 Page 27 of 47 acquitted, it is legally not feasible or possible to make the conviction of the appellant for offence U/S 120B IPC. To that extent he appears to be correct. The accused is acquitted for offence U/S 120B IPC.
42. The Ld. counsel for the accused submitted that basic presumption in Administration of Criminal Law and Justice delivery system is the innocence of the accused. Mere suspicion howsoever strong or probable it may be is of no effective substitute for the legal proof required to substantiate the charge of commission of crime and grave the charge is, greater should be the standard of proof required. Courts dealing with criminal cases should constantly remember that there is long mental distance between 'may be true' and 'must be true'. In support of his submission he relied upon decision of Hon'ble Supreme Court in Ashish Batham vs. State of Madhya Pradesh 2002 (3) JCC 1883. That is the basics of criminal law and there can be no quarrel with the said preposition of law. But it is not clear as to how it advances the case of the accused.
43. The Ld. counsel for the accused also relied upon the decision of Hon'ble Supreme Court in D.K. Basu vs. State of West Bengal (1997) 1 SC No.09/2007 Page 28 of 47 SCC 416 in which certain guidelines were laid down which were to be followed at the time of the arrest of the accused. Some of them are that information about arrest is to be given to the near relative of the accused whose signatures are to be obtained. According to him since the arrest memo of the accused has not been got signed from the wife of the accused who was admittedly present at the time of alleged arrest and the overwriting in the time of arrest vitiates the entire case. I am unable to appreciate the arguments. The judgment no where lays down as to what will be the effect of non following of the guidelines, on the merits of the trial. The accused may seek his remedy for not following the guidelines in the appropriate forum but that does not render the trial bad in law.
44. The Ld. counsel for the accused also submitted that Official Secrets Act is a draconian law as has been held by our own Hon'ble High Court in K.L. Saini vs. State Criminal Revision Petition No. 936/2003 decided on 12.10.2007 and FIR was quashed in the said case. Again I fail to understand what the accused wants to make out therefrom. The FIR was quashed on merits and the decision does not lay down any general rule that all cases SC No.09/2007 Page 29 of 47 under Official Secrets Act are to be shunted out. So long as the Act remains on the Statute Book it has to be enforced and given effect to.
45. The Ld. counsel for the accused strongly argued that prosecution has wrongly shown the accused as having been arrested from his house. The same is not believable by any stretch of imagination. The reason being that if Mohd. Farooq was to come to the house of the accused, there was no fun of accused coming down staircase to supply the alleged rexin bag to Mohd. Farooq. Rather Mohd. Farooq would have gone up stairs inside the house of the accused. Elaborating his arguments he submitted that wife of the accused was present in the house and there is no explanation as to why her signatures were not obtained on the arrest memo, personal search memo and House search memo. He also submitted that DW2 has categorically deposed that accused was lifted from bus stand Mahipal Pur. DW1 has corroborated the same.
46. According to the Ld. counsel for the accused the defence witness should be treated at par along with prosecution witness. In support of his submission he relied upon Dhood Nath Pandey vs. State of U.P. (1981) 2 SC No.09/2007 Page 30 of 47 SCC 166 and Sanjeev Kumar vs. State of Punjab (2009) 16 SCC 487.
47. The Ld. APP refuted the aforesaid arguments by submitting that the plea of the accused is demolished by his own application for bail. Para 3 of the bail application dated 03.02.2007 recites that accused was arrested on 20.02.2006 from his house and is languishing in JC since then. That was the earliest occasion for the accused to dispute place of his arrest, if he intended to do so. The Ld. counsel for the accused ably tried to overcome the said arguments by submitting that application for bail is based on averments of the prosecution.
48. I am unable to persuade myself with the plea of Ld. Counsel for the accused. The other allegations made in the application for bail are not in tune with case of prosecution. There cannot be two approaches for different paras of bail application i.e. one according to the case of prosecution and another according to the case of accused.
49. The Ld. APP also pointed out that suggestion regarding arrest of the accused from bus stand Mahipal Pur has been put for the first time to PW7 in his crossexamination dated 31.03.2008. The same was not given in the SC No.09/2007 Page 31 of 47 cross examination of PW5 and PW6. Thus the suggestion is after thought and cannot be believed. The arguments appears to be cogent.
50. The Ld. Counsel for the accused submitted that it is the strange case in which the prosecution has tried to establish that it had information since few days before 20.10.2006 that accused was indulging in espionage. Still it did not tape the mobile phone of the accused. It is not a case in which the accused was not having mobile phone. Rather a mobile phone is shown to have been recovered from him. Now a days the scientific method of solving the case is seizure of call details of the suspect.
51. The argument appear to be attractive in the first instance but does not hold water when considered in depth. All cases are not alike. All accused are not of same nature. Modusoperandi in detection of crime cannot be uniform. It may be that the accused did not use phone for the purpose of communicating and that is why police did not collect the call details but that does not mean that other clinching evidence would loose its value.
52. The Ld. Counsel for the accused strenuously argued that joining of public witness is an important safeguard against false implication. In the SC No.09/2007 Page 32 of 47 instant case the police did not join any neighbourer of the accused at the time of arrest or house search. In support of his submission he relied upon Sompal Singh vs. State (1998) 2 SCC 371. In Mohan Singh vs. State of Haryana (1995) 3 SCC 192 the testimony of independent witness PW5 Heera Lal was doubted on the ground that he was a mobile sweet vendor and was a chance witness. There was no reason why employees of railway booking office and tea vendor were not joined as witness.
53. In Karamjeet Singh vs. State AIR 2003 Supreme Court 1311 it was held that the testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witness, their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. Similar observations were made in Mohd. Akbar Butt Vs State (138) 2007 DLT 43 DB.
54. Reference with advantage may also be made to Tahir vs.State (1996) SC No.09/2007 Page 33 of 47 SCC 515 in which it was held : "No infirmity attaches to the testimony of police official merely because they belong to police force and there is no rule of evidence which lays down that conviction cannot be recorded on the evidence of police officials, if found reliable, unless corroborated by some independent evidence.
55. In Girija Prashad vs. State of M.P. AIR 2007 Supreme Court 3106 it was observed that "It is well settled that credibility of the witness has to be tested on the touchstone of truthfulness and trustworthiness. ............. It is not the law that police witness should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force."
56. The Ld. Counsel for the accused vigorously submitted that no information was given to local police station Mahipal Pur. This was not SC No.09/2007 Page 34 of 47 complied not only before arrest but also after arrest and search.
57. The Ld. Counsel for the accused tried to take advantage of the fact that desk of the accused was searched in his office on 26.10.2006 in the absence of the accused. The almirah was searched on 22.10.2006 and that too in the absence of the accused. The team which was constituted to search has not been examined. Only PW27 and PW28 have proved the handing over memo as Ex. PW27/A. The said memo has not been proved properly and mere exhibition thereof is not sufficient. In support of his submission he relied upon Shakuntala vs. State 2011 (2) JCC 1001.
58. I am unable to persuade myself with the arguments. Any illegality or irregularity in collecting evidence does not dilute efficacy of evidence. It was held in Puran Mal vs. Director of Inspector (Investigation) New Delhi, (1974) 1 SCC 345 that evidence obtained on illegal search cannot be excluded. In State of Karnataka vs. Yarappa Reddy AIR 2000 Supreme Court 185 it was held that criminal justice should not become casualty for the wrongs committed by investigating officer. In State vs. Navjot Sandhu (2005)11 SCC 600 it was laid that even if the evidence is found to be SC No.09/2007 Page 35 of 47 illegally obtained, it is admissible.
59. The Ld. Counsel for the accused did not miss to argue that papers are of the year 2003 and prosecution wants to establish that accused supplied the same in 2006. Thus, the paper has become outdated and were of no use from the angle espionage. Again I am at a loss to appreciate the arguments. The documents may be old for one and new for other. It depends upon the degree of progress with which two countries are proceeding. The dialing system adopted in 2003 in India may be unknown to Pakistan till 2006. Question is as to what justification the accused had to supply the said information.
60. The Ld. Counsel for the accused wanted to make much out of the fact that PW12 admitted that employee of his office can keep the journal for knowing the procedure. So mere recovery of that journal from possession of the accused does not constitute offence. The arguments appear to be misconceived. The prosecution is banking upon not only possession but also supply thereof to Mohd. Farooq.
61. One of the limbs of the arguments of the Ld. Counsel for the accused SC No.09/2007 Page 36 of 47 is that it is surprising that the person sending rukka names a specific person viz. Videsh Singhal to whom the investigation may be marked. According to him this should have been left open to be decided by senior officer. To my mind the argument is misleading. It has come that Inspector Rajender Singh was present at the spot and he has taken the decision to mark investigation to SI Videsh Singhal. That is why the rukka recited so. In any event it has not caused any prejudice to the accused.
62. The Ld. counsel for the accused pressed into service the statement of PW24 SI Videsh Singhal IO where he admitted that he reached the spot five minutes before sending the rukka. He wanted to urge that there was no chance of SI Videsh Singhal reaching the spot before sending rukka unless the investigation was marked to him. The argument is like a putting a cart before the horse. It has come in evidence that Inspector Rajender Singh requested SI Videsh Singhal to reach the spot, may be before marking of investigation to him.
63. The Ld. counsel for the accused relied upon the circulars Ex.PW24/DA and DB issued by Commissioner of Police. Those circulars SC No.09/2007 Page 37 of 47 authorised Inspector Rajender Singh of Special Branch to demand any information relating to offence or suspected offence U/S 3 read with Section 9 Official Secrets Act. Later on Inspector Jitender Kumar Tyagi was empowered to do so. On the basis of this he wanted to make out that SI Videsh Singhal was not competent to investigate the case.
64. The argument has been refuted by Ld. APP by submitting that those circulars simply deal with competency of specified Inspector to communicate i.e. to demand information. It does not restrict the powers of other police officer to investigate the matter. The argument appears to be forceful.
65. The Ld. counsel for the accused tried to make much out of the fact that FIR number has been mentioned on the arrest memo, personal search memo, house search memo and site plan all of which were prepared before registration of FIR at 10:30 pm. and before the returning of constable who took rukka alongwith copy of FIR to the spot at 11:30 pm. This shows that the memos were anti timed and were not prepared as tried to be posed by the prosecution. The arguments cannot be accepted in view of the decision SC No.09/2007 Page 38 of 47 of Hon'ble Supreme Court in Radhey Sham Vs State of Haryana 2001 (3) Judgment today 535. To the same effect is latest pronouncement of our own Hon'ble High Court in Bilal Ahmed Vs State 2011 (1) Apex Decision Delhi
613.
66. The Ld. counsel for the accused laid much stress on the fact that if the accused was to pass on the top secret, confidential and restricted information, he would have received substantial consideration in lieu thereof. But the statement of bank account of accused collected by the prosecution shows there is no heavy transaction therein. The argument is to be mentioned for being rejected only. It is a matter of common knowledge that most of the offences are committed in the darkness of night and under the table. A culprit would not deposit the amount received by him as illegal gratification in his bank account.
67. Accused cannot be allowed to make much out of the fact that the prosecution has not been able to produce white pulandas in which CD etc. were sealed. The reason being that this has come so in the statement of PW7. Earlier this pulanda had been opened in the statement of PW5 and SC No.09/2007 Page 39 of 47 PW6. It is just possible that at the time of resealing the property after statement of PW5 and PW6, the original white cloth was not used and different cloth was used.
68. The Ld. counsel for the accused stressed much on the fact that when earlier accused had prepared the CD, there was no reason why he prepared the photocopy allegedly recovered from his almirah in his own handwriting. The argument does not appear to be convincing. A person may act differently on different occasion. One always does not do same act at all times.
69. One of the argument advanced by the Ld. counsel for the accused is that according to PW5 the house of the accused was single storeyed whereas according to PW5 it was a double storeyed house. The argument is not of much significance. PW5 himself stated that landlady was residing on ground floor meaning thereby that there was some other floor also. It is a case of confusion and describing the number of storey of a house or mistake in recording the answer. That does not demolish the value of evidence.
70. The Ld. counsel for the accused further pointed out that according to SC No.09/2007 Page 40 of 47 PW7 the name of the accused was revealed after apprehension of the accused. If that is so what sort of watch he was keeping on the accused and how he could know that accused was the person involved in espionage.
71. A person may be identified by name. He may also be identified by features and appearance. If PW7 had been watching the accused from his features and did not know his name, it does not mean that he did not know the accused or could not identify the accused while the accused came downstairs with a black rexin bag in his hand and supplied the same to Mohd. Farooq.
72. Last but not least arguments of the accused is that Section 3 (2) Official Secrets Act lays down rule of presumption and not of evidence. But said presumption can be drawn only if there is some proof, admissible material and not otherwise. Case under Official Secrets Act is to be proved like any other criminal case and burden on the prosecution is in no way lessened. In support of his submission he relied upon Amim Chand vs. State 1987 Cr.L.J. 1034.
73. The argument is far fetched. The prosecution is not relying upon SC No.09/2007 Page 41 of 47 presumption only. It has led positive evidence of recovery of confidential material from the accused, supply thereof by him to Mohd. Farooq.
74. The fact that Mohd. Farooq has not been prosecuted along with the accused does not dilute the prosecution. It has come in the statement of PWs that Mohd. Farooq enjoying diplomatic immunity. So he was deported to Pakistan. The explanation appears to be just.
75. Equally important is the explanation that why writing on the cheques were not got examined. The reason is non availability of specimen writing of Mohd. Farooq. It is true that police could have taken his specimen handwriting before deporting him to Pakistan. It did not make any efforts to obtain his specimen writing through Embassy but all that, at the most shows that prosecution did not act diligently. But that alone is not sufficient to throw the case of the prosecution.
76. The Ld. counsel for the accused tried to take sheltor of Section 11 of the Official Secrets Act which empowers the prosecution to obtain search warrant from Magistrate. It is true that in the instant case no search warrant were obtained but nonetheless the provision of search warrant is only SC No.09/2007 Page 42 of 47 enabling provision and not debarring provision that police cannot search without warrant. Keeping in view the nature of offence, it might not have been considered feasible to apply for search warrant and wait till the warrants are obtained. By that time the accused might have slipped or evidence might have vanished. So the police preferred to carry out the instant search without waiting for search warrant.
77. Recovery of cheque book of Mohd. Farooq from house of accused shows that accused had some links with Mohd. Farooq. The same strengthens the case of prosecution that two were indulged in passing of some secret information. Otherwise Mohd. Farooq was not related to accused and there was no occasion for his documents being found in the house of accused.
78. To sum up I find that prosecution has successfully proved its case U/S 3 Official Secrets Act beyond reasonable doubt. Documents Ex.B1 and B2 were recovered from the house of the accused, new dialing system Ex.B3 to B6 were recovered from the office of the accused and copies of notification Ex.B7 to B10 were recovered outside the house of the accused SC No.09/2007 Page 43 of 47 when he was delivering the same to Mohd. Farooq. The accused is convicted U/S 3 Official Secrets Act.
Announced in open Court on this 08th day of December, 2011 (O.P. GUPTA) DISTRICT JUDGE & ASJ I/C (WEST) DELHI/08.12.2011 SC No.09/2007 Page 44 of 47 IN THE COURT OF SH. O.P. GUPTA DISTRICT JUDGE & ASJ I/C (WEST), DELHI SC No. 09/2007 Unique ID No. 02401R0002962007 State Vs. Anil Kumar Dubey S/o Sh. Chander Shakher Dubey R/o 1385, Near Holi Chowk Mahipal Pur, Delhi Village - Khem Raj Pur PO - Shankar Pur, PS Chhawni District Basti (U.P.) FIR No. 79/06 PS Special Cell U/S 3/9 Official Secrets Act R/w Section 468/471/474/ 120B IPC ORDER ON SENTENCE The accused has been convicted U/S 3 Official Secrets Act vide separate judgment passed on 8.12.2011 by this court. I have heard the arguments on the quantum of sentence. The Ld. APP submitted that offence is very heinous in nature. It could effect the security of the country. The guilt of the accused becomes more aggravated as he happens to be an employee of the Indian Military. He owed an additional duty to save the SC No.09/2007 Page 45 of 47 country instead of putting the security of the country at stake. The punishment should be deterrent.
2. On the other hand the Ld. counsel for the accused submitted that accused is middle aged person being 39 years of age, is the only bread earner in the family. He became victim of the circumstances. He has already faced protracted trial for five years. The information could not be communicated. No loss was caused. The accused has two daughters aged about 12 years and 5 years, his wife is suffering from disease and he sought interim bail for treatment of said wife. He placed reliance on decision of Hon'ble Supreme Court in Amar Nathu Shukla Vs. State of Uttranchal (2009) 9 Supreme Court Cases 390 in which the accused was let off on imprisonment already undergone which was only seven years in a case U/s 436 IPC which is punishable with imprisonment for life. Hence he prayed for a lenient view.
3. I have gone through the cited judgment. In that case the accused and widow of complainant have entered into a compromise on intervention of local elders, the widow of complainant had been paid Rs.1,00,000/ as SC No.09/2007 Page 46 of 47 solatium. Hence the same is not applicable to the case in hand.
4. After going through the material on record and having heard the rival submissions I find that Section 3 provides two kinds of punishments. One is imprisonment upto fourteen years and other imprisonment for three years. The former is in relation to 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 naval, military or air force affairs of Government. The other is residuary meant for categories other than those which are covered in the first category. The case in hand relates to affairs of Military and falls in first category. The accused is sentenced to RI for seven years. Period of detention during investigation of the case and trial of the case be set off as provided U/S 428 Cr.P.C. The accused remained in custody from 20.10.2006 to 16.08.2010, from 30.03.2011 to 06.05.2011, 17.6.2011 to 12.8.2011 and from 20.10.2011 till date. File be consigned to Record Room.
Announced in open Court on (O.P. GUPTA)
this 09th day of December, 2011 DISTRICT JUDGE & ASJ I/C
(WEST) DELHI
SC No.09/2007 Page 47 of 47