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CASE NO.: Appeal (crl.)  248 of 2003

PETITIONER: The Government of N.C.T. of Delhi                                       

RESPONDENT: Jaspal Singh                                                            

DATE OF JUDGMENT: 08/08/2003

BENCH: Doraiswamy Raju & H. K. Sema.                   

JUDGMENT:

J U D G M E N T

D. Raju, J.

       Four persons, including the respondent Jaspal Singh, were proceeded  against pursuant to an FIR bearing No.237/83 registered on 10.11.83 and after  concluding the investigation, the following four persons stood charged for facing  trial before the Addl. Sessions Judge, New Delhi, in sessions case No.33 of  1984:

1.      Maj. Genl. (retd) F.D. Lerkins, New Delhi, s/o Late H.D. Larkins 2.      A.V.M. (retd) K.M. Larkins, Lucknow (U.P.), s/o Late H.D. Larkins 3.      Lt. Col. (retd) Jasbir Singh, New Delhi, s/o Shri Ranbir Singh 4.      Jaspal Singh Gill @ Jassi Gill, New Delhi, s/o Late Kartar Singh

All of them stood charged for offences under Sections 3, 5 and 9 of the  Official Secrets Act, 1923 (for short "the Act") and also under Section 120B of the  Indian Penal Code (for short "IPC").  That apart, in sessions case No.31 of 1984  the accused No.1 above stood further charged under Section 61 of the Punjab  Excise Act, as extended to Delhi, and in Sessions case No.32 of 1984 he was  also charged under Section 25 of the Arms Act.

Since, the evidence in all the above cases were considered to be common  they were tried together for recording evidence, too, though it was said to have  been recorded in S.C. No.33 of 1984.  On behalf of the prosecution, PWs 1 to 60  seem to have been examined besides, marking various documents as exhibits.   On the side of the defence, six persons, in all seem to have been examined by  the different accused.  The accused were also examined under Section 313  Cr.P.C.  After considering all the materials on record, the learned Trial Judge in  an elaborate judgment dated 24.7.1985 convicted them and imposed sentence  as hereunder: Accused Conviction U/s Sentence imposed Accused No.1 a) Sec.3 (c) of the Official  Secrets Act, 1927.  b) Sec.5(b) of the Official  Secrets Act, 1927. c) Section 120B IPC

d) Section 25 of the Arms  Act  

e) Section 61(i) (a) of  Punjab Excise Act, as  extended to Delhi.

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10 years R.I.

2 years R.I.

2 years R.I. with fine of  Rs.1000/- (3 months SI in  default) 2 years R.I. with fine of  Rs.2000/- (6 months S.I.  in default) 1 years R.I. with fine of  Rs.3000/- (5 months S.I.  in default) Accused No.2 a) Sec.3(c) of the Official  Secrets Act, 1927. b) Section 120B IPC 10 years R.I. 2 years S.I. with fine of  Rs.1000/- (3 months SI in  default)

Accused No.3 a) Sec.3 (c) of the Official  Secrets Act, 1927.  b) Sec.5(3) of the Official  Secrets Act, 1927.

c) Section 120B IPC

d) Section 6(1)(d) of the  Official Secrets Act,  1927.

10 years R.I.

2 years R.I. with fine of  Rs.1000/- (3 months S.I.  in default) 2 years S.I. with fine of  Rs.1000/- (3 months SI in  default) 3 years R.I. with fine of  Rs.1000/- (3 months S.I.  in default)

Accused No.4 a) Sec.3 (c) of the Official  Secrets Act, 1927.  b) Section 120B IPC

2 years R.I.

2 years S.I. with fine of  Rs.1000/- (3 months SI in  default)

       (All substantive sentences were ordered to run concurrently)

       The above accused filed appeals against the same in Crl. Appeal Nos.  185 of 1985, Crl. Appeal No.214 of 1985, Crl. Appeal No.202 of 1985 and Crl.  Appeal No.175 of 1985, respectively.  A learned Single Judge of the High Court  of New Delhi, by his judgment dated 30.4.2001, while affirming the conviction  and sentence imposed on accused No.1 and accused No.2, dismissed Crl.

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Appeal Nos. 185 and 214 of 1985 respectively filed by them.  So far as accused  No.3 and accused No.4 are concerned, the learned single Judge, did not choose  to agree with the decision of the learned Trial Judge and while allowing their  appeals set aside their conviction and sentence imposed therefor and acquitted  them.  Not satisfied, the Government of National Capital Territory filed SLP  Nos.3928-3929 of 2002 and after leave was granted the appeals were  entertained as Crl. Appeal Nos.247 and 248 of 2003.  The respondent in Crl.  Appeal No.247 of 2003 (accused No.3) was reported dead on 26.2.2003  resulting in the abatement of the said appeal, leaving only the appeal filed in Crl.  Appeal No.248 of 2003 in respect of the acquittal of accused No.4 by the High  Court for consideration.

       On behalf of the appellant-State, it was contended that the reversal of the  conviction of the respondent was under a gross misdirection on the part of the  learned Single Judge in the High Court and misconstruction of the scope of  Sections 10 and 30 of the Indian Evidence Act, 1872.  It was also urged that the  High Court in acquitting the respondent overlooked vital material firmly  connecting the respondent with the other conspirators resulting in grave and  manifest error and injustice and, therefore, this court must restore the judgment  of the learned trial Judge, by setting aside the decision of the High Court.  It was  further contended that the materials on record, so far as the respondent (accused  No.4) is concerned, themselves sufficiently substantiated the case against him  and the High Court ought not to have interfered with the well merited conviction  of the respondent.  In support thereof, our attention has been invited to the  judgments of the courts below in great detail and to the relevant materials on  record.

       Per contra, on behalf of the respondent (accused No.4), the learned senior  counsel contended that the findings of acquittal recorded in favour of the  respondent is based upon sound reasoning and correct understanding and  appreciation of law and, therefore, no interference is warranted in this appeal  filed under Article 136 of the Constitution of India.  While elaborating those  aspects, it was urged that the confession or admissions of a co-accused are not  admissible as substantive evidence against the others, than the maker himself  and in the light of doubts about the manner of recovery of the defence Telephone  Directory (Ex.PW14/A) the acquittal was fully justified.  According to the  respondent, the necessary ingredients of Section 3(I)(c) of the Act have not been  satisfactorily proved against him and as long as the conclusions of the High  Court are equally reasonably possible and not found to be perverse or  unreasonable, no interference is called for in this appeal.  The conviction of the  accused No.4-respondent was said to have been on mere suspicion and the  charge under Section 120B also was said to have been not proved properly.   Finally, it has been urged that out of the sentence of 2 years RI imposed the  respondent having already served under custody 18 months and 24 days, there  is no justification to send him back to prison and there is justification for  consideration of the question relating to the quantum of sentence, in favour of the  respondent.

       We have carefully considered the submissions of the learned counsel  appearing on either side.  There is no such general rule as that, this court in an  appeal cannot interfere with the opinion of the High Court, though the scope and  reasons for such interference may vary from cases otherwise coming by way of a  regular appeal.  Though this Court does not convert itself into a court to review  the evidence for a third time by grant of special leave, where the High Court is  shown to have completely failed in appreciating the true effect of the materials  brought on record and its findings are erroneous, perverse and result in  miscarriage of justice, the Supreme Court will have no hesitation to interfere, all  the more so when the High Court has chosen to reverse a verdict of conviction  recorded by the learned Trial Judge, under a total misconception of the principles  of law as well as the vital and essential facts proved.

       So far as the scope of Section 3(1) (c) of the Act is concerned, it was  urged for the respondent that unless the articles enumerated are shown to be  ’secret’ document or material and that besides their collection they were  published or communicated to any other person, the charge under the said

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provision could not said to have been made out.  Apparently, the inspiration for  such a submission was the judgment of a learned Single Judge of the Bombay  High Court reported in State of Maharashtra vs. B.K. Subba Rao & Another  (1993 Crl.L. J. 2984).  We are unable to agree with this extreme submission on  behalf of the respondent. This Court in Sama Alana Abdulla vs. State of  Gujarat [(1996) 1 SCC 427] had held: (a) that the word ’secret’ in clause (c) of  sub-section (1) of Section 3 qualified official code or password and not any  sketch, plan, model, article or note or other document or information and (b)  when the accused was found in conscious possession of the material (map â\200\223 in  that case) and no plausible explanation has been given for its possession, it has  to be presumed as required by Section 3(2) of the Act that the same was  obtained or collected by the appellant for a purpose prejudicial to the safety or  interests of the State.  Further, each one of the several acts enumerated in  clause (c) of sub-section (1) of Section 3 of the Act, by themselves will constitute,  individually, an offending act to attract the said provision and it is not necessary  that only one or more of them and particularly publishing or communication of the  same need be conjointly proved for convicting one charged with the offence of  obtaining or collecting records or secret official code or password or any sketch,  plan, model, article or note or other document or information.  Any such  interpretation would not only amount to doing violence to the language, scheme  underlying and the very object of the said provision besides rendering otiose or a  dead letter the specific provision engrafted in sub-section (2) of Section 3 of the  Act.  In view of this, the decision of the Single Judge of the High Court in 1993  Crl. L. J. 2984 (supra) cannot be said to lay down the correct position of law on  the scope of Section 3(1)(c) of the Act.  

       The submissions on behalf of the parties on either side on either the  relevance, efficacy and reliability of the confessional statements of the 1st  Accused or principles underlying Sections 10 and 30 of the Indian Evidence Act  1872, next falls for consideration.  No doubt, in law the confession of a co- accused cannot be treated as substantive evidence to convict, other than the  maker of it, on the evidentiary value of it alone.  But, it has often been reiterated  that if on the basis of the consideration of other evidence on record the Court is  inclined to accept the other evidence, but not prepared to act on such evidence  alone, the confession of a co-accused can be pressed into service to fortify its  belief to act on it also.  Once there are sufficient materials to reasonably believe  that there was concert and connexion between persons charged with a common  design â\200\223 it is immaterial as to whether they were strangers to each other or  ignorant of the actual role of each of them or that they did not perform any one or  more of such acts by joint efforts in unison.  Section 30 of the Indian Evidence  Act envisages that when more than one person are being tried jointly for the  same offence and a confession made by one of such persons is found to affect  the maker and some other of such persons and stand sufficiently proved, the  Court can take into consideration such confession as against such other person  as well as against the person who made such confession.  This is what exactly  seems to have been done by the learned Trial Judge, particularly in the context  of sufficient material available to also directly involve A-3 and A-4 in the common  design of collecting materials relating to Army activities or defense secrets.  The  learned Judge in the High Court not only misconstrued the relevant principles of  law but also is found to have gone amiss totally to the relevant and vital aspects  of the materials and appears to have arrived at conclusions patently against  weight of evidence, resulting in grave miscarriage of justice.  The decision in  Natwarlal Sakarlal Mody Vs. The State of Bombay [(1961) 65 Bom. L.R. 660  (SC)] was in the context of the need for joint trial claimed by the State of cases  involving distinct acts/offences of criminal conspiracy against several accused  and does not even otherwise in any manner lend support to the plea made on  behalf of the respondent.

       So far as the charge under Section 120-B, IPC, is concerned, it stands  proved by showing that two or more persons have agreed to do or cause to do  an illegal act or an act which is not illegal by illegal means and that some overt  act was done by one of the accused in pursuance of the same.  Where their  common object or design is itself to do an unlawful act, the specification of such  act itself which formed their common design would suffice and it would even be  unnecessary or super flows to further substantiate the means adopted by all or

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any of them to achieve such object.  All the more so, when their common object  or design appear to be to commit series of such serious crimes and proof of any  overt act in such cases also is a mere surplus age and that mere proof that they  or some of them were concerned in the overt acts alleged would, per se, go a  long way to establish that there existed such agreement among them.  It is well  known and as observed by this Court in Baburao Bajirao Patil Vs. State of  Mahrasthra [(1971) 3 SCC 432], "â\200¦â\200¦indeed it is seldom â\200\223 if ever â\200\223  that direct   evidence of conspiracies can be forthcoming.   Conspiracy of the present type  from its very nature must be conceived and hatched in complete secrecy, for  otherwise the whole purpose would fail."  This Court further, after adverting to the  decisions reported in Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar  [1964 (6) SCR 623] and Hanumant Vs. State of M.P. [1952 SCR 1091] heavily  relied upon for the accused therein, observed as hereunder:-       

"In a case of conspiracy in which only circumstantial  evidence is forthcoming, when the broad features are  proved by trustworthy evidence connecting all the  links of a complete chain, then on isolated events the  confessional statements of the co-accused lending  assurance to the conclusions of the court can be  considered as relevant material and the principle laid  down in Haricharan Kurmi (supra) would not vitiate  the proceedings."

       This Court, in Mohamad Usman Mohamad Hussain Maniyar & Anr. Vs.  State of Maharashtra [AIR 1981 SC 1062], held at page 1067 as follows:-

"It is true that there is no evidence of any express  agreement between the appellants to do or cause to  be done the illegal act.  For an offence under Section  120-B the prosecution need not necessarily prove that  the perpetrators expressly agreed to do or cause to  be done the illegal act; the agreement may be proved  by necessary implication.  In this case, the fact that  the appellants were possessing and selling explosive  substances without a valid licence for a pretty long  time leads to the inference that they agreed to do  and/or cause to be done the said illegal act, for,  without such an agreement the act could not have  been done for such a long time."

       The learned Judge in the High Court seems to have committed grave error  in completely overlooking such well settled principles and omitting to draw the  necessary and reasonable conclusions flowing from the clinching and trustworthy  evidence produced which sufficiently proved the guilt of the respondent, as rightly  concluded by the learned trial Judge.  As against the elaborate consideration of  the roles of each one of the accused, operating as well knit group aimed at  collecting vital data relating to militancy affairs and defence matters pertaining to  the Government of India and communicating and passing on of such  documents/information to the foreign U.S. Intelligent â\200\223 60 operators working at  New Delhi, during the period between January 1978 and November 1983, the  consideration by the High Court was summary and perfunctory as well.  So far as  respondent-A4 is concerned, the Defence Telephone Director (Ex.PW.14), a  classified document restricted for use, was recovered from the premises No.82,  Sunder Nagar, which admittedly was being used by A-4 for his residence and  business in running M/s Emge International.  There is sufficient evidence on  record to prove that this Directory was issued to PW-14 in the year 1981 and A-3  used to now and then visit and use the same with the permission of PW-14, that  thereafter it was missing from PW-14 and ultimately found in the wooden Almirah  in the House of A-4.  That apart, PW-49 seems to have deposed that A-4 himself  opened the wooden Almirah with a key and therefrom took out Ext.PW.14/A from  inside.  This was found to be corroborated by the evidence of PWs-25, 57 and 56  as well.  The other documents, which were also recovered from the wooden  Almirah such as Invitation and Visiting Cards detailed in Ext.PW.25/D, were

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found to be indicative of his contact and communion with foreign agents in India.   Though, the respondent would deny all such, there is no reason to doubt the  clinching, truthful and cogent evidence of all such persons and such materials in  the context of his links with the other accused were found to sufficiently prove  that A-4 was also a party to the common design of A-1 and A-2, who stood not  only convicted by the Trial Court but whose conviction was also affirmed by the  very learned Judge in the High Court.  The decision reported in Maharaj  Prithvisinghji Bhimsinghji Vs. State of Bombay [1960 Crl. L. J. 672], as to  possession and knowledge of existence, has no relevance or application to the  facts of the case, since in the present case it has been proved not only to have  been recovered from the house of A-4 but it was he who opened the Almirah with  a key and made available the Directory and other Cards and invitation from out of  it.  It is too much for the learned Judge in the High Court to expect that each one  of them should have played identical roles and been parties to all events and  happenings, at all stages and times.  In such circumstances, there can be no  impediment for the Court to reinforce its satisfaction of guilt of A-4 by referring to  the confession of other co-accused as well.  It is this misdirection as to the  required legal norms and extent of proof that misled the High Court in the  ultimate conclusions to be drawn.   

       When so much of solid proof was available as to his possession, a  restricted document prohibited for the general use of others and the information  contained therein is not to be communicated directly or indirectly to the press or  to any person not holding any official position in the Government for the reason  that it contained the names, number of fields formation and units of each  individual officer they being also sensitive information from the defence point of  view of the country, no further proof is required and his possession sufficiently  substantiates that he or somebody on his behalf obtained or collected it for him.   The mode of consideration and method of proof in a case like this, cannot be on  the lines of a crime under the provisions of IPC inasmuch as sub-section (2) of  Section 3 and Section 4 of the Act engrafts the statutory presumptions to be  drawn from the facts and that this would make all the difference in the nature of  consideration required in respect of offences committed under the Official  Secrets Act, 1923 and the criminal conspiracies relating to such offences, be it  punishable under Section 120-B, IPC.  For all the reasons stated above, we are  satisfied that the Verdict of Acquittal recorded by the High Court in favour of A-4,  by way of reversal, suffers patent error of law and perversity of approach and  consequently require to be set aside.  We, accordingly, set aside the judgment of  the High Court, so far as the acquittal of respondent A-4, by allowing Crl. Appeal  No.248 of 2003 and restore the judgment of learned Additional Sessions Judge,  New Delhi, convicting him for offences under Section 3(1) (c) of Official Secrets  Act, 1923 and Section 120-B, IPC.    

       So far as the quantum of punishment is concerned, though having regard  to the nature and character of the offences, stringent punishment is required, we  consider it unnecessary to send the respondent A-4 once again to suffer  imprisonment having been set at large already and taking into account the period  already spent by him under custody.  Though, on behalf of the respondent it is  claimed that he was under custody for one year, 6 months and 24 days, keeping  in view the sentence of two years R.I. imposed by the learned Trial Judge and  the fact that even as per the memo filed by the appellant-State the period spent  already under custody was one year, six months and 20 days, we modify the  sentence of two years each already imposed by the Trial Court under Section  3(1) (c) of the Official Secrets Act, 1923 and Section 120-B, IPC, to the sentence  already undergone by him.  The fine imposed remains unaltered.  Appeal  allowed, subject to the modification of the sentence of imprisonment alone, as  above.