Relied Upon Munni Lal vs The State, 1995 Jcc 110 Regarding Non ... on 23 February, 2007

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Delhi District Court

Relied Upon Munni Lal vs The State, 1995 Jcc 110 Regarding Non ... on 23 February, 2007

                                1


IN THE COURT OF SH V.K. GOYAL, ADDL. SESSIONS JUDGE: DELHI

SESSION CASE NO. 22/05

                                    FIR NO. 77/91

                                    PS D. B. G. ROAD,

                                    U/S 3,9 OFFICIAL SECRETS ACT

                                    & U/S 120-B OF IPC.

STATE

VERSUS

1. HASINUDDIN KHAN @ HASSAINUDDIN,

  S/O FIROJ KHAN,

  R/O VILLAGE SARAI, BAHELIA,

  DHARMA KA PURVA,

  PS & DISTT. PARTAPGARH,

  U.P.

2. MOHD. ISRAR,

  S/O AMJAD ALI,

  R/O WT-94, GALI NO.8, BALJEET NAGAR, DELHI.



JUDGMENT:

1. This case FIR was registered on rukka dated 04.04.1991 given to the SHO police station D. B. G. Road, New Delhi, through ASI Ram Saran sent by Inspector Lakhi Ram, wherein he has stated that a reliable information was received that one Hasinuddin Khan in conspiracy with Razak Ahmed, Pak High Commission Official, New Delhi, for a purpose prejudicial to the safety, security and interest of India has been unauthorizedly collecting and communicating to known / unknown foreign agents including the above named Pak High commission Official, documents / information, which are calculated to be or might be or intended to be directly or indirectly useful to enemy country / countries, relating to the matter the disclosure of which is likely to affect the sovereignty, integrity and security of India and country's relation with foreign states.

2. He has further stated that today informer informed that the said Hasinuddin Khan will be meeting the above said Pak High Commission Official at Ajmal Khan Park and passing on sensitive documents / information. Accordingly, a raiding party comprising of SI Madanjeet Singh, SI Vikram Singh, ASI Puran Singh, ASI Harbir Singh, ASI Ram Saran and HC Ram Mehar, was organized and arrived at Ajmal Khan Road, near Ajmal Khan Park, where S/Sh. Brij Rattan and Govind Mehto S/O Late Sh. Rameshwar Mehto, R/O I-209, Chiriya Colony, I.A.R.I. Pusa, New Delhi, were joined in the raiding party. The raiding party took position around 3 crossing formed by the road crossing the road from fountain to the statue of Hakim Ajmal Khan in the Ajmal Khan Park.

3. At about 6.25 PM, one person identified as Razak Ahmed, Pak High Commission official arrived and started waiting on the above said crossing. After about 10 minutes another person identified by the informer as Hassinuddin Khan also arrived and took out from the right pocket of his pant some papers and a film roll. He handed over the same to Razak Ahmed, who kept the said film roll and documents in the right pocket of his pant and handed over some currency notes to Hasinuddin Khan, who kept the said currency notes in the right front pocket of his shirt. Immediately, they both were apprehended and their names and addresses were learnt as Hasinuddin Khan S/O Firoj Khan, R/O Village Sarai Bahelia, PO Bahalal Pur, District and PS Pratapgarh (U.P.) and Razak Ahmed, UDC, Pak High Commission, New Delhi.

4. From the right pocket of the pant, the said Razak Ahmed was wearing, two sheets of note book containing location of Army Units and posting of Army officers and an undeveloped film roll (ORWO Schwarz Weib Film NP22 135/36) wrapped in a wrapper "ORWO Film" were recovered. From the front right pocket of the shirt, Hassinuddin was wearing, Rs.4,000/- in the denomination of Rs.100/100 currency notes were recovered. Both the notebook sheets, film roll and currency notes 4 have been got signed by the witnesses and taken into police possession through two separate seizure memos.

5. He requested that on the basis of the above information and subsequent recoveries, commission of offence under section 3/9 of Official Secret Act read with section 120B of IPC and 120B of IPC disclosed. Hence, FIR be registered.

6. On this application, FIR no. 77/95 under section 3/9 of Official Secret Act read with section 120B of IPC and 120B of IPC was registered.

7. During investigation, the site plan was prepared and accused Hassinuddin was arrested. Accused disclosed that he had been in communication and passing on sensitive information to different Pak High Commission official for monetary consideration since May,1988 when he was introduced to PHC official by Ex. Head Clerk Mohd. Israr with whom he came in contact during service while posted in BEG Centre, Pune.

8. During the course of Investigation, a brief case make VIP deposited against cloak room ticket no.114723 dated 03.04.1991 which was recovered from the personal search of the accused was withdrawn from the cloak room of New Delhi Railway Station on 5.04.1991 in the presence of the accused and witnesses. On checking the brief case, 11 slips containing handwritten locations and deployments of various Armed Forces units and posting of Army Officers were recovered with some other 5 articles and taken into possession through separate seizure memo.

9. During the further course of investigation, accused Hassinuddin Khan further disclosed that he collected information at various places regarding the location and deployment of Armed force units by meeting jawans at Railway stations, by visiting CSD canteens on the pretext of purchasing items or on the pretext of taking wet canteens on contracts etc. and noted the said information on railway tickets, bank or other forms, piece of newspaper, exercise note book etc. Camera was given them by Razak Ahmed, PHC Official which he had lost while travelling from Delhi to Bhopal. Some pieces of papers containing information about the location / deployment etc. of various Armed Forces units collected by him which lying in a steel trunk at his residence at his Native village Sarai Bahelia.

10. In pursuance of the above disclosure, accused Hassinddin Khan @ Hassinuddin led the police party to his house at Village Sarai Bahelia, Dharma Ka Parva, PS & District Kothwali, Pratapgarh, UP and got recovered from a steel trunk lying in the corner of room owned and occupied by him, 11 handwritten slips containing the location, deployment movement and names of officials etc. of various Armed Forces Units at various places. All the slips so recovered, were got signed by the witnesses and were taken into police possession through pointing out cum seizure memo. Out of these 11 slips, accused Hasinuddin Khan had stated 6 that one slip on the reverse containing location and deployment of Armed Forces units was given to him by Mohd. Israr and was in his handwriting.

11. During the course of investigation, the undeveloped film roll recovered from Razak Ahmed, PHC Official which was handed over to him by accused Hassinuddin, was sent to Photo Section CRO R. K. Puram, New Delhi, on 10.04.1991 through ASI Birbal Singh. On being developed 24 prints were found good and got printed by constable Satyawan, Photo Section, CRO, R. K. Puram, New Delhi.

12. Accused Mohd. Israr was apprehended on 14.04.1991 while he alighted Delhi Goa Express at Nizamuddin Railway Station. He confessed his involvement in the Clandestine activities. His personal search was conducted and one bill "Sainik Label" dated 08.03.1991 containing handwritten account of location deployment of various Army units at various places on the reverse of the bill and a train ticket no. 46725 from Pune to New Delhi with some other articles were recovered. The bill was got signed by the witnesses, on the reverse, where location of Army units were found written and taken into police possession through memo.

13. A brief case and hand bag of accused Mohd. Israr containing other articles were taken into possession through a separate seizure memo. Accused Mohd. Israr disclosed that around May/June, 1987 one Naibullah R/O Pratapgarh, U. P. gave him 4 passports and Rs.800/- and 7 asked him to give those to Mr. Farq, at PHC, New Delhi. When he went to PHC, learning that he is an ex-serviceman, Farq directed him to Asgar Ali, PHC Official, where he was motivated to collect information about Army Units and accordingly he agreed and started collecting and passing on sensitive defense information for monetary consideration. He further disclosed that some slips containing the tactical numbers of Army vehicles at different places, whereby showing the deployment of Army units collected by him were lying at his residence.

14. In pursuance of the same, accused Mohd. Israr led the police party to his residence at House No. T-94, Gali No. 8, Baljeet Nagar, New Delhi, and pointed out a steel almirah in the ground floor room of the said house and after opening the said almirah took out a file containing personal papers, six bus tickets and two slips. On the reverse of the bus tickets and slips were found handwritten tactical numbers of vehicles of Army at different places such as Ambala, Babima, Jhansi, Patiala etc. All the slips and tickets containing the said tactical numbers were got signed by the witnesses and taken into possession through pointing and cum seizure memo.

15. During the course of investigation, ticket no. 71765 from New Delhi to Bhopal dated 31.03.1991, ticket no. 66742 dated 01.04.1991 from Bhopal to Sagar, ticket no. 64016 dated 02.04.1991 from Sagar to Delhi, 8 which were recovered from the personal search of accused Hassinuddin Khan @ Hassinuddin were got verified from the railway authorities found to be genuine.

16. During the course of investigation, Razak Ahmed, UDC, PHC officials was handed over to third Secretary, PHC New Delhi. A copy of authenticated photograph of each PHC Official i.e. Ali Asgar and Razak Ahmed and their particulars viz passport no. date of issue, arrival in India and departure were obtained from the Protocol Officer II, MEA, New Delhi, vide his letter no. D-II/451/91(4/89) PT dated 02.05.1991. The handwriting specimen of both the said accused persons were taken and were sent to CFSL alongwith questioned documents for opinion of the handwriting expert. Dr. M. A. Ali, Sr. S.O II (documents), CFSL CBI, New Delhi vide his report has given his opinion and further asked the more specimen and admitted handwriting of both the accused person for comparison.

17. The handwritten slips containing the location, deployment of various Army units at various forces, posting of Army Officers, tactical numbers of the vehicles etc. photographs of the film roll and railway requisition slip mentioning fake name while depositing brief case recovered from Hassinuddin Khan and Mohd. Israr were sent to Army and Air Force for opinion. They have opined that the said documents are sensitive in nature and information contained in them if disclosed to unauthorized 9 persons could be prejudicial to the safety and security and interest of the State and could be useful to enemy. All the documents are directly or indirectly related to defense matters. Sub. Badri Singh, the fake name mentioned in the cloak room requisition slip was used by Hasinuddin as Army authority has reported that Sub. Badri Singh is not serving / never served with 270 Engineer Regiment at Jodhpur. The Central Government also gave Sanction to prosecute accused persons as requirement under Official Secrets Act. A complaint has also been given by Sh. J. P. Singh, IPS DCP, Special Branch, Delhi.

18. After completion of investigation, charge sheet was filed under section 3, 9 of Official Secrets Act read with section 120B of IPC and 120 B of IPC, against the accused Hasinuddin Khan and Mohd. Israr before the court of learned Chief Metropolitan Magistrate. It was committed to the court of sessions and was assigned to this court.

19. On 09.11.1993, after hearing the arguments, charge was framed against the accused Hassinuddin and Mohd. Israr under section 3 of the Official Secrets Act, 1923 and under section 120 B of IPC. Against Mohd. Israr under section 3 and 9 of the Official Secrets Act, 1923 and against accused Hassinuddin under section 3 and 9 of the Official Secrets Act, 1923, to which they have not pleaded guilty and claimed trial.

20. To prove its case, prosecution has examined PW-1 to 35 in all. 10 Out of which Public witnesses are PW-2,8,9,11,12 and 16.

21. PW-2 is Gobind Mehto. He has stated that on 04.04.1991 at about 6 or 6.15 PM, he was present near Ajmal Khan Park at the pavement. One person in civil dress came to him and asked him to join the raiding party. On enquiry, he told that they were from the CID and that they were to arrest a person. He joined the raiding party which consisted of 6-7 officials in civil dress. They went inside the Ajmal Khan Park and they concealed their presence behind the bushes in the park. Accused Hasinuddin came there in the park and took out some papers from the right side pocket of his pant and handed over the same to another person. This other person was already present in the park. That person was of Pakistan Embassy who kept the papers in his pocket and gave 40 currency notes of Rs.100/- denomination each and an un-developed roll of film to the accused Hasinuddin. The CID people arrested the accused Hasinuddin and the other culprit. 40 currency notes of Rs.100/- each and the un-developed roll of film was recovered from the accused Hasinuddin.

22. He has further stated that he put his initials on the recovered currency notes and the roll of the film. In response to court question, witness has stated that un-developed film roll was given by the accused Hassinuddin to the other person and name of the said person was Razak Ahmed. The un-developed film roll and two sheets of Note book which 11 were seized by the police vide memo Ex. PW-2/A bears his signatures at point A. Currency notes were seized vide memo Ex. PW-2/B which bears his signatures at point B. After the arrest of accused Hasinuddin, his personal search Ex. PW-2/C was conducted. From the personal search of the accused, a sum of Rs.265/-, one HMT wrist watch, one comb and three railway tickets were recovered.

23. PW-2 has identified the accused Hasinuddin before the court and case property. Currency notes as Ex. P-1/1 to 40. Again he has been cross examined by the learned APP and the witness has admitted that he has signed Mark Q-1 & Q2.

24. PW-8 is Rajinder Prashad. On 14.04.1991, he was present in his house and was cooking his meal. It was evening time. 2-3 persons knocked at his door and called him out. There were 2-3 persons in plain clothes and one Sardarji was in police uniform. They asked him to accompany them. He told them that he was cooking his meal but they forced him to accompany them and one of them caught him by his hand. They also took PW Om Prakash with them whose house was a little beyond his house. Thereafter, the party went to the house of the accused Mohd. Israr and they also took them. Accused Mohd. Israr was present in the house. The policeman straightway approached an Almirah in the house of the accused Israr and opened the same and took out a file containing a slip 12 having some numbers on it. The said slip was taken out by the police party and asked him and Om Prakash to put their signatures. Police seized the slip and arrested the accused Mohd. Israr. He has resiled from his earlier statement, hence has been cross examined by the learned APP. In the cross examination, he has admitted that the bus ticket Ex. PW-8/C1 to 6 and the two slips Ex. PW-8/D1 to 2 bears his signatures. He has further admitted that these were recovered from the house of the accused Mohd. Israr.

25. PW-9 is Om Parkash. On 14.04.1991, he was present at his house and was about to take his meal. Somebody knocked his door and he opened the door and he was called by 4-5 persons. His neighbour PW- 8 also with them. He was told by them to visit the house of accused Mohd. Israr, who was his neighbour. He was residing at a distance of 10-12 houses from his house. Lakhi Ram disclosed his identity and asked him to visit the house of accused. They both were also taken to the room of the accused and were made to stand there. The children of the accused were not allowed to enter the room as they wanted to take their meal. After recording the statement, his signatures were obtained thereon. The witness has been cross examined by the learned APP as he has resiled from his previous statement.

26. In the cross examination, he has admitted that the tickets Ex. PW- 13 8/C1 to 6 and slips Ex. PW-8/D1 to 2 were recovered from the file, which was recovered from the almirah of the accused. He has also admitted that the police after recovering of the six tickets and two slips from the possession of the accused, had prepared the seizure memo cum pointing memo Ex. PW-8/B, which bears his signatures. He has identified the accused Mohd. Israr before the court.

27. PW-11 is Shitla Pd. Mishra. On 10.04.1991, he was standing in front of his house. Accused Hasinuddin was residing nearby his house and he is known to him being his neighbour. One constable of his area had called him and Rama Shanker. He was taken to the house of accused Hasinuddin, where Delhi Police Officials were also sitting at the door. He was asked to sign by the police officials on 11 papers. The learned APP has cross examined the witness as he has resiled from his previous statement. In the cross examination, he has admitted that 11 slips Ex. P- 1/1 to 11 bears his signatures. He has also admitted his signatures on the recovery memo Ex. PW-11/A. He has identified the accused Hassinuddin before the court.

28. PW-12 is Rama Shanker. He has stated that accused Hassinuddin belongs to his village. About 2-3 years ago, the constable of their police post came to him and took him to the house of Hassinuddin. The other police officials were also present and took his signatures on some papers. 14 The learned APP has cross examined the witness as he has resiled from his previous statement. In the cross examination, he has admitted that 11 slips Ex. P-1/1 to 11 bears his signatures. He has also admitted his signatures on the recovery memo Ex. PW-11/A. He has identified the accused Hassinuddin before the court.

29. PW-16 is Mohan Lal. He has stated that on 13.04.1991, he was present at ITO. He was called by the policeman to join the investigation of the case and he had to sign in token of the signatures which had been taken before him. He does not remember the name of the person whose signatures were taken on five sheets and he attested the signatures on five sheets. He has identified the accused Hassinuddin and eight papers bearing his signatures at point A1- A8 on Ex. PW-15/A1 - A8. In his presence, one accused and two policemen appeared and signatures of accused were taken. He has resiled from his earlier statement hence, has been cross examined by the learned APP. In cross examination, he has admitted that the specimen handwriting of accused Mohd. Israr was obtained in his presence on Ex. PW-15/B1-5 bearing his signatures at point B on all these three documents, which have been shown in writing A6 to S10.

30. PW-1,3,4,5,6,7,14,15 and 22 are witnesses from the railway regarding some part of the Investigation.

31. PW-1 is Shankar Lal. He has stated that on 05.04.1991, he was working as Incharge, Cloak Room, New Delhi Railway Station. Satpal, porter was also working there on that day. He has stated that accused Hasinuddin had deposited a suit case in the cloak room on 03.04.1991 and he issued a receipt in this regard. On 04.04.1991, the police came with the accused Hasinuddin to the cloak room. He delivered the suit case back to Hasinuddin in the presence of the police. The same was opened and the list of contents was prepared by the police. The brief case contained clothes, Rs.914/- in cash, 11 written slips. These were taken into possession vide memo Ex. PW-1/A which bears his signatures.

32. PW-1 has identified the accused Hasinuddin before the court and the case property. Brief case as Ex. P-1, wearing clothes as Ex. P-2 (collectively exhibited), Slips as Ex. P-3 to 11 which bears his initials SP and other documents as Ex. P-4 collectively, which were in the brief case.

33. PW-3 is Brij Mohan, retired from Parcel Office. He has stated that on 16.05.1991, he was posted as record lifter in the parcel office of New Delhi Railway Station. On that day, a police Inspector came to him and demanded the Left Luggage Ticket used in Cloak Room of New Delhi Railway Station. He handed over the same to him the book containing Left Luggage Ticket. The same is Mark A. The Inspector put his slip on a particular Left Luggage Ticket contained in the book and obtained his 16 signatures on the particular ticket. The book containing the ticket was seized by him vide memo Ex. PW-3/A which bears his signatures at point A. The ticket Ex. P-5 bears his signatures at point A. His assistant Hari Singh and Supervisor Ram Dayal were also present at the time of seizure.

34. PW-4 is Hari Singh. He has stated that he was posted in the record room of the Parcel Office as Parcel Porter in April, 1991. Police Inspector came and demanded Left Luggage Ticket book, book no. 1358 from their record lifter Sh. Brij Mohan.

35. He has further stated that Sh. Brij Mohan was disabled and handicapped, hence he asked him to take out this book. He took out the same which is Mark X and gave the same to Sh. Brij Mohan. It was seized vide memo Ex. PW-3/A. He has also identified his signatures at point B on Ex. P-5.

36. PW-5 is Ram Dayal. He was working as Chief Parcel Supervisor at New Delhi Railway Station in the year, 1991. The Police had taken the book Mark X from record lifter of our office Sh. Brij Mohan. He consented to hand over the same to the police. He signed the memo Ex. PW-3/A at point B. He has resiled from his earlier statement and has been cross examined by the learned APP. In cross examination, he has admitted that police came on 16.05.1991 and receipt Ex. P-5 bears his signatures at point C. 17

37. PW-6 is Satpal. He has deposed the same facts as deposed by PW-1. He has also identified the accused Hasinuddin and the case property before the court.

38. PW-7 is Harbans Lal. He has stated that he retired as Chief Booking Supervisor, Delhi Junction on 31.07.1994. From the year 1990 to 1992, he was posted as Chief Booking Supervisor at New Delhi Railway Station. I have seen the summoned record (Brought by Sh. Prem Chand, Booking Clerk, New Delhi Railway Station) i.e. daily cash book of New Delhi Railway Station booking office for the period 21.03.1991 to 31.03.1991 of counter no. 3/10.

39. As per DC Book of New Delhi Booking Office dated 31.03.1991, 2nd Mail express ticket No. 71765 was issued and accounted for in the morning shift rebating Rs.86/- to the Government. The account was made at page no. 3 of the same DC book dated 31.03.1991. The entry on page no. 3 is Ex. PW-7/A qua its photo copy (Original seen and returned).

40. PW-14 is Ganga Ram. He has stated that in the year 1991, he was working as Porter at Nizamuddin Railway Station. He was called at the police station by the local police. He was asked to sign some documents. No one was arrested in his presence. Some articles were recovered from the person, who was present in the police station. He has identified the accused Mohd. Israr before the court as the same person who was present 18 on that day in the police station. He has resiled from his earlier statement hence, has been cross examined by the learned APP. In the cross examination, he has admitted that memo Ex. PW-13/A bears his signatures at point A.

41. PW-15 is Surinder Singh. He has stated that in the year 1991, he was working as a labour in the railway station Nizamuddin. About 3 / 4 years ago, one passenger alighted from a train at Nizamuddin railway station, he was searched in his presence by the police and Rs.602/- were recovered from his possession. A bunch of key containing of 3 keys and one wrist watch were also recovered. A bill was found in his pocket. He was also carrying a small bag containing some papers.

42. He has identified the accused Hasinuddin as the same person from whom the said articles were recovered. He has resiled from his earlier statement, hence, has been cross examined by the learned APP.

43. In the cross examination, he has admitted that the name of that person was Mohd. Israr. The articles were taken into possession vide memo Ex. PW-13/A. One brief case was also recovered from the possession of Mohd. Israr and was taken into possession vide memo Ex. PW-14/A which bears his signatures at point A.

44. PW-22 is Sh. Devender Srivastava. He has brought photostate copy of classification summary of printed tickets issued on 01.04.1991. As 19 per the summary ticket No. 66742 from Bhopal to Sagar was sold to some passenger. He has identified the ticket Ex. P-1 which was issued by him to some passenger and the same is genuine.

45. Witnesses to the investigation are PW-

10,18,19,20,26,27,28,31,32,33,34 and 35.

46. PW-10 is constable Satya Bhan. On 10.04.1991, he got one film no. NP-22 (black and white) 135/136. It was wrapped on which orwo film was written. He had developed the prints in the dark room. 24 prints were developed. Six sets were prepared and he handed over the photographs and negatives to the IO. He has identified the developed film roll as Ex. P-1 and the container of the film as Ex. P-2 before the court. He has prepared 24 positives from Ex. P-1, which are Ex. P-3/1 to 24.

47. PW-18 is SI Puran Singh PAP. On 04.04.1991, he was posted in the Special Branch in CE Section. On that day, he joined the raiding party alongwith Inspector Lakhi Ram. On the directions of the IO, he took Razak Ahmed, an employee of Pakistan High Commission to PS DB Gupta Road. Sh. Irshad Hasan, 3rd Secy., High Commission of Pakistan and Sh. Arun Kumar Singh, Dy. Secy.,Ministry of External Affairs were also present in the police station. He handed over Razak Ahmed to Sh. Irshad Hasan in the presence of Sh. Arun Kumar Singh at about 9 PM. He also recorded DD no. 15-A in this regard in the police station. Sh. Irshad Hasan had also 20 written a receipt Mark A about handing over of Razak Ahmed.

48. PW-20 is SI Ram Saran. On 04.04.1991, he was posted in CE Sec. Special Branch, PHQ. He was joined in the raiding party by Inspector Lakhi Ram. He had taken rukka to the police station for the registration of the case. On the basis of which, formal FIR of the case was registered. He handed over the rukka and the copy of FIR to Inspector Lakhi Ram as per his directions.

49. On 01.05.1991, he took one sealed envelope bearing the seal of LR to CFSL, Lodhi Road and deposited the same with the concerned official. He handed over the receipt of the same to Inspector Lakhi Ram. So long as the envelope remained in his possession, it was not tempered with.

50. PW-26 is Sat Parkash. He has stated that on 21.05.1991, he was posted in CE Section at Special Branch PHQ. On that day, he had taken one envelope sealed with the seal of LR to the office of Director CFSL, CBI Block No. 4, CGO Complex. Then he handed over the same in that office. The forwarding no. 182 dated 17.05.1991 is Ex. PW-26/A.

51. On 10.07.1991, he had again taken one envelope sealed with the seal of LR to CFSL office, CGO Complex and has deposited the same. So long as the envelope remained in his possession, the same intact.

52. PW-27 is HC K. P. Sharma. On 04.04.1991, he was posted at 21 police station DBG Road. On that day, he was working as DO from 4 PM to 12 PM (Night). At about 8 PM, SI Lakhi Ram had sent a rukka through ASI Ram Saran for the registration of the case. He recorded the formal FIR at serial no. 77/91 under section 3,9 Official Secrets Act read with section 120B of IPC. Copy of the FIR is Ex. PW-27/A.

53. PW-28 is Retired SI Mange Ram. He has stated that on 22.04.1991, he was posted at S. B. Branch, PHQ. On that day, he had gone to Bhopal Railway Station alongwith constable Rajinder Singh in connection with the investigation of the case. He met Devender Srivastava at the railway booking office, Railway Station, Bhopal. He enquired about the railway ticket dated 01.04.1991. Sh. Devender Srivastava told him that the said ticket was sold to a passenger on 01.04.1991 and as such it is genuine. He recorded his statement under section 161 of Cr. P. C. He also interrogated G. A. Damani, ASM, Sagar Railway Station. He showed him ticket no. 64016. According to G. A. Damani, the said ticket was sold to a passenger on 02.04.1991 from Sagarpur to Delhi, as such, it is genuine ticket. He recorded his statement under section 161 of Cr. P. C. On 25.04.1991, he visited New Delhi Railway Station in connection with the investigation of the case and met Harbans Lal, Chief Ticket Examiner, New Delhi Railway Station. He showed him ticket no. 71765 from Delhi to Bhopal. According to Harbans Lal, the said ticket was sold to a passenger 22 on 31.03.1991 and is genuine. He also recorded his statement under section 161 of Cr. P. C.

54. PW-31 is SI Suresh Babu Sain. On 10.04.1991, he was posted in the police post Bhupia Mau as Head Constable. He was joined in the investigation by the IO. In his presence, 11 slips were recovered from the steel box from the house of accused Hassinuddin. They were taken into possession vide memo Ex. PW-11/A which bears his signatures at point A. He has identified the accused Hassinuddin and 11 slips as Ex. P1 to Ex. P11 before the court. The house search of the accused was also conducted but nothing incriminating could be recovered. The house search memo is Ex. PW-11/B which bears his signatures at point B.

55. PW-32 is Sh. H. C. Balkrisan. On 05.07.1991, he was posted in the 3rd Battalion of DAP. He was joined in the investigation by Inspector Lakhi Ram. He has further stated that both the accused were produced before the CMM on that day. After seeking the permission of the CMM, the accused persons were produced before Sh. R. K. Jain, the then MM, Tis Hazari Courts, Delhi. On the dictation of IO, both the accused wrote down 7-8 pages each. These sheets were got written as the IO wanted the specimen handwriting of both the accused persons in connection with the investigation of the case. The sheets containing the specimen handwriting are Ex. PW-32/A-1 to 7 and PW-32/B-1 to 7. All the sheets bear his 23 signatures at point A and B respectively. The accused had also signed in their respected sheets.

56. PW-33 is constable Sriman. On 05.07.1991, he was posted in the DAP, 3rd Battalion. He was joined the investigation of the present case by Inspector Lakhi Ram. He has identified both the accused persons before the court as the same persons who were produced before Sh. R. K. Jain, the then MM, Tis Hazari. Specimen handwriting of both the accused were taken by Inspector Lakhi Ram on 7 different sheets each accused totaling 14, in his presence. These sheets are Ex. PW-32/A1 to 7 concerning accused Hassinuddin while the other 7 sheets are Ex. PW-32/B1 to 7 concerning to accused Mohd. Israr. All these sheets have also signed by him as well as HC Bal Kishan at the time of taking of the specimen handwritings of the accused.

57. PW-34 is Inspector Madan Jit Singh. On 07.04.1991,he was posted in CE Section, Special Branch as Sub Inspector. Lakhi Ram, Inspector was the incharge of that section at that time. On 07.04.1991, accused Hasinuddin was interrogated by Inspector Lakhi Ram in his presence. During investigation, accused disclosed that he had been collecting deployment of various arms units and the position of those units recorded by him were lying at his residence, Village Sarai Bahelia in a sealed trunk and he could get them recovered. The statement of the 24 accused Hasinuddin was recorded by Inspector Lakhi Ram to this effect and the same is Ex. PW-19/B which bears his signatures at point B.

58. On 14.04.1991, accused Mohd. Israr was interrogated by Inspector Lakhi Ram in his presence. Accused made disclosure statement. He stated that he had collected tactical numbers of various army vehicles and were lying at his residence and he could get them recovered. The disclosure statement Ex. PW-19/C of accused Mohd. Israr was recorded by Inspector Lakhi Ram, which bears his signatures at point B.

59. PW-35 is ACP Lakhi Ram. He is the IO of the case. On 04.04.1991, he was posted in Counter Espionage Section, Special Branch, CID. On that day, at about 5 PM, he received a secret information in the office that Hasinuddin Khan in conspiracy with Razak Ahmed Pakistan High Commission Official, New Delhi for a purpose prejudicial to the security of the nation are collecting and communicating documents / information which are calculated to be intended to be or might be useful to the enemy country or friendly country the disclosure of which likely to affect the sovereignty of the nation. Informer further informed that Hassinuddin Khan and Razak Ahmed are likely to be meeting at Ajmal Khan Park, Karol Bagh at 6.30 PM. At this information, a raiding party comprising of SI Mandanjit Singh, SI Vikram Singh, ASI Puran Singh, ASI Ram Saran and HC Ram Meher was prepared and they reached at Ajmal Khan Park. 25 Govind Mehto and Brij Rattan were requested to join the raiding party. They agreed and raiding party was deployed at the crossing of the fountain leading to the statue of Ajmal Khan in Ajmal Khan Park. At about 6.25 PM, Razak Ahmed arrived there. After 10 minutes, accused Hasinuddin also arrived there and handed over some documents and film roll to Razak Ahmed from his right pocket of his pant, in turn Razak Ahmed gave some currency notes to Hasinuddin, which he kept in front pocket of his shirt. Both were apprehended. Two note sheets and film roll were recovered from Razak Ahmed and Rs.4,000/- of Rs.100/- denomination were recovered from the right pocket of the shirt of Hasinuddin Khan. Currency notes, film roll and note book were got signed by witnesses Brij Rattan, Govind Mehto and SI Vikram Singh. They were taken into possession vide memos Ex. PW-2/A and PW-2/B.

60. The undeveloped film is Ex. P1 and the currency notes of Rs.4,000/- are collectively Ex. P-4. Rukka Ex. PW-35/A was prepared by him and sent the same through SI Ram Saran for the registration of the case to the police station DBG Road and on the basis of which formal FIR Ex. PW-11/A was registered by HC Kanta Prashad. The site plan Ex. PW- 2/D was also prepared and the marginal notes are in his handwriting. Accused Hasinuddin was arrested and his personal search was conducted vide memo Ex. PW-2/C. 26

61. Statement of PW Brij Rattan, Govind Mehto and SI Vikram Singh were recorded. The formalities were completed after the return of ASI Ram Saran with the copy of FIR and the rukka. Thereafter, ASI Puran Singh was directed to hand over Razak Ahmed Official of Pakistan High Commission through Dy. Secy. MEA official to Pakistan High commission. Accused Razak Ahmed was handed over to the Pakistan High Commission as per the Viena Convention and protocol.

62. On 05.04.1991, accused Hasinuddin was interrogated and his disclosure statement was recorded and the statement Ex. PW-19/A of accused Hasinuddin was recorded. One brief case belonging to accused Hasinuddin was received from the cloak room of New Delhi Railway Station and from the brief case, 11 slips containing the locations and deployment of various armed forces units and posting of Army Officers were recovered. These slips were got signed from the witnesses and they were taken into possession vide memo Ex. PW-1/A. The 11 slips are Ex. P5/1 to 11 and the 2 sheets which were recovered with the undeveloped film are Ex. PA and PB.

63. On 07.04.1991, Hasinuddin was again interrogated and his disclosure statement was recorded. As per his disclosure statement, 11 more slips containing the posting and locations of army units were recovered from his house at village Sarai Bahelia, police station Kotwali, PP 27 Bhupia, UP and the same were taken into possession vide memo Ex. PW- 11/A. The said slips are already exhibited to Ex. P1 to P11. The disclosure statement Ex. PW-19/B dated 07.04.1991, of accused Hasinuddin was recorded and the specimen handwriting of accused Hasinuddin was obtained and the same is Ex. PW-15/A, 19/A, running into 5 sheets.

64. On 14.04.1991, a secret information was received that Mohd. Israr, co-accused of Hasinuddin was coming by Goa Nizamuddin Express to Delhi. On this information, they reached at New Delhi Railway Station. On the pointing out of the informer, accused Mohd. Israr was apprehended while he was alighting from the said train. From Search of the accused, taken in the presence of the witnesses, SI Vikram Singh and Ganga Ram, one bill of Sainik label dated 08.03.1991 containing some details of the location, deployment of various army units at various places on the back side of the bill. One railway ticket no. 46725 was also recovered from him on his personal search besides other articles and the same were taken into possession vide memo Ex. PW-13/A. The sainik bill is Ex. P-12 and the railway ticket from Puna to New Delhi was also taken into possession. Accused Mohd. Israr was interrogated and his disclosure statement Ex. PW-19/C was also recorded.

65. On the basis of the disclosure statement of accused Mohd. Israr, six bus tickets and two slips from the almirah of the house of the accused 28 were taken into possession vide memo Ex. PW-8/B. There were tactical numbers of army vehicles found written on them. The six bus tickets are Ex. P13/1 to 6 and two slips are Ex. P14 and P15.

66. Accused Hasinuddin was again interrogated on 15.04.1991 and his disclosure statement Ex. PW-19/D was again recorded. Accused Hasinnuddin had disclosed the names of Niab Subedar Thapa and Abdul Rasul, who were posted at Sagar and Jhansi. About their complicity, he wrote to the Army Officials against them. Specimen handwriting of Mohd. Israr was also taken. On 23.04.1991, they went to the house of Mohd. Israr at Pratap Garh alongwith the accused, but nothing could be recovered from his house. Naibullah and Liakat Ali were interrogated at Pratap Garh. The undeveloped film, which was recovered from accused Hasinuddin, was got developed from the photo section of crime branch. Those photos related to army installation and Air Force Installations, and the same were sent to the Army Officers and their reports were sought. The recovered documents were also sent to the army officials and air force officials, to know about the nature of those documents and also to know whether these documents contain any information prejudicial to the sovereignty of the State. They also obtained the particulars from the Protocol of Ministry of External Affairs.

67. During investigation, he also obtained the sanction Ex. PW-21/A 29 from the Central Government as required under the Official Secrets Act, 1923, to prosecute the accused persons. The said sanction Ex. PW- 21/A was accorded by Sh. L. K. Garg, Under Secretary to the Government of India, Ministry of Home Affairs. He also recorded the statement of the PWs. After the completion of the investigation, he filed the challan against the accused persons. The DCP Sh. J. P. Singh of the Special Branch also filed a complaint under section 3 / 9 of the Official Secrets Act as required under the law, and the same is Ex. PW-29/A.

68. On 05.07.1991, they moved an application before the MM to obtain further specimen signatures of both the accused persons. Specimen Signatures were obtained with the permission of the court and were sent to CFSL for expert opinion. During investigation, counter file of ticket no. 114723 of cloak room, New Delhi Railway Station was collected from the record of cloak room and the same is Ex. P5 which is in the name of Subedar Badri Singh. In this connection, letter was referred to Army Officials and they informed that there is no Subedar Badri Singh in the Army. He has identified the accused persons before the court.

69. PW-19 is SI Vikram Singh. He has deposed the same facts as deposed by PW-35 Inspector Lakhi Ram.

70. Official Witnesses are PW-13,17,21,23,24,25,29 and 30.

71. PW-13 is Air Vice Marshall V. N. Bhan, South Western Command. 30 In the year May, 1991, he was posted as Air Head Quarters as Dy. Director, Intelligence Bureau at New Delhi. He received one letter dated 03.05.1991, from Inspector Lakhi Ram alongwith 12 photographs for seeking his opinion. After seeing the photographs, he gave his opinion vide his letter Ex. PW-12/A which is signed by him at point A. The witness has identified the photographs as Ex. P-1 to P-12 before the court,which were sent to him for his opinion.

72. PW-17 is Lt. Col Anthony Abrahim Retd. In the year 1990, he was posted as Director M. I. 9, at Sena Bhawan, Army Head Quarters, New Delhi. Inspector Lakhi Ram, CE, Special Branch, PHQ had sent him some photographs alongwith the covering letter seeking his opinion being an expert and after seeing the photographs No. 20,23,25 and 26. He tender his opinion Ex. PW-16/A and 16/B. According to his report, photographs are sensitive. Again this witness was called for further examination on 17.07.2006. He has stated that after examining the documents received by him alongwith a letter from SI Lakhi Ram which were 33 hand written slips, he found the nature of documents to be sensitive and useful for enemy and were indirectly connected with the defence matters. He had forwarded the report Ex. PW-17/D vide letter dated 02.05.1991 Ex. PW-17/C.

73. PW-21 is Sh. L. K. Garg. He was working as Under Secretary, in the Ministry of Home Affairs in the year 1991 in I. A. S. Division. He 31 accorded the sanction for the prosecution of Hasinuddin Khan under the O. S. Act after following the laid down procedure, on the basis of the material furnished by Delhi Admn. and Delhi Police. The Sanction letter is Ex. PW- 21/A which is signed by him at point A.

74. PW-23 is Dr. M. A. Ali, Ph. D. in Chemistry. He has 24 years experience of service in submission of questioned document. He has examined thousands of document independently and submitted his reports. In the year 1991, he had received some material sent by Inspector Lakhi Ram of Special Branch, Delhi Police vide memo No. 166/CE dated 01.05.1991 and no. 182 dated 17.05.1991 pertaining to case FIR no. 77 dated 04.04.1991 under section 3/ 9 of Official Secret Act read with 23 of IPC, police station DB Gupta Road, New Delhi. After examining the documents carefully with the scientific aid, he gave his opinion Ex. PW-23/A running in three pages and is signed by him at point A.

75. As per his opinion, he gave the result of examination as under :-

1. Handwriting evidence points to the writer of the specimen writing Mark S1 to S5 being the person responsible for writing the questioned writing Mark Q35 and Q36. He has given the reason in his report Ex. PW-23/A.

2. Secondly, for a thorough scientific examination, his opinion on the rest of the questioned Mark LQ1 to Q34, Q37 to Q47 more 32 specimen writing and admitted writing of the suspected persons namely Hasinuddin and Mohd. Israr containing sufficient common matter of the questioned writing would be needed.

76. On 31.10.1991, he has submitted the supplementary report CFSL 91/D, 1715, dated 31.10.1991 after receiving further material from Inspector Lakhi Ram.

77. On examination of the original document, he gave the result of the examination:-

1. Handwriting evidence points to the writer of the specimen writing S1 to S5, S11 to S17 being the person responsible for writing question writing marked Q1 to Q21, Q23 to Q28, Q30 to Q34 and Q47.

2. Handwriting evidence points to the writer of the specimen writing S6 to S10, S18 to S24, being the person responsible for writing the questioned writing Mark Q22, Q37 to Q40, Q42 to Q46.

3. It was not possible to give any opinion regarding the authorship of the questioned writing Mark Q29 and Q41 on the basis of the material with him. His supplementary report is Ex. PW-23/B, running into five pages.

78. PW-24 is Mohinder Singh. He has brought the summoned record i.e. of original of Ex. PW-24/A. The signatures are of M. U. Siddiqui, Dy. 33 Secy. (Home). Ex. PW-24/A is the copy of the original letter sent by Sh. M. U. Siddiqui on 26.06.1991. The original is signed by Sh. M. U. Siddiqui and the same is office copy. (Original seen and returned).

79. PW-25 is Sh. C. M. Uthaiah. On 19.06.1991, he was posted at R. B. Headquarter in MI-9 at Sena Bhawan. Letter no. 181/Insp./CE/SB dated 17.05.1991 was referred to him for his reply. As per his reply Ex. PW-25/A, Subedar Badri Singh never served with 270, Engineer Resident at Jodhpur.

80. PW-29 is Sh. J. P. Singh. On 01.07.1991, he was posted as Dy. Commissioner of police, Special Branch, Delhi. On that day, he had filed a complaint Ex. PW-29/A in the court of Sh. J. P. Sharma, the then CMM, Delhi, against Hasinuddin Khan and Mohd. Israr for taking cognizance under section 3/9 of Official Secret Act read with Section 120-B of IPC. The synopsis are Ex. PW-29/B. The complaint comprises of 22 pages and is signed by him at point A on the last page. However, the synopsis are not signed by him.

81. PW-30 is Sh. R. B. Lal. On 02.05.1991, he was posted as Protocol Officer II, in the Ministry of External Affairs. On that day, he supplied the required information as available in the records of Protocol II of the Ministry of External Affairs. The detail has been given in Letter Ex. PW-30/A and is signed by him at point A.

82. Findings qua accused Hasinuddin.

83. The first question is regarding the apprehension of accused Hasinuddin when he handed over two sheets of note book and one un- developed film roll to one Razak Ahmed, UDC, Pak High Commission, New Delhi. To prove this fact, the prosecution has examined PW-2 Govind Mehto, who has stated that on that day, he was present near Ajmal Khan park and he was asked to join the raiding party by the police official and it was told that they were from CID. He joined the raiding party consisting of 6-7 officials of the police and they went inside the Ajmal Khan park and concealed their presence behind the bushes. He saw that accused Hasinuddin took out some papers from the right side pocket of his pant and handed over the same to the other person, who was already present in the park. The other person was from Pakistan Embassy. That person after keeping the papers, gave 40 currency notes of Rs.100/- each denomination to the accused.

84. Accused Hasinuddin was arrested and 40 currency notes of Rs.100/- each denomination were recovered from the possession of accused Hasinuddin. Seizure memo was prepared in this respect. He signed the same. During the examination in chief, he has stated that un- developed film roll was given by the accused Hasinuddin to the other person. He has identified his signatures on seizure memo Ex. PW-2/A. Currency notes were seized vide memo Ex. PW-2/B. Personal search of 35 accused Hasinuddin was conducted vide memo Ex. PW-2/C. He has also identified the currency notes as Ex. P-1 to P-40. Undeveloped film roll had already been developed, hence was not identified by the witness.

85. The learned defence counsel has contended that the witness has improved from his statement recorded earlier by the police under section 161 of Cr. P. C. It is also contended that PW-2 was residing at Chiraya Colony at Pusa and his presence near Ajmal Khan park was unnatural. It is further contended that PW-2 has been confronted with his earlier statement Ex. PW-2/DA. It is contended by the learned defence counsel that PW-2 has failed to depose the details of film roll in cross examination. It is also contended that the witness has stated in the cross examination that he alongwith his brother had gone there to purchase daily use articles, but it is unbelievable that both of them had gone to Ajmal Khan park to purchase daily use articles which were also available nearby Chiraya Colony at Pusa. It is further contended that in the site plan Ex. PW-2/D, bushes have not been shown behind which PW-2 had concealed himself alongwith the members of the raiding party. Even PW-2 does not know as to by whom the said site plan was prepared, hence witness can not be believed in any manner. It is contended that another witness Brij Rattan was dropped by the prosecution.

86. Witnesses to the seizure memo Ex. PW-2/A and PW-2/B are SI 36 Lakhi Ram and SI Vikram Singh. SI Vikram Singh has been examined by the prosecution as PW-19. He has deposed the same facts as of PW-2 and has identified the two sheets of note book, currency notes and his signatures on seizure memo Ex. PW-2/C.

87. PW-35 Lakhi Ram has also deposed the same facts as of other two witnesses i.e. PW-2 and 19. Secret information was received by PW- 35 and he prepared a raiding party comprising of SI Madanjit Singh, SI Vikram Singh, ASI Puran Singh, ASI Ram Saran and HC Ram Mehar. They reached at Ajmal Khan Park and Govind Mehto and Brij Rattan were requested to join the raiding party. They both agreed. It was seen by the members of the raiding party that the accused Hasinuddin handed over some documents and one undeveloped film roll to one Razak Ahmed, who in turn handed over Rs.4,000/- of Rs.100/- each denomination to accused Hasinuddin. After the apprehension of accused Hasinuddin and Razak Ahmed, currency notes were recovered from the possession of accused Hasinuddin and two sheets of note book and undeveloped film roll were recovered from the said Razak Ahmed.

88. He has also identified the currency notes, undeveloped film roll before the court. He prepared the rukka and got registered the case FIR through SI Ram Saran. He also prepared the site plan.

89. In support of his contentions, the learned defence counsel has 37 relied upon Munni Lal Vs The State, 1995 JCC 110 regarding non joining of independent witness to the proceedings and recovery. But I am afraid that it is not a case of the prosecution because there were two public witnesses out of which one has been examined as PW-2.

90. The learned defence counsel has further relied upon Munna Ali Vs State, IV (1998) CCR 320, regarding the chance witness under the influence of the police but again from the reading of the testimony of PW-2, it is clear that he was not under the influence of police in any manner.

91. The learned defence counsel has also relied upon the judgment Rang Bahadur Singh and others Vs State of U. P. (2000) 3 Supreme Court Cases 454, wherein it has been held "Non-examination of material witness - Even though other eyewitnesses examined, non-examination of the person whose testimony may have deleterious impact on the veracity of the other witness would be an incongruity which would case a doubt on the prosecution case" and contended that PW Brij Rattan has not been examined hence adverse inference be drawn. In this respect, I would like to say that in this judgment itself, it has been held that if the guilt of the accused is proved beyond reasonable doubts, accused can not be acquitted.

92. The learned defence counsel has further contended that neither the currency notes allegedly recovered from the possession of accused 38 Hasinuddin nor two sheets of note book alongwith undeveloped film roll were sealed in any manner. Hence, in such circumstances it can not be said that these were recovered from the possession of accused Hasinuddin and one Razak Ahmed. In support of his contention, he has relied upon Amarjeet Singh Vs State of Punjan, 1994 JCC 129 (SC), wherein it has been held that non sealing of the case property at the spot is a serious infirmity, because of tempering over the case property can not be ruled out.

93. The learned defence counsel has further relied upon the judgment Dharminder Pal Vs State of Punjab, 1997 Supreme Court Cases (Cri) 670, wherein it has been held that non sealing of case property at the time of seizure does not prove the identity of the case property as the same which was allegedly recovered from the possession of the accused.

94. I have gone through the cross examination of PW-2. Presence of PW-2 near Ajmal Khan park was not unnatural as it is explained by PW-2 that he alongwith his brother had gone there to purchase Pappad and some dry fruits from a shop. It is well known that there are some famous shops near Ajmal Khan park which used to sell Pappad, Vaddias and dry fruits, hence it was not unnatural in any manner that PW-2 had gone to purchase some articles from there.

95. From the deposition of PW-2, it is clear that he alongwith Inspector Lakhi Ram had concealed his presence behind the bushes and saw 39 accused Hasinuddin exchanging the case property i.e. undeveloped film roll, two sheets of note book.

96. PW-2 has been cross examined by the learned defence counsel regarding the A. S. A. and DIN number of the undeveloped film roll. In my opinion, except a person who works as a photographer, no other common man knows about the A. S. A and DIN number of film roll, hence it was not expectable from PW-2 that he had checked the A. S. A and DIN numbers of film roll and had remembered it. The testimony of PW-2 is unrebutted and unshaken. It has not come on record that he was an interested witness in any manner. Nothing has been brought on record to show that PW-2 was having any reason to depose falsely against the accused Hasinuddin. His presence near Ajmal Khan park was natural because he had gone their to purchase some articles with his brothers. The judgments relied upon by the learned defence counsel are not applicable to the facts and circumstances of the present case. Non examination of witness Brij Rattan is not fatal to the case of the prosecution in any manner nor any adverse inference can be drawn against the prosecution because from the testimony of PWs, it is clear that three raiding parties were formed of all the persons and witness Brij Rattan was not in the raiding party which was consisting PW-2,19 and 35.

97. The contention of the learned defence counsel regarding the non 40 sealing of case property is also not forceful in any manner as PW-2, who is the independent witness to the proceedings has identified the case property before the court, which was recovered from the accused. He has also deposed that Ex. PW-2/A and PW-2/B were prepared by PW-35 Lakhi Ram in his presence. He has testified that he was not known to Inspector Lakhi Ram prior to 04.04.1991 i.e. the day of incident. The purpose of sealing of the case property during the proceeding is only to avoid any tempering of the case property but in view of the unrebutted and unshaken testimony of PW-2 corroborated by PW-19 and 35, it can not be said that non sealing of the case property at that time is fatal to the case of the prosecution.

98. PW-2 has denied the suggestion that on the day of incident he was not present at the spot and he and his brother were summoned by the police at PHQ, I. P. Estate, New Delhi. He has also denied the suggestion that no proceedings took place on 04.04.1991 in between 6.25 PM to 6.35 PM in Ajmal Khan park. He has also denied the suggestion that he had been deposing falsely at the instance of Inspector Lakhi Ram.

99. From the testimony of PW-2, who is independent and un- interested witness to the proceedings, prosecution has been able to prove the fact beyond reasonable doubts that accused Hasinuddin handed over the two sheets of note book, one undeveloped film to one Razak Ahmed, who in turn handed over Rs.4,000/- consisting of Rs.100/- currency notes 41 each denomination to accused Hasinuddin, which were recovered from the possession of accused and one Razak Ahmed and were seized vide seizure memo Ex. PW-2/A and PW-2/B.

100. Two sheets of note book which were recovered from the possession of Razak Ahmed were given no. Q1 and Q2 bearing signatures of PW-2 Govind Mehto and another witness Brij Rattan alongwith the signatures of PW-19 SI Vikram Singh. These were sent for examination for the handwriting expert opinion and were examined by PW-23 Dr. M. A. Ali, who had given his report Ex. PW-23/B, wherein he has stated that Handwriting evidence points to the writer of the specimen writing S1 to S5, S11 to S17 being the person responsible for writing question writing marked Q1 to Q21.

101. As per deposition of PW-35, after the above recovery, he prepared rukka Ex. PW-35/A and handed over the same to SI Ram Saran for registration of the case, who got registered the case FIR Ex. PW-11/A from police station DB Gupta Road, which was registered by PW-27 HC Kanta Parsad. PW-20 has corroborated this fact by deposing that he had taken rukka for registration of the case and after registration, he handed over the copy of FIR and rukka to Inspector Lakhi Ram. Accused Hasinuddin was arrested and his personal search Ex. PW-2/C was conducted.

102. In the personal search Ex. PW-2/C, three railway tickets no. 42 66742, 717465 and 64016 from Bhopal to Sagar, Delhi to Bhopal and Sagar to New Delhi Nizamuddin Railway Station were recovered. PW-22 Devender Srivastava, Sr. Booking Clerk, Bhopal has brought the copy of classification summary of printed tickets issued on 01.04.1991 and as per summary ticket no. 66742 from Bhopal to Sagar was sold to one passenger and the same is Ex. P-1 and is genuine. Similarly, PW-28, Retd. SI Mange Ram had gone to Bhopal railway station with constable Rajinder singh and met there with PW-22 and made enquiries regarding railway ticket dated 01.04.1991 and it was told that it was sold to one passenger and is genuine. Similarly, 64016 was shown to Sh. G. A. Damani, ASM, Sagar Railway Station, who told that it was sold to one passenger on 02.04.1991 from Sagar to Delhi and is genuine. On 25.04.1991, he visited New Delhi Railway Station and showed ticket no. 71765 from Delhi to Bhopal to one Harbans Lal, chief ticket examiner and he told that it was sold to one passenger on 31.03.1991 and is genuine.

103. PW-28 has not been cross examined by the learned defence counsel in any manner. Nothing came out from the cross examination of PW-22 to disbelieve him and he is a witness of formal nature.

104. PW-35 has further stated that PW-18 ASI Puran Singh was directed to hand over Razak Ahmed Official of Pakistan High Commission through Dy. Secy. MEA official to Pakistan High commission. ASI Puran 43 Singh has been examined as PW-18 by the prosecution, who had corroborated this fact and stated that he handed over Razak Ahmed to Sh. Irshad Hasan, 3rd Secy., High Commission of Pakistan in the presence of Sh. Arun Kumar Singh, Dy. Secy.,Ministry of External Affairs, in the police station. He also recorded DD no. 15-A in this regard in the police station. Sh. Irshad Hasan had also written a receipt Mark A about handing over of Razak Ahmed. His testimony is unrebutted and unshaken. He has again testified the same facts in the cross examination conducted by the learned defence counsel and during the cross examination it was not suggested to PW-18 that Razak Ahmed was not apprehended and was not handed over to Sh. Irshad Hasan in the presence of Sh. Arun Kumar in police station DB Gupta Road.

105. PW-30 Sh. R. B. Lal has stated that on 02.05.1991, he supplied the required information as available in the records of Protocol II of the Ministry of External Affairs. The detail has been given in Letter Ex. PW- 30/A and is signed by him at point A. Memo Ex. PW-30/A is regarding the information of Ali Asghar and Razak Ahmed, available in the records of Protocol II Section of the Ministry of External Affairs, having passport numbers, date and port of arrival in India, I-Card number, date of issue and date of departure. As per record, Razak Ahmed was still working in the Mission as on 02.05.1991 i.e. date of report Ex. PW-30/A. This witness has 44 not been cross examined by the learned defence counsel for the accused in any manner.

106. PW-35 has further deposed that on 05.04.1991, accused Hasinuddin was interrogated and his disclosure statement Ex. PW-19/A was recorded. One brief case belonging to accused Hasinuddin was received from the cloak room of New Delhi Railway Station and from the brief case, 11 slips containing the locations and deployment of various armed force units and posting of Army Officers were recovered. These slips were signed by the witnesses and were taken into possession vide memo Ex. PW-1/A. He has exhibited the 11 slips as Ex. P-5/1 to 11. This memo is witnessed by Shanker Pal and one Satpal and was prepared by Inspector Lakhi Ram.

107. PW-1 Shanker Pal has stated that on 05.04.1991, he was working as Incharge, Cloak Room, New Delhi Railway Station and PW-6 Satpal, porter was also working there on that day. He has stated that accused Hasinuddin had deposited a suit case in the cloak room on 03.04.1991 and he issued a receipt in this regard. On 04.04.1991, the police came with the accused Hasinuddin to the cloak room. He delivered the suit case back to accused Hasinuddin in the presence of the police. The same was opened and the list of contents was prepared by the police. The brief case was containing clothes, Rs.914/- in cash, 11 written slips. These were taken 45 into possession vide memo Ex. PW-1/A which bears his signatures.

108. The brief case has been identified by the witness as Ex. P-1, wearing clothes as Ex. P-2 (collectively exhibited), Slips as Ex. P-3/1 to 11 which bears his initials SP and other documents as Ex. P-4 collectively, which were in the brief case.

109. The brief case was seized vide memo Ex. PW-6/A and the 11 slips Ex. P-5/1 to 11 were seized vide memo Ex. PW-1/A.

110. Another witness is PW-6 Satpal. On 05.04.1991, he was posted as Parcel Porter and was on duty in the clock room at New Delhi Railway Station. On that day at about 5.00 PM, accused Hasinuddin came to the cloak room alongwith 2-3 police officials and gave them cloak room ticket on which the suit case of Hasinuddin was deposited in the cloak room. PW- 1 Shanker Pal handed over the suit case to the police and accused Hasinuddin handed over the keys of the suit case to the police. The same was opened. The brief case was containing some clothes, some papers, some money. He has admitted his signatures on Ex. PW-1/A at point A. He has also identified the brief case before the court as Ex. P-1, clothes as Ex. P-2, 11 paper slips as Ex. P-3/1 to 11 and other papers recovered from the brief case as Ex. P-4 collectively.

111. In the cross examination, PW-1 has again testified that he made entry in the register regarding the brief case deposited by the accused 46 Hasinuddin. He has further stated that when he returned the brief case Ex. P-1 to the accused Hasinuddin in the presence of police, he received back the receipt issued by him to the accused.

112. It is contended by the learned defence counsel that as per the case of the prosecution the alleged recovery was affected on 05.04.1991 whereas PW-1 has stated that the police reached at cloak room, New Delhi Railway Station on 04.04.1991 but PW-6 has stated that police reached at cloak room, New Delhi Railway Station on 05.04.1991, hence the testimony of PW-1 can not be relied upon.

113. I have gone through the testimonies of PW-1 and 6. PW-1 has stated that on 05.04.1991, he was working as Incharge, Cloak Room, New Delhi Railway Station and Porter Satpal i.e. PW-6 was also working there on that day. In such circumstances, in further examination of PW-1 date 04.04.1991 as appearing seems to be typographical mistake otherwise he would not have stated that he was on duty on 05.04.1991 and PW-6 Porter Satpal was also working there on that day.

114. PW-3 Brij Mohan has stated that on 16.05.1991, he was posted as record lifter in the parcel office of New Delhi Railway Station and police came to him and demanded the Left Luggage Ticket used in Cloak Room of New Delhi Railway Station. He handed over the same to him. The book containing Left Luggage Ticket is Mark A and was seized by the police vide 47 memo Ex. PW-3/A and he signed the ticket Ex. P-5.

115. Similarly, PW-4 Hari Singh has deposed the same facts that book no. 1358 was demanded from their record lifter PW-3 Brij Mohan and as he was disabled and handicapped, hence he asked him to take out this book. It was handed over to the police which was seized vide memo Ex. PW-3/A. He signed at point B on Ex. P-5.

116. PW-5 Ram Dayal has deposed the same facts as of PW-3 and 4 and has stated that PW-3 informed him that police was demanding book Mark X. He allowed the same to be given to the police and it was seized vide memo Ex. PW-3/A He has also signed Ex. P-5.

117. Ex. P-5 is Cloak room requisition slip whereas Ex. P-4 is the counterfoil of the same. The testimonies of these witnesses went unrebutted and they are witnesses of formal nature and simply handed over the record to PW-35 Inspector Lakhi Ram as demanded by him.

118. The learned defence counsel has contended that receipt book Ex. PX does not contain any form bearing the name of accused Hasinuddin but this has been explained by the witness that luggage was not deposited with him because he was not on duty to receive the luggage. The learned defence counsel has further contended that the form Ex. P-5 receipt no. 114723 vide which allegedly luggage was deposited, is not in the handwriting of accused Hasinuddin.

119. I have gone through the Cloak Room requisition slip Ex. P-5 in Ex. PX at serial no. 114723. Same is showing the date as 03.04.1991 and name of one Subedar Badri Singh and address 270, Engineer residents, Jodhpur, ticket no. 64016 and number of luggage as one VIP bag. It is not disputed that bag which was seized is of VIP. This cloak room requisition slip Ex. P-5 has been marked as questioned document Q47. Specimen handwriting of accused Hasinuddin was taken during the investigation as S- 1 Ex. PW-15/A, S-2 as Ex. PW-19, S-3,4,5 Ex. PW-15/B, S- 11,12,13,14,15,16 and 17 as Ex. 32/A-1 to 7.

120. PW-26 Retd. SI Sat Parkash has stated that on 21.05.1991, he was posted in CE Section at Special Branch PHQ, he had taken one envelope sealed with the seal of LR to the office of Director CFSL, CBI Block No. 4, CGO Complex and handed over the same vide forwarding no. 182 dated 17.05.1991 Ex. PW-26/A. On 10.07.1991, he had again taken one envelope sealed with the seal of LR to CFSL office, CGO Complex and has deposited the same. So long as the envelopes remained in his possession, the same remained intact. This witness has not been cross examination by the learned defence counsel in any manner, hence the testimony of this witness remained unchallenged and the prosecution has been able to prove the chain of evidence that the specimen handwriting of accused persons which were taken twice were sent to CFSL for 49 examination and for expert opinion and none tempered the same till it remained in the custody of the police.

121. To prove the handwriting on questioned documents, PW-23 Dr. M. A. Ali, SSO, has been examined. He has stated that for questioned document Q47, more specimen admitted writing of suspected i.e. accused Hasinuddin was required, hence on 31.10.1991, he submitted his supplementary report CFSL 91/D, 1715, dated 31.10.1991 after receiving further material from PW-35 Inspector Lakhi Ram. On examination of the original documents, he gave the result of the examination that handwriting evidence points to the writer of the specimen writing S1 to S5, S11 to S17, being the person responsible for writing question writing Marked Q1 to Q21, Q23 to Q28, Q30 to Q34 and Q47.

122. Mere suggestions have been given to the witness. He has denied the suggestion that no material was available on 25.06.1991 on which, he prepared his report Ex.PW-23/A. He has further denied the suggestion that he did not have sufficient material for the examination of documents Mark Q1 to Q34, Q37 to Q47. But it has already been explained by the witness that further specimen handwriting of accused Hasinuddin had received by him from Inspector Lakhi Ram and after examination, he submitted his supplementary report Ex. PW-23/B in respect of the same.

123. The testimony of the witness went unrebutted and unshaken. In 50 view of the same, prosecution has been able to prove the fact that cloak room requisition slip 114723 was filled up by the accused Hasinuddin impersonating one Subedar Badri Singh.

124. Prosecution has also examined PW-25 Sh. C. M. Uthaiah, Col. He has stated that on 19.06.1991, he was posted at R. B. Headquarter in MI-9 at Sena Bhawan. Letter no. 181/Insp./CE/SB dated 17.05.1991 was referred to him for his reply. As per his reply Ex. PW-25/A, Subedar Badri Singh never served with 270, Engineer Resident at Jodhpur.

125. In cross examination, this witness has again testified that he has prepared his report on the basis of record of MI-9 as well as other sources of MI-9. It is not suggested to the witness that Subedar Badri Singh was serving with 270, Engineers residents, Jodhpur. Testimony of this witness also went unchallenged and nothing has been brought on record to disbelieve the testimony of PW-23 and 25 in any manner.

126. PW-1 Shanker Pal has specifically stated that brief case was delivered back to the accused Hasinuddin in presence of the police. PW-6 Satpal has been confronted with his statement Ex. PW-6/DA by learned defence counsel regarding the fact that accused Hasinuddin was not with the police. Simlarly, PW-6 has been confronted with the fact that accused Hasinuddin handed over a key of the suit case with which the same was opened, because this is also not so recorded in Ex. PW-6/DA. But in the 51 cross examination, the witness has already clarified that he knows a bit of English but can not speak in English. Moreover, PW-1 and 6 have corroborated each other with the fact that the police came there with the accused Hasinuddin and on production of cloak room requisition slip 114723, one brief case was handed over to them which was opened by the police with the help of key produced by the accused to the police. From the bag, 11 handwriting slips were recovered. PW-6 has denied the suggestion that the suit case does not belong to accused Hasinuddin. Witness has further stated that signatures of the passengers were not obtained in any record for depositing and receipt of the luggage by them. He has further stated that at the time when the police seized the brief case Ex. P-1, the slip bearing no. 114723 was there and the said number was written on the luggage with chalk. Witness has also denied the suggestion that Ex. PW- 6/A was not prepared by PW-35. From the examination of PW-23, it is also proved that the cloak room requisition slip was filled up accused Hasinuddin in his handwriting. Hence, it can not be said that the brief case VIP Ex. P-1 was not deposited in the cloak room by the accused Hasinuddin.

127. PW-6 has stated that his signatures were obtained on the slips which were recovered from the said brief case. Similarly, PW-1 had also put his initials SP on these 11 slips. The 11 slips were sent for handwriting expert opinion to PW-23, Dr. M. A. Ali, SSO, CFSL. These are 52 Q3,4,5,6,7,9,11,12,13,15 and 17 which bears the signatures of PW-6, 9 and PW-35. PW-23 has given his opinion in his supplementary report Ex. PW- 23/B. Handwriting evidence points to the writer of the specimen writing S1 to S5, S11 to S17 being the person responsible for writing question writing Marked as Q1 to Q21, Q23 to Q28, Q30 to Q34 and Q47. This includes all these 11 questioned slips which were recovered from the suit case of the accused Hasinuddin from the cloak room, New Delhi Railway Station. It is also an admitted fact that S1 to S5 and S11 to S17 are specimen handwriting of the accused Hasinuddin.

128. PW-17 has been examined regarding the nature of handwriting slips i.e. two sheets of note book which were passed over by accused Hasinuddin to Pak Official Razak Ahmed and 11 handwritten slips which were recovered from the VIP Brief case of accused Hasinuddin. He has given his opinion vide Ex. PW-17/D and according to the report, the nature of documents were found sensitive. Information containing in the documents are prejudicial to the safety and security of the State. Information contained in the documents was useful to the enemy and it was indirectly connected with the defence matters. The witness has been cross examined by the learned defence counsel regarding the classification of the documents. The witness has explained in the cross examination that as per procedure they do not sign the report and used to sign the covering letter 53 only. The testimony of this witness went unrebutted and unshaken. The witness has not been cross examined on the fact that the documents examined by him were not sensitive and were not containing information useful to the enemy indirectly connected with the defence matters prejudicial to the safety and security of the State.

129. To prove the nature of photographs, prosecution has examined PW-10,13 and 17.

130. PW-10 is constable Satya Bhan. On 10.04.1991, he got one film no. NP-22 (black and white) 135/136. It was wrapped on which orwo film was written. 24 prints were developed. Six sets were prepared and he handed over the photographs and negatives to the IO. His statement was recorded by the IO. The witness has identified the developed film roll as Ex. P-1 and the container of the film as Ex. P-2, the positives as Ex. P-3/1 to 24, before the court. This witness has not been cross examined by the learned defence counsel, hence his testimony went unrebutted and unshaken.

131. PW-13 is Air Vice Marshall V. N. Bhan, South Western Command. He received letter dated 03.05.1991, from Inspector Lakhi Ram alongwith 12 photographs for seeking his opinion. After seeing the photographs, he gave his opinion vide his letter Ex. PW-12/A. He has identified the photographs as Ex. P-1 to P-12 before the court.

132. In the letter Ex. PW-12/A, it is mentioned that the information contained in the photographs, if disclosed to unauthorised person, can be prejudicial to the safety, security and interest of the State, particularly at serial no. 6,7 and 8. The photographs at serial no. 6,7 and 8 are of Radar at Air Force, Arjangarh, Radar at Air Force, Arjangarh and Tropo Communication Unit, Air Force, Arjangarh. It is further opined that the information contained in the photographs can be directly or indirectly useful to an enemy country, including for sabotage, particularly at serial no. 6,7 and 8. It is also opined that the photographs are connected with the installation of Defence (i.e. Indian Air Force in whose respect photography is strictly forbidden in accordance with Indian Official Secret Act, 1923).

133. For remaining photographs, PW-17 Lt. Col Anthony Abrahim Retd. has been examined by the prosecution. He has stated that Inspector Lakhi Ram had sent him some photographs alongwith the covering letter seeking his opinion being an expert and after seeing the photographs, he tendered his opinion Ex. PW-16/A and 16/B. According to his report, photographs No. 20,23,25 and 26 are sensitive. After giving opinion, he returned 12 photographs vide Ex. PW-16/A to the IO.

134. The report is Ex. PW-16/B, according to the same, photographs no. 20,23,25 and 26 were found sensitive and information contained in the photographs can be prejudicial to the safety, security and interest of India. 55 It is further opined that the information contained in photographs no. 20,23,25 and 26 was directly or indirectly useful to an enemy country. It is also opined that all the photographs no. 14 to 26 were directly or indirectly connected with defence matters.

135. As per record, cross examination of PW-13 was not completed and later on he has not been produced by the prosecution for further cross examination. In the cross examination, PW-17 has further stated that the classification of documents are : (1) unclassified - any premises of the military area which is opened to the public with the sign board (2) restricted (3) secret (4) top secret and (5) confidential. He has further admitted that the sensitive is not in classification but by virtue of sensitivity, it is classified under the various head which comes under the classification of confidential. Any document / photograph which is useful to the enemy is top secret. He has admitted that his opinion is based with the opinion of the two other officers including him. It is indeed of collective opinion of three officers.

136. In view of the same, nothing came out from the cross examination of PW-17 to disbelieve him and he has proved his report Ex. PW-16/A and PW-16/B regarding the examination of photographs.

137. The learned defence counsel has contended that prior permission has not been obtained to take the specimen handwriting of the accused persons, hence the specimen handwriting can not be looked into for 56 comparison with the alleged recovered slips i.e. questioned documents from the accused person. In support of his contention, he has relied upon the judgment Rakesh Kumar and others Vs State, 2004 (72) DRJ 311, wherein it has been held "Specimen signatures and thumb impression - alleged specimen signatures/handwriting/thumb/finger print impression of appellants were obtained during investigation by the IO without prior permission from the court, therefore, specimen writing/thumb impression/finger print impression of the appellants could not be made use of during the trial - report of the handwriting expert / Finger Print Bureau is thus rendered of no consequence at all and cannot be used to connect the appellants with crime."

138. I am afraid that the contention of the learned defence counsel is not forceful in any manner. An application for obtaining the permission to take the specimen handwriting of the accused persons is on record and it was allowed. As per record, specimen handwriting of accused Hasinuddin was taken on 13.04.1991 and thereafter on 05.07.1991. The specimen handwriting of the accused Hasinuddin was taken with the permission of the court as S11 to S17 and in the supplementary report Ex. PW-23/B, opinion has been given after considering the specimen handwriting S11 to S17 which was taken by the IO of accused Hasinuddin.

139. This fact has also been corroborated by PW-33 constable Sriman. 57 On 05.07.1991, he was posted in the DAP, 3rd Battalion. He joined the investigation of the present case with Inspector Lakhi Ram. He has identified both the accused persons before the court as the same persons who were produced before Sh. R. K. Jain, the then MM, Tis Hazari. Specimen handwriting of both the accused were taken by Inspector Lakhi Ram on 7 different sheets each accused totaling 14, in his presence. These sheets are Ex. PW-32/A1 to 7 concerning accused Hassinuddin while the other 7 sheets are Ex. PW-32/B1 to 7 concerning to accused Mohd. Israr. He signed these sheets as witness alongwith HC Bal Kishan. Hence, the judgment relied upon by the learned defence counsel is not applicable to the facts and circumstances of the present case.

140. As per deposition of PW-35 Inspector Lakhi Ram, on 07.04.1991, accused Hasinuddin was again interrogated and his disclosure statement was recorded and in furtherance of his disclosure statement Ex. PW-19/B, 11 more slips containing the posting and locations of army units were recovered from his house at village Sarai Bahelia, police station Kotwali, PP Bhupia, UP and the same were taken into possession vide memo Ex. PW- 11/A.

141. According to this memo, in presence of witness Rama Shanker, Shitla Parshad and HC Suresh Babu, on the pointing of accused from a steel trunk which was lying in the corner of room owned and occupied by 58 the accused, 11 slips from the said trunk, containing the location, deployment, movement, names of officers etc. of various armed forces units of various places, were recovered. All the slips have been signed by the witnesses and were taken into possession.

142. PW-11 is Shitla Pd. Mishra. On 10.04.1991, he was standing in front of his house. Accused Hasinuddin was residing nearby his house and known to him being his neighbour. One constable of his area had called him and Rama Shanker. He was taken to the house of accused Hasinuddin, where Delhi Police Officials were also sitting at the door. He was asked to sign by the police officials on 11 papers. The learned APP has cross examined the witness as he has resiled from his previous statement. In the cross examination, he has admitted that 11 slips Ex. P- 1/1 to 11 bear his signatures. He has also admitted his signatures on the recovery memo Ex. PW-11/A. He has not supported the case of the prosecution regarding the search of the house of the accused in his presence. He has stated that his signatures were obtained by the police on Ex. PW-11/B. He has again denied the suggestion that 11 papers were recovered from the possession of the accused in his presence from his trunk. He has also denied the suggestion that he has been deposing falsely in order to save the accused being his neighbour.

143. Similarly, PW-12 Rama Shanker has stated that accused 59 Hassinuddin belongs to his village. About 2-3 years ago, the constable of their police post came to him and took him to the house of Hassinuddin. The other police officials were also present and took his signatures on some papers. The learned APP has cross examined the witness as he has resiled from his previous statement. In the cross examination, he has admitted that 11 slips Ex. P-1/1 to 11 bear his signatures. He has also admitted his signatures on the recovery memo Ex. PW-11/A. He has denied the suggestion that 11 papers were recovered from the trunk belonging to the accused Hasinuddin. He has further denied the suggestion that 11 papers were recovered from the possession of the accused in his presence from his trunk. He has also denied the suggestion that he has been deposing falsely in order to save the accused being his neighbour. He has submitted that the house of accused Hasinuddin was not searched in his presence.

144. On the other hand, PW-31 SI Suresh Babu Sain has stated that on 10.04.1991, he was posted in the police post Bhupia Mau as Head Constable. He joined in the investigation with the IO. In his presence, 11 slips were recovered from the steel box from the house of accused Hassinuddin. They were taken into possession vide memo Ex. PW-11/A which bears his signatures at point A. He has identified 11 slips as Ex. P1 to Ex. P11 before the court. The house search of the accused was also 60 conducted but nothing incriminating could be recovered. The house search memo is Ex. PW-11/B which bears his signatures at point B.

145. The learned defence counsel has contended that the witness has no knowledge about the direction of the house of accused Hasinuddin, hence it can not be said that he had gone with the IO at the village of the accused. The learned defence counsel has drawn the attention of the court towards the cross examination of PW-31, wherein he has stated that he has no knowledge as to the houses on North, South, East and West of the house of accused Hasinuddin. He has also stated that he does not remember the name of Gaon Pradhan of the village of accused Hasinuddin. Witness has not been able to tell as to how many rooms were in the house of the accused Hasinuddin. He has further failed to give the dimension of the steel box, nor has given the colour of the same. Although he has denied that he has not visited the house of the accused Hasinuddin but PW-11 and 12 have not supported the case of the prosecution except the fact that they saw some police official at the house of accused Hasinuddin. Both PW-11 and 12 have categorically denied that the search of the house of the accused Hasinuddin was conducted in their presence. Similarly, PW- 31 has nowhere stated that during the search of house of accused Hasinuddin, PW-11 and 12 were present. In such circumstances, PW-31 can also not be relied upon regarding the alleged recovery of 11 slips Ex. 61 P-1/1 to 11 which were seized vide memo Ex. PW-11/A from the search of house of the accused Hasinuddin. All the witnesses in this respect have corroborated each other and their testimonies are clear and cogent. Accordingly, prosecution has been able to prove beyond reasonable doubts the fact that accused Hasinuddin passed over two sheets of note book and one undeveloped film roll containing photographs of sensitive nature related to the defence matters and were prejudicial to the safety and security of the State and were directly or indirectly useful to the enemy country, to Razak Ahmed, official of Pak High Commission.

146. In view of the testimonies of all the witnesses, who have corroborated each other and their testimonies are clear and cogent, the prosecution has also been able to prove beyond reasonable doubts the fact that 11 slips were recovered from one brief case of VIP which accused Hasinuddin had deposited in the cloak room of New Delhi Railway Station impersonating to be Subedar Badri Singh, which were containing the location and deployment of various army units at various places. The same were sensitive in nature and were containing information prejudicial to the safety and security of the State and the information was indirectly connected with the defence matters and was useful to the enemy country.

147. According to Section 2 (7) of the Official Secrets Act, 1923, photograph includes an undeveloped film. According to Section 3 of the 62 Official Secrets Act, 1923, made notes on two sheets of note books and 11 slips which directly or indirectly were useful to the enemy country and communicated two sheets of note books and one undeveloped film roll to one Razak Ahmed, official of Pak High Commission. It is also proved that the photographs, two sheets of note book and 11 slips were related to the defence matters of the State.

148. The prosecution has not been able to prove the fact that the 11 slips containing the location, deployment, movement, names of officers etc. of various armed forces units of various places were recovered at the instance of the accused from his house from steel box and were seized by the police.

149. Findings qua accused Mohd. Israr.

150. It has been deposed by PW-35 that on 14.04.1991, a secret information was received that Mohd. Israr co-accused of Hasinuddin was coming from Goa Nizamuddin Express to Delhi. On this information, they reached at the New Delhi Railway Station and on the pointing of informer, accused Mohd. Israr was apprehended while he was alighting from the train. Cursory search of the accused was taken in the presence of SI Vikram Singh and Ganga Ram. One bill of Sainik label dated 08.03.1991 containing some details of the location, deployment of various army units at various places on the back side of the bill, one railway ticket no. 46725 from 63 Pune to New Delhi were recovered from him besides the other articles and the same were taken into possession vide memo Ex. PW-13/A. The sainik bill is Ex. P-12.

151. PW-19 has stated that on 14.04.1991, accused Mohd. Israr was arrested and he was taken on police remand for interrogation. During the interrogation, he told that he used to work for Pakistan High Commission and supply them secret information. He made disclosure statement Ex. PW-19/C. He was found in possession of three railway tickets, one receipt of cloak room of railway station, where he had deposited the brief case and some belongings of him, which were also taken into possession vide memo Ex. PW-13/A. On the basis of cloak room receipt, brief case belonging to accused Mohd. Israr was also taken into possession vide memo Ex. PW- 14/A. The specimen signatures of accused Mohd. Israr were also taken on five sheets.

152. I have gone through the Ex. PW-13/A and Ex. PW-14/A. In Ex. PW-13/A, cash of Rs. 602/-, one bill Sainik label dated 08.03.1991 containing handwritten writing giving the details of location / deployment of various army units at various places on the reverse of the bill, one wrist watch make Ricoh Quartz, one driving licence of Mohd. Israr issued at Delhi, one key ring containing 3 keys of brief case and one railway ticket no. 46725 from Pune to New Delhi, have been mentioned. 64

153. As per Ex. PW-14/A, various articles from A to J were recovered from accused Mohd. Israr from his brief case and one bag which was found inside the brief case was containing various articles from (a) to (f) and (i) to

(x). Both memos are witnessed by Sh. Surinder Singh, Sh. Ganga Ram and SI Vikram Singh and prepared by Inspector Lakhi Ram.

154. PW-15 Surinder Singh has stated that in the year 1991, he was working as a labourer in the railway station Nizamuddin. About 3 / 4 years ago, one passenger alighted from a train at Nizamuddin railway station, he was searched in his presence by the police and Rs.602/- were recovered from his possession. A bunch of key containing of 3 keys and one wrist watch were also recovered. A bill was found in his pocket. He was also carrying a small bag containing some papers. He has identified the accused Hasinuddin as the same person from whom the said articles were recovered. He has resiled from his earlier statement, hence, has been cross examined by the learned APP. In the cross examination, he has admitted that the name of that person was Mohd. Israr. The articles were taken into possession vide memo Ex. PW-13/A. One brief case was also recovered from the possession of Mohd. Israr and was taken into possession vide memo Ex. PW-14/A.

155. PW-14 Ganga Ram has stated that in the year 1991, he was working as Porter at Nizamuddin Railway Station. He was called at the 65 police station by the local police. He was asked to sign some documents. No one was arrested in his presence. Some articles were recovered from the person, who was present in the police station. He has identified the accused Mohd. Israr before the court as the same person who was present on that day in the police station. He has resiled from his earlier statement hence, has been cross examined by the learned APP. In the cross examination, he has admitted that memos Ex. PW-13/A and Ex. PW-14/A bear his signatures at point A.

156. The only incriminating paper which allegedly were recovered from the personal search of accused Mohd. Israr is one Sainik label bill dted 08.03.1991containing handwritten account of location deployment of various Army units at various places on the reverse of the bill.

157. It is clear from the deposition of PW-14 that he had seen Mohd. Israr present in the court, in the police station on that day only. He has denied that search of accused Mohd. Israr was conducted in his presence but his signatures were obtained on PW-13/A. PW-14 has nowhere stated that he also signed the memo Ex. PW-14/A regarding the seizure of brief case and hand bag allegedly recovered from the accused Mohd. Israr.

158. From the deposition of PW-15, it is clear that accused Mohd. Israr alighted from a train at New Delhi Railway Station and in his presence, search was conducted and Rs. 602/-, a bunch of key containing 3 keys, one 66 wrist watch, a bill and a small bag containing some papers were recovered. In the cross examination conducted by the learned APP, he has admitted that name of that person was Mohd. Israr. He has denied the suggestion that he is deliberately not identifying accused Mohd. Israr in the court. He has admitted his signatures on Ex. PW-13/A and Ex. PW-14/A. He has further stated that he has signed all the documents in JRP police chowki.

159. In view of the depositions of PW-14 and 15, it is clear that accused Mohd. Israr was in the GRP police chowki with the police, but both PW-14 and 15 have contradicted each other regarding the personal search of accused Mohd. Israr and also regarding the recovery of brief case / small hand bag. PW-14 has not deposed about the brief case / small hand bag whereas PW-15 has stated that accused Mohd. Israr was carrying a small hand bag containing some papers.

160. On the other hand, PW-19 SI Vikram Singh has stated that accused Mohd. Israr was found possessing three railway tickets, one receipt of cloak room of railway station, where the accused had deposited his brief case. No cloak room receipt has been placed on record nor is mentioned in memos either Ex. PW-13/A or Ex. PW-14/A. Similarly, PW-35 Inspector Lakhi Ram has deposed that in the presence of two witnesses, SI Vikram Singh and Ganga Ram, personal search of accused Mohd. Israr was taken. PW-35 has no where stated that PW-15 Surinder Singh was 67 also present during the personal search of accused Mohd. Israr and witnessed the same. PW-35 has nowhere stated that brief case and one hand bag were recovered either from the possession of accused Mohd. Israr which he was carrying at that time or as deposed by PW-19 that brief case was recovered from the cloak room on the basis of cloak room receipt which was found in possession of accused Mohd. Israr. In such circumstances, none of the witness has corroborated each other regarding the recovery of one Sainik bill containing some details of location, deployment of various army units at various places on the back side of the bill. The witnesses have also not been able to corroborate each other regarding the recovery of brief case and or small hand bag from the possession of accused Mohd. Israr. Accordingly, prosecution has not been able to prove the recovery of articles from the possession of accused Mohd. Israr as per Ex. PW-13/A and Ex. PW-14/A.

161. PW-35 has further deposed that Accused Mohd. Israr was again interrogated and he made a disclosure statement Ex. PW-19/C. On the basis of the disclosure statement of accused Mohd. Israr, six bus tickets and two slips from the almirah of the house of the accused were recovered and were taken into possession vide memo Ex. PW-8/B. There were tactical numbers of army vehicles found written on them. Six tickets are Ex. P-13/1 to 6 and two slips are Ex. P-14 and 15.

162. Witnesses to the house search of accused Mohd. Israr are PW-8 and PW-9 and house search memos are Ex. PW-8/B and Ex. PW-9/A.

163. PW-8 Rajinder Prashad has stated that on 14.04.1991, he was present in his house and was cooking his meal. It was evening time. 2-3 persons knocked at his door and called him out. There were 2-3 persons in plain clothes and one Sardarji was in police uniform. They asked him to accompany them. He told them that he was cooking his meal but they forced him to accompany them and one of them caught him by his hand. They also took PW Om Prakash with them whose house was a little beyond his house. Thereafter, the party went to the house of the accused Mohd. Israr and they also took them. Accused Mohd. Israr was present in the house. The policeman straightway approached an Almirah in the house of the accused Israr and opened the same and took out a file containing a slip having some numbers on it. The said slip was taken out by the police party and asked him and Om Prakash to put their signatures. They requested the police that neighbourers of accused Mohd. Israr be called to do so but they assured them that they shall not be called anywhere in the court or at any place and that they shall not be harrassed. On this assurance, he alongwith Om Prakash signed that slip. Police seized the slip and arrested the accused Mohd. Israr. He has resiled from his earlier statement, hence has been cross examined by the learned APP. In the cross examination, 69 he has denied the suggestion that accused Mohd. Israr was already with the police party when the police party joined him and Om Prakash. He has stated that he did not make any statement to the police. He does not remember if the accused Mohd. Israr himself opened the almirah in his house and took out the file from it. He further does not remember if 6 bus tickets were found from the file alongwith the two slips and that the names of places like Ambala, Jhansi, Patiala etc. were written on the back of these bus tickets and the slips and that tactical numbers of army vehicles were also written. He has admitted that the bus ticket Ex. PW-8/C1 to 6 and the two slips Ex. PW-8/D1 to 2 bear his signatures. He has further admitted that these were recovered from the house of the accused Mohd. Israr.

164. On the other hand, PW-9 Om Parkash has stated that on 14.04.1991, he was present at his house and was about to take his meal. Somebody knocked his door and he opened the door and he was called by 4-5 persons. His neighbour PW-8 also with them. He was told by them to visit the house of accused Mohd. Israr, who was his neighbour. He was residing at a distance of 10-12 houses from his house. Lakhi Ram disclosed his identity and asked him to visit the house of accused. They both were also taken to the room of the accused and were made to stand there. After recording the statement, his signatures were obtained thereon. The witness has been cross examined by the learned APP as he has 70 resiled from his previous statement.

165. In the cross examination, he has denied the suggestion that Inspector Lakhi Ram alongwith other policemen with the accused Mohd. Israr approached him to join the investigation. He does not remember if the file was recovered by the police from the almirah of the accused Mohd. Israr. He has admitted that the tickets Ex. PW-8/C1 to 6 and slips Ex. PW- 8/D1 to 2 were recovered from the file, which was recovered from the almirah of the accused. He has also admitted that the police after recovering of the six tickets and two slips from the possession of the accused, had prepared the seizure memo cum pointing memo Ex. PW-8/B. He has denied the suggestion that he has signed on the aforesaid memos after going through the contents but he has further stated that he was not given the time to go through the memo.

166. From the depositions and cross examinations of PW-8 and 9, it is clear that they had not made any statement to the police and their signatures were obtained on Ex. PW-8/B and Ex. PW-9/A and their signatures were also obtained on 6 bus tickets and 2 slips. Witnesses both have contradicted each other regarding the fact as to whether the bus tickets and slips were produced from the almirah by the accused Mohd. Israr or these were taken into possession by the IO Inspector Lakh Ram. PW-8 has stated that accused Mohd. Israr was present in his house and 71 the case of the prosecution is not so. As per memo Ex. PW-8/B, accused Mohd. Israr led the police party to his house at Baljit Nagar and pointed the almirah lying at the ground floor and after opening the same, took out the file containing personal papers and 6 bus tickets and 2 slips.

167. It is also not explained as to why the immediate neighbourers of the accused Mohd. Israr were called to join the investigation. Even from the deposition of PW-8 and 9, it is clear that they were not called to join the investigation but were forced to accompany the police officials.

168. PW-35 has stated that on the basis of disclosure statement Ex. PW-19/C of accused Mohd. Israr, 6 bus tickets and 2 slips were recovered from the almirah of the house of the accused and were taken into possession vide memo Ex. PW-8/B. He has nowhere stated that another seizure memo Ex. PW-9/A was also prepared. He has not deposed anything about Ex. PW-9/A. He has also not deposed clearly whether accused Mohd. Israr led the police party to his house and got recovered the bus tickets and slips from his almirah. He has also not deposed that he called two public witnesses i.e. PW-8 and 9 from the locality to join the investigation and to be a witness of the proceedings. PW-8 has stated that after seizure of the slips, accused Mohd. Israr was arrested and police took him with them. It is not clear whether accused Mohd. Israr led the police party to his house or he was arrested from his house, hence it is not clear 72 whether the recovery was affected in furtherance of disclosure statement of the accused Mohd. Israr or the police officials allegedly recovered 6 bus tickets and 2 slips from the house of the accused Mohd. Israr at their own. In such circumstances, PW-8,9 and 35 can not be relied upon in respect of the recovery of 6 bus tickets and 2 slips affected from the house of the accused Mohd. Israr.

169. In view of the above discussions, witnesses PW-8,9 and 35 have not corroborated each other and it is not proved beyond reasonable doubts that accused Mohd. Israr in furtherance of his disclosure statement led the police party to his house at Baljeet Nagar and got recovered two slips and six bus tickets from a file which was lying in an almirah.

170. PW-16 Mohan Lal has stated that on 13.04.1991, he was present at ITO. He was called by the policeman to join the investigation of the case and he had to sign in token of the signatures which had been taken before him. He does not remember the name of the person whose signatures were taken on five sheets and he attested the signatures on five sheets. He has identified the accused Hassinuddin and eight papers bearing his signatures at point A1- A8 on Ex. PW-15/A1 - A8. In his presence, one accused and two policemen appeared and signatures of accused were taken. He has resiled from his earlier statement hence, has been cross examined by the learned APP. In cross examination, he has admitted that 73 the specimen handwriting of accused Mohd. Israr was obtained in his presence on Ex. PW-15/B1-5 bearing his signatures at point B on all these three documents, which have been shown in writing A6 to S10.

171. PW-21 Sh. L. K. Garg has accorded the sanction for the prosecution of accused persons under the O. S. Act after following the laid down procedure and on the basis of the material furnished by Delhi Admn. and Delhi Police. The Sanction letter is Ex. PW-21/A which is signed by him at point A. The testimony of this witness went unrebutted and unshaken and he is a witness of formal nature.

172. PW-24 Mohinder Singh has deposed that he has brought the original of Ex. PW-24/A and identified the signatures of M. U. Siddiqui, Dy. Secy. (Home) on Ex. PW-24/A. Copy of which was sent on 26.06.1991. Nothing came out from his deposition to disbelieve him in any manner.

173. The learned defence counsel for the accused Mohd. Israr has contended that in the cross examination, PW-21 has admitted that he does not remember the material on the basis of which Sanction Ex. PW-21/A was accorded by him. In the further cross examination, this witness has denied the suggestion that sanction was granted by the notes written by the various authorities, hence it can not be said that the sanction was granted without considering the material put up by the sanctioning authority.

174. I have gone through the letter Ex. PW-21/A, details of the case 74 have been mentioned in the same, hence it can not be said that the sanction was granted without considering the material by the sanctioning authorities or no material was produced before the sanctioning authorities while passing the order of sanction.

175. PW-29 Sh. J. P. Singh has stated that on 01.07.1991 he had filed a complaint Ex. PW-29/A in the court of Sh. J. P. Sharma, the then CMM, Delhi, against Hasinuddin Khan and Mohd. Israr for taking cognizance under section 3/9 of Official Secret Act read with Section 120-B of IPC. The synopsis are Ex. PW-29/B.

176. In the cross examination, witness has stated that after the completion of the investigation by the IO, he perused the file and in consultation with the IO, he moved the competent authority to obtain the sanction for the prosecution of accused persons in this case. After receipt of the sanction, he filed a complaint in the court concerned. Nothing came out from his deposition to disbelieve him in any manner.

177. In view of the above discussions, prosecution has not been able to prove the offences punishable under section 3 and 9 of the Official Secrets Act, 1923 and section 120-B of IPC against accused Mohd. Israr for which he is acquitted.

178. In view of the above discussions, the prosecution has been able to prove the offence under section 120-B of IPC against the accused 75 Hasinuddin as he entered into a criminal conspiracy with Razak Ahmed, official of Pak High Commission to do illegal acts by illegal means. As the offence was completed by accused Hasinuddin Khan by way of passing over the undeveloped film roll and two sheets of note book to one Razak Ahmed, official of Pak High Commission, hence accused Hasinuddin Khan is not required to be convicted under section 9 of the Official Secrets Act, 1923.

179. The prosecution has also been able to prove the offence punishable under section 3 of the Official Secrets Act, 1923 and section 120-B of IPC against accused Hasinuddin Khan for which he is held guilty and convicted for the same.

ANNOUNCED IN THE OPEN COURT ON 20.02.2007.

(V. K.GOYAL) ADDITIONAL SESSION JUDGE, DELHI.

05.10.2006.

Present :- APP for the State.

Both the accused present on bail with counsel.

Vide judgment announced of even date on separate sheets, accused Mohd. Israr is acquitted for offence punishable under section 3 and 9 of the Official Secrets Act, 1923 and Section 120-B of IPC.

Accused Hasinuddin is convicted for the offence punishable under section 3 of the Official Secrets Act, 1923 and Section 120-B of IPC. Be taken into custody and remanded to JC.

Adjourned for arguments on sentence on 23.02.2007.

(V. K.GOYAL) ASJ/DELHI.

20.02.2007.

IN THE COURT OF SH V.K. GOYAL, ADDL. SESSIONS JUDGE: DELHI SESSION CASE NO. 22/05 FIR NO. 77/91 PS D. B. G. ROAD, U/S 3,9 OFFICIAL SECRETS ACT & U/S 120-B OF IPC.

STATE VERSUS HASINUDDIN KHAN @ HASSAINUDDIN, S/O FIROJ KHAN, R/O VILLAGE SARAI, BAHELIA, DHARMA KA PURVA, PS & DISTT. PARTAPGARH, U.P. ORDER ON SENTENCE 23/02/07 Present :- APP for the State.

Convict Hasinuddin produced from J.C. with counsels Sh. R.M.Tufail and Sh.Anwar Ahmed Khan.

Heard on sentence.

It is contended that accused is aged about 62 years having wife aged about 55 years. He is having five sons and one daughter. It is further contended that still two of the sons of accused are unmarried. It is further contended that the accused is working as a guard in some company and is getting Rs.3,000/- per month. It is further contended that accused has faced trial in this case since 1991 and has appeared regularly before the Court. It is further contended that prior to this case, accused was serving in Army and served for about 22 years and was having a good record. It is further contended that even for the offences proved in this case, accused has not been Court Marshalled by Armed Forces in any manner. It is further contended that accused has already undergone 5 years and 7 months imprisonment during the trial. Hence, lenient view be taken against the accused.

On the other hand, learned APP has contended that the offences proved against the accused are regarding the defence matter, hence the maximum sentence be imposed.

Section 3 of the Officials Secrets Act, 1923 is punishable with the imprisonment which may be extended upto 14 years if the same is in relation to the defence matters.

Section 120-B is punishable with imprisonment as per abetment for the offence.

According to section 9 of the Officials Secrets Act, 1923, if any person abets the commission of offence under the Act shall be punishable with the same punishment as he has committed such offence.

In view of above facts and circumstances and considering the submissions made by the ld.defence counsel for the accused, sentence of 5 years and 7 months is imposed on the accused for offence u/s.3 of the 79 Officials Secrets Act and also u/s.120-B of IPC. Both the sentences shall run concurrently. Benefit of section 428 of Cr.P.C. be given to accused. File be consigned to record room.

(V. K.GOYAL) ADDITIONAL SESSION JUDGE, DELHI.

23/02/07 Present :- APP for the State.

Convict Hasinuddin produced from J.C. with counsels Sh. R.M.Tufail and Sh.Anwar Ahmed Khan.

Heard on sentence.

Vide judgment announced of even date on separate sheets, considering the submissions made by the ld.defence counsel for the accused, sentence of 5 years and 7 months is imposed on the accused for offence u/s.3 of the Officials Secrets Act and also u/s.120-B of IPC. Both the sentences shall run concurrently. Benefit of section 428 of Cr.P.C. be given to accused. File be consigned to record room.

(V. K.GOYAL) ADDITIONAL SESSION JUDGE, DELHI.

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