Delhi District Court
State vs Moinuddin Rizvi S/O Allah Baksh R/O on 3 September, 2012
39/07
PS Spl. Cell
03.09.2012
Pre: ld. APP for the state.
Accused are in JC.
Vide separate judgment placed along side in the file, accused
persons are acquitted by giving them benefit of doubt. The accused
persons are in J.C. w.e.f July 2007. Accused persons be released from jail
if they are not required in any other case. At this stage, accused persons
are directed to furnish personal bond in the sum of Rs.10000/ each with
one sound surety in the like amount each for the period of six months that
in case the decision is set aside in any appeal or other proceedings they
shall present themselves before the court concerned to face further
proceedings in accordance with law.
(RAJ KAPOOR)
ASJ2/ West Distt./ Tis Hazari Courts, Delhi
1
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 252/ 1/ 10
Assigned to Sessions. 12.12.2007
Arguments heard on 03.08.2012
Date of order. 03.09.2012
FIR No. 39/07
State Vs Moinuddin Rizvi s/o Allah Baksh r/o
3/ 13, Silawatwadi, Udaipur,
Rajasthan
Sheikh Ghulam Dastgir s/o Moinuddin
Rizvi, R/o as above
(discharged on 28.03.2008)
Mohd. Yusuf s/o Shaikh Mehboob r/o
419, Area 37b, Landi, Karachi,
Pakistan.
Police Station Special Cell, New Friends Colony,
Delhi
Under Section 3(1) (c ), 3 r/w 9 Official Secret Act
1923, 120B IPC.
JUDGEMENT
1. Briefly facts of the case are that couple of days prior to 25.05.2007, several information were received at Special Cell, New Friends Colony that one Pakistiani national namely Mohd. Yusuf had come to India to 2 collect classified documents at the behest of Pakistani Intelligence Agency i.e. ISI.
2. Thereafter, on 25.05.2007 at about 05:30 P.M., PW11 Insp. Badrish Dutt received an information from secret source that accused Mohd. Yusuf would come near Netaji Subhash Park Gate, Jama Masjid, Delhi. This information was reduced into writing vide DD No.10 which is Ex.PW11/A and one raiding party was constituted consisting of PW9 SI A.K. Singh, PW7 SI Bhimsen, PW10 ASI Bijender, PW11 Insp. Badrish Dutt and other police officials. All the police officials left Special Cell Office at about 06:00 P.M. On the way near Taimur Nagar Gurudwara & Iron Foot Over Bridge, PW11 Insp. Badrish Dutt requested 4/5 passersby to join the raiding party but they did not join the raiding party without disclosing their names and addresses. However, without wasting further time, I.O. deployed police officials near gate Netaji Subhash Park at around 07:00 P.M. and at about 07:30 PM, accused Mohd. Yusuf came from Daryaganj side on foot, stopped near gate of Netaji Subhash Park and started waiting for someone. Thereafter, at about 07:45 PM, accused Moinuddin Rizvi came from Chandni Chowk side, having orange, blue, green colour bag and took out one bundle of documents from the bag and handed over the same to accused Mohd. Yusuf . Both accused 3 persons were overpowered by the police officials. The bundle of papers was checked and it was found containing a photocopy set of 8 sheets titled as Flight Information Publication PartII enroute, pertaining to Indian Air Force, marked as restricted, photocopy of map titled as IAF Operational General Map, marked as restricted for use of Defence Forces only, photocopy of road map of Bikaner Region and adjoining area showing border with Pakistan, this map has been prepared after pasting many sheets together and some lines margins noting are made by hand, a road map of Jodhpur District. These documents were given serial no.1 to 8 and the seal impression of AKS was affixed on each sheet and were taken into possession vide seizure memo Ex.PW7/A. The plastic bag which was containing clothes was also taken into possession through memo Ex.PW7/B. PW9 SI A.K. Singh prepared rukka and gave the same to HC Bijender for getting the case registered.
3. Accordingly, PW1 ASI U.R. Khan, duty officer recorded FIR No.39/07 which is Ex.PW1/A. The investigation was assigned to PW12 Insp. K.P. Rana, who reached at the spot, prepared site plan Ex.PW9/B, at the instance of SI A.K. Singh. Accused Moinuddin Rizvi was interrogated vide Ex.PW7/H and later on arrested vide personal search memo and arrest memo Ex.PW7/F and Ex.PW7/D. Thereafter, he was brought to 4 the office of Special Cell, New Friends Colony and the case property was deposited in the Malkhana at PS Special Cell.
4. Both accused persons were taken on 7 days police remand. On 27.05.2007, accused Mohd. Yusuf was taken to Hyderabad by train along with PW12 Insp. K.P. Rana, SI Bhimsen, Ct. Naresh and ASI Rakesh and accused got recovered one passport which was taken into possession through seizure memo Ex.PW4/B and police officials also collected details regarding passport from FRRO, Hyderabad, including the VISA details, verified the tickets, regarding stay in India.
5. Accused Moinuddin was taken to Udaipur. On reaching Udaipur, on dated 28.05.07 I.O. took local assistant from PS. Ghantagarh from where ASI Manilal joined them. A search was conducted at the First Floor of H.No.3/13 Silavar wadi, Udaipur on instance of the accused. During search (i) road map of PWD District Udaipur, II which is mark 1/PW7, (ii) a passport bearing no. F709575 in the name of the accused Moinuddin Rizvi and a photocopy of a Hindi Order dated 05.04.05 purported to have been issued by Superintendent Engineer (Investigation PWD Rajasthan Jaipur), were seized by memo Ex.PW9/C which bears his signature at point Z and the attesting witness bears his signature at point Y and the 5 signature of accused bears at point S.
6. After returning from there both accused persons were produced before the concerned court and were sent to J/C. During the course of investigation IO had taken the photocopy of the register regarding stay vide Ex.PW5/B and had also taken into possession one suitcase containing clothes through seizure memo Ex.PW12/C and also prepared Khanatalshi and pointing out memo vide Ex.PW12/D and Ex.PW7/L. PW6 Group Captain Amarjeet Singh Dhillon, the then Director of Operations Navigation Air Headquarters, after having perused the documents which were sent to him through letter Ex.PW6/A, gave his opinion that map and other information bulletin were restricted documents which were duly forwarded to Special Cell by PW2 Wing Commander Nagarjun, vide letter Ex.PW2/A. Thereafter, PW8 Sh. Virender Kumar, the then Under Secretary to Govt. of India authorized DCP Alok Kumar to file complaint under Officials Secret Act against accused persons vide order dt. 22.08.2007 which is Ex.PW8/A. PW13 DCP Alok Kumar gave complaint as per section 13(3) of O.S. Act, vide Ex.PW13/A.
7. This case was committed to this Court and was received on 12.12.2007 6 for trial as it pertains to the heinous crime committed under section 3(1) (c ), 3 r/w 9 Official Secret Act 1923, 120B IPC, which is exclusively triable by court of Sessions. Ld. predecessor of this court framed a charge for the offence punishable u/s 3(1) (c ), 3 r/w 9 Official Secret Act 1923, 120B IPC to which accused persons did not plead guilty and claimed trial.
8. To prove and substantiate its case the prosecution has examined witnesses namely PW1 ASI U R Khan duty officer; PW2 Wing Commander N. Nagrajan, Deputy Probost Marshal; PW3 Abdul Hakim - hostile witness; PW4 Sheikh Bashiruddin - another hostile witness; PW5 Mohd. Suleman - Manager of Friends Guest House, PW6 Amarjeet Singh Dhillon - Retd/ Director of Operations Navigation - Air Head Quarter; PW7 SI Bhim Sain - member of raiding party conducted on 25.05.2007; PW8 Virender Kumar Under Secretary - Ministry of Home Affairs, Govt. of India; PW9 Insp. A K Singh member of raiding party, PW10 ASI Bijender Singh - another member of raiding party; PW11 Insp. Badrish Dutt another member of raiding party; PW12 K P Rana - IO of the case to whom investigation was handed over after apprehension of accused persons on 25.05.2007; PW13 Alok Kumar - 7 the then DCP, Special Cell, New Delhi; and PW14 Ct. Naresh Kumar
- formal witness who deposited the exhibits of the case at FSL Rohini, Delhi.
9. PW1 ASI U. R. Khan is the formal witness in this case being duty officer. He got exhibited the carbon copy of FIR as Ex.PW1/A and his endorsement as Ex.PW1/B, which were recorded on 25.05.07 at around 11.30 p.m. at Police Station Special Cell, New Delhi. This witness has been crossexamined by defence counsel at length. No contrary evidence has come on record which may go to the root of this case.
10.PW2 Wing Commander N. Nagrajan, Deputy Probost Marshal came to the witness box and deposed that in this case he had simply sent the letter dated 17.07.07 along with the opinion given by Group Captain AJS Dhillon. He got exhibited the covering letter Ex.PW2/A. This witness has not been crossexamined.
11.PW3 Abdul Hakim came to the witness box and stated that accused Mohd. Yusuf is his relative and he is a Pakistani National. He testified that in the year 2007 accused had come to meet them. He stayed with him for about 1012 days. This witness has been got declared hostile 8 by ld. APP since he has resiled from his earlier statement given to the police u/s 161 Cr. PC. This witness was also crossexamined by ld. Defence counsel. In the crossexamination he admitted that he was not told by the police that his statement had been recorded and his statement was not read over to him. He is illiterate person.
12.PW4 Sheikh Bashiruddin came to the witness box and stated that accused Mohd. Yusuf is his relative and he is a Pakistani National. He stayed with him for about 1012 days. He stated that he does not know as to whether accused had purchased any mobile phone or not. He had not helped him in obtaining the mobile phone. He does not know about the mobile phone. This witness has been got declared hostile by ld. APP since he has resiled from his earlier statement given to the police u/s 161 Cr. PC. This witness was also crossexamined by ld. Defence counsel. In the crossexamination he admitted that police had not recorded his statement.
13.PW5 Mohd. Suleman being Manager of Friends Guest House, Bazar Matia Mahal, Jama Masjid Delhi is important and material witness. He testified that as per the entry dated 22.05.2007 Sheikh Moinuddin and Gulam Dastgir had stayed in the Guest House for 9 days. He got 9 exhibited the photostat copy of the relevant entry of the register as Ex.PW5/A (OSR). He testified that police officials took into the possession the copy of the same vide Ex.PW5/B. This witness has also answered the question that officials of the Special Staff had apprehended them. This witness has been crossexamined by defence counsel. In crossexamination he stated that his statement was not recorded by the police. However facts were inquired by the police from him.
14.PW6 Amar Jeet Singh Dhillon, is the most material witness in this case being Director of Operations Navigation, Air Head Quarter. This witness appeared before the court before whom a sealed envelop was opened, which was containing flight information in 8 pages, one map title 'Madras' meant for Defence Forces only, which has been marked as X.1 & X.2 for the purposes of identification, the envelop was also found having contained two more documents. This witness categorically stated that the said map and information bulletin was sent to them for opinion with regard to restricted documents by Special Cell vide letter Ex.PW6/A. Consequently, the bulletin and map were examined. Perusal of his testimony carefully reveals that he opined that the map and the information bulletin were restricted documents. The 10 possession of these documents may proof fatal to the security of the nation in case it falls in the hand of bad elements, vide opinion Ex.PW6/B. This witness has been crossexamined by defence counsel at length. In the crossexamination this witness admitted that possession of X.1 & X.2 could be in possession of limited officials. He also admitted that such documents mark X.1 & X.2 are not accessible to the person of rank person or person like peon may come all of a sudden in possession of such documents.
15.PW8 Sh. Virender Kumar, Under Secy. Ministory of Home Affairs,North Block, Govt. of India, Came to the witness box and deposed that on 22.08.2007 he had signed an order with regard to the authorization to Sh. Alok Kumar, the then DCP, Special Cell to make and file complaint under the provisions of the Official Secret Act, 1923 against accused Sheikh Moinuddin Rizvi, Mohd. Yusuf and Shekh gulam Dastgir, who were arrested by the Special Cell. This witness got exhibited the Order as Ex.PW8/A. This witness has been crossexamined by defence counsel at length. I have perused the same. No contrary evidence has come on record which may suggest that this witness is false one.
16.PW7 SI Bhim Sain; PW9 Insp. A K Singh; PW10 ASI Bijender Singh; 11 and PW11 Insp. Badrish Dutt are the material witnesses in this case being members of the raiding party. On careful perusal of their testimonies I am of the view that they imparted more or less similar facts of the incident in question. Having gone through their testimonies it has come on record that on 25.05.07 a secret information was received to Inspector Badrish Dutt, who was posted in Special Cell, New Friends Colony, Delhi that one Mohd. Yusuf, Pakistani national has come to Delhi on the behest of Pakistan Intelligence Agency, ISI and he has been assigned a task to collect secret documents/information for the purpose prejudicial to the safety, security and interest of India. Disclosure of these documents / information may effect security, safety and integrity of nation and friendly relation with the foreign nations. This information was brought into the notice of Senior Officers and a team headed by Inspector Badrish Dutt and Sh. K.K.Kaushik ACP was deployed to further developed this information. In order to further develop this information sources were deployed and surveillance was mounted. Further, perusal of their testimonies reveals that it has also come on record that on 25.05.2007 a specific information was received at about 5.30 PM by Inspector Badrish Dutt through a secret informer at Office Special Cell (SR) NFC, New Delhi that accused Mohd. Yusuf would come near Netaji Subhash Park Jama Masjid Delhi to 12 collect secret documents/informations from his associates, where they would exchange classified documents/information, and if raided they can be apprehended with classified documents/information related to the Indian Army Forces. This information was brought into the notice of ACP Special Cell, SR and other senior officers. On their directions a raiding party was constituted comprising of myself, SI Bhimsain , ASI Rakesh Kumar, ASI Ashok Kumar, HC Vijender, HC Nirdesh, and Ct. Naresh under leadership of Inspector Badrish Dutt. The raiding party along with informer proceeded on one motor cycle and two private cars for the place under information at 6.00 P.M. A DD No. 10 was lodged in the daily diary to this effect. Thereafter, they reached near Gurudawara Taimur Nagar where Inspector Badrish Dutt requested 45 passersby to join the raiding party but they left without disclosing their name and identity and after giving reasonable excuse. Thereafter, they proceeded further to Daraya Ganj, Foot over Bridge, again Inspector Badrish Dutt requested to 45 passersby to join the raiding party but they left without disclosing their names and identity and after giving reasonable excuse. Thereafter, Inspector Badrish Dutt briefed the raiding party. At about 7.00 P.M. they reached at the gate of Netaji Subhash Park, towards Netaji Subhash Marg and team members were deployed at the strategic points near the gate of the park. It has also specifically had come in 13 their testimonies that on 25.05.2007 at around 7.30 P.M. one person is aged about 60 years came on foot from Daraya Ganj side and stood below the Neem Tree near the gate of Subhash Park. The person was identified and pointed out by the secret informer as Mohd. Yusuf. After about 15 minutes since the arrival of Mohd. Yusuf one another person aged about 6061 wearing cream coloured Kurta and Pajama and carrying a multi coloured plastic bag came on foot from Side of Chandni Chowk. This person met with Mohd. Yusuf and they had briefed conversation. Thereafter the person who carrying a plastic bag in his hand, took out a bundle of papers from the bag and shown it to Mohd. Yusuf and handed over the bundle of papers to Mohd. Yusuf. At this point of time PW9 over powered Mohd. Yusuf and PW7 SI Bhim Sain over powered the other person with the help of raiding party members. The bundle of papers which was in the hand of Mohd. Yusuf, was taken from his hand and checked. It was checked and found containing, (i) a photocopy set of 8 sheets titled as Flight Information Publication PartII enrout, pertaining to Indian Airf Force marked as restricted , (ii) Photocopy of a map titled as IAF, Operational General Map, marked as Restricted, for use of Defence Forces only, (iii) Photocopy of road map of Bikaner region and adjoining area showing Border with Pakistan, this map has been prepared after pasting many sheets together and some 14 lines margins notings are made by hands (iv) a road map of Jodhpur District. The documents recovered at serial no. (i) were given marking as serial no. 18 and all these documents were got signed by the accused persons and SI Bhim Sain as witness. Seal impression AKS on each sheet was affixed and signed by PW9. Similarly, all these documents were also got signed by accused persons and SI Bhim Sain as a witness. Seal impression of AKS was affixed on each and every documents recovered from the hands of accused Mohd. Yusuf. Further, careful perusal of the case file reveals that on 27.05.07, he was directed by Inspector Badrish Dutt for conducting investigation at the r/o accused Moinuddin Rizvi in Udaipur, Rajasthan. Accordingly, he along with ASI Rakesh Kumar, HC Devender and Ct. Yashpal along with accused Moinudin Rizvi who was in Police Custody remand left for Udaipur, Rajasthan. On reaching Udaipur, on dated 28.05.07 he took local assistant from PS. Ghantagarh from where ASI Manilal joined them. A search was conducted at the First Floor of H.No.3/13 Silavar wadi, Udaipur on instance of the accused. During search (i) road map of PWD District Udaipur, II which is mark 1/PW7, (ii) a passport bearing no. F709575 in the name of the accused Moinuddin Rizvi and a photocopy of a Hindi Order dated 05.04.05 purported to have been issued by Superintending Engineer (Investigation PWD Rajasthan Jaipur), were 15 seized by memo Ex.PW9/C. After completion of investigation at Udaipur He handed over the documents to the IO of this case, after coming to Delhi. All these witnesses have corectly identified both the accused persons.
17.Further, careful perusal of their testimonies it has come on record that all these documents were taken into possession vide seizure memo already Ex.PW7/A which bears his signature at point X and witness Bhim Sain also signed at point S. The accused Moinuddin Signed the same at point Y and accused Mohd. Yusuf signed at point Z. The plastic bag which was in the hand of the Moinuddin Rizvi was also taken in possession which contained clothes. The same were also taken in possession vide seizure memo Ex.PW7/B and accused Moinuddin signed at point Y. The seal after used was handed over to SI Bhim Sain. Both the accused persons were interrogated who disclosed that they were working for the Pakistan Intelligence Agency, ISI and they were assigned a task to collect the documents/information related to Indian Armed Forces for onwards transmission/Communication to the Pakistan. PW9 prepared rukka u/s 3/9 of the Official Secrets Act r/w section 120 B of the IPC. The rukka was handed over to HC Vijender at about 11.00 P.M. for the registration of FIR and a request was also 16 made to hand over the investigation to SI K.P. Rana, who had reached the spot. The same is Ex.PW9/A consisting of 5 pages which bears his signature at point X. PW9 briefed about the facts of the case to SI K.P.Rana and handed over the case properties and all the documents recovered and prepared by him to SI K.P.Rana for further investigation. He also handed over both the accused persons to SI K.P.Rana. SI K.P.Rana prepared site plan vide Ex.PW9/B. All these witnesses have correctly identified the documents recovered from the possession of accused Mohd. Yusuf and accused Moinuddin Rizvi i.e. photocopy of IAF, Operational General Map for use of Defence Forces as Ex.P1. 8 photocopy sheets pertains to Indian Air Force Flight, Information Publication PartII Enrout as Ex.P2 (colly); road map of Jodhpur District as Ex.P3. another road map of Bikaner Region and adjoining area showing Border with Pakistan as Ex.P4. All these witnesses have been crossexamined at length. I have perused their cross examination very carefully. Having gone through their testimonies and crossexamination of these witnesses, I found some minor type of contradictions which are attributable to the long duration of time and memory of a human being. On minor type of contradictions the Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are 17 very relevant crucial and dominant in deciding the fate of the present case: "minor discrepancies in the evidence of the eyewitnesses are immaterial unless they demolished the basic case of the prosecution".
Observations made in the aforesaid case by the Hon'ble Supreme Court are exfacie indicative of the fact that when contradictions are minor the truthfulness of the witness cannot be discredited in all.
18.PW12 K P Rana, IO of the case to whom investigation was handed over after apprehension of accused persons on 25.05.2007 came to the witness box and deposed that on 25.05.2007, he was posted at Special Cell, Sadar Range, Delhi. After registration of the present case, information was given to him as the further investigation of the case was assigned to him. He went at Netajai Subhash Chand Marg, Chandni Chowk, near Netaji Subhash Park, Delhi, where Insp. Badrish Dutt, SI A.K. Singh, SI Bhim Sen, ASI Ashok Kumar, ASI Rakesh, HC Bijender, HC Nirdesh and Ct. Naresh met him. Two accused persons Moinduddin Rizvi and Mohd. Yusuf were in their custody. He identified both the accused persons. This witness further stated that SI A.K. Singh stated that some secret documents have been recovered from these persons. This witness prepared the site plan at the instance of SI A.K. Singh vide 18 Ex.PW9/B. He interrogated both the accused persons namely Yusuf and Moinuddin vide Ex.PW7/J and H and both the accused persons were arrested vide personal search memo Ex.PW7/G and F and arrest memo as Ex.PW7/E and D. He recorded statement of witnesses at the spot itself. Thereafter, all the police officials and both the accused persons went to the office of Special Cell, New Friends Colony. He deposited the case property at Malkhana at PS Special Cell and the other documents were placed on judicial file. This witness further testified that on the next day, again said on the same day, both the accused persons were produced before the concerned court at Tis Hazari Court and both the accused persons were taken on 7 days' Police Remand. On 27.05.2007, He along with SI Bhim Sen, Ct. Naresh and ASI Rakesh went to Hyderabad by train, along with accused Mohd. Yusuf. Accused Mohd. Yusuf had taken them to one locality, whose name he does not remember at this moment and got recovered one passport in his name from there. IO/ this witness seized that passport and the other documents vide seizure memo Ex.PW4/B. This witness further deposed that they had also collected details regarding passport from FRRO, Hyderabad, including the VISA details and got verified the railway ticket, stay of accused in India, collected the report from the concerned department. This witness had also recorded statement of 19 person in whose house accused had stayed. Thereafter, they came back to Delhi. Accused was produced before the concerned court and then he was sent to J/C. This witness further testified that other accused namely Moinuddin was taken to Udaipur, Jodhpur, by ASI A.K. Singh and then after their arrival at Delhi, both the accused produced together at the concerned court and then they were sent to J/C. Accused Mohd. Gulam Dastgir S/o Moinuddin Rizvi was also interrogated, vide Ex.PW12/A and arrested vide his arrest memo and personal search memo Ex.PW7/DB and Ex.PW12/B. Accused Gulam Dastigir was also taken on police remand but nothing could be recovered/discovered due to Gurjar Agitation in Rajasthan. Accused was produced before the concerned court and from there he was sent to J/C. He sent the documents to the concerned departments for obtaining their opinion including the FSL report. He further stated that during the course of investigation, he took the photocopy of the register regarding the stay of the accused and same was taken into possession vide Ex.PW5/B. He also took into possession one suitcase containing clothes etc. vide seizure memo Ex.PW12/C. He had also prepared the Khana Talasi and pointing out memo of accused Moinuddin Rizvi and Yusuf vide Ex.PW12/D and Ex.PW7/L. This witness has been crossexamined at length. In the crossexamination 20 he admitted that he did not mention in the footnote of the site plan Ex.PW9/B that the site plan in question has been prepared at the instance of SI A.K. Singh. He also admitted that inadvertently the date 26.05.2006 has been appended underneath his signature on Ex.PW9/B. His name in the official record has been mentioned as K.P. Rana. He use the name as K.P. Singh also. In the crossexamination it has also come on record that flow of traffic described in the site plan Ex.PW9/B is based on the Indian System of traffic which is meant to keep to the left. The arrow which he has shown in the site plan is not meant for the flow of the traffic but he has shown for the road. He denied the suggestion that both the arrows shown at point A and B of the road adjoining to Netaji Subhash Park is meant for showing the flow of traffic from the side of Old Delhi Railway Station to Daryaganj side. He also denied the suggestion that both the arrows shown at point C and D of the road adjoining to the Red Fort is meant for showing the flow of traffic from the side of Daryaganj side to Old Delhi Railway Station side. There was no STD Booth/PCO adjoining Netaji Subhash Park and surrounded area. In the crossexamination he further admitted that D number 3326 and PIS No. 16940073 does not belong to him as mentioned in the FIR in column No. 13(2), by which the investigation of the case was entrusted to him. The recovered documents vide Ex.P1 to P4 were placed on 21 record of the police file, which were kept in plane covers without any seal. Mobiles phones from both the accused persons were recovered during the course of their respective jamatalasis. In the cross examination it has also come on record that during investigation, no proof of any communication between Mohd. Yusuf and Moinuddin Rizvi could be found by him or any other official of his department. He also admitted that no previous involvement of any criminal nature regarding accused Moinuddi Rizvi came on record.
19.PW13 Sh. Alok Kumar, S.S.P., East Siang Distt., Arunachal Pardesh came to the witness box and deposed that in the year 2007, he was performing the duties of DCP, Special Cell, New Delhi. The case file bearing No. 39/07, under section 3/9 O.S. Act read with section 120B IPC, 14 Foreigners Act of PS Special Cell (SB), Lodhi Colony, New Delhi, was produced before him and after having gone through the file, he being authorized to lodge a complaint as per sub section 3 of section 13 of Official Secret Act, gave complaint for commission of offence by accused persons namely Mohd. Yusuf, Sheikh Moinuddin Rizvi and A. Gulam Dastgir. He on seeing the complaint Ex.PW13/A identified his signature at point A. This witness has also been crossexamined at length. I have gone through the same carefully. No contrary evidence 22 has come on record which may go to the root of this case. However, some minor type of contradictions have come on record which are attributable due to the long duration of time and memory of a human being.
20.PW14 Ct. Naresh Kumar is the formal witness in this case. He came to the witness box and deposed that on 17.07.2007, he was posted at Special Cell. On that day he was informed by SI K. P. Rana that he had to deposit the exhibits of case FIR No. 39/2007 at FSL Rohini. SI K. P. Rana gave him one forwarding letter which was enclosed with one road map of Bikaner region. He deposited the forwarding letter along with its enclosure at FSL Rohini, vide dairy No. 2007/ B2572 dt. 17.07.2007. He gave receipt of the same to SI K.P. Rana. The exhibits and letter and its enclosure were not tempered with till it remained with him. This witness has also been crossexamined by defence counsel at length. In the crossexamination it has come on record that he cannot say as to what point of time he came back to his office at Special Cell from FSL Rohini. He also denied the suggestion that he did not carry the documents in question to FSL Rohini on 17.07.2007 as alleged.
21.After recording prosecution evidence, statements of accused persons u/s 23 313 Cr. PC were recorded. Accused persons pleaded that they are innocent and they have been falsely implicated in the present case. They produced defence witnesses namely DW1 Sheikh Gulam Dastgir and DW2 Mohd. Yusuf (accused himself).
22.DW1 Sh. Sheikh Gulam Dastgir, who was made accused in this case but later on he was discharged by the court of Ld. ASJ, vide order dt. 28.03.2008. He came to the witness box as defence witness. He stated that on 24.05.2007, he was present along with his father at Rizvi Book Depot, Urdu Bazar, Jama Masjid at about 03:00 P.M. On that day, they scheduled to travel to Udaipur from Delhi by train at 6:00 PM by way of reservation. They had come there after performing our Namaje Johar from Jama Masjid. He further deposed that certain persons in civil dress traveling by Maruti 800 white car and two motorcycles alighted and caught hold both of them. On inquiry they stated that they were police officials and nothing to worry just certain inquiry has to be made by them. After making round for about an hour, finally took them to New Friends Colony police office of Special Cell at about 04:3005:00 PM. The said police officials silenced mobile phones carried by his father and him. They both were segregated in the police office. His father was taken to the lockup of the Special Cell and thereafter he was 24 produced before the court on 26.05.2007. In the Special Cell on 24.05.2007, they were physically tortured by the police and when they disclosed that they were from Rajasthan by way of documentary evidence carried by them then the police officials did not torture subsequently. He was shown to have been arrested on 30.05.2007 and upto that time he was kept in the police office of Special Cell at Friends Colony and was produced before the court on 31.05.2007. This witness further deposed that he had informed the presiding officer of the court Smt. Seema Maini regarding the torture caused to him and his father and regarding obtaining of the signatures of his father and himself on number of blank papers and certain written papers under threat and duress/physical torture. Police obtained the records of their mobile phones from the service provider but they could not link any evidence against them. Police had seized the reserved railway tickets for the journey on 24.05.2007 and had further taken a sum of Rs.15001700/ from him and Rs.2200/ from his father. This witness further deposed that he was discharged by Ld. Predecessor of this Hon'ble Court on the basis of the bogus documents concocted by the police. He again stated that he and his father had nothing to do with the alleged offence in any manner whatsoever. The police had fabricated this false case upon him and his father for the reasons best known to them. This witness has 25 been crossexamined by ld. APP at length. In the crossexamination this witness admitted that in the year 2006, his father Sheikh Moinuddin Rizvi went to Pakistan. He admitted that previously he was working as private contractor and he was running business of G.D. Engineers, situated at Sanjri Plaza Complex, Hathi Pole, Udai Pur, Rajasthan. His company is not having any turn over except a turn over of Rs.5,000/ to Rs.10,000/ per month. He closed his business of G.D. Engineers before 3 years from today. Account was being maintained at ICICI Bank, Madhuban, Udaipur. He deposited an amount of Rs.15,000/ in his account in the name of G.D. Engineers maintained at ICICI Bank. He does not have any proof to show today that he deposited an amount of Rs.15,000/ in his aforesaid account maintained at ICICI Bank. Even he cannot bring any document to this effect. One Email ID was also maintained for G.D. Engineers. He cannot tell the complaint E Mail address of G.D. Engineers as he operated this Email address only once. he developed his email address at one Cyber Cafe which belongs to his friends. He denied the suggestion that information used to be sent to ISI through this email address. He 26 does not have any document to show that on 24.05.2007, he along with his father visited Rizvi Book Depot, Urdu Bazar, Jama Masjid, Delhi. He never made any complaint to the effect that on 24.05.2007, he along with his father was taken to Special Cell office in Maruti 800. He denied the suggestion that he did not make any such complaint as he along with his father to Special Cell on 24.05.2007 or that he was illegally detained there or that police officials obtained his signatures on blank papers. He denied the suggestion that he is deposing falsely to save his accused father.
23.DW2 Mohd. Yusuf is the accused himself who has been examined as defence witness under the provision of section 315 Cr.P.C. He deposed that he was born in India. After partition he went to Pakistan along with his parents in the year 1950. Later on, his parents and he himself acquired the Pakistani citizenship in due course of time. He came to India on a valid Visa to see his cousin brother Abdul Nabib at Hyderabad in April 2007. Thereafter, he was taken into illegal custody at Hyderabad and was brought to Delhi on 22.05.2007. Thereafter, he was kept in illegal custody of Special Cell officials at unknown locations at Delhi and was made to sign on certain papers blank and prewritten under threat and duress and certainly after the illegal torture caused by 27 police officials. Thereafter, actual date he does not remember but certainly he was made to appear before the court for the first time either on 25/26.05.2007. He further stated that he was produced in the court and the Ld. Presiding Officer was sitting in her chamber, where he was produced. He saw the coaccused Moinuddin Rizvi for the first time in the court when he was produced on 25/26.05.2007 as aforesaid. He has been falsely fabricated in this case and he has nothing to do with the alleged offences. This witness has been crossexamined by ld. APP at length. In the crossexamination he stated that he did not make any report/representation before any authority to the effect that he was taken into illegal custody at Hyderabad and was brought to Delhi on 22.05.2007. He did not utter anything before the Ld. MM to the effect that he wanted to have something to say before the Magistrate. He did not state before the Ld. MM that he was not given a chance to state something before the Ld. MM. He did not make any complaint before any authority till today to the effect that police officials, under threat and duress obtained his signatures on some blank papers and prewritten papers. He did not make any disclosure statement. Police officials obtained his signatures on blank papers. He further deposed that there were three passports in my name and other Visa documents etc. which were recovered from the house situated at Mahmood Nagar, Hasan 28 Nagar, Hyderabad. He admitted the fact that he was not having Visa to visit Delhi. Vol. He stated that he was forcibly taken into custody at Hyderabad by the police only to be brought to Delhi on 22.05.2007. He denied the suggestion that he was found in possession of above mentioned secret/ classified/ restricted documents pertaining to defence services and the map routes as mentioned above.
24.Arguments were heard at length. During the course of arguments ld. Counsel for the accused persons argued and submitted that it is admitted case of the prosecution that the dates on the recovered documents have been changed from 24th to 25th by way of over writing as admitted by PW7 SI Bhim Sen in his crossexamination, PW8 Virender Kumar in his crossexamination dated 08.07.2010, court observation of Pw9 dated 26.02.2011. Thus, the alleged recovered documents suggest that the accused persons were in custody of police on 24.05.2007. So there is no question of recovery on 25.05.2007. Ld. Counsel again argued and submitted that when the recovery was made on 25.05.07 at the spot, the IO subsequently sent a rukka for registration of the FIR and there was no reason or occasion for writing the FIR number and section of law on the said recovery memos and other documents. While PW7 categorically admitted that FIR number 29 and sections of law were subsequently added by the IO. It goes to suggest that the documents in question were tampered with by the police officials. Ld. Counsel accused persons further argued and submitted that court has observed with regard to the change of the date on the documents are a pointer and the concerned official can be nailed for their acts of commission and omission in order to proceed against the accused persons. Ld. Counsel for accused persons again submitted that seizure memo Ex.PW7/A was shown to have been prepared at the spot prior to the departure of the rukka for registration of the FIR, so there was no reason or occasion for inscribing the FIR number and section of law on the said memo as admitted by PW7 in his cross examination. So writing of the sections of law on Ex.PW7/A and other documents i.e. P1 to P4 and the tampering of the dates suggest that a false case was cooked up by the police officials. Ld. Counsel for the accused persons again submitted that site plan of the alleged place of incident is the most important document. He stated that in the present case site plan has been proved as Ex.PW9/B and PW9 in his cross examination stated that document Ex.PW9/B was prepared by SI K P Rana in his presence. He further drew the attention to the cross examination of PW9 regarding site plan that '........flow of traffic described in the site plan Ex.PW9/B is based on the Indian System of traffic which is 30 meant to keep to the left. The arrow which he has shown in the site plan is not meant for the flow of the traffic but he has shown for the road. He denied the suggestion that both the arrows shown at point A and B of the road adjoining to Netaji Subhash Park is meant for showing the flow of traffic from the side of Old Delhi Railway Station to Daryaganj side. He also denied the suggestion that both the arrows shown at point C and D of the road adjoining to the Red Fort is meant for showing the flow of traffic from the side of Daryaganj side to Old Delhi Railway Station side.......' He further stated that evidence of PW12 IO of the case is also very important in this regard, in his cross examination he admitted that he did not mention in the foot note of the site plan Ex.PW9/B that the site plan in question has been prepared at the instance of SI AK Singh. He also admitted that inadvertently the date 26.05.2006 has been appended underneath his signature on Ex.PW9/B. On these grounds ld. Counsel for accused persons submitted that site plan is under the shadow of doubt. Ld. Counsel again submitted that the complainant Pw13 DCP Sh. Alok Kumar did not mention any date, month and year in the complaint in question Ex.PW13/A. No document or the list of witnesses were filed along with the complaint.
25.Ld. counsel again argued and submitted that under section 4(2) Cr. PC, 31 the provisions of the special law i.e. Official Secret Act have to be followed mandatory and resultantly the authorization was granted in order to file a complaint against the accused persons in terms of the provisions of the OS Act. In this regard PW8, Under Secy. testified police file was never sent through proper channel to the MHA and no entry has been made in the receipt Register. Ld. Counsel again submitted that PW8 granted authorization without application of his judicial mind despite having noticed the tampering of the dates on the recovered documents. Ld. Counsel for accused persons also submitted that PW12 , IO of the case has categorically stated that no proof of any communication between the accused persons could be found by him or any other official or of his department though call details were obtained but the same were not placed on record. The first IO A K Singh PW9 has unequivocally stated that the accused persons did not disclosed to him about factum of any communication between them. Despite the fact that mobile phones were recovered from the possession of the accused persons. Ld. Counsel again submitted that defence witnesses have also brought on record the true story that accused persons have been falsely implicated in the present case. In support his contentions ld. Counsel has relied upon the following judgment: 'S P Chengalvaraya Naidu Vs. Jagannath - 1994 AIR 853 - 1994 32 SCC (1) 1' wherein it has been observed that:
"Fraud avoids all judicial acts, ecclesiastical or temporal' observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/ decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. ..................... It is a pity that despite the evidence contrary to the case of the prosecution having come on record, the concerned officials of the state have failed to discharge their legal obligation seeking justice for the persons incarnated in the Jail without any iota of evidence but certainly with the aid of concocted, tampered and false documents coupled with the adducing of the false evidence with the knowledge that the evidence adduced by them is false as is evident from the evidence of PW7, Pw8, Pw10, PW12, PW13 and PW14 in particular and other PWs in general".
26.Contrary to it, ld. APP submitted that prosecution has successfully proved its case beyond any reasonable doubt against the accused persons since both accused persons were found in possession of secret documents. In support of his contentions ld. APP has relied upon the judgment AIR 1996 Supreme Court 569 'Sama Alana Abdulla V. State of Gujarat' 1995 AIR SCW 4487' wherein it has been observed that: "....If any sketch, plan, model, article, note, document or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or password is made, obtained, collected, recorded, published or communicated". From the way the said section is worded it becomes apparent that the qualifying word 'secret' has been used only with respect to or in relation to official code or password and the legislature did not intend that the sketch, plan, model, article, note, document or information should also be secret. As we do not find any substance in the second contention raised on behalf of the appellant is is also rejected. In the result, the appeal fails and is dismissed."
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27.Having gone through the case file carefully and submissions of ld. Counsel for the accused persons and ld. APP as well. It has come on record that in the case in hand accused persons have been charged for the offences u/s 3(1) (c ), 3 r/w 9 Official Secret Act 1923, 120B IPC. The essentials of section 120B IPC is that while entering into conspiracy between the parties accused must have exchanged of thought to commit or omit some culpable act either through means of technical way or otherwise. In 'Ram Swaroop V. State, 1986 Cr. LJ 526 (Del), it has been observed that :
"(iii) Secret information is an information which may not be secret but relates to a matter the disclosure of which is likely to effect the sovereignty and integrity of India the security of State or friendly relation with foreign State or useful to an enemy."
In another case 'Frank Dalton Larkins V. State Delhi Administration Delhi, (1985) 1 Recent CR 473 : 1985 Cr. LJ 377 : (1985) 1Crimes 1060, it has also been observed that :
"Offence under section 3(1) (c) is triable by court of sessions alone"
In case State of Haryana V. Rakesh Sood, 1976 Cr. LT 176 (Punj), it has been observed that:
"The words 'obtain, connects, records or publishes or communicates" cannot be interpreted to include the future or prospective acts of the person who is charged with such acts."34
28.It has also come on record that one of the accused Sheikh Gulam Dastgir was discharged by the ld. Predecessor of this court vide order dated 28.03.2008, wherein it was observed that: "5. Now, so far as accused Shekh Gulam Dastgir is concerned, the prosecution is relying on the alleged deposit of Rs.15,000/ in his account in ICICI Bank, Udaipur. This amount had allegedly been deposited in ICICI bank, Mumbai and was transferred in the name of accused Sheikh Gulam Dastgir. The argument of the prosecution that the amount had been received from Pakistani ISI agent of Udaipur is unacceptable. Except the disclosure statement wherein accused Sheikh Gulam Dastgir had confessed his involvement, there is no other evidence against him to frame charge. He is son of accused Sheikh Moinuddin Rizvi. Accordingly, accused Sheikh gulam Dastgir is discharged."
29.Apart from this, the accused persons has examined two defence witnesses namely DW1 Sheikh Gulam Dastgir and DW2 Mohd. Yusuf (accused himself). I have gone through their depositions carefully. I am of the view that prosecution has also failed to bring on record that accused Mohd. Rizvi was having criminal antecedents or any vital link with previous criminal backgrounds. These circumstances of the case definitely indicates that in absence of corroboration from other independent witness may result into miscarriage of justice if accused are convicted solely on the basis of official/ interested witnesses as number of contradictions have been seen in the deposition of I.O. Though these are of minor in nature yet it impacts the final outcome of this case. 35
30. Again i n the present case the most material public witnesses i.e. PW3 Abdul Hakim, PW4 Sheikh Bashiruddin and PW5 Mohd. Suleman, who in crossexamination stated that his statement was not recorded by the police. These witnesses have not supported the prosecution story. Their testimonies are not reliable since they have not supported the prosecution story on material aspects. Moreover, no prior meeting of mind with regard to entering into the conspiracy for the purpose of procurement of secret documents marked X.1 & X.2, has come on record so, to my view in absence of any meeting of mind between the accused persons cast an aspersion of doubt with regard to the offence of criminal conspiracy u/s 120 B IPC. Simultaneously, it has also come on record in the depositions of PW7 SI Bhim Sain; PW9 Insp. A K Singh; PW10 ASI Bijender Singh; and PW11 Insp. Badrish Dutt that on 25.05.2007 at about 07:30 PM, accused Moinuddin Rizvi handed over one bundle of documents to accused Mohd. Yusuf at near the gate of Netaji Subhash Park, which are prohibited u/s 3 (1) (c ), 3 r/w 9 Official Secret Act 1923. The handing over the information / documents mark X.1 and X.2 and immediate arrest of accused persons refers to the transition between the accused persons therefore, it impacts elements of offence, so to my view delivering secret documents in question to co accused Md. Yusuf by accused Mohd. Rizvi attracts section 9 of the 36 Official Secrets Act which refers to attempt to commit offence but neither prior meeting of the accused persons nor any communication on telephone etc between the accused persons has been brought on record by the prosecution and public witnesses have also not supported the prosecution case so the prosecution has again failed to bring on record that as to how these documents of such significance had come into the custody of the accused Moinuddin Rizvi. In absence of this material on record the conviction solely on the basis of official witnesses without corroboration from other independent witness may result into miscarriage of justice. Therefore, depositions of the said officials witnesses, should have been corroborated by some other independent material witnesses with regard to laying in their hands the information of national importance which is the subject matter before this court for trial. No material independent witness has supported the prosecution case, so recording the conviction of accused persons in absence of corroboration from any other material source, will impact the fair course of justice. So to my view ends of justice will be met if accused persons are acquitted by giving them benefit of doubt, since prosecution has miserably failed to prove its case beyond reasonable doubt. The accused persons are in J.C. w.e.f July 2007. Hence, accused persons are acquitted by giving them benefit of doubt. Accused persons be 37 released from jail if they are not required in any other case. At this stage, accused persons are directed to furnish personal bond in the sum of Rs.10000/ each with one sound surety in the like amount each for the period of six months that in case the decision is set aside in any appeal or other proceedings they shall present themselves before the court concerned to face further proceedings in accordance with law.
Accordingly, I acquit accused persons for the
offences 3(1) (c ), 3 r/w 9 Official Secret Act 1923
and 120B IPC.
ANNOUNCED IN THE OPEN COURT
ON THIS 03.09.2012
(RAJ KAPOOR)
ASJ2/ West Distt./ Tis Hazari Courts, Delhi
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