Delhi District Court
Sc No. 21/2008 1 State vs Insaf Ali @ Nirmal Jain on 1 May, 2010
SC No. 21/2008 1 State Vs Insaf Ali @ Nirmal Jain
FIR No. 42/2007 Judgement dt. 1.5.2010
IN THE COURT OF SH. VINOD KUMAR
ADDITIONAL SESSIONS JUDGEI, NORTH DISTRICT, DELHI
SC No. 21/2008
FIR No. 42/2007
PS Special Cell
U/s 3/9 O. S. Act & 120B IPC
State Vs Insaf Ali @ Nirmal Jain
S/o Sh. Sardar Ali
R/o 11, Mohalla Jangiwara, Naiyon Ki Gali,
P.S. Kotwali Pali, District Pali, Rajasthan.
Date of institution : 22.2.2008
Date of arguments : 29.3.2010
Date of judgement : 1.5.2010
JUDGEMENT
1. Prosecution case in brief is that on 30.5.2007 SI Dilip Kumar was posted in the office of Special Cell/NDR, Lodhi Colony. On that day, at about 7:00 PM SI Dilip Kumar was present in the office. One secret informer came to the office and informed him that a person namely Insaf Ali R/o District Pali, Rajasthan was working for ISI Agency, Pakistan and had delivered secret documents/information of defence security forces to ISI Agency and he would be coming on that day at about 9:30 pm at Old Delhi Railway Station to deliver some secret documents of Indian defence SC No. 21/2008 2 State Vs Insaf Ali @ Nirmal Jain FIR No. 42/2007 Judgement dt. 1.5.2010 security forces to some passenger of Samjhauta Express. The information was discussed with senior officers and was recorded in Daily Diary No.11 of Special Cell/NDR. On the instruction of senior officer, a raiding party was constituted comprising of Insp. Sanjay Dutt, Insp. Subhash Vats, Insp. Pawan Kumar, SI Rahul Kumar Singh, SI Rajender Singh Sehrawat, ASI Charan Singh, ASI Shahjahan, ASI Hardwari Lal, Const. Amar Singh, Const. Ran Singh and SI Dilip Singh. The members of raiding party were briefed about the information. The team along with the secret informer left the office at about 7:45 pm vide DD no. 12 in two private cars and on two motorcycles. At about 8:30 pm, they reached at entrance gate of Old Delhi Railway Station. SI Dilip Kumar inquired about the departure of the train which revealed that this Samjhauta Express (Attari Special) would depart from Platform no. 18 at about 10:40 pm for Pakistan. On the instructions of Insp. Sanjay Dutt, SI Dilip Kumar asked 45 passersby to join the raiding party but none of them had agreed and left the place without disclosing their names and addresses. They all entered Old Delhi Railway Station and reached Platform no. 18 where again SI Dilip Kumar asked 34 persons to join the raiding party but none of them had agreed and left the place without disclosing their names and addresses. However, HC Uday Veer Singh of DRP and Const. Inder SC No. 21/2008 3 State Vs Insaf Ali @ Nirmal Jain FIR No. 42/2007 Judgement dt. 1.5.2010 Pal of RPF were joined in the raiding party who were on checking duty at the entry gate of Platform no. 18. All the members of raiding party were deputed on and around the platform no. 18. At about 9:45 pm a person came from the entrance gate towards Platform no. 18. The informer pointed out the person as the accused about whom he had given the information. Accused was having a white coloured printed polythene in his right hand. He took out a white envelope from the polythene and started making requests with the passengers of Samjhauta Express to take the said envelope to handover it to someone in Pakistan. First, he requested one male passenger who refused to accede the request of accused. Thereafter, he requested one lady and asked her name etc. and the lady told her name as Kurshian Begum r/o Multan, Pakistan. She also refused to take the said envelope. In the meanwhile SI Dilip Kumar along with the staff, ASI Charan Singh, HC Uday Veer and Const. Inder Pal apprehended the accused who revealed his name as Insaf Ali @ Nirmal Jain S/o Sardar Ali R/o House No.2 11, Mohalla Jangiwara, PS City Kotwali, Distt. Pali, Rajasthan. On inquiry from the lady passenger, she told her name as Mrs. Kurshain Begum w/o Mohd. Bashir R/o Multan, Pakistan who informed that the said Insaf Ali was requesting her to take the envelope and to deliver the same in Lahore but she had denied.
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She went away inside the security check due to delay in her immigration checking for the travel to Pakistan. The envelope and polythene recovered from the possession of Insaf Ali were checked. The polythene found to contain a Hindi magazine titled as senior India of April 2007. on the checking of white envelope having writing ''Shoib Hassan', 63A, Muglu Pura, Lahore'' on the front side. In the envelope a marriage invitation card of double layer was taken out which was addressed to Shoib Hassan, 63A, Muglu Pura, Lahore and a mobile number 00923334662110 was written on it. They came to know that it was the invitation card of the marriage of Saida Shama Afroz and Saida Saima Parveen, daughters of Haji Manjoor Ali and it was to be held at Rajender Nagar Colony, Ahore (Jalore). The layers of the card from each side were stapled. The staple pins were removed in which some documents were found. The documents were checked and found 4 papers of one restricted document of special army order 7/S/89 of Senior Command Course
- College of Combat, Mhow and 3 handwritten sheets having secret information about the deployment and positions of army and BSF of India. A seal of DK was put on all the recovered 7 documents and given mark as marked Serial No. 1 to 7 and the same were signed by all the witnesses and the accused and seized vide seizure memo Ex.PW6/A. Seal after use was handed over to ASI Charan SC No. 21/2008 5 State Vs Insaf Ali @ Nirmal Jain FIR No. 42/2007 Judgement dt. 1.5.2010 Singh. It was found that recovered documents were the secret documents/information and were prejudicial of the safety and security and interest of the State and were useful to enemy country. SI Dilip Kumar prepared a rukka Ex.PW10/A (running into 4 pages) and handed over it to ASI Charan Singh which he took to PS Special Cell, Lodhi Colony for the registration of the FIR. In the meanwhile, SI Ravinder Tyagi also reached at the spot and he took over the further investigation of this case. SI Dilip Kumar handed over the accused along with the recovered documents/information, polythene, magazine from his possession and the documents prepared by him to SI Ravinder Tyagi. SI Ravinder Tyagi inspected the spot and prepared the site plan. SI Ravinder Tyagi also recorded statement of SI Dilip Kumar u/s 161 CrPC. During investigation SI Ravinder Kr. Tyagi (PW18) arrested the accused.
2. During personal search of accused, one mobile phone Haier having on TATA Indicom chip of mobile no. 9252214983, one wrist watch, one tabiz, cash for Rs.1740/, one platform ticket and one Senior India Magazine of April, 2007 were recovered. SI Ravinder Kumar Tyagi recorded statements of all the witnesses and they were relieved from the investigation. Thereafter, SI Ravinder Kumar Tyagi along with the above said staff members and accused left the spot and reached PS Special Cell and deposited the case SC No. 21/2008 6 State Vs Insaf Ali @ Nirmal Jain FIR No. 42/2007 Judgement dt. 1.5.2010 property in Malkhana. Thereafter, SI Ravinder Kumar Tyagi came back to his office and there SI Ravinder Kumar Tyagi received copy of FIR from ASI Charan Singh. Thereafter, he interrogated the accused thoroughly and recorded his disclosure statement Ex.PW16/A. Thereafter, the accused was produced before the Court and one day police custody remand was obtained but due to the Gurjar agitation in Rajasthan was going on at that time, the accused could not be taken to Rajasthan and thereafter, he was surrendered before the Court on the next date and he was sent to judicial custody. Thereafter, on 9.6.2007, SI Ravinder Kumar Tyagi again obtained police custody remand of the accused and he was taken to his native place at Distt. Pali, Rajasthan. The criminal record of accused Insaf Ali was obtained and he was found involved in four criminal cases. The same is Ex.PW3/A. Thereafter, SI Ravinder Kumar Tyagi took the accused to Rajender Nagar Colony, Aaho, Rajasthan, to verify the wedding card Ex.PW1/A. There, SI Ravinder Kumar Tyagi met Saeed Hazi Manjoor Ali who revealed that he had called mother of the accused on occasion of marriage of hi daughters. He verified the card being sent by him and also produced one specimen card Ex.PW1/B which was seized vide memo Ex.PW1/C. Thereafter, SI Ravinder Kumar Tyagi recorded the statement of Saeed Hazi Manjoor Ali. One mobile recovered SC No. 21/2008 7 State Vs Insaf Ali @ Nirmal Jain FIR No. 42/2007 Judgement dt. 1.5.2010 during the personal search of the accused was on the address of one Nirmal Jain living at Jodhpur, Rajasthan. Thereafter, SI Ravinder Kumar Tyagi went to Jodhpur and tried to trace the address of Nirmal Jain opposite Khet Singhji Ka Bangla, Mandori Road, Jodhpur, Rajasthan, but the same was not traceable. Thereafter, they came to Jaipur and tried to trace the coaccused one Aftab who had allegedly supplied secret documents to the accused Insaf Ali. The documents containing seven pages were recovered from the possession of the accused Insaf Ali out of which four were allegedly supplied by coaccused Aftab. Thereafter, they came back to Delhi and recorded supplementary disclosure statement Ex.PW16/B. During investigation, SI Ravinder Kumar Tyagi verified platform ticket Ex.PW2/B and it was revealed that the same was purchased on 3.5.2007 in the evening shift starting from 1600 hrs. to 2400 hrs. Thereafter, SI Ravinder Kumar Tyagi collected record of Samjhota Express Train and its passengers dated 30.5.2007 and one lady Kursian Begum of Pakistan whom the accused had approached to deliver secret documents recovered from the possession of the accused. It was verified that the Kursian Begum had traveled from Delhi to Pakistan on 30.5.2007. Thereafter, SI Ravinder Kumar Tyagi obtained record of the journey made by accused Insaf Ali to Pakistan from Asstt. Dirctor, IB, R. K. SC No. 21/2008 8 State Vs Insaf Ali @ Nirmal Jain FIR No. 42/2007 Judgement dt. 1.5.2010 Puram, Delhi. As per the record, the accused had traveled to Pakistan in the year 2006 and 2007. The same is Ex.PW7/B. SI Ravinder Kumar Tyagi sent the recovered documents for verification to Army Headquarters and they confirmed that the documents in question were restricted in nature and contained vital information regarding movement and deployment of Armed Forces etc. SI Ravinder Kumar Tyagi also obtained specimen hand writing Ex.PW8/C (26 pages) of the accused to compare with Ex.PW6/D. SI Ravinder Kumar Tyagi sent to above said documents for expert opinion to FSL copy of the same is Ex.PW8/A. Report of FSL is Ex.PW8/B was received and as per the report, the recovered documents were found written by the accused Insaf Ali. During investigation, SI Ravinder Kumar Tyagi collected call detail record and customer application form of mobile no. 9252214983 and mobile no. 9829464483 of accused Insaf Ali Ex.PW15/B, PW15/A, PW14/A and Ex.PW14/B and scrutinized them. On scrutiny, SI Ravinder Kumar Tyagi found there were frequent calls on these numbers to Pakistan to Shoaib Hassan in Pakistan. SI Ravinder Kumar Tyagi moved an application before the then DCP Sh. Alok Kumar for sanction to file complaint against accused Insaf Ali and after receiving sanction from Ministry of Home Affairs Ex.PW9/A, SI Ravinder Kumar Tyagi filed the challan.
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3. After committal of the case to Sessions Court, a charge under Section 3 of the Official Secret Act was framed to which accused pleaded not guilty.
4. In order to prove its case prosecution examined PW1 Hazi Manjoor Ali. He testified that Sayida Shamma Aforz and Sayida Shaiym Parveen are his daughters and their marriage was solemnized on 15.5.2007. He stated that one Sajjar Ali and Sardar Ali are his relatives. He had sent the marriage invitation card to Sardar Ali through his brother in law Sajjar Ali. This witness identified this marriage card as Ex.PW1/A. He testified that on 10.6.2007, Delhi Police officials came to his house and that he identified the said marriage card and that he also delivered another marriage card to the police, which is Ex.PW1/B. This document was taken in possession vide memo Ex.PW1/C. PW2 Sh. D. K. Sabharwal Retired Chief Booking Supervisor, Old Delhi Railway Station testified that on and before 21.6.2007 he was on duty as Chief Booking Supervisor at Old Delhi Railway Station. He received a written request of Sh. Sanjeev Kumar ACP dated 19.6.2007, which was received in his office on 20.6.2007 by Senior Booking Clerk Sh Baljeet Singh. He testified that on 21.6.2007 above said request Ex.PW2/A of ACP along with railway ticket bearing no. 54984 was marked to him for verification. He SC No. 21/2008 10 State Vs Insaf Ali @ Nirmal Jain FIR No. 42/2007 Judgement dt. 1.5.2010 checked the record Ex.PW2/B and gave his report Ex.PW2/C. As per report the aforesaid ticket Ex.PW2/B was sold from old Delhi Railway Station on 30.5.2007 in evening shift i.e. from 16:00 hours to 24:00 hours.
PW3 HC Sajjan Singh from police station Gudaanla District Pali Rajasthan brought the record from PS Kotwali to prove that accused was involved in four criminal cases under different provisions of law.
PW4 HC Vijender took an envelope from SI Ravinder Kumar Tyagi to FSL and deposited the same there.
PW5 SI Mohan Lal registered FIR Ex.PW5/A in the present case upon which SI Ravinder Kumar Tyagi started investigation.
PW6 HC Udayvir Singh was posted at old Delhi Railway Station and has testified that accused with a polythene back of white colour and one marriage card in his hand was requesting the passengers, who were going to Pakistan by Atari Express and was also requesting a lady namely Kursian Begum and that he along with Ct. Inderpal apprehended the accused with the card and that on checking the wedding card it was found to contain the documents in question.
PW7 Hemant Bhardwaj Junior Intelligence Officer testified that on 22.6.2007 a letter dated 19.6.2007 was received in the SC No. 21/2008 11 State Vs Insaf Ali @ Nirmal Jain FIR No. 42/2007 Judgement dt. 1.5.2010 office of IB vide diary no. 4767 regarding the verification of arrival/departure of accused. As per record accused had visited Pakistan via Atari railway on 6.11.2006 and came back to India on 30.11.2006. He had also visited Pakistan on 15.2.2007 and came back to India on 22.2.2007.
PW8 Sanjeev Kumar Senior Scientific Assistant (Documents) National Institute of Criminology and Forensic Science, Rohini testified that he had examined the documents Q1 to Q9 and Q7/1 and Q9/1, one invitation card of marriage and one envelope along with the specimen writing S1 to S24, S24/1, S25 and S26 of the accused. He testified that hand writing of question documents matched with the specimen hand writing of accused. He proved his report as Ex.PW8/B. PW9 Sh. Virender Kumar Under Secretary, Ministry of Home Affairs testified that he issued authorization order in the name of Sh. Alok Kumar DCP Delhi to make a complaint vide his order Ex.PW9/A. PW10 SI Dilip Kumar and PW16 SI Charan Singh are the members of raiding party, who apprehended the accused while he was trying to deliver the envelope to a passenger namely Kursian Begum of Samjhota Express and when checked, a marriage card was found to contain the documents in question.
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PW11 Colonel Hemant testified that on 19.6.2007, while he was working as Colonel General Staff (Intelligence) Heard Quarters, South Western Command Jaipur, he received a letter from Director General of Military Intelligence seeking opinion on the points raised by DCP Special Cell with reference to the documents enclosed. After perusing the documents he gave his opinion dated 2.7.2007, which is Ex.PW11/A and sent the same back to Director General of Military Intelligence.
PW12 Sham Kumar Mishra Senior Station Manager Delhi Railway Station testified that in the month of June 2007 he was posted as Senior Station Manager, Delhi Railway Station and Sh. R. L. Meena was working under him as Station Manager. On a letter received from ACP Special Cell seeking details related to Atari Express Samjhota Express, the same were sent by Sh. R. L. Meena whose reply is Ex.PW12/A. He testified that he had brought the reservation chart dated 30.5.2007 and as per this reservation chart, one lady Mrs Kursian Begum had boarded Atari Special/Samjhota Express on that day. He proved the reservation chart as Ex.PW12/B. PW13 ASI Paramjit Singh is Malkhana Mohrar and testified that on 31.5.2007 SI Ravinder Kumar Tyagi had deposited the personal search articles of the accused in Malkhana.
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PW14 Mahender Pal Singh Nodal officer proved the call details of mobile phone no. 9829464486, which is in the name of accused. The number was got activated on 20.8.2006. The call details are Ex.PW14/B and Ex.PW14/C. He also testified that 0092 is ISD code of Pakistan.
PW15 Atul Kumar Tewari Nodal Officer TATA Tele Service proved that mobile phone no. 9252214983 is in the name of one Nirmal Jain. He proved the call details of this mobile phone as Ex.PW15/B. PW17 Sh. Alok Kumar DCP Special Cell lodged a complaint Ex.PW17/A under Section 13(3) of Official Secret Act 1923.
PW18 SI Ravinder Kumar Tyagi is the Investigating Officer.
5. In statement under Section 313 CrPC accused admitted that he was involved in four criminal cases in Rajasthan. He admitted that he had visited Pakistan on valid passport and visa on various dates. He also admitted that he made telephone calls to Pakistan from his mobile phone no. 9829464486. However he denied rest of the allegations. He stated that he was lifted by the police from his residence on 27.5.2007 at about 6:30 pm by car. He was brought to PS Citi Kotwali and thereafter brought to Jaipur. Then he was taken to Baihrod. He stated that he was compelled to talk to some unknown person in Pakistan from a planted phone no.
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9252214983. He was brought Old Delhi Railway Station Police Chowki on 27.5.2007, where again he was compelled to talk to unknown person in Pakistan. He stated that this phone had been planted and that it started from 27.5.2007 to 30.5.2007 at 9:30 pm. Police officials made a call on 28.5.2007 to one Mustak Khan at Pali Rajasthan that he would returned back to home within two days. He stated that no restricted documents were recovered from his possession.
6. In his defence this accused examined DW1 Gufran Ali. He testified that on 27.5.2007 police picked Insaf Ali from his house and on 28.5.2007 he was informed on telephone by the friend of Insaf Ali that he was in Jodhpur for some work and told him that he would return after two days.
DW2 Aman Rishi from TATA Indicom brought the cell site Ids with location pertaining to mobile phone no. 9252214983 but he could not testified about the cell sites stating that the same do not belong to his area of Rajasthan.
7. Ld. Defence Counsel has assailed the testimonies of the witnesses that it is highly doubtful that a spy would take the confidential information in his hand and hand the same over to an unknown lady. It is argued that if the information is so secret, it should be handed over to a reliable persons. further the accused SC No. 21/2008 15 State Vs Insaf Ali @ Nirmal Jain FIR No. 42/2007 Judgement dt. 1.5.2010 had been talking to his relatives in Pakistan on his mobile and therefore he could have sent such information through his mobile phone and therefore there was no need for the accused to openly take such incriminating documents at the Railway Station, where the police remains posted permanently.
8. On the other hand, Ld. Additional Public Prosecutor has drawn my attention that document Ex.PW6/C and the hand written information Ex.PW6/D, which runs in a few pages contains a lot of information, which could not be sent on mobile phone and that the accused has devised a very devious method to send the information to a friend present in Pakistan through innocent passengers under the guise of sending marriage invitation card.
9. I have considered the rival submissions. With a view to understand the testimonies of the witensses, it is necessary to refer to the testimony of PW1 Hazi Manjoor Ali. This witness had sent the invitation card in question to one of his relative namely Sardar Ali through his brother in law Sajjar Ali. Accused is the son of said Sardar Ali. This is how the invitation card landed in the hands of the accused. A perusal of this invitation card Ex.PW1/A would show that on the front of this card, name of one Shoib Hassan, Lahore, Mugpura and his mobile phone no. 00923334662110 is written. It is not in dispute that "92" is the code of Pakistan.
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Accused had concealed the secret information in this card and PW6 HC Udayvir Singh, SI Dilip Kumar (PW10) and SI Charan Singh (PW16) had observed that accused was requesting the Pakistani bound passengers to take this invitation card to the addressee. He requested one Smt. Kursian Begum a passenger of this train but she refused to take the said envelope. All these police officials apprehended the accused and made inquiry from the said lady, who told her name as Smt. Kursian Begum W/o Mohd. Bashir R/o Multan, Pakistan to whom accused was requesting to take envelope to be delivered in Lahore. All these witnesses have testified that when the invitation card was opened four papers of restricted documents of Special Army order and three hand written sheets have secret information were recovered. The testimonies of all these witnesses is worthy of credence and I do not find any infirmity or contradictions in their testimonies. I do not find any reason to disbelieve them rather I find force in the arguments that the plan of accused was to use innocent Pakistani passengers to send the secret information to Pakistan as it is a safer course.
10. Ld. Defence Counsel has drawn my attention that the documents Ex.PW6/C i.e. Special Army order and the contents written in three pages of Ex.PW6/D collectively, are not secret information rather the same are easily available at inter net etc. I SC No. 21/2008 17 State Vs Insaf Ali @ Nirmal Jain FIR No. 42/2007 Judgement dt. 1.5.2010 disagree with this submission. The document Ex.PW6/C is the training programme of tactical handling of a battle group. The three hand written pages mention the deployment of various units of army at various places. PW11 Colonel Hemant, who proved his opinion Ex.PW11/A regarding the documents Ex.PW6/C and Ex.PW6/D. As per this opinion the information if passed to an unauthorized person or foreign agent, can be used for purpose prejudicial to safety or interest of the State and that the said information is directly connected with the security/defence matter of the country and is indirectly useful to the enemy country/terrorists outfits operating in India. I have gone through the contents of the document in question and I fully agree with this opinion.
11. Ld. Defence Counsel has drawn my attention that a letter was sent to Station Manager, Old Delhi Railway Station to provide the details of Atari Express, security checking time of passengers and details of Pakistani lady Smt. Kursian Begum. Ld. Defence Counsel argues that he was supplied with a copy of the letter sent by Station Manager to ACP, Special Cell, which is dated 21.6.2007, whereas this documents Ex.PW12/A available on judicial file bears the date 12.7.2007. It is argued that this document had been changed. I have seen this document and the copy filed by Ld. Defence Counsel.
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I do not find anything on record to show that this document had been changed. Even for sake of arguments it is presumed that the actual letter was dated 21.6.2007, still there is no difference in the contents. I may point out that it is not the case of the accused that information supplied in this letter is incorrect. In fact the information given in this letter is further supported by the reservation list Ex.PW12/B, which shows the name of Smt. Kursian Begum at no. 17.
12. Ld. Defence Counsel has taken me through the defence of the accused in which it is stated that he was lifted on 27.5.2007 at about 6:30 am from his residence in Pali, Rajasthan by the officials of Special Cell and they assured his family members that accused would come back very soon. He stated that he was brought to PS City Kotwali and thereafter to Jaipur and to Baihror. He stated that he was compelled by the members of Special Cell to talk with some unknown person in Pakistan from the planted phone no. 9252214983 and thereafter on 27.5.2007 he was brought to Old Delhi Railway Station at about 8:00 pm and he was detained in police chowki of Old Delhi Railway Station, where he was made to talk with some unknown person in Pakistan. He further stated that he under the opinion of police official made a call on 28.5.2007 to one Mustak Khan of Pali, Rajasthan to state that he was busy in SC No. 21/2008 19 State Vs Insaf Ali @ Nirmal Jain FIR No. 42/2007 Judgement dt. 1.5.2010 Jodhpur and would come to home within two days. He further stated that he was falsely implicated in the present case on the pressure of higher official of Special Cell. Ld. Defence Counsel has drawn my attention to the testimony of DW1 Gufran Ali, who testified that how the accused was picked up on 27.5.2007 by the police. In order to further prove his case, he examined DW2 Aman Rishi from TATA Indicom but he could not bring any material on record to show the location of the said mobile phone.
13. I am of the opinion that even if the record proved that mobile phone was being used in Delhi, the same would not controvert the prosecution case. The Ex.PW15/B shows that the calls made at the mobile phone allegedly recovered from the accused mentioned at G, H, I and J are after 9:45 pm on 30.5.2007 whereas accused had been arrested at 9:50 pm. It is argued that prosecution has not been able to prove as to how these calls were made after the arrest of accused. In this regard the testimony of PW18 SI Ravinder Kumar Tyagi is important and he has denied that on 30.5.2007 he compelled the accused to talk from the above stated phone with someone in Pakistan but I find some substance in the submissions of Ld. Defence Counsel that the call record Ex.PW15/B shows that there had been some telephonic conversations on this mobile phone between the accused and some other person. However this aspect SC No. 21/2008 20 State Vs Insaf Ali @ Nirmal Jain FIR No. 42/2007 Judgement dt. 1.5.2010 is absolutely not relevant to the question of the accused having secret information/secret documents in his possession. I may point out that these call details were not specifically put to Investigating Officer during his cross examination. Therefore vide my order dated 3.4.2010 I summoned the Investigating Officer to explain this point but it was reported that he has met with an accident and is admitted in hospital since 12.3.2010 and neither he can walk nor he can speak.
14. Ld. Defence Counsel argues that the documents were not kept in sealed pulanda and therefore possibility of tempering with those documents cannot be ruled out. It is also not clear as to whether the documents seized from the accused were the same which were shown to the expert for the opinion. I have considered the submission of Ld. Defence Counsel and find no substance in it. PW11 Colonel Hemant has proved his opinion Ex.PW11/A and has specifically testified that document Ex.PW6/A and hand written notes Ex.PW6/D are the same which were examined by him. Despite a long cross examination, nothing came out to discredit this part of his evidence. The police officials have also proved that the above stated documents were recovered from the possession of the accused. Therefore the chain is complete and it cannot be said that there is possibility of tempering of documents during the course of SC No. 21/2008 21 State Vs Insaf Ali @ Nirmal Jain FIR No. 42/2007 Judgement dt. 1.5.2010 investigation. I may point out that as per the hand writing expert's report Ex.PW8/B, the specimen hand writing of accused tallies with the hand writing on the documents marked as Q1 to Q9, which are the hand written papers collectively exhibited as Ex.PW6/D annexed in the marriage card. Though no opinion could be given about the address of Shoaib Hassan written on the card and marked as Q7/1 and the envelope Q9/1. Therefore the prosecution has been able to make a complete chain that the hand written documents are written by the accused and the same were seized by the police and those very documents were examined by PW11.
15. I also do not find any substance in the testimony of DW1. The defence witness does not find any support from any independent source. He could have made a DD entry or even a complaint to the concerned police station about picking up the accused from the house. I may point out that accused has a criminal record and therefore his relatives cannot be expected to remain silent in case the accused is picked up by anyone. To my mind the testimony of DW1 is unworthy of credence and is rejected entirely. On the other hand, the police officials, who effected recovery in question, are worthy of reliance and therefore I am of the opinion that prosecution has proved beyond reasonable doubt that on 30.5.2007 at about 9:50 pm the accused attempted to commit the offence SC No. 21/2008 22 State Vs Insaf Ali @ Nirmal Jain FIR No. 42/2007 Judgement dt. 1.5.2010 punishable under Section 3 of The Official Secret Act 1923 by trying to communicate the secret official documents and information to Smt. Kursian Begum and the said documents and information were directly and indirectly useful to enemy and pertain to the defence of India. I, therefore, convict the accused under Section 3 read with Section 9 of Official Secret Act 1923. Announced in the open court on 1.5.2010.
(VINOD KUMAR)
Additional Sessions Judge01
North District, THC, Delhi
SC No. 21/2008 23 State Vs Insaf Ali @ Nirmal Jain
FIR No. 42/2007 Judgement dt. 1.5.2010
IN THE COURT OF SH. VINOD KUMAR
ADDITIONAL SESSIONS JUDGEI, NORTH DISTRICT, DELHI SC No. 21/2008 FIR No. 42/2007 PS Special Cell U/s 3 of Official Secret Act 1923 State Vs Insaf Ali @ Nirmal Jain S/o Sh. Sardar Ali R/o 11, Mohalla Jangiwara, Naiyon Ki Gali, P.S. Kotwali Pali, District Pali, Rajasthan.
ORDER ON SENTENCE 1.5.2010 Present: Ms Alka Goel, Ld. Addl. P. P. for State.
Convict from J.C. with counsel Sh. M. M. Khan, adv.
Ld. Additional Public Prosecutor argues that the convict should be sentenced to full doze of punishment, which is 14 years.
On the other hand, Ld. Counsel for convict submits that convict is the sole bread winner of his family. He has three minor children and that his wife remains ill. Ld. Additional Public Prosecutor submits that convict is involved in four criminal cases of cheating.
I have considered the facts and circumstances of the case. In the present case I have held the convict guilty for attempt for commission of offence under Section 3 of The Official Secret Acts 1923. Although as per Section 9, the attempt is punishable with the sentence equal to the main offence, still I am of the opinion that in view of the totality of the circumstances and the family background as SC No. 21/2008 24 State Vs Insaf Ali @ Nirmal Jain FIR No. 42/2007 Judgement dt. 1.5.2010 stated by Ld. Counsel, a reasonable view is required to be taken by sentencing the convict.
Considering all facts and circumstances, I sentence the convict to rigorous imprisonment for three years. Benefit under Section 428 CrPC be also given to him. Sentence warrants be prepared to send the convict to serve the sentence. File be consigned to record room.
Announced in the open court on 1.5.2010.
(VINOD KUMAR) Additional Sessions Judge01 North District, THC, Delhi