Punjab-Haryana High Court
Randhir Singh vs State Of Punjab on 24 December, 2014
Author: Rajive Bhalla
Bench: Rajive Bhalla, Jaspal Singh
Criminal Appeal No.-D-21-DB-2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Criminal Appeal No.-D-21-DB-2012
Date of Decision 24th December, 2014
Randhir Singh ..Appellant
versus
State of Punjab ..Respondent
Criminal Appeal No.-D-188-DB-2012
1. Naib Singh son of Bachittar Singh
2. Baldev Singh son of Saudagar Singh
3. Manjinder Singh son of Paramjit Singh
..Appellants
versus
State of Punjab ..Respondent
and
Criminal Appeal No.-D-676-DB-2012
Sukhdev Singh ..Appellant
versus
State of Punjab ..Respondent
CORAM: HON'BLE MR JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE JASPAL SINGH
Present: Mr. C.M.Munjal, Advocate, for the appellant
(in CRA-D-21-DB of 2012)
Mr. P.S.Brar, Advocate, for the appellants
(in CRA-D-188-DB of 2012)
Mr. Vivek Goel, Advocate, for the appellant
(in CRA-D-676-DB-2012)
Ms. Manjari Nehru Kaul, Additional Advocate
KUMAR VIRENDER
General, Punjab.
2015.01.15 15:43
I attest to the accuracy and
authenticity of this docunt
High Court Chandigarh
Criminal Appeal No.-D-21-DB-2012 2
RAJIVE BHALLA, J.
By way of this judgment, we shall decide three appeals, i.e., Criminal Appeal No.-D-21-DB-2012 Randhir Singh versus State of Punjab; Criminal Appeal No.-D-188-DB-2012 Naib Singh and two others versus State of Punjab and Criminal Appeal No.-D-676-DB- 2012 Sukhdev Singh versus State of Punjab.
The appellants , before us, have been convicted and sentenced as follows:-
All the appellants, including Naib Singh have been convicted U/s 3 of the Official Secrets Act,1923 (hereinafter referred to as the "Act") and sentenced to undergo rigorous imprisonment of 14 years and to pay a fine of Rs.one lac, each. In default of payment of fine, to undergo further imprisonment of four years each. All the appellants have been convicted U/s 5 of the Act and sentenced to undergo 07 years of rigorous imprisonment and to pay a fine of Rs.50,000/-, each. In default of payment of fine, they were directed to undergo further imprisonment of 1 ½ years each. Naib Singh has also been convicted under section 489-C IPC and sentenced to undergo rigorous imprisonment of 7 years and to pay a fine of Rs.50,000/-. In default of payment of fine, to undergo further imprisonment of one year. It is also ordered that substantive sentences shall run concurrently.
The case, as set up by the prosecution, is that Balbir Singh, Inspector, State Special Narcotic Cell, Punjab, Amritsar KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 3 received secret information on the night of 18.3.2009 that Naib Singh son of Bachittar Singh, Sukhdev Singh @ Bhola son of Ajaib Singh, Baldev Singh son of Saudagar Singh and Randhir Singh @ Dhira son of Joginder Singh deal in fake currency, procured through the Indo-Pak border. The secret informer stated that Naib Singh and Sukhdev Singh have visited Pakistan a number of times and have developed relations with a secret agency of Pakistan, which supplies fake currency and in exchange, they provide information relating to the Indian Army, like photographs, maps etc. Naib Singh etc. have also developed cells in the Indian Army and are in constant touch with Pakistani agencies, through telephone and internet. The secret informer also stated that he can identify these persons.
Inspector Balbir Singh passed on to the information to P.K.Rai, IPS, SSP-SNC, Punjab, Amritsar, who passed on the information to his higher officers. A plan was put into place to arrest the suspects. Jaskaran Singh, PPS, AIG/CI, Jalandhar, Pritpal Singh Virk, PPS, AIG/CI, Patiala, Prithipal Singh, PPS, DSP/CI, Ludhiana, were directed to reach Faridkot and Ex.P1,a ruqa, was forwarded to the police station which led to registration of FIR No.09 dated 18.3.2009 under Sections 489-A/489-B/489-C IPC and 3,4,5, and 9 of the Act, at 4.30 A.M. After registration of the FIR, they proceeded to Faridkot, where raiding parties were constituted. The appellants were arrested from a garden on 18.3.2009.
A personal search of appellant Naib Singh led to recovery of fake currency notes, photos of vehicles of Indian Army, KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 4 secret code etc. The personal searches of appellants Baldev Singh, Sukhdev Singh and Randhir Singh also led to recovery of various official/restricted/prohibited documents and photographs After their arrest and interrogation, all the accused suffered disclosure statements on 19.3.2009 leading to recovery of various incriminating/prohibited documents, pen of invisible ink, sim card of Pakistan, movie camera, maps, CPU, Mouse, UPS, CD, etc. Naib Singh and Sukhdev Singh produced their respective passports which were taken into possession. The passports contain entries showing Naib Singh and Sukhdev Singh had visited Pakistan. The case property along with all relevant documents were deposited with the moharrir head constable.
The rough site plans of the places of recoveries, Exhibits P98 to P101 were prepared and statements of witnesses, who were present during recovery were recorded.
A report was sought and obtained from the Assistant Works Manager, Currency Notes Press Nasik Road, Maharashtra. An opinion was sought and received from Lt. Col. General Staff Officer, Intelligence, Headquarters, Western Command 56 APO regarding the nature of these documents and photographs.
The police, thereafter prepared a final report and filed a challan along with all relevant documents. The challan and the documents were supplied to the appellants and the case was eventually committed to the Court of Sessions, vide order dated 21.7.2009. The appellants Naib Singh, Sukhdev Singh, Randhir KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 5 Singh and Baldev Singh were charged for commission of offences under sections 3,4,5 and 9 of the Officials Secrets Act, 1923 (hereinafter referred to as "The Official Secrets Act") whereas Naib Singh alone was charged under section 489-C IPC. The appellants pleaded not guilty and claimed trial. The prosecution was, therefore, directed to adduce evidence. A supplementary challan was filed against Manjinder Singh, before the Chief Judicial Magistrate on 25.5.2010, which was also placed before the Court of Sessions.
The Additional Sessions Judge, Fast Track Court, Faridkot addressed a letter to army authorities on 7.6.2010 regarding Manjinder Singh. A reply was received that army authorities do not want to conduct a Court Martial as he has already been dismissed from service on 14.9.2010. The supplementary challan filed against Manjinder Singh was tagged with the main challan filed against Naib Singh and others and charges were amended vide order dated 14.9.2010 by framing charges against all the accused under sections 3,4,5,9 of the Official Secrets Act, 1923 and against Naib Singh under Section 489-C of the Indian Penal Code.
The prosecution has examined the following witnesses:-
PW1 Gurbax Lal, PPS, DSP, CI/SNC,Ferozepur, PW2 HC Raman Kumar, PW3 Inspector Balbir Singh, PW4 ASI Harjit Singh, PW5 Constable Dalbir Singh, PW6 Major Ashok Shukla, PW7 Sunil Rana, a Nodal Officer, PW8 Taranjit Singh, PW9 Inderdeep Singh, PW10 Inspector Harwinderpal Singh, PW11 Varinder Kumar, Under Secretary to Govt. of India, Ministry of Home Affairs, New Delhi and KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 6 PW12 Harjit Singh. Head Constable Kabul Singh was given up as unnecessary.
Upon closure of prosecution evidence. incriminating circumstances appearing in the prosecution evidence were put to the appellants, who denied the same and pleaded innocence and false implication. The appellants led defence evidence in the shape of DW1 Karamjit Singh, DW2 Gulshan Kumar Manchanda, Advocate, DW3 Birbal Singh, DW4 Inderpal Singh, DW5 Baltej Singh. Shri A.S.Sekhon, counsel for the accused Baldev Singh, Randhir Singh and Manjinder Singh tendered into evidence copy of recovery memo of Baldev Singh dated 18.3.2009 mark DA and personal search memo dated 18.3.2009 pertaining to Baldev Singh mark DB, Sukhdev Singh tendered into evidence certified copy of judgment dated 10.11.2010 passed by the learned Sessions Judge, Ferozepur, Ex.DX.
The trial court, thereafter, heard counsel for the parties, perused the evidence on record and convicted and sentenced the appellants in terms referred to in the opening part of the judgment.
Counsel for the appellants submit that the prosecution case is false. The secret information, allegedly, received on 18.3.2009 at Amritsar, was not reduced into writing nor was it produced before the trial court. The prosecution has failed to name the secret informer. The very foundation of the FIR having not been proved, the entire case should be discarded. It is further argued that if secret information was received by the Station House Officer, KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 7 Police Station Special Narcotic Cell, Amritsar on 18.3.2009, it is surprising that the FIR was lodged at 4.35 A.M. on 18.3.2009 at Police Station Faridkot and its recording was completed at 6.20 A.M on 18.3.2009 itself. As per deposition by Inspector PW1 Balbir Singh, particularly his cross-examination, they entered the garden where the police was said to have assembled at 8.30 A.M. and arrested the appellants.The time lines of the information, the FIR, the forming of teams, the raid and the arrest are clearly manipulated.
The entire story set up by the prosecution is, therefore, clearly false and should be discarded. The distance between Faridkot and Amritsar, as admitted by this witness, is about 160 Kms. It is surprising that the police noted down the information, lodged the FIR, constituted five raiding teams and after reaching Faridkot, surrounded the garden,arrested the appellants and effected recoveries on 18.3.2009. During this process of recoveries, no independent witness was associated, much less was any person from the local police asked to accompany the police party. Counsel for the appellants further submit that the search of the houses and consequent recoveries are belied by depositions of defence witnesses. The prosecution has not been able to prove that the documents, allegedly, recovered from the appellants pertain to prohibited places or are part of any secret document. The photostat copies, allegedly, recovered, have not been linked to any official document, much less a secret document and no witness has been produced from the Army to prove that these documents pertain to KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 8 any Army installation, formation of the armed forces, movement of any unit of the armed forces and, therefore, no offence is made out whether under Sections 3,4,5 or 9 of the Official Secrets Act. It is further contended that the alleged search of Randhir Singh appellant's house led to recovery of a monitor, a CPU, a key board, a mouse, a UPS and a compact disk which were taken into possession vide memo Ex.P91 and were sealed with seals bearing impressions "BS", but there is no evidence on record whether the CPU and other articles were subjected to any forensic examination that led to discovery of any "prohibited" or secret document or information. The documents recovered from Randhir Singh's bag with the word "restricted", a photo of the main gate of the cantonment of the Army and a site plan from a bag in his house, have neither been proved to be restricted documents nor part of any official secret record. It is further submitted that during recording of evidence, it was found that envelopes containing documents were already open, thereby indicating tampering. It is further submitted that letter, Ex.P111, written by a Lt. Colonel, does not contain particulars, of which document, photographs and articles are covered by the Official Secrets Act. The letter refers to docket no.1497 but not to docket no.1496. It is further submitted that docket nos. 1496 and 1497 dated 4.4.2009 were sent for examination to the Lt. Colonel through ASI Sukhwinder Singh and were returned on 26.8.1989, but Sukhwinder Singh has not been examined and most significant of all, when seals "BS" and "GL" were affixed, the sample seals were KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 9 not handed over to any person, but were retained by PW1 Gurbax Lal,PPS DSP C1/SNC, Ferozepur and PW2 HC Raman Kumar. It is further submitted that accused were illegally picked up by the police, as proved by depositions of defence witnesses and upon search, as nothing was recovered, these documents which are easily available on the internet, were planted. The depositions by defence witnesses and a telegram to the Human Right Commission prove the falsity of the allegations levelled against the appellants. It is also not proved from depositions by DW1 Karamjit Singh and DW2 Gulshan Kumar Manchanda, Advocate, that on 15.12.2008 Randhir Singh executed a mortgage deed and he could not have been arrested by the police as alleged. Sukhdev Singh who was working as a guard, SBRS College for Women, Gundhu Wala and remained on night duty upto 6.00 AM on 17.3.2009, but on 18.3.2009 was similarly arrested from the college.
As regards Manjinder Singh, it is argued that there is no evidence of commission of any offence under sections 3,4,5 and 9 of the Act. The only evidence against Manjinder Singh is a photo copy of a bank passbook containing certain entries that have not been proved. The entire evidence based upon the statement made by police witnesses, without associating any independent witness or confronting the appellant with these documents, whether prior to or during the trial, is flawed and, therefore, must be rejected. PW3 Inspector Balbir Singh has, during cross-examination, admitted that he did not verify the photostat copy of the passbook pertaining to KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 10 Manjinder Singh. Apart from the fact that Manjinder Singh was dismissed by the Army, there is no evidence relating to the inquiry, statements recorded therein or any evidence to link Manjinder Singh to the other appellants. PW1/PW3 Inspector Balbir Singh, in his cross-examination, has admitted that photographs said to be secret documents are available on the internet and he has not compared the hand writing on certain documents with the hand-writing of the accused. The documents recovered from the accused are photostat copies which have neither been investigated nor compared with the original and as the Investigating Officer has admitted that he has no personal knowledge about photographs and did not compare them with any "original photographs", these photographs have to be ruled out of consideration. It is further submitted that documents Ex.D1 to Ex.D7 pertaining to the incriminating documents were obtained from the internet and relate to these very documents thereby proving that these documents have been foisted upon the appellant. It is also contended that the Investigating Officer admitted that he never visited any Army officer to verify TAC numbers on these documents or by forwarding them to army authorities. This apart, no officer from the Army was examined and a perusal of the letter received from the Army shows that only one parcel was examined and that also without recording any positive conclusion. It is also contended that it is rather surprising that information was received from an informer and when the police reached the spot, the appellants were found in the orchard. Counsel for the appellants further submit that KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 11 sentence of 14 years, i.e., maximum of sentence under the Official Secrets Act, is not warranted and, therefore, may be reduced. It is contended that the entire evidence on record is false and fabricated and, therefore, the appellants may be acquitted of the charges under the Official Secrets Act.
As regards, the conviction of appellant Naib Singh under Section 489-C of the Indian Penal Code it is argued that the conviction and sentence is factually and legally incorrect. The evidence on record does not conclusively prove the recovery of fake currency notes from Naib Singh. The report, Ex.P109 from the Assistant Works Manager, Currency Notes Press, Nasik Road, Maharashtra, does not prove that these notes were counter-feit. The conviction under sections 3,5, and 9 of the Act is not warranted as it has not been proved that photographs and the maps pertain to any prohibited place.
Counsel for the respondents submits that the evidence on record is sufficient to prove the culpability of the appellants and, therefore, their conviction under the Act, has been rightly recorded. The evidence on record proves that Naib Singh was in possession of counter-feit currency and the other appellants were in possession of various documents pertaining to prohibited areas, site plans of the army cantonment etc. and as it has been proved that these documents and photographs, maps etc. pertained to military installation, the appellants have been rightly convicted and sentenced.
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We have heard counsel for the parties, perused the impugned judgment and order and appraised the entire evidence.
Before adverting to the arguments addressed, it would be necessary to deal with the depositions of prosecution and defence witnesses and the documents recovered by the police, PW1/PW2 Balbir Singh after deposing about receiving secret information has deposed that AIG/C1 Shri Jaskaran Singh, Jalandhar, AIG/CI,Shri Pritpal Singh Virk, Patiala, and DSP/C1Shri Pritpal Singh, Ludhiana, reached Faridkot, the FIR was registered at 4.35 A.M at Police Station Sadar Faridkot where the informer met them. AIG/CI,Shri Pritpal Singh Virk, Patiala, chalked out a plan. The informer was sent to collect information regarding the present location of the appellants. The informer returned 40 minutes later and stated that the appellants were sitting in an orchard on the Ferozepur-Faridkot road situated near a canal minor bridge and finalising a plan to send secret information to Pakistan. Upon receipt of this information, four police parties were formed and the garden was surrounded. The appellants were sitting near a tubewell and were apprehended on the spot. The witness, thereafter recounts the recovery of currency notes, various articles, and incriminating/prohibited documents from the accused and from the search of their houses. We shall detail the documents, recovered from each of the appellants a little later. The witness has exhibited these documents. The statement of Inspector Balbir Singh, was once again recorded as PW3 after Manjinder Singh was arraigned as KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 13 an accused and charges were amended. The case property was once again opened and documents were once again exhibited.
Another witness is Gurbax Lal, who has deposed as PW1 that he was posted as DSP at the relevant time and stated that he was instructed by Shri P.K.Rai, IPS SSP, Amritsar to reach Faridkot and meet Inspector Balbir Singh, Shri Jaskaran Singh, AIG, Jalandhar and Shri Pritpal Singh Virk, AIG, Patiala. At about 8.00 A.M on 18.3.2009 when he reached near the canal bridge, Faridkot, AIG Jaskaran Singh, AIG Pritpal Sigh Virk, Patiala and DSP Prithi Pal Singh of CNC Ludhiana, were present with police parties. Inspector Balbir Singh had already received information that the appellants are sitting in an orchard on Ferozepur-Faridkot road near the bridge of a canal minor. Separate police parties were constituted and the orchard was raided. The appellants tried to slip away, but they were apprehended by Inspector Balbir Singh and other police officers. The accused disclosed their respective names. This witness has deposed as to the recoveries from each of the accused in a great degree of detail.
PW2 Head Constable Raman Kumar tendered affidavit Ex. PW2/A into evidence.
PW1 Inspector Balbir Singh was once again examined as PW3 after charges were amended.
PW4 is ASI Harjit Singh who tendered affidavit Ex.PW4/A regarding taking of parcel containing fake currency notes to Nasik Press.
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PW5 is Constable Dalbir Singh who tendered affidavit Ex.PW5/A, who accompanied PW4 ASI Harjit Singh to Nasik.
PW6 Major Alok Shukla proved that Manjinder Singh was found guilty of divulging information to an agent, an unauthorised person, was found guilty in enquiry proceedings pursuant to inquiry report Ex.PW6/A and was dismissed from service vide order dated 29.1.2010.
PW7 is Sunil Rana, Nodal Officer, Bharti Airtel Limited, who proved call details of mobile no.98729-13776, which was delivered to the SSP through e-mail.
PW8 Taranjit Singh, who worked as an agent of Western Union Bank, proved delivery of money to Naib Singh and Baldev Singh from Dubai. He also deposed that on 23.10.2008 Rs.5000/- was received by one Hussain Ahmed. The money was handed over to Naib Singh by receipt Ex.PW-8/A, which bears the signature of Naib Singh. This witness has also deposed that on 27.11.2008, Rs.20,000/-was received by Baldev Singh from Dubai, which was sent by one Hussain Mohmmad. The money was handed over to Baldev Singh vide receipt Ex.PW8/B. PW9 is Inderdeep Singh, Head Constable, an attesting witness of memo Ex.PW-9/A, prepared after the arrest of Manjinder Singh appellant, on 29.1.2010.
PW10 Inspector Harwinder Pal Singh was member of the police party along with Inspector Balbir Singh and deposed in consonance with the deposition of Inspector Balbir Singh. KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 15
PW11 Varinder Kumar, Under Secretary to Government of India, who proved the sanction to prosecute the appellant.
PW12 is Harjit Singh, who proved that on 16.2.2009 Rs.9565.26P was received from one Hussain Mehmood in the name of Randhir Singh resident of Green Avenue, Faridkot. The money was received by Randhir Singh under his signatures. The document is mark 105. However, in his cross-examination, he admitted that the name of father of Randhir Singh is not written in malkhana file. On 28.8.2009 the trial court recorded the statement of Inspector Harwinder Pal Singh that he has produced a sealed envelope in court on which particulars of the contents have been written. The Public Prosecutor gave up DSP Pritpal Singh, Inspector Jasbir Singh, Head Constable Hardial Singh, SI Nirmal Singh, ASI Sukhwinder Singh and Head Constable Kabul Singh as unnecessary.
The statement made by Naib Singh and the other appellants under section 313 of the Code of Criminal Procedure reads as follows:-
" I am innocent and I have been falsely implicated in this case due to party faction. I was taken from my village in the presence of respectables and my brother in law gave telegrams to higher authorities, i.e., Human Right Commission about my false arrest. I never made any disclosure statement nor made any recovery and false recovery was planted."
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The statement by Sukhdev Singh son of Ajaib Singh reads as follows:-
"I am innocent and I have been falsely implicated in this case. I was employed at that time as Gun man/Chowkidar in SRRS college, Ghuduwala. I was taken from the college early in the morning and false arrest was shown later on after concocting a false story. I never made any disclosure statement and nor any recovery was effected. False recovery was planted."
The statement by Manjinder Singh son of Paramjit Singh reads as follows:-
" I am loyal, faithful and dedicated to my country. Nothing has been recovered from me. Simply to link their false case due to overjealous and misguided suspicion. I.O of the case manipulated this false case upon me, while manipulating photo copy of Bank account Pass-Book. Due to I.O misguided suspicion I have to face my Army official's wrath without any fault of mine. I am innocent."
The statement by Baldev Singh son of Saudagar Singh reads as follows:-
" I am innocent. Nothing has been recovered from me. All the recoveries are planted upon me. Some persons in civil clothes kidnapped me from my village at about 4 A.M on 18.3.2009 in the presence of my family members and inmates of my village Nangal and they took me to KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 17 Amritsar. At Amritsar I realized that the person who kidnapped me were police persons. Other co-accused were not known to me. I have no nexus directly or indirectly with the co-accused. No Bank Account Pass book of Manjinder Singh was recovered from me. Simply, to link their false recoveries due to over jealous and misguided suspicion I.O of the case manipulated this false case upon me."
The statement by Randhir Singh son of Joginder Singh reads as follows:-
" I am innocent. Nothing has been recovered from me. Some persons in civil clothes at about 5.30 A.M on 18.3.2009 entered in my residence while scaling over the wall of my house and threatened me and my family members of the dire consequences and under threat kidnapped me from my residence in the presence of Gurbachan Singh and his family members to whom I had lent my ground floor portion of my residence and neighbourers of my area and they took me to Amritsar. At Amritsar, I realized that the person who kidnapped me were police person. I have no direct or indirect link with the other co-accused. All the recoveries are planted upon me. Simply to link their false recoveries due to over jealous and misguided suspicion I.O of the case manipulated this false case upon me."KUMAR VIRENDER
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The evidence led in defence is as follows:-
DW1 Karamjit Singh Son of Partap Singh, resident of Green Avenue, Faridkot, has deposed that about three years ago, an agreement to mortgage was executed between Randhir Singh and Gurbachan Singh. He (Karamjit Singh) and Surjit Singh attested the agreement and Randhir Singh and Gurbachan Singh appended their signature.
DW2 Shri Gulshan Kumar Manchanda, Advocate, District Court, Faridkot, who has, after perusal of the original agreement to mortgage, Ex.D9, deposed that he had drafted the agreement to mortgage on the request of Randhir Singh and Gurbachan Singh. He produced his register and proved entry no.771 dated 15.12.2008, Ex.D9/A recording execution of the agreement to mortgage.
DW3 is Birbal Singh son of Mehar Singh, resident of Killa Nau, Tehsil and District Faridkot who has deposed that he knows Naib Singh. On 18.3.2009 at about 4.00 AM, he and Naib Singh, were going for a morning walk. As police vehicle stopped near them, the persons in the car were dressed in civil clothes, stopped them and arrested Naib Singh. On Birbal Singh's asking, he was told that Naib Singh's house has to be searched. Naib Singh was, thereafter, taken to his house. This witness has deposed that he followed them and during search, nothing incriminating was recovered from Naib Singh, but police officials took away Naib Singh. The brother of the wife of Naib Singh sent a telegram about the false implication of Naib Singh.KUMAR VIRENDER
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DW4 is Inder Pal Singh, and he has deposed that Naib Singh is husband of his sister. Upon receiving information from his sister, he went to village Nava Killan at about 8.00 AM and came to know that the police picked up Naib Singh in the morning, he sent a telegram to the Human Rights Commission, Punjab and other higher officers regarding illegal detention and false implication of Naib Singh. He proved postal receipt Exs.DW4/A to DW4/C and reply received by the Human Right Commission.
DW5 is Baltej Singh, Supervisor, SBRS College for Women, Gudhu Wala, who has deposed that Sukhdev Singh was appointed as a gunman in the college from July, 2006 to onwards, his name is recorded at serial no.10. Sukhdev Singh was attending his job regularly and remained on duty in the college from 6.00 PM to 6.00 A.M. (night duty) on 17.3.2009. In the early morning of 18.3.2009, Sukhdev Singh was taken away by police personnel who were dressed in civil clothes. He proved the attendance register, Ex.DW5/A. Shri A.S.Sekhon, counsel for the accused Baldev Singh and Randhir Singh, tendered into evidence copy of recovery memo relating to Baldev Singh, dated 18.3.2009 mark DA, personal search memo, dated 18.3.2009, Ex.DB, pertaining to Baldev Singh, and closed the evidence on behalf of Baldev Singh, Manjinder Singh and Sukhdev Singh. Sukhdev Singh made a statement tendering a certified copy of judgment dated 10.11.2010 passed by Additional Sessions Judge, Ferozepur, Ex.DX.
Before proceeding further, it would be necessary to refer KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 20 to documents recovered from each of the appellants during their personal search on 18.3.2009 and pursuant to their disclosure statements on 19.3.2009.
The personal search of appellant Naib Singh led to recovery of ten counterfeit notes, Exs.P2 to P12, of the denomination of Rs.1000/-, 20 counterfeit notes, Exs. P13 to P32, of the denomination of Rs.500/- making a total of Rs.20,000/-, which were taken into possession, vide recovery memo Ex.P33. The photographs Exhibits P41 to P45, pertain to the Indian Army vehicles bearing TAC numbers, a card containing a secret code language Exhibit P46, used by the army, a war plan Exhibit P47 prepared with respect to movement of the Indian Army. The documents were put in an envelope, sealed with seal "BS". A pocket diary containing numbers of Pakistan and Dubai, written on four pages, was also recovered which was taken into possession vide recovery memo Ex.P34.
The disclosure statement by appellant Naib Singh, Ex.P73, led to recovery of secret/restricted documents/photographs showing movement of the Army (Ex.P76 to P78), a pen containing invisible ink, Exhibit P80, a map showing Adampur Airport (Ex.P79), which were taken into possession vide recovery memo Exhibit P81. A passport bearing no.F-4998326 dated 27.9.2005 issued by RPO, Chandigarh in the name of appellant Naib Singh, was also taken into possession vide recovery memo, Ex.P102.
The personal search of appellant Baldev Singh led to KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 21 recovery of a photograph of the main gate of Faridkot cantonment bearing the symbol of the unit, TAC numbers, three photographs of important points of the surrounding area of the cantonment, five pages of restricted documents relating to training of infantry divisions of Armed Regiment of Indian Army bearing important and secret information relating to training of aforesaid divisions (photographs are Exhibits P48 to P53), photostat copy of the passbook containing five pages (Exhibits P54 to P58) in the name of a soldier of Indian Army Manjinder Singh containing photograph of Manjinder Singh posted in Mamoon Cantt, Pathankot, showing relations of the aforesaid soldier with Baldev Singh. The documents were taken into possession vide recovery memo Ex.P35. Important informative documents qua movements of Indian Army were also taken into possession vide recovery memo Ex.P39.
The disclosure statement by appellant Baldev Singh, Ex.P72, led to recovery of photographs of vehicles and a convoy of the Indian Army Exhibits P-82 and P83 and a sim card of a Pakistani company "JAZZ", Exhibit P-84, which were taken into possession vide recovery memo Ex.P85.
The personal search of the appellant Sukhdev Singh led to recovery of three torn and twisted papers from a bag out of which one paper bears the names of Indian Army officers posted at Faridkot and secret numbers. On the second paper secret numbers of different Brigades deployed at Faridkot were written. The third paper bears the symbols of Brigades and their TAC numbers (Exhibits P69 KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 22 to P71), a hand made map of Faridkot cantonment was also recovered (Exhibit P68), which were taken into possession vide recovery memo Ex. P-37.
The disclosure statement by appellant Sukhdev Singh, Exhibit P75, led to recovery of a plastic bag from beneath wheat straw, a Handycam (Sony), Ex.P92, documents showing movement of the Indian Army, a map of a bunker and photographs showing movement of Indian Army (Exhibits P92 to P95) which were taken into possession vide recovery memo Ex.P97. A passport bearing no.A9620344 in the name of Sukhdev Singh issued by RPO, Chandigarh was also taken into possession, vide recovery memo Ex.P103.
The personal search of appellant Randhir Singh led to recovery or organisational charts of different divisions of Indian Army showing their design whereon word "restricted" is written in English, (Exhibits P60 to P62), a sketch showing the process of entering into the enemy's land by the Indian Army whereon word "restricted" is written, three photographs of the main gate of a cantonment of the Indian Army and the work of excavation being carried out in its surrounding area (Exhibits P63 to P67), which were taken into possession vide recovery memo Ex.P36. Important informative documents qua movement of the Indian Army were also taken into possession vide recovery memo Ex.P38.
The disclosure statement by appellant Randhir Singh, Exhibit P74, led to recovery of a SAMTRON computer, Ex.P86, a KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 23 Samsung key board, Ex.P87, a FONTECH CPU, Ex.P88, a Samsung mouse, Ex.P89, a DATA VISION,UPS, a SAMSUNG CD and a compact disc recovered from CPU, Ex.P90, which were taken into possession vide recovery memo Ex. P91.
Manjinder Singh who was serving in the Indian Army Officers and was posted at Mamun Cantt, Pathankot, did not effect any recovery but was arrested as a photo copy of his passbook, was found in possession of Baldev which showed entries regarding receipt of money which he could not explain. It would be appropriate to point out that he has been dismissed from the Army pursuant to a court of enquiry.
The appellants, as referred to hereinbefore, have been convicted under sections 3 and 5 of the Act and sentenced to undergo 14 years of rigorous imprisonment under Section 3, to 7 years under Section 5 of the Act. Naib Singh (appellant), in addition, has been convicted to 07 years of rigorous imprisonment and to pay a fine of Rs.50,000/- under section 489 C of the Indian Penal Code.
The incriminating material recovered from the appellants are primarily photographs of Army installations, maps of a cantonment, photographs of Army vehicles, card containing code language, a war plan, telephone numbers of officers and various units in and around Faridkot, photographs, a sim card and equipment, necessary for running a computer etc. The appellants' first argument is that secret information, allegedly received by PW1/PW3 Inspector Balbir Singh is not KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 24 forthcoming and though secret information was forwarded to Shri P.K.Rao, IPS, who then informed higher officers, there is no evidence that the information was noted down by any officer. A due consideration of this argument, does not enable us to record an opinion in favour of the appellants. The fact that the prosecution did not produce the secret information or did not note it down is entirely irrelevant. The case, as set up by the prosecution, is that on the basis of secret information, Inspector Balbir Singh informed senior officers. Balbir Singh was directed to proceed to Faridkot. Other senior officers also assembled at Faridkot where the FIR was registered. The secret informer met Inspector Balbir Singh and was directed to find out the whereabouts of the appellants. The informer gave information that the appellants are sitting in an orchard on Ferozepur road. The police constituted separate police parties, surrounded the orchard and apprehended the appellants. It would be appropriate to point out that in an operation based upon secret information, particularly where it relates to spying, speed is of the essence of an operation and, therefore, to pick holes on the ground of failure to produce secret information etc. is, in the circumstance of the present case, irrelevant and does not warrant any further consideration.
The primary argument relates to the nature of documents recovered, i.e., photostat copies, hand written notes, sketches, photographs etc., and that they have not been proved to be prohibited or secret documents by examining any witness from the KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 25 Army or any other evidence to prove that they are prohibited documents or pertain to any prohibited place. A perusal of the documents, reveal that they are photographs showing the gate of an Army cantonment, a war plan, TAC numbers, a secret card containing code language used by the Army, a plan prepared in connection with military action etc. One may legitimately urge that photographs of the outer gate, vehicles, TAC numbers of vehicles are easily available and may, thus, not be incriminating, but the other documents pertaining to army formations, telephone numbers of army officers, secret card of code language used by the Army, a plan prepared in connection with military action, a war plan and a map of Adampur Airport etc. cannot be said to be documents within public domain. The documents are necessary official secret documents that cannot be available to the public or available in public domain. A few of the documents may be ruled out of consideration but a large number of the documents are definitely secret documents that could not have been in the possession of the appellants. Before proceeding further, it shall be necessary to reproduce the definition of "prohibited place", "sketch" and "photograph" as prescribed under section 2(7) (8) and (9) of the Act, which read as follows:-
"2 Definition.- In this Act, unless there is anything repugnant in the subject or context,-
(1) XX XX XX
(2) XX XX XX
(3) XX XX XX
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(4) XX XX XX
(5) XX XX XX
(6) XX XX XX
(7) "Photograph" includes an undeveloped film or
plate'
(8) "prohibited place" means-----
(a) any work of defence, arsenal, naval, military
or air force establishment or station, mine, minefield, camp, ship or aircraft, belonging to, or occupied by or on behalf of Government, any military telegraph or telephone so belonging or occupied, any wireless or signal station or office so belonging or occupied and any factory, dockyard or other place so belonging or occupied and used for the purpose of building, repairing, making or storing any munitions of war, or any sketches, plans, models or documents relating thereto, or for the purpose of getting any metals, oil or minerals of use in time of war;
(b) any place not belonging to [Government] where any munitions of war or any sketches, models, plans or documents relating thereto, are being made, repaired, gotten or stored under contract with, or with any person on behalf of, [Government], or otherwise on behalf of [Government];
(c) any place belonging to or used for the purpose of [Government] which is for the time being declared by the KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 27 [Central Government], by notification in the Official Gazette, to be a prohibited place for the purposes of this Act on the ground that information with respect thereto, or damage thereto, would be useful to an enemy, and to which a copy of the notification in respect thereof has been affixed in English and in the vernacular of the locality;
(d) any railway, road, way or channel, or other means of communication by land or water (including any works or structures being part thereof or connected therewith) or any place used for gas, water or electricity works or other works for purposes of a public character, or any place where any munitions of war or any sketches, models, plans or documents relating thereto, are being made, repaired, or stored otherwise than on behalf of [Government],which is for the time being declared by the [Central Government], by notification in the Official Gazette, to be a prohibited place for the purposes of this Act on the ground that information with respect thereto, or the destruction or obstruction thereof, or interference therewith, would be useful to an enemy, and to which a copy of the notification in respect thereof has been affixed in English and in the vernacular of the locality; (9) "sketch" includes any photograph or other mode of representing any place or thing;KUMAR VIRENDER
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A prohibited place, as is apparent from section 2(8) means any work of defence, arsenal, naval, military or air force establishment etc. The definition is wide enough to include most of the documents recovered from the appellants within the definition of "prohibited place." However, mere possession of these photographs and documents does not prove commission of an offence under the Act till such time as the possession of these documents does not fall within the mischief of Sections 3 and 5 of the Act (the provisions relevant for the present controversy). It would, therefore, be necessary to re-produce Sections 3 and 5 of the Act which read as follows:-
"3. Penalties for spying:-(1) If any person for any purpose prejudicial to the safety or interests of the State--
(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or
(b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or
(c) obtains, collects, records or publishes or communicates to any other person any secret official code or password, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy [or which relates to a KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 29 matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States], He shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of [Government) or in relation to any secret official code, to fourteen years and in other cases to three years, (2) On a prosecution for an offence punishable under this section, it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the state, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State;
and if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or password is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority, and from the KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 30 circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State, such sketch, plan, model, article, note, document, [information, code or password shall be presumed to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State."
"5. Wrongful communication, etc. of information.-(1) If any person having in his possession or control any secret official code or pass word or any sketch, plan, model, article, note, document or information which relates to or is used in a prohibited place or relates to anything in such a place, or which is likely to assist, directly or indirectly, an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States or which has been made or obtained in contravention of this Act, or which has been entrusted in confidence to him by any person holding office under [Government], or which he has obtained or to which he has had access owing to his position as a person who holds or has held office under [Government], or as a person who holds or has held a contract made on behalf of [Government] or as a KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 31 person who is or has been, employed under a person who holds or has held such an office or contract-
(a) wilfully communicates the code or password, sketch, plan, model, article, note, document or information to any person other than a person to whom he is authorised to communicate it, or a court of Justice or a person to whom it is, in the interest of the State, his duty to communicate it; or
(b) uses the information in his possession for the benefit of any foreign power or in any other manner prejudicial to the safety of the State; or
(c) retains the sketch, plan, model, article, note or document in his possession or control when he has no right to retain it, or when it is contrary to his duty to retain it, or wilfully fails to comply with all directions issued by lawful authority with regard to the return or disposal thereof; or
(d) fails to take reasonable care of, or so conducts himself as to endanger the safety of, the sketch, plan, model, article, note, document, secret official code or password or information, (2) If any person voluntarily receives any secret official code or pass word or any sketch, plan, model, article, note, document or information knowing or having reasonable ground to believe, at the time when he KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 32 receives it, that the code, password, sketch, plan, model, article, note, document or information is communicated in contravention of this Act, he shall be guilty of an offence under this section.
(3) If any person having in his possession or control any sketch, plan, model article, note, document or information, which relates to munitions of war, communicates it, directly or indirectly, to any foreign power or in any other manner prejudicial to the safety or interests of the State, he shall be guilty of an offence under this section."
(4) A person guilty of an offence under this section shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both."
A perusal of section 3 of the Act reveals that if any person is in possession of any sketch, plan, model or note or makes a sketch, plan, model or note for a purpose prejudicial to the safety or interests of the State or which is calculated to be or is intended to be used or useful to the enemy or communicates to any other person any secret official code, password or sketch etc., that is directly or indirectly useful to enemy, shall be said to have committed an offence under section 3 of the Act. The prosecution is, therefore, required to prove that the accused made these documents for a purpose "prejudicial to the safety or interests of the State etc." Sub Section (2) of section 3 of the Act, however, prescribes that it shall KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 33 not be necessary to show (prove) that the accused was guilty of any particular act, tending to show a purpose prejudicial to the safety or interest of the State and if from the circumstances of the case, the conduct of an accused or his known character, it appears, that his purpose was for a purpose prejudicial to the safety or interest of the State, it shall be presumed to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State. Sub-section (2) of Section 3 of the Act, thus, absolves the prosecution of proving that the accused prepared or was in possession of these documents/photographs for a purpose prejudicial to the safety or interests of the State by raising a presumption that where a person is found in possession of such documents, he is guilty of an offence. The presumption, however, would only arise if the documents are prohibited and the circumstances of the case or his conduct or his known character appears to suggest a purpose prejudicial to the safety or interests of the State.
The prosecution has to prove that the documents are prohibited and from the conduct of the accused, the circumstances of the case, or his known-character call upon the court to raise a presumption that the accused were in possession of these documents in violation of Section 3 of the Act. The presumption may appear to be too wide in its amplitude and contrary to principles of criminal jurisprudence, which places onus on the prosecution, to prove its case, but as presumptions are an integral part of criminal KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 34 jurisprudence and Section 3 of the Act despite repeated attempts to remove this presumption from the statute book continues to remain on the statute must necessarily be interpreted in consonance with the spirit underlying Section 3, namely, possession of prohibited documents coupled with circumstances of the case, the conduct of the accused and his known-character, as proved, leading to an inference of a purpose prejudicial to the safety or interest of the Sates.
The documents recovered from the appellants, as detailed in preceding paragraph, primarily pertain to army installations, movement of vehicles, a war plan etc. and, therefore,would necessarily fall within the meaning of prohibited place, sketch, plan, code or note, as set out in Section 2(7)(8). The fact that some of the documents are available on the internet, is irrelevant. The documents were forwarded to the army for examination and were returned by confirming that they pertain to the army thereby proving that they are prohibited documents.
The question that remains and must necessarily be answered is whether possession of these documents has led to commission of an offence under section 3 of the Act. As referred to in the preceding paragraph, section 3 of the Act, enables the prosecution to call upon the court to raise an inference where an accused is found in possession of prohibited documents and from the circumstances of the case or the conduct of the accused or his known-character to raise an inference that possession was for a KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 35 purpose prejudicial to the safety or interests of the State. The circumstances of the case and the conduct of the accused proves that they had prepared sketches, photographs documents etc. with a purpose prejudicial to the safety and interests of the State for otherwise, there was no reason for them to have been in possession of these documents, sketches, plans, photographs etc. which, undoubtedly, relate almost in their entirety to defence installations. The appellants had no ostensible reason to be in possession of these documents. The appellants, at the time of their initial arrest, were found in possession of prohibited documents, sketches, photographs, plans and subsequently pursuant to recoveries of other documents were recovered, thereby raising the presumption under Section 3(2) of the Act that these documents were to be used for a purpose prejudicial to the safety or interest of the State. It is, however, true that there may be certain articles and documents like computer, mouse, CD etc. which are not prohibited documents and have not been proved to contain any prohibited documents, but the failure of the prosecution to examine these documents, is irrelevant as other material, which pertains to sketches, photographs, telephone numbers of the army officers, TAC numbers, a secret card of code language used by the Army, a plan prepared in connection with military action whereon the word "restricted" is stamped, map of the Adampur airport, war plan, and a pocket diary containing numbers of Pakistan and Dubai are clearly prohibited documents. The onus to rebut the presumption lay upon the appellants. In KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 36 discharge of this onus, the appellants rely upon depositions by witnesses, produced in defence, who have deposed that the appellants were arrested from their houses. The defence, in our considered opinion, is an attempt to save the appellants. The police had no reason, much less has any such reason been suggested to falsely implicate the appellants. The police, admittedly, had no previous enmity with the appellants nor did the police at Amritsar or Faridkot have any animus against any of the appellants. The police, therefore, has no reason to falsely implicate the appellants. The depositions in defence, in our considered opinion, do not cast any doubt on the recovery of prohibited documents. We therefore, affirm the opinion recorded by the trial court convicting and sentencing the appellant under Section 3 of the Act, but shall deal with the question of sentence at a later stage.
As regards conviction under Section 5 of the Act, the possession of the documents, sketches, photographs, maps,plans etc. recovered from the appellants at the time of their arrest and pursuant to disclosure statements, would, broadly speaking, fall within the mischief of Section 5(3) of the Act. The documents, sketches, maps, photographs, notes, plan, model found in possession of the appellants pertain to defence Installations, Army units etc, would, therefore, lead to commission of an offence in sub- section (3) of section 5 of the Act. We, therefore, find no reason to differ with the opinion recorded by the trial court and affirm conviction under section 5 of the Act.
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We shall now deal with the conviction of Naib Singh (appellant) under section 489 (c) of the Indian Penal Code. At the time of his arrest, Naib Singh was found in possession of currency notes of the denomination of Rs.100/-, Rs.500/- etc. Ex.P109. A report from the Assistant Works Manager, Currency Notes Press, Nashik Road, Maharashtra, proves that these notes are counter-feit. The prosecution having proved possession of these notes and that these notes were counterfeit, we find no reason to discard prosecution evidence merely on the ground that they were not forwarded to a forensic science laboratory. The report, Ex.P109, received from Assistant Works Manager, Currency Notes Press, Nashik Road, Maharashtra has proved that currency notes recovered from Naib Singh were counterfeit thereby leading to commission of offence under section 489 (c) of the Indian Penal Code. Consequently, conviction of Naib Singh under section 489(c) of the Indian Penal Code is affirmed.
The next point relates to an appeal filed by Manjinder Singh (appellant), who was serving as a Naik in the Army. Manjinder Singh was dismissed by the Army as proved from letter Ex.P11/C and Ex.PW11/B as he was found guilty of divulging military information to an agent or an unauthorised person. The original inquiry report is Ex.PW6/A and the order of dismissal dated 29.1.2010 is Ex.PW6/B. The contention of counsel for Manjinder Singh is that departmental proceedings did not absolve the prosecution from proving his offence as departmental proceedings cannot form the KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 38 basis of a conviction. It is also argued that the pass-book is a mere photostat copy and, therefore, does not merit acceptance. Manjinder Singh's pass book was recovered from Baldev Singh (appellant) vide recovery memo Ex.P35. Manjinder Singh did not adduce any evidence in defence that the account number shown in the photo copy of the pass-book did not belong to him. Baldev Singh, as has been proved on record, had been receiving money from Western Union Bank,Dubai, as proved by PW8 Taranjit Singh, through one Hussain Mohmmad. The fact that a photo copy of Manjinder's Singh passbook was found from Baldev Singh and contains entries that implicate Manjinder Singh, make him liable under sections 3 and 5 of the Act and, therefore, we affirm his conviction and sentence.
Coming to the question of sentence, Naib Singh has been sentenced to seven years rigorous imprisonment under section 489
(c) of the Indian Penal Code. We find no reason to interfere or to hold that it is, in any manner, harsh. All the appellants, including Naib Singh have been convicted and sentenced to 14 years of rigorous imprisonment under sections 3 and 5 of the Act and to pay a fine of Rs. one lac each. The appellants have been behind bars ever since their arrest. We, therefore, reduce their sentence under Section 3 of the Act to 10 years rigorous imprisonment. The trial court has awarded 7 years under section 5 of the Act. A perusal of sub-section (4) of section 5 of the Act reveals that sentence under Section 5 of the Act may extend to three years or fine, or with both. The trial court apparently did not examine sub-section (4) of Section 5 of the Act KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.-D-21-DB-2012 39 and, therefore, wrongly convicted the appellants to imprisonment of seven years. Consequently, we reduce the sentence under section 5 of the Act to three years of rigorous imprisonment. The rest of the sentences shall remain unchanged.
( RAJIVE BHALLA ) JUDGE ( JASPAL SINGH ) th 24 December, 2014 JUDGE VK KUMAR VIRENDER 2015.01.15 15:43 I attest to the accuracy and authenticity of this docunt High Court Chandigarh