SAFI MOHD Vs STATE OF RAJASTHAN
Bench: CHANDRAMAULI KR. PRASAD,V. GOPALA GOWDA
Case number: Crl.A. No.-001954-001954 / 2009
Diary number: 23259 / 2009
Advocates: SARAD KUMAR SINGHANIA Vs
MILIND KUMAR
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REPORTABLE IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1954 OF 2009
SAFI MOHD. … APPELLANT Vs.
STATE OF RAJASTHAN … RESPONDENT
J U D G M E N T
V. Gopala Gowda, J.
This appeal is filed by the appellant
questioning the correctness of the judgment dated
29th May, 2009 passed by the High Court of
Rajasthan at Jaipur in S.B. Criminal Appeal No.
314 of 2004 in confirming the judgment dated 9th
March, 2004 of the sessions judge, Jaipur City,
Jaipur in Sessions Case No. 196 of 1992 wherein
this appellant along with the others were
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convicted under Section 3(1)(c)of the Official
Secrets Act, 1923 (hereinafter referred to as
‘the Act’) and was sentenced to undergo seven
years rigorous imprisonment.
2. For the purpose of considering the rival
legal contentions urged in this appeal and with a
view to find out whether this Court is required
to interfere with the impugned judgment of the
High Court, the necessary facts are briefly
stated hereunder:
On 6th March, 1990, Bhoormal Jain,
Superintendent of Police CID Zone, Jodhpur lodged
an FIR for the offences punishable under Sections
3, 3/9 of the Act read with Section 120-B IPC
with the Special Police Station Rajasthan, Jaipur
numbered as FIR No.1/1990 against the accused
Mohd. Ishfaq who was found roaming in suspicious
circumstances in the Air Force Area and was
arrested on 07.03.1990. On interrogation, he
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stated that the appellant Safi Mohd. used to
supply secret information to the Pakistani
Intelligence and had handed over Rs.6500/- to him
for working for Pak Intelligence Agency. On
08.03.1990, the appellant was arrested from his
Railway Quarters by the CID Police and on his
house being searched, a blue colored diary of the
year 1982 and a trace map Ex.D-3 were alleged to
have been recovered. Later on, on further
disclosure by the accused No.1, accused No. 3 -
Chotu Khan and accused No. 4 - Chand Khan were
arrested. On 12.04.1990, the other accused Mohd.
Safi, Accused No.5, was also arrested. The
documents recovered from the accused were sent to
the Air Force Officers for their opinion, who
informed that the said documents were useful to
enemy country and affect the security of India.
After completion of investigation of the case the
charge-sheet was filed before the committal court
by the Investigating Officer.
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3. On 26.07.1994, charges were framed against
the 5 accused persons but all of them pleaded not
guilty. The appellant was charged under Section 3
read with Section 9 and 5 of the Act. The learned
Sessions Judge after trial convicted the
appellant u/s 3 (1) (c) of the Act by order dated
09.03.2004.
4. Learned counsel for the appellant Mr. Sushil
Kumar Jain submits that the conviction of the
appellant based on the recovery of Ex.D-3 from
the house of appellant is doubtful. Further, he
submits that the conviction based on the experts
opinion of Col S.K. Sareen (PW-27) and Wing
Commander Alok Kumar (PW-32) on documents Ex. P-
33 and P-34 respectively is not in favour of the
prosecution. Therefore, the conviction of the
appellant based on their evidence rendered the
concurrent finding erroneous in law. Hence, the
same is liable to be set aside. Further, he
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contends that the conviction of the appellant
based on the recovery or possession of a trace
Map Ex.D-3, which is a rough sketch map under
Section 3 (1) (c) of the Act is not tenable in
law. In so far as the recovery of the document
Ex.D-3 from the quarters of appellant is
concerned, it is contended by the learned counsel
for the appellant that the said document as per
recovery memo. Ex.P-22 said to have been
recovered by Suresh Kumar (PW-22) is attested by
two witnesses Bhoop Singh and Umed Singh. Bhoop
Singh has been declared hostile and Umed Singh,
the other attesting witness has not been examined
in the case. Ex.P-22 was not put to the witness
Bhoop Singh in his cross-examination by the
prosecution. The prosecution has relied upon the
said document solely on the statement of evidence
of the investigating officer Yad Ram Tiwari PW-24
and Suresh Kumar PW-22. He submits that on
account of non-examination of Umed Singh in the
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case, the attesting witness to the memo for
recovery of the documents from the house of the
appellant, both the learned sessions judge as
well as the High Court should have drawn adverse
inference against the prosecution stating that
search and seizure of Ex.D-3 as per recovery memo
was not from the house of the appellant. The
learned counsel in support of the above said
submission has placed reliance upon the decision
of this Court in Pratap Singh Vs. State of M.P.1. In the said case it is observed by this Court
that non examination of witnesses by the
Investigating Officer who are material for the
purpose of proving the prosecution case, who are
independent witnesses and whose statements have
not been recorded though it is the duty of
the investigating officer to produce such
statements along with the charge sheet in the
Court, if, the same has not been done by the
1 2005 (13) SCC 624
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prosecution, the benefit of doubt must be given
to the defence and not to the prosecution.
5. Further, he submits that in the above
referred case this Court held that the High Court
committed serious error in not drawing adverse
inference for non examination of the seizure
witnesses in the peculiar facts and circumstances
of the case.
6. Further learned counsel for the appellant
submitted that the prosecution case with regard
to the recovery of Ex.D-3 from the house of the
appellant is falsified by the evidence of Om
Prakash Rathi (PW-2) the only attesting witness
examined with regard to the search of Rathi Guest
House wherefrom Mohd. Safi was arrested with
documents. This fact is established from the
cross-examination of PW-2 who is the owner of the
Rathi Guest House, who has admitted in his
statement that “Map Ex.D-3 was recovered from the
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said accused along with other papers.” The
learned counsel for the appellant has further
placed reliance upon the judgment of this Court
in Mukhtiar Ahmed Vs. State (NCT of Delhi)2 that if the prosecution has examined its witness and
declared him hostile as he did not support the
prosecution case but on the other hand he had
supported the defence then it can rely on such
evidence. Further, the learned counsel placed
reliance on another judgment of this Court in the
case of Raja Ram Vs. State of Rajasthan3 in support of the case of the appellant that the
sole testimony of the prosecution witness making
the deceased believe that unless she puts the
blame on the appellant and his parents she would
have to face the consequences like prosecution
proceedings. It did not occur to the public
prosecutor in the trial court to seek permission
from the court to declare PW-8 as a hostile 2 2005 (5) SCC 258 at paras 29-30 3 (2005) 5 SCC 272 at para 9
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witness, for the reasons known to him. Now, as
it is, the evidence of PW-8 is binding on the
prosecution.
7. The learned counsel also submits that the
observations made by this Court in the above
cases are also applicable to the fact situation
of the case in hand wherein evidence of PW-2 who
is attesting witness to Ex. P-22 recovery Memo,
it is mentioned that Ex. D-3 was recovered from
the Rathi Guest House. Therefore, he contends
that the same is not recovered from the house of
the appellant as alleged. Further, learned
counsel submits that it is a well settled
principle of law that the defence is not required
to establish its case but is only required to
establish preponderance of probabilities of the
case for consideration of the Court. The defence
of the appellant in this case was that Ex.D-3 was
recovered from Rathi Guest House is probable.
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Further the statements of PW-22 and PW-24, the
police witnesses are interested witnesses who are
interested in showing success of the raid and to
support the prosecution case and therefore the
courts below should not have placed reliance upon
their testimony to convict the appellant.
8. PW-22 is not the witness of recovery of Ex.D-
3 the trace Map as per recovery memo Ex.P-22.
This fact is admitted by him in his cross
examination and also, he is not the signatory to
Ex.P-22. The conscious possession or knowledge of
the document Ex. D-3 by this appellant is found
in the diary of the appellant, this fact as
alleged by the prosecution is not established and
the prosecution has also not established that the
diary belonged to the appellant. The document
could have come to the house of the appellant by
any unknown reason and unless specific knowledge
of the appellant regarding possession of the
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document Ex. D-3 is proved, its recovery from the
house of the appellant should not have been
treated sufficient by the courts below for
holding that the appellant consciously possessed
the same.
9. Another ground of submission made by the
learned counsel for the appellant is the experts’
opinion of the witnesses PW-27 and PW-32, who
have rendered their opinion as per Ex.P-34 and
Ex.P-35, stating that document Ex. D-3 is just a
sketch which could not be of any help to the
enemy country as it does not denote anything.
The learned counsel for the appellant has further
submitted that the prosecution has failed to
establish that any site or road denoted in the
sketch Map is in existence.
10. The learned counsel for the appellant has
placed strong reliance on the experts’ opinion
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Ex.P-34 and Ex.P-35, relevant portion of which
reads thus:
Ex.P-34:
“Rough sketch of area showing the location of Blind: This area is not part of the Air Force range. It is part of the Army range and falls under the jurisdiction of Stn. HQ Pokharan.”
Ex.P-35:
“It has no significance from counter intelligence point of view.”
The opinion expressed by PW-27 in Ex.P-35
establishes the fact that Ex.D-3 has no
importance from the point of view of Army.
11. Further, his opinion on Ex. P-4 and Ex.P-5
reads thus:
“For example Ex.P-4 and Ex.P-5 parking place for airplanes, Hangar, Air Traffic control, inform the Radars etc. on this basis if Pakistan wishes to finish them by Air attack, then it will be easier for it, it will get straight win in ground attack. In this way, the Chart of mountain division referred in Ex.P-32, from this the enemy will get clear
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information of numbers of Brigade, numbers of vehicle and Arms and quality of Arms and their numbers. On this basis they will get help of defence in case India attacks and if they want to attack, then they will get great help in preparation.”
12. It is further contended by the learned
counsel that since neither of the witnesses PW-27
and PW-32 are expert witnesses within the meaning
of Section 45 of the Evidence Act to give their
expert opinion on Ex.D-3 sketch Map, reliance
cannot be placed upon their opinion or evidence
to convict the appellant. Therefore, the learned
counsel for the appellant submits that their
opinion being outside the sphere of the alleged
expertise, the same is of no significance. Hence,
the same could not have been relied upon by the
court to convict the appellant. PW-27 cannot be
held to be a competent person to give expert
opinion on the seized document Ex-D3.
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Further, it is urged that both the
witnesses were never posted and worked in that
area. Therefore, they neither had the knowledge
of the area nor did they visit the area as is
evident from their statement of evidence on
record.
In this regard, he has placed reliance
upon the evidence elicited in the cross-
examination of PW-27 who has categorically
admitted the same. So also PW-32 with reference
to Ex.P-4 and Ex.P-5 has stated as above.
Therefore the statement of evidence given by said
witnesses in the case could not have been placed
reliance upon by both the trial court and the
High Court to record a finding that the appellant
is guilty of the offence punishable under Section
3 (1) (c) of the Act and to convict and sentence
him.
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13. The learned counsel has placed reliance upon
the judgment of this court in the case of State of Himachal Pradesh Vs. Jai Lal and Ors.4 and also another judgment of this court in Ramesh Chandra Agarwal Vs. Regency Hospital Limited 5
in support of the legal contention that the above
said witnesses viz. PW-27 and PW-32 are not
expert witnesses to render their expert opinion
on Ex.-D3. The relevant paragraphs of the
judgment of State of Himachal Pradesh Vs. Jai Lal and Ors.’ case (supra) are extracted hereunder:
“13. An expert witness is one who has made the subject upon which he speaks a matter of particular study, practice, or observation; and he must have a special knowledge of the subject. Shri P.C. Panwar in his evidence has stated that he passed B.Sc. (Agriculture) Honours from the University of Delhi in 1959; thereafter he did his M.Sc. (Horticulture) in 1967 from Punjab University. He joined the Agricultural Department in the year 1969 as a Research Assistant; he was promoted as
4 (1999) 7 SCC 280 5 (2009) 9 SCC 709
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Horticulture Development Officer in the year 1973 and at the time of the assessment he was working as District Horticulture Officer, Shimla. He has also stated that in the year 1986 he attended a 3 months' training course on apple technology in the University of Tasmania, Australia. The assessment in the orchards in question were made on different dates in November 1984. He has fairly accepted the suggestion that he had not received any training with respect to assessment of apple crop but that has been a part of his job. The witness could not state the number of scab cases in which he had been called upon to make assessment. He has specifically stated in the case against Jai Lal and others that that was his first and last assignment till date as a commission for assessing productivity of an apple orchard. ………………….
17. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has
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made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.
18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criterion to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.”
Further, on the subject, this Court, in
Ramesh Chandra Agrawal’s case (supra) held as under:
“19. It is not the province of the expert to act as Judge or Jury. It is stated in Titli v. Alfred Robert Jones that the real function of the expert is to put before the court all the
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materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials.”
In view of the decision in State of Himachal Pradesh Vs. Jai Lal and Ors. (supra) both the witnesses PW-27 and PW-32 do not fulfil
three criteria held to be necessary for
considering a person expert.
14. Learned counsel further contends that the
conviction of the appellant and the concurrent
finding of fact recorded by the High Court is ex-
facie bad in law as none of the above legal
aspects have been carefully examined by it and
answered while concurring with the finding of the
trial court on the charge against the appellant.
Further he submits that after careful examination
and analyzing the evidence of prosecution
witnesses namely, PW-2, PW-27, PW-32 and also
placing reliance upon the evidence of witnesses
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namely PW-22 and PW-24 who are the police
witnesses and the conviction of the appellant for
the offence under Section 3(1) (c) of the Act and
sentencing him to undergo seven years
imprisonment is an erroneous finding and
therefore the same cannot be allowed to sustain.
The same is contrary to the judgment of this
Court in the case of Padam Vs. State of U.P.6
The learned counsel also placed reliance upon
another judgment of this court in the case of
Prasad @ Hari Prasad Acharya Vs. State of Karnataka7. The learned counsel with reference to the legal position laid down by this Court in the
above cases submits that the concurrent finding
of fact recorded by the High Court on the charge
without proper appreciation of evidence on record
has rendered the findings erroneous in law.
Further, the High Court has erred in law in 6 2000 (1) SCC 621 7 2009 (3) SCC 174
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affirming the conviction and sentence of the
appellant. The same is wholly unsustainable in
law and is therefore, liable to be set aside by
allowing this appeal and acquit the appellant
from the charge levelled against him under
Section 3(1)(c) of the Act.
15. On the other hand, learned counsel for the
respondent State has sought to justify that the
concurrent findings of fact has been recorded by
the High Court by consciously applying its mind
to the prosecution case and the legal evidence on
record by the court particularly the evidence of
PW-1, PW-11, PW-16, PW-19, PW-20, PW-22, PW-24,
PW-27 and PW-32. He contends that after examining
the correctness of the findings recorded by the
learned sessions judge on the charge levelled
against the appellant, the High Court has rightly
concurred with the findings of fact which are
recorded in the impugned judgment and it was of
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the opinion that the conviction of the appellant
under Section 3 read with Section 9 of the Act is
14 years maximum sentence. The learned sessions
judge after considering the fact that the alleged
offence is of the year 1990 sentenced the
appellant for seven years rigorous imprisonment
along with other accused persons. Correctness of
the same is examined by the High Court and it has
opined that in such type of heinous offences,
imposition of sentence for seven years rigorous
imprisonment upon the accused is held to be
legal, valid, just and proper and therefore, it
did not interfere with the same. The High Court
has rightly concurred with the findings of fact
of the trial court by assigning its reasons and
therefore no remission should be given to them,
particularly when they were caught spying and
putting the country as a whole in danger.
Therefore, the dismissal of the appeal of the
appellant along with other appellants by the High
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Court is perfectly justified in law. The same
does not call for interference by this Court in
exercise of this Court‘s jurisdiction. Hence, he
has prayed for dismissal of the same.
16. With reference to the above referred rival
legal contentions urged on behalf of the parties
we have carefully examined the correctness of the
findings recorded in the impugned judgment passed
by the learned sessions judge in Case No. 196 of
1992 and the concurrent findings recorded by the
High Court in confirming the conviction and
sentence of the appellant. With a view to find
out as to whether the said concurrent findings
are erroneous or error in law, we have carefully
perused the evidence of PW-12, PW-13, PW-14, PW-
15 and PW-17 who have deposed against the
appellant to answer the above point which arose
for our consideration.
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17. The learned sessions judge has rightly placed
reliance upon the evidence of Sher Singh, PW-18
who is a search witness who has witnessed the
search of the house of the appellant and who has
also turned hostile. PW-21, Dr. T.S. Kapur has
stated that he has received the documents
relating to this case from the CID Security and
the original copy is Ex. P-36. The disputed
documents along with letter are marked as Exbts.
Q-1 to Q-9. Sample writings have been marked as
A-1 to A-52 which have been exhibited as Ex.P-44
to P-82 which have been scientifically examined
and thereafter a report Ex. P-83 was prepared
stating that the disputed writings marked as Q-1
to Q-4 and Q-9 show very significant similarities
with the specimen writings marked as A-1 to A-52.
Along with this, a written slip, article 2 - a
map traced by hand was recovered from the house
of Safi Mohd. in which railway tracks and roads
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are depicted, the signs of directions shown on a
paper having lines, an advertisement of Air
Force, Hindi Sainik Newspaper and Army Weekly,
Prohibited Chart of Mountain organization
division were recovered from Chotu Khan and were
sent for opinion as to whether the said documents
and the information contained therein are threat
to the security of the country or not. He has
further stated that a letter in English Ex P-33
relating to the above stated documents were sent
to the headquarters of IAF Commandant Jodhpur.
Ex.P-33 bears the signature, the reply of which
is Ex.P-34.
18. PW-24 Yad Ram Tiwari, who was posted as SHO,
Special Police Station, Rajasthan, Jaipur, has
spoken about the receipt of the report from SP
CID Zone Jodhpur through Constable Navneet Kumar
and on the basis of which he has recorded FIR
No.1/90 under Sections 3,5 and 9 of the Act and
Section 120-B of IPC. Along with the report,
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Ex.P-1 some other secret documents were recovered
vide recovery memo. He has stated in his
evidence that he took the search of the house of
Safi Mohd. at Jetha Chanana Railway Quarter where
one blue coloured diary was recovered from the
almirah of the appellant marked as article 3.
One traced map was also recovered from the diary
in which Pokhran, Jaisalmer, Devra Village, roads
and railway track details were given. The map is
marked as Ex. D-3. He has identified the
appellant Safi Mohd. The search recovery memo is
marked as Ex.P-28. He has also spoken about the
addresses of Pakistani officials mentioned in the
diary at pages 11, 13, and 21. The said witness
has also spoken about the search of the house of
the appellant, which was made in the presence of
Khurshid and Sher Singh and the articles were
seized such as (a) passport of Safi Mohd. as
article 4, (b) Passport of Nazima Bano as article
5, (c) marriage card of Safi Mohd. as article 6,
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(d) passbook of Safi Mohd. as article 7, and (e)
Card Shadi Mubarak article 8, vide search memo
marked as Ex. P-28.
19. In the deposition Colonel S.K. Saren PW-27
has stated that along with Ex.P-3 original map,
the letter referred in Ex.P-35 and the
photocopies of Ex.P-4, Ex.P-5, Ex.D-3, Ex. P-32,
P-31, P-27 were obtained and his opinion with
reference to the above said documents was sought
as to whether the information mentioned in the
said documents if reaches the Pakistani
officials, would be useful to them and would
adversely affect the security of India. He has
stated in his deposition in the affirmative that
if the above mentioned documents reach the
Pakistani officials the same may be useful to
them as they can work out the strategy to attack
India. He further opined that on the basis of
information available in the said documents if
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Pakistan wants to destroy the country by air
attack it would become easier. The witness PW-32
Wing commander Alok Kumar has also stated in his
evidence before the trial court that he was
posted as Intelligence Officer Headquarters South
Western Air Command, Indian Air Force, Jodhpur.
He gave his opinion that Ex.D-3 six digits sketch
shows the accuracy to pinpoint a target which is
very important and accurate on the basis of which
the country’s security can be destroyed. He has
spoken about the red arrow in Ex D-3 which is a
grid reference to the special point. According to
him the said document is a very important
document from the point of view of Army.
20. After referring to the evidence of the PW-22
and PW-24 the search of the house of the
appellant and seizure of certain documents along
with diary particularly Ex D-3, handwritten map
prepared with certain markings, it has proved
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the prosecution case. No doubt the independent
witnesses have turned hostile, but the learned
sessions judge has rightly accepted the testimony
of the police witnesses after proper appreciation
of their evidence and he has rightly placed
reliance upon the police witnesses to prove the
seizure of the documents from the house of the
appellant and therefore the same cannot be held
to be bad in law as contended by the learned
counsel for the appellant.
21. Further, the learned sessions judge has
rightly accepted the testimony of the witnesses
to prove the recovery of documents by assigning
reasons and therefore the same cannot be rejected
merely on the ground that they are police
officials who are members of raiding party and
that the matters under the Official Secrets Act
are very sensitive which required immediate
action. In these circumstances, the investigation
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does not become defective as contended by the
learned counsel for the defence for the reason
that the search warrant was not obtained and the
recovery of documents and articles from the
appellant’s house could not be rejected. The
search and seizure of Army documents from the
house of the appellant for the offences alleged
against the appellant under the provisions of the
Act are very sensitive and pertains to the
integrity and security of the country. In view
of the above fact, neither the search conducted
in the presence of the independent witnesses nor
the investigation made by the investigating
officer becomes defective for want of search
warrant to conduct the search in the house of the
appellant as urged by the appellant’s counsel.
22. The learned public prosecutor has rightly
placed reliance on the decision of this Court in
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Sama Alana Abdulla Vs. State of Gujarat8. In the said decision this court lays down the legal
principle that merely because the police
witnesses have spoken about the search and the
seizure of documents from the custody of the
appellant, their version cannot be disbelieved as
the independent witnesses have not supported the
search and the seizure of the documents. The
observations made by this Court in the above
referred case are applied to the facts of the
case in hand to accept the proof of search and
seizure of the documents from the house of the
appellant which are very important and sensitive
for the integrity and security of the Nation. The
said conclusions arrived at by the learned
sessions judge and concurrence of the same by the
High Court cannot be termed as erroneous in law
as contended by learned counsel on behalf of the
appellant. Therefore, the finding recorded by
8 AIR 1996 SC 569
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both the courts below regarding search and
seizure of the documents which affect the
integrity and security of the country is the
concurrent finding of fact rightly recorded by
the High Court after proper appreciation and
appraisal of the evidence on record. The same
cannot be interfered with by this Court in
exercise of its jurisdiction. Even if the
search is made by the Investigating Officer in
illegal manner, the same does not affect the
legality of the search and investigation made by
the Investigating Officer with regard to the
seizure of the documents from the house of the
appellant in view of the law laid down by this
Court in the above case. From the evidence
produced by the prosecution in the case in hand,
it is clear that the documents of strategic
importance to the Nation have been recovered from
the possession of the appellant and other accused
and they have failed to give satisfactory
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explanation about the documents being in their
possession.
23. The learned sessions judge has rightly
disbelieved the contentions urged on behalf of
the appellant that Ex. D-3 was recovered from the
possession of the accused Mohd. Ishfaq as stated
by the prosecution witness Om Prakash PW-2 the
owner of the Guest House. Recovery of the said
document from the house of Safi Mohd. is proved
by the prosecution is the finding of fact which
is accepted by the High Court based on recovery
memo Ex.P-28. The independent witness to prove
the memo is one Om Prakash Rathi PW-2, besides,
the evidence of the said witness, Ram Dass Rathi
PW-5 who has stated in his evidence that Ex. D-3
was recovered from the Railway quarter of Safi
Mohd. the appellant herein.
24. Om Prakash Rathi PW-2 has clearly stated in
his statement that he had read the memo Ex.P-22
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before putting his signature from A to B. Non-
mentioning of Ex. D-3 belies his evidence that D-
3 was recovered from Mohd Ishfaq from the guest
house. PW-5 and PW-6 the other recovery witnesses
have not stated in their evidence with certainty
that Ex D-3 was recovered from the possession of
the Mohd. Ishfaq from his bag. Further, he has
spoken about recovery of the document mentioning
Ex.D-3 recovery memo which was prepared in his
presence and the police sealed the recovery
documents. In view of the aforesaid statement of
evidence of the above witnesses the evidence of
PW-2, the contention that Ex.D-3 map was
recovered from the possession of Mohd. Ishfaq was
rightly rejected by the learned sessions judge
and the High Court. Apart from the said findings,
the prosecution witness PW-7 ASM of Parihari
Railway Station has stated that the house of ASM
Safi Mohd. is not at Jetha Chanana. He was
allotted a railway quarter and ASM Safi Mohd. had
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moved to this house with his family in 1989. In
the said quarter the search was conducted by the
Investigating Officer and certain documents were
seized including Ex.D-3 from possession of the
appellant is the finding of fact recorded by the
trial judge which is rightly concurred with by
the High Court after re-appreciation of evidence
on record in the Appeal filed by the appellant.
25. In the impugned judgment learned sessions
judge has referred to the evidence of PW-27 and
PW-32 and opined that the documents particularly
Ex. D-3 seized from the possession of the
appellant be sent for their opinion as to whether
the said document if reaches the Pakistani
officials would be dangerous to the security and
integrity of the Nation. After careful
consideration of the document they have opined
that on basis of information available in the
said document that, if Pakistan officials want to
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destroy the country by air attack it would become
easier.
26. The learned sessions judge being the trial
judge is competent to appreciate the evidence and
had the opportunity to observe demeanour of the
witnesses who have deposed before him to prove
the prosecution case. Merely because the
independent witnesses have turned hostile, the
other police witnesses’ evidence cannot be
disbelieved by the courts below to record a
finding on the charge as has been done by the
trial court by rightly placing reliance upon the
judgment of this court referred to supra, he has
come to the right conclusion by accepting the
evidence of police witnesses PW-21, PW-22 with
regard to the conduct of the search and seizure
of documents from the house of the appellant and
recorded the finding to this effect by assigning
valid and cogent reasons in his judgment. He had
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rightly come to the conclusion on the fact while
recording the finding on the charge on the basis
of evidence of PW-27 and PW-32 who have opined
that if the said document and information
contained therein is made available to the
Pakistani officials it will be dangerous to the
integrity and security of the Nation.
27. The contentions urged by the learned counsel
on behalf of the appellant that PW-27 and PW-32
are not expert witnesses in terms of Section 45
of the Evidence Act by placing reliance upon the
decisions of this Court referred to supra are
mis-placed and they do not support the case of
defence for the reason that the learned sessions
judge after careful scrutiny of the ocular
evidence and the written submission has rightly
come to the correct conclusion about the said
document seized from the appellant. The said
finding and reasons recorded by the learned
sessions judge in his judgment on the charge
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Crl.A.No.1954 of 2009
framed against the appellant has been re-examined
by the High Court by applying its mind
consciously and concurred with the said finding
of fact by assigning valid reasons. Therefore,
the same cannot be termed erroneous in law on the
grounds urged by the learned counsel for the
appellant and interfered with by this Court in
exercise of its jurisdiction by placing reliance
upon the decision of this Court referred to supra
as they are mis-placed and do not support the
case of the appellant.
28. In our considered view both the learned
sessions judge and the High Court, on proper
appreciation and re-appreciation of evidence on
record, after considering the arguments advanced
on behalf of the defence have arrived at the
correct conclusion. The High Court has carefully
considered the arguments advanced on behalf of
the appellant and recorded its findings on the
charge with reasons.
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29. For the foregoing reasons, we are of the view
that this is not a fit case for our interference
with the impugned judgment having regard to the
nature of charges made against the appellant
under Sections 3, 9 and 5 of the Act as he is
found to be guilty along with other accused
persons and rightly convicted and sentenced them
for seven years rigorous imprisonment. The appeal
is devoid of merit and is liable to be dismissed
and is accordingly dismissed.
…………………………………………………………J. [CHANDRAMAULI KR. PRASAD]
…………………………………………………………J. [V. GOPALA GOWDA]
New Delhi, April 17, 2013.
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