Delhi District Court
State vs . Mohd. Muzaffar Khan @ Aslam Khan @ on 4 May, 2011
1
IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA,
ADDITIONAL SESSIONS JUDGE01 (WEST), TIS HAZARI
COURTS, DELHI.
S.C. No. 60/10
Unique Case I.D. No. 02401R0002982007
FIR No. 72/06
PS Special Cell
U/s 3/4/9/10 O.S. Act, 14 Foreigners Act
State Vs. Mohd. Muzaffar Khan @ Aslam Khan @
Mujji @ Islam Mia
S/o Sh. Muqadar Khan
R/o H.No. 247 Sector ID, Orangi
Town Karanchi Pakistan.
Tempaddress H.No. 222, Madanpur Khadar
Village & B256, Madan pur Khadar
Extn. Delhi.
2. Ali Rehman Jalal
S/o Late Shri Abdul Rehman
R/o VPO Kh.atiyar P.S. & Distt. Madaripur
Bangladesh.
Tempaddress H.No. 222, Madanpur Khadar Village
& B256, Madanpur Khadar Extn. Delhi.
SC No. 60/2010 P1/27
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Date of Institution : 05.02.2007
Date of arguments : 08.04.2011
Date of judgment : 4.05.2011
JUDGMENT
In brief the case of the prosecution is that on 5.10.06, on receiving a secret information, Insp. V.S. Joon constituted a raiding party consisting of himself, Insp. R.K. Singh, SI Satish Kumar, SI Manoj Tyagi, ASI Ittal Singh, H.C. Mohan Lal and Ct. Ajay Kumar. They all proceeded for Madanpur Khadar area and reached near small road bridge over the ganda Nala, where the secret informer met them. At about 6 p.m., accused Ali Rehman Jalal was apprehended at the instance of secret informer and from his possession one envelope was found to containing the following documents.
a) Three pages/sheets containing information regarding installed EPABX System/Exchange in the Delhi Contonment area on five pages ( Ex. PW16/A to Ex. PW16/C. The word 'RESTRICTED' had been written on the top and bottom of each page.
b) One sketch map of Delhi Contonment area made from pencil and markings made in Urdu from the pencil (Ex. PW16/D).
These documents has been seized vide seizure memo Ex.
SC No. 60/2010 P2/27 3 PW20/A. The accused has stated that these documents were handed over to him by one Aslam and who had asked him to sent these documents to Kausar in Bangladesh. The accused led the police party to House No. B222, Madanpur Khadar Village, where the coaccused Mohd. Muzaffar Khan @ Aslam Khan @ Ali Akbar Aslam was apprehended and he disclosed that he hails from Karachi and his actual name is Mohd. Muzaffar Khan but here in Delhi he has assumed his name as Ali Akbar Aslam. The accused has produced the following documents:
(a) One booklet of three pages/sheets having general information & Exchange Networking diagram of installed EPABX system/exchange in Delhi Contonment area (Ex. P1).
(b) One sketch map of Delhi Contonment area with marking in Urdu (Ex. P2).
(c) One rough sketch of Delhi Cantt. Area in its photostate format (Ex. P3).
(d) One Bangladesh Special Passport bearing No. U0958418 bearing a photograph of accused (Ex. P4).
(e) One ATM Card of Bank Alfalah (Ex. P5).
SC No. 60/2010 P3/27
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(f) One Driving Licence bearing No. 112072W dt. 9.7.03
issued in the name of Aslam Khan (Ex. P6)
(g) One PAN Card bearing the photograph of accused issued
in the name of Ali Akbar (Ex. P7)
(h) One Master Card of Bank of Maharashtra issued in the
name of P. Narasimham. (Ex. P8).
(i) One passenger ticket (Ex. P9)
(j) One Visiting Card (Ex. P10)
(k) One Spiral pocket diary (Ex. P11).
(l) Black Coloured diary (Ex. P12).
These articles were seized vide seizure memo Ex. PW7/A. The accused Ali Rehman Jalal is a citizen of Bangladesh and the accused Mohd. Muzaffar Khan is a citizen of Pakistan and they were residing in India unauthorizedly at Delhi without having any required permission. The 'offending documents' as recovered from the accused persons are likely to adversely affect the sovereignty and integrity of India and friendly relationship with foreign country and these offending documents were collected or obtained by the accused persons for the purpose prejudicial to the safety or interest of the SC No. 60/2010 P4/27 5 state.
It is further the case of the prosecution that the accused Ali Rehman Jalal has knowingly harboured the coaccused Muzaffar Khan after having knowledge about his involvement in spying activities. The accused Mohd. Muzaffar Khan had forged the Bangladeshi Passport, ATM Card of Bank Alfalah, Driving Licence, PAN Card, Master Card, rent receipt and rent agreement and has dishonestly used these documents as genuine having reasons to believe the same to be forged documents.
2. Charge sheet has been filed against the accused persons U/s 3,4,9,10 of Official Secrets Act, U/s 14 of Foreigners Act and U/s 419,467,468,471, 120B IPC. Charge U/s 3/9 of Official Secrets Act was framed against both the accused; charge U/s 14 of Foreigners Act and U/s 468, 471 IPC was framed against the accused Mohd. Muzaffar Khan and a charge U/s 14 of Foreigners Act, U/s 10 of Official Secret Act was also framed against the accused Ali Rehman Jalal to which accused persons pleaded not guilty and claimed trial.
3. In order to prove its case the prosecution has examined 26 witnesses. The accused persons in their statement recorded U/s 313 SC No. 60/2010 P5/27 6 Cr.PC have denied the case of the prosecution. The accused Ali Rehman Jalal has examined two witnesses in his defence.
4. I have heard the Ld. APP for the state and Ld. Counsel for the accused persons and perused the evidence on record.
5. PW1 SI Mohan Lal has proved the FIR as Ex. PW1/A. PW2 Shri Ajay Bhalla, Branch Manager of IDBI Bank has deposed that as per their record, ATM Card bearing No. 4025830031006763 was used by someone at their off site ATM of Sarita Vihar between 20.3.06 to 22.7.06 and the details of using the card are mark X1 and X2.
In cross examination he has deposed that he cannot say in whose name the ATM Card was issued.
PW3 Hari Parkash Tyagi, Immigration Officer from Atari Rail Check Post, Amritsar, Punjab has deposed that the memorandum dt. 30.10.06. Ex. PW3/A was issued by the Incharge Bureau of Immigration Shri Prem Raj Sharma. He has proved the original Visa application for Pakistani National Mohd. Muzaffar Khan as Ex. PW3/B, Atari Rail Check Post residential permit of accused as Ex. PW3/C and residential permit of the accused as Ex. PW3/D. As per SC No. 60/2010 P6/27 7 their record, accused Mohd. Muzaffar Khan came in India on 11.4.2005 and went back to Pankistan on 26.5.05. He proved the documents regarding arrival and departure of accused as Ex. PW3/E, Ex. PW3/F respectively.
PW4 Shri Gulab Singh from Licensing Authority, Hissar Harayana has deposed that as per their record, the driving licence bearing No. 112072 dt. 9.7.03 has been issued to one Surender S/o Des Raj and not to Aslam Khan S/o Aziz Khan. He proved the copy of relevant entry of the licence as Ex. PW4/B. PW5 Shri Rambir Singh Bidhuri, Member of Delhi Legislative Assembly has deposed that the document 'mark X' has not issued by him nor it bears the signature.
PW6 Ashok Kumar Chauhan has deposed that 6/7 years ago, his father had let out one plot to one Saleem at Village Madanpur Khadar Extension, New Delhi. The accused Jalal used to come to meet his brother Saleem at their plot. The rent agreement 'mark Y' had not been executed by him.
In cross examination by the Ld. APP, he had denied that the accused Jalal was running his glossarycumSTD shop at the SC No. 60/2010 P7/27 8 rented plot of his brother Saleem in the year 2006 and before that.
PW7 Dheer Singh has deposed that on 5.10.06 at about 7/7.30 p.m. he was informed by neighbour that the police officials had come at his hosue number B222, Madan Pur Khadar, where his tenants were residing. He went to that house. 4/5 police officials of Special Cell along with the accused Jalal were present. The accused Jalal was tenant in a one room at the ground floor of the aforesaid house. Police officials took the search of tenanted room of the accused Jalal. The accused Mohd. Muzaffar Khan @ Aslam was also his tenant in one room on the first floor at that time. The accused Aslam was not present in his tenanted room. Police officials took the search of the room of the accused Muzaffar Khan @ Aslam after breaking locks of the said room. Some papers were recovered from the tenanted room of accused Jalal and some papers were recovered from the tenanted room of accused Muzaffar Khan. He had not seen those documents. He cannot identify those documents as the same were not shown to him. He had been called in the office of Special Cell on 5th, 6th and 7th October 2006 where he put his signatures on 20 blank papers and on some written papers.
SC No. 60/2010 P8/27 9 In cross examination by the Ld. APP, PW7 had denied the suggestion that accused Mohd. Muzaffar Khan was arrested from his tenanted room at the instance of the accused Jalal in his presence. He had denied the suggestion that the documents were recovered from the possession of the accused Mohd. Muzaffar Khan in his presence from his tenanted room and these were seized vide seizure memo Ex. PW7/A. It is correct that rent agreement 'mark X' and photocopy of rent agreement 'mark Y' has been shown to him by the police and he has stated that both the rent agreements bear his signatures and these have not been executed by him.
PW8 Shri Shyamal Kumar Bera, Insp. of police (West Bengal police) Immigration Check Post, Haridass Pur, Distt. North 24 Paragna West Bangal has deposed that he had delivered the original arrival disembarkation card foreign nationals bearing No. F044245053 of IslamiaMia which is Ex. PW8/B and photocopy of arrival disembarkation card foreign nationals of Kawsar Hawladar bearing No. F044245053 which is Ex. PW8/C. The details of both the aforesaid cards are mentioned in his reply Ex. PW8/A. PW9 Ct. Gulam Sarower (West Bengal Police) SC No. 60/2010 P9/27 10 Immigration Check Post, Haridass Pur, Distt. North 24 Paragna West Bengal has deposed that the document Ex. PW8/B and Ex. PW8/C along with Ex. PW8/A were delivered to Delhi Police officials and which was seized vide seizure memo Ex. PW9/A. PW10 Insp. Devender Kumar has deposed that he went to Attari Rail Chieck Post (BOI) to collect some documents and he had seized the documents Ex. PW3/A to Ex. PW3/C. PW11 Insp. Of Police Hira Chand Laxman Umbarkar, District Special Branch, Amrawati Rural (Maharashtra) has deposed that he had delivered the documents Ex. PW3/ A to Ex. PW3/D and letter of accused Mohd. Muzaffar Khan in respect of changing the address which is Ex. PW11/B to SI Manoj Kumar which was seized vide seizure memo Ex. PW11/C. PW12 H.C. Sanjeevan has deposed that he has taken three envelopes containing copy of FIR from duty officer to deliver the same to Ld. CMM, Joint CP Special Cell and DCP Special Cell and had delivered the same.
PW13 ASI Mohan Lal has deposed that on 31.10.06 he along with SI Manoj reached in the office of Immigation Check Post SC No. 60/2010 P10/27 11 Haridaspur where SI Manoj Kumar seized the documents Ex. PW8/A to Ex. PW8/C vide seizure memo Ex. PW9/A. PW14 Ashish Sharma, Manager Govt. Service Department PAN has deposed that on 19.10.06, on the request of SI Manoj Kumar, he has delivered original application form allotment of Permanent Account Number of Ali Akbar which is Ex. PW14/A. As per their record, Ali Akbar had applied for PAN on 27.3.06. The application form also have photograph of concerned person at encircled portion Ex. PW14/B. Applicant Ali Akbar had annexed photocopy of driving licence No. P03102001286598 and the copy of the same is mark YY. The documents were seized vide seizure memo Ex. PW14/C. PW15 Shri R.K. Singh, Nodal Office Bharti Celluar Ltd. has proved the record of Mobile No. 9818846632 of the period 1.8.06 to 26.11.06 as Ex. Pw15/A. 0088 as mentioned in Ex. PW15/A is a code belonging to Bangladesh. On 19.9.06, 20.9.06, 25.09.06, 27.9.06, 28.9.06, 3.10.06, telephone calls were made from the Mobile number 9818846632 on 00880187618210 respectively. He has proved the AIR Tel prepaid enrollment form filled up by the subscriber SC No. 60/2010 P11/27 12 namely Ali Rehman Gazi as Ex. PW15/B. He has identified the proof of accused Ali Rehman Gazi Ex. PW15/C. In cross examination he has deposed that he has no personal knowledge about the matter. He cannot tell the name of the person who had made the call and also cannot tell the name of the person who had received the call. The mobile phone No. 9818846632 is in the name of Ali Rehman Gazi.
PW16 Lt. Col. K.S. Kanwar SOI (intelligence) Head Quarter Western Command Chandi Mandir for Chief of Staff, Chandigarh has deposed that on 6.11.06 he was working as Lt. Col SO1 (intelligence) for COS at Chandigarh. He had examined Ex. PW16/A to Ex. PW16/C three pages of instructions in general along with schematic diagram of Delhi exchange and also examined two sketches Ex. PW16/D to Ex. PW16/E. He has proved his report pertaining to the examination of these documents as Ex. PW16/F. He has deposed that these documents are restricted documents and can be used by enemy country which can effect the security, sovereignty integrity of the state.
In cross examination he has deposed that the documents SC No. 60/2010 P12/27 13 has been sent to Signals Branch, Head Quarter, Western Command, Chandi Mandi for their comments and after receiving their comments final opinion was given by him. The documents Ex. PW16/A to Ex. PW16/C usually in the custody of the subscriber. He do not know Urdu. He cannot tell the contents of documents Ex. PW16/D and Ex. PW16/E which are in Urdu. He denied the suggestion that the documents Ex. PW16/A to Ex. PW16/E are not secret documents.
PW17 Shri Virender Singh Rawat from Transport Authority has proved the report pertaining to the driving licence No. P03102001286598 as Ex. PW17/A. As per this report, the driving licence was not issued to Ali Akbar. The photocopy of the same is Ex. PW17/B. Verification report of the driving licence issued by MLO as Ex. PW17/C. PW18 Shri Basant Kumar has deposed that in the year 2006 he was working as a agent in Sahara India Parivar. Their company used to open saving account every month. Raj Hans used to run a STD & PCO shop at Village Madanpur Khadar. Accused Ali Akbar had met him in the shop who used to work there as electrician. He got filled up form and got open account number 12971700804 of SC No. 60/2010 P13/27 14 accused Ali Akbar in Sahara India Parivar. The said form is Ex. PW18/A. Accused had produced the rent receipt as Ex. PW18/B to Ex. PW18/D. PW19 Shri D.N. Tripathi has deposed that in the year 2006 he was working as Branch Manager in Sahara India Parivar at Kalkaji Branch. IO had seized Ex. PW18/A and Ex. PW18/B vide seizure memo Ex. PW19/A. PW21 Shri Alok Kumar DCP, Special Cell has proved the complaint U/s 13 Clause 3 of Official Secret Act as Ex. PW21/A lodged by him for initiating of prosecution against the accused.
PW23 Shri Arun Bhatia, Nodal Officer Voda Phone has proved the original customer agreement form submitted by Shri Mohd. Jalal as Ex. PW23/A. He has also proved the documents as to the customer declaration for local address as Ex. PW23/B. PW26 Shri Ajay Chakravorty has deposed that on 28.11.03 he was Member of Parliament from North 24 Parganas West Bengal. He had issued a residence certificate in favour of Ali Rakman Gazi, The certificate was issued on his letter head. The certificate is Ex. P18. To the best of his knowledge and belief the photograph on this SC No. 60/2010 P14/27 15 certificate is forged and seal is also forged.
PW22 Shri V.S. Joon, ACP Head Quarter New Delhi District, in his testimony has supported the case of the prosecution. He has deposed that he had a secret information that one Jalal who is residing in Madanpur Khadar and is a Bangladeshi and he is doing espionage against India. Some source were deployed in search of Jalal. He got a telephone call from the informer who told that one Bangladeshi namely Jalal will come from Madanpur Khadar Village and will go towards Madanpur Khadar Extension between 5/6 p.m. He brought these facts in the notice of ACP and on receiving the proper orders, he constituted a team comprising of Insp. R.K. Singh, SI Satish Kumar, SI Manoj Kumar, ASI Ittal Singh, H.C. Mohan Lal and Ct. Ajay Lal. At the same time, a DD entry No. 12 was also lodged in the Daily Diary. The team was divided into two groups and they all departed for Madanpur Khadar in Gypsy. They reached Madanpur Khadar at 5 p.m. at Ganda Nala and he met the informer who also joined the raiding party. In the mean time 4/5 people were asked to join the raiding party but all expressed their inability. SI Manoj Tyagi parked the vehicle at a distance. At around 6 p.m., a SC No. 60/2010 P15/27 16 youth came from Madanpur Khadar Village and at the instance of informer accused Ali Rehman Jalal was apprehended who was going to Madanpur Khadar extension via Ganda Nala. On his search a white envelope containing the documents Ex. PW16/A to Ex. PW16/D was recovered. The documents were seized vide memo Ex. PW20/A. At the instance of accused Jalal, the accused Muzaffar Khan was arrested at the H.No. B256, Madanpur Khadar Village and from his possession Ex. P1 to Ex. P12 were recovered and were seized vide seizure memo Ex. PW7/A. He has prepared the rukka Ex. PW22/A and handed over the same to Ct. Ajay Kumar for registration of FIR.
PW20 Shri R.K. Singh, who was the member of the raiding party has supported the testimony of PW22.
PW24 H.C. Ajay Kumar was also the member of the raiding party and he has deposed on the same lines as to the apprehension of the accused person as deposed by PW22. He has also deposed that he has handed over the rukka to the duty officer PS Spl. Cell. He came back at the spot and handed over the copy of FIR and original rukka to SI Manoj Kumar.
PW25 Insp. Manoj Kumar was also the member of the SC No. 60/2010 P16/27 17 raiding party and he is also the investigating officer of the case. He has deposed that he was directed by Insp. V.S. Joon to keep the Gypsy away at some distance from the spot. At about 9.30 p.m., he was called at H.No. 256/222, Madanpur Khadar Village, Insp. V.S. Joon handed over him two seizure memos, one carbon copy of rukka and two sealed parcel. He prepared the site plan . Interrogations were made from the accused persons and they were arrested in the present case. He has deposited the case property in the Malkhana as per the memos. He deposited the sealed documents for opinion. He had collected the documents submitted by the accused Mohd. Muzaffar Khan for obtaining the PAN card in the name of Ali Akbar. He had collected the original disembarkation card of Islam Mian from Bangladesh on Bangladeshi passport. Reply was also received from the MLA Shri Ram Bir Singh Vidhuri who has informed that the character certificate which was produced by the accused was not signed by him. The photocopy of the driving licence which was produced by the accused Muzaffar Khan for obtaining the PAN Card was found to be not issued to the Ali Akbar. He obtained the call detail of AIR Tel mobile No. 98188646632. He received the SC No. 60/2010 P17/27 18 authorization letter for filing the complaint U/s 13(3) OS Act. After investigation, he filed the charge sheet against the accused.
DW1 Ms. Fatima W/o Shri Mohd. Abdul Kalam had deposed that he has been knowing Ali Rehman Jalal for about 6/7 years. On 9.9.06, Ali Rehman Jalal was called by the police at about 11.30 a.m. and the accused was afraid and she along with some other people of the locality had gone to the police with the accused. The accused was detained for about three hours thereafter he was let off. He was told to come again on 11.9.06. He again went to the police on 11.9.06 and some of them also went with him. Thereafter the accused was not released.
In cross examination she has deposed that the accused is Bangladeshi and was running a business of Kabari. She know him being a neighbour. She did not call the police at 100 number when she came to know that accused has been arrested in a false case.
DW2 Mohd. Shahjahan has also deposed on the same lines as DW1. In cross examination, he has deposed that he did not make any complaint in writing to any authority that the accused has been falsely implicated in the case.
SC No. 60/2010 P18/27 19
6. Ld. Counsels for the accused persons has argued that the accused have been falsely implicated in the case. The alleged recovered documents were falsely planted upon the accused persons. Nothing has been recovered from them. The recovery of the alleged documents is also doubtful as no public witness was joined in the raiding party at the time of seizure of documents. There is no evidence on record to prove that the alleged recovered documents are likely to affect the sovereignty and integrity of India and are for the purpose of prejudicial to the safety or interest of the state. Prosecution has failed to prove its case against the accused persons. The accused persons are entitled for the acquittal.
On the other hand, Ld. APP has argued that the prosecution has proved its case beyond reasonable doubt against the accused persons.
7. It has been observed by Hon'ble Supreme Court in AIR 2003 SC 1311: "There is no principle of law that without corroboration by indepedent witness the testimony of police personnel cannot be relied upon - Presumption SC No. 60/2010 P19/27 20 that person acts honestly applies as much in favour of police personnel as of other persons - It is thus not proper judicial approach to distrust and subject them without good grounds."
It has also been observed by Hon'ble Supreme Court in AIR 1973 SC 2783 as follows: "The mere fact that the prosecution witnesses are police officers is not enough to discard their evidence, in the absence of evidence of their hostility to the accused."
PW22 V.S. Joon, PW20 Insp. R.K. Singh, PW24 H.C. Ajay Kumar and PW25 SI Manoj Kumar were the members of the raiding party and has supported the case of the prosecution. They have been cross examined by the accused persons but no material has been come on record to disbelieve their testimonies. The fact that no public person was joined at the time of seizure of the documents from the accused persons does not create any doubt in the evidence of these witnesses as their testimonies are reliable. In my view from the evidence produced by the prosecution, it is proved that the documents SC No. 60/2010 P20/27 21 Ex. PW16/A to Ex. PW16/D were recovered from the accused Ali Rehman Jalal and which were seized vide seizure memo Ex. PW20/A. It is also proved that the documents Ex. P1 to P12 were recovered from the accused Mohd. Muzaffar Khan which were seized vide seizure memo Ex. PW7/A.
8. The accused Ali Rehman Jalal is alleged to be a citizen of Bangladesh and were found to be living in India unauthorizedly. The accused Ali Rehman Jalal in his statement recorded U/s 313 Cr.PC has stated that he is a national of Bangladesh. DW1 has deposed in her cross examination that accused is a Bangladeshi. The accused has not brought any evidence on record to prove that he was living in Indian authorizedly and with required permission. The prosecution has proved that the accused Ali Rehman Jalal was living in India unauthorizedly and without having any required permission.
As per the case of the prosecution, accused Mohd. Muzaffar khan is a citizen of Pakistan and was living in India unauthorizedly under the name Ali Akbar Aslam. PW3 has proved the original visa application of the accused as Ex. PW3/B, Atari Rail Check Post residential permit of accused as Ex. PW3/C and SC No. 60/2010 P21/27 22 residential permit of the accused as Ex. PW3/D. PW3 has also deposed that the accused Mohd. Muzaffar Khan came in India on 11.4.2005 and went back to Pakistan on 26.5.05. These documents proves that the accused Mohd. Muzaffar Khan is a citizen of Pakistan. The accused has not brought any evidence on record to prove that he has permission to reside in India. The prosecution has proved that the accused Mohd. Muzaffar Khan was residing in India unauthorizedly.
9. The driving licence Ex. P6 and PAN Ex. P7 as recovered from the possession of accused Mohd. Muzaffar Khan were in the name of Aslam Khan and Ali Akbar respectively. These documents proves that the accused Mohd. Muzaffar Khan was residing in India under the changed name as Ali Akram Aslam.
PW14 has deposed that Ali Akbar had applied for PAN on 27.3.06 vide application Ex. PW14/A. Applicant Ali Akbar had annexed photocopy of driving licence No. P03102001286598 which is Ex. PW17/B. PW17 has deposed that the driving licence Ex. PW17/B has not been issued to Ali Akbar and he has proved his report as Ex. PW17/A. The driving licence Ex. P6 as recovered from the SC No. 60/2010 P22/27 23 possession of accused Mohd. Muzaffar Khan was also forged as PW4 has deposed that the driving licence bearing No. 112072 dt. 9.7.03 has been issued to one Surender and not to Aslam Khan and he proved the relevant entry of the licence as Ex. PW4/B. The prosecution has been able to prove from its evidence that the accused Mohd. Muzaffar Khan has forged the PAN Card which is Ex. P7 and the driving licence which is Ex. P6 for the purpose of cheating and had dishonestly used these documents as genuine knowing the same to be forged documents.
10. It has been observed by the Hon'ble High Court of Delhi in Amin Chand Vs. State 1987 Crl. L. J. 1034 as follows: "In the matter of proof of the offence under S. 3(1), S.3(2) lays down a rule of presumption and not of evidence. Nor does it in any way dilute the degree of proof required for proving the criminal case which includes a case under the Act, as well as. In a trial for the offence under S.3(1) the prosecution need not prove any particular act of the accused tending to show a purpose prejudicial to the safety or interest of the State.
SC No. 60/2010 P23/27 24 In the absence of proof of any such particular act it entitles the Court to convict the accused if from the proved circumstances of the case or from the proved conduct or character of the accused it appears that his purpose was a purpose prejudicial to the safety or interest of the State. Here again, this inference can only be drawn if there is some proof, admissible material on the record and not otherwise. A case under the Act has to be proved like any other criminal case and the burden on the prosecution is in no way lessened. The principle that no conviction can be based on assumption and conjectures or on suspicion however strong equally applies to a case under the Act."
It has been observed by the Hon'ble Supreme Court in AIR 1996 Supreme Court 569 as follows:
"While providing for a presumption to be raised in prosecution for the offence punishable under that section the phraseology used by the legislature is "if any sketch, plan, model, article, note, document or SC No. 60/2010 P24/27 25 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 saidsection 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."
The 'offending documents' i.e. Ex. PW16/A to Ex. PW16/D recovered from the possession of the accused Ali Rehman Jalal and the 'offending documents' i.e. Ex. P1 to P3 recovered from the possession of the accused Mohd. Muzaffar Khan were opined by PW16 Lt. Col. K.S. Kanwar SO (Intelligence) in his report Ex. PW16/F that these documents can be used by the enemy country which can affect the security, sovereignty, integrity of the State.
11. As per the case of the prosecution, accused Ali Rehman Jalal has knowingly harboured the coaccused Mohd. Muzaffar Khan SC No. 60/2010 P25/27 26 in his room at H.No. House No. B222, Madanpur Khadar and thereafter got arranged the rented accommodation in the house bearing No. B256, Madanpur Khadar for the coaccused having the knowledge about his involvement in spying activities.
After going through the evidence of prosecution witnesses, there is no evidence on record which proves that the accused Ali Rehman Jalal has harboured the coaccused Mohd. Muzaffar Khan.
12. The prosecution has proved that the accused Mohd. Muzaffar Khan is Pakistan National and the accused Ali Rehman Jalal is a Bangladeshi National. From the evidence of PW7, it is proved that both the accused are residing in separate rooms in H. No. B222, Madanpur Khadar. It has been proved that the accused Mohd. Muzaffar Khan was residing in India under the change name. It has been proved that both the accused were residing in India unauthorizedly. It has also been proved that the accused Mohd. Muzaffar Khan has forged the driving licence & the PAN. After taking into consideration all these facts which are proved on record, I am of the opinion that accused persons has collected the 'offending SC No. 60/2010 P26/27 27 documents' for a purpose prejudicial to the safety or interests of the state.
13. In view of the above discussion, the prosecution has proved its case beyond reasonable doubt against the accused Mohd. Muzaffar Khan U/s 3 of The Official Secrets Act, U/s 14 of The Foreigners Act, U/s 468 IPC and U/s 471 IPC. Accordingly, the accused Mohd. Muzaffar Khan is convicted thereunder.
The prosecution has also proved its case beyond reasonable doubt against the accused Ali Rehman Jalal U/s 3 of The Official Secrets Act, U/s 14 of The Foreigners Act. Accordingly, the accused Ali Rehman Jalal is convicted thereunder. Announced in the open court (RAJNEESH KUMAR GUPTA) today i.e. on 04.05.11 Additional Sessions Judge01(West) Tis Hazari Courts, Delhi.
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