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PETITIONER: SAMA ALANA ABDULLA

       Vs.

RESPONDENT: THE STATE OF GUJARAT

DATE OF JUDGMENT16/11/1995

BENCH: NANAVATI G.T. (J) BENCH: NANAVATI G.T. (J) MUKHERJEE M.K. (J)

CITATION:  1996 AIR  569            1996 SCC  (1) 427  1995 SCALE  (6)407

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI,J.      This appeal  is directed against the judgment and order dated 13.8.1991,  passed by  the High  Court of  Gujarat  in Criminal Appeal  No.147 of  1990. The High Court allowed the appeal, set  aside the  acquittal of  the appellant (accused No.1) by  the learned  Sessions Judge,  Kuchchh, in Sessions Case No.62  of 1988  and  convicted  him  for  the  offences punishable under sections 3(1)(a) and 3(1)(c) both read with section 9  and also under section 10 of the Official Secrets Act, 1923 (hereinafter referred to as the ’Act’).      Rayna Alimohamad  Hothi (accused  No.2) was  also tried along with  the appellant but it is not necessary to mention the facts  relating to  him as  he has  not  challenged  his conviction.      On 2.6.1986  Rayna (accused  No.2) was  arrested  while crossing the  Indian Border  along with  two other Pakistani nationals. During  interrogation it  was revealed that since about 4  years they  used  to  come  to  India,  meet  Alana (accused No.1)  and two  other Indian  nationals and  obtain information useful to Pakistani intelligence.      Therefore, on  4.7.1986, Police  Inspector B.B. Dwivedi obtained  warrants  under  section  11(2)  of  the  Act  for searching houses  of the said three Indian nationals. Police Inspector B.B.Dwivedi  and the  raiding party first searched the residence  of Rayna  Sahab but  nothing was  found. Then they searched the house of the appellant and found therefrom a map  (Ex.66) prepared  by the BSF, showing a section of an underground pipe-line  constructed for  carrying water  from Bhuj to  Khavda Border for the Army and BSF personnel. As he was found  involved in  collecting and/or obtaining a map of the type  referred to  in section  3(1)(c) and supplying the same to  the said  Pakistani nationals  who were involved in the activity  of spying  and as  was also  found  harbouring accused No.2  he was  charged and tried for the offences for

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which he has now been convicted.      In order  to prove the recovery of map (Ex.66) from the house of  the appellant,  the prosecution  examined a  panch witness in whose presence the said map was recovered and the two Police  Officers who  were the  members of  the  raiding party, namely,  Police Inspector  B.B.  Dwivedi  and  P.S.I. Gohil. The  panch witness  did not  support the prosecution. The learned Sessions Judge therefore held that though it was proved that  the house  in question belongs to the appellant the evidence of the Police Officers alone was not sufficient to prove  that the map (Ex.66) was found from that house. He also held  that as  the prosecution has failed to prove that the said map is a secret document no offence under section 3 can be  said  to  have  been  committed  by  the  appellant. Therefore,  the   learned  Sessions   Judge  acquitted   the appellant and  also accused  No.2 who  was tried  along with him. In  appeal, the  High Court  held that for establishing the offence  under section  3 it  was not  necessary for the prosecution to  prove that the map is a secret document. The High Court also held that from the evidence on record it can safely be  said that the map was found from the house of the appellant and  that he  was consciously possessing the same. The High  Court believed that the appellant had obtained the map with  a view  to help  accused No.2  who was  engaged in spying for  Pakistan. The High Court therefore convicted the appellant as stated above.      Two questions  arise for  consideration in this appeal. The  first  is:  whether  the  map(Ex.66)  was  obtained  or collected by  the appellant?  The other question is: whether the High Court was right in holding that it is not necessary for a  conviction under  section 3(1)(c) of the Act that the sketch,  plan   etc.  should   be  a  secret  document?  The contention raised  on behalf of the appellant is that out of the prosecution  witnesses examined for proving that the map was recovered  from the house of the appellant Panch witness Praful  Kumar(PW.5)   did  not   support  the   prosecution. P.C.Sajan(PW.1), P.C.Jasuba(PW.2)  and H.C.Lachia(PW.3)  who have deposed about recovery of the map from the house of the appellant were standing outside the house and therefore they could not  have witnessed  what happened  inside the  house. Only P.I.  B.B.Dwivedi and P.S.I. Gohil have stated that the map was  found from  the house  from a  tin trunk  kept on a cupboard. Therefore,  in  the  absence  of  any  independent evidence the  High Court  ought not  to have  held that  the appellant was  in  conscious  possession  of  the  said  map particularly when at the time of the raid he was not present in the  house.  In  support  of  the  submissions  that  the evidence of  P.I. Dwivedi  and P.S.I.  Gohil should  not  be regarded as  sufficient it  was also submitted that they had taken two  persons of  Bhuj as  Panchas to  witness the raid instead of  taking independent  witnesses from  the locality i.e. village  Nana Dinara  and thus it becomes apparent that they were  selected Panch  witnesses and  therefore to  that extent the investigation was not fair and impartial. We find from the evidence that the prosecution has explained why the Panch witnesses  were taken  from Bhuj  and  not  from  Nana Dinara. The  reason given  by the  prosecution that  village Nana Dinara  where the  raid was  to be  carried out being a small village  and inhabited  mostly  by  relations  of  the appellant  it   would  have   been  difficult   to  find  an independent witness from that place was considered and found acceptable by  the High Court. Even on close scrutiny of the evidence of  P.I. Dwivedi and P.S.I. Gohil, we see no reason to disbelieve  this explanation.  It cannot,  therefore,  be said that  the investigation  was  not  fair  and  therefore

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independent corroboration  was  necessary.  As  nothing  was found from  the house of Rayna Sahab no complaint was lodged against him.  P.I. Dwivedi  had no reason to falsely involve the appellant  if really  no map  was found  from his house. Again their  evidence cannot  be rejected only on the ground that they  are police  witnesses and  were  members  of  the raiding party.  Their evidence  receives corroboration  from the Panchanama(Ex.24).  It may  be  stated  that  the  other Pancha witness  could not  be examined  by  the  prosecution because  he   had  expired  before  his  evidence  could  be recorded. In  this connection,  it may  also  be  said  that Abdulla(PW.4) father  of the  appellant has  stated  in  his evidence that  his son was working as a source for Pakistani intelligence and that he had gone to Pakistan once or twice. The evidence discloses that the house from which the map was found belongs  to the  appellant. The  maner in which it was concealed indicates  that the  appellant  was  in  conscious possession of  the same.  As no explanation has been offered by the  appellant for  possession of  the map  it has  to be presumed, as  required by  section 3(2) of the Act, that the map was obtained or collected by the appellant for a purpose prejudicial to the safety or interests of the State.      It was  next contended  that the  High Court  has  mis- interpreted section  3(1) (c)  and erroneously held that the sketch, plan,  model, article  or note  or other document or information need  not be  secret for establishing an offence under that  section. In order to appreciate this contention, it is necessary to refer Section 3 which reads 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 pass      word,  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 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." The High  Court held  that the  word ’secret’  in Clause (c) qualifies only  the words  "official code  or pass word" and not "any  sketch, plan,  model, article  or  note  or  other document or information". The reason given by the High Court is that  after the  phrase "any secret official code or pass word", there  is a  comma  and  what  follows  is  thus  not intended to  be qualified by the word ’secret’. The Calcutta High Court  in Sunil  Ranjan Das  vs. The State 77, Calcutta Weekly Note  P.106 has also taken the same view. It has held that  the  word  ’secret’  in  the  said  section  qualifies official code  or pass word and not any sketch, plan, model, article or  note or  other document  or information. This is clear from the comma and the word ’or’ which comes after the word ’password’.      In our  opinion, the  view taken  by the  Gujarat  High

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Court in  this case  and by  the Calcutta  High Court in the case of  Sunil Ranjan  Das is correct. We find that the said interpretation also receives support from sub-section (2) of section 3. 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 information relating to or  used in any prohibited place, or relating to anything in such  a place, or any secret official code or password is made,   obtained,    collected,   recorded,   published   or communicated". From  the way  the said sub-section is worded it becomes  apparent that  the qualifying  word ’secret’ has been used  only with  respect to  or in relation to official code or password and the legislature did not intend that the sketch, plan,  model, article, note, document or information should also  be secret.  As we  do not find any substance in the second  contention raised  on behalf of the appellant it is also  rejected. In  the result,  the appeal  fails and is dismissed.