espionage case mumbai-judgement

7/28/2019 Espionage Case Mumbai-Judgement

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1 Oral Judgment in S.C. No.22/12

Exhibit No.174

IN THE COURT OF SESSIONS FOR GREATER BOMBAY

SESSIONS CASE NO.22 OF 2012

(C.C. No.3700195/PW/2011)

The State of Maharashtra(Through DCB, CID-CIU (OP), Mumbaiin C.R.No.114/2010) ... Complainant

Versus

1. Javed Abdul Gafoor MozawalaAge 30 years, Residing atRoom No.103, Building No.1,Infinity Towers,Shivdas Chapsi Marg,Mazgaon, Mumbai. ... Accused

CORAM : HER HONOUR THE ADDL. SESSIONS JUDGE,V.V. JOSHI (COURT ROOM NO.29)

DATED : 15th JULY, 2013.

Learned SPP Shri Shetty for the State.Learned Advocate Shri Abdul Wahab Khan for the accused.

ORAL JUDGMENT

1. The accused Javed Abdul Gafoor Mozawala is facing the

charges for spying for Pakistan that he was in possession of

documents such as secret official record in respect of Defence

Establishment, which is directly or indirectly useful to enemy and

abeted the commission of offence with supporting of wanted

accused Abdul Latif @ Bhatti punishable under Section 120-B of the

Indian Penal Code, 1860 (hereinafter will be referred to as the "IPC"

for short) and Sections 3(1)(C), 4 and Section 9 of the Official Secrets

Act, 1923.


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2. The brief facts of the prosecution case are as under :

The Police Sub Inspector Shri Rodrigues attached toDCB, CID CIU (OP), Mumbai received the information on 7.12.2010

from the informant that one Zaved Abdul Gafoor Mozawala,

resident of Room No.103, Building No.1, Infinity Towers, Shivdas

Chapsi Marg, Mazgaon, Mumbai, is supplying the secret

information in respect of Defence Establishments, to officers of

Pakistan High Commission, Delhi. He is working for Pakistan High

Commission, Delhi. After receiving this information, Zaved Abdul

Gafoor Mozawala disclosed it to Senior Police Inspector Shri

Sandbhor and both of them went to the Assistant Commissioner of

Police Shri Duraphe and informed about said information. ACP Shri

Duraphe gave instructions to Mr. Rodrigues to confirm the news.

Thereafter, Mr. Rodrigues alongwith Police Constable Shri Malusure

went to the Infinity Tower to verify the information about JavedAbdul Gafoor Mozawala. After visiting the place, it was informed

that said Zaved Abdul Gafoor Mozawala is residing at Infinity Tower

alongwith his wife and two daughters. He disclosed this fact to ACP

Shri Duraphe and Shri Duraphe has directed him to take the search

of the house of Zaved Abdul Gafoor Mozawala in presence of panch

witnesses.

3. On 8.12.2010, the Police Inspector Shri Sandbhor, API

Shri Deshmukh, Head Constable Shri Naik, one Lady Constable and

two panch witnesses formed the raiding party and went to the

house of the accused about 10.50 a.m. The door of the house was

opened by the wife of accused. At that time, the accused was


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sleeping in the bed room. The members of raiding party introduced

themselves and disclosed their purpose. The accused was sleeping

in the bed room. After seeking permission, the members of raiding

party entered into the bed room of accused and brought him in the

hall. The Senior PI inquired about him and they informed about

their visit. They took the search of the house of accused. They

seized some articles from his house viz. 21 photographs, directory

and printed material containing 8 pages, which was about 5th

lesson means of communication, transportation and 13 passportsalongwith Visa applications. They also seized the Floopy, Compact

Disc and Pen Drive from the house of accused. They took the

accused and seized articles in CIU Unit. Thereafter, Mr. Sawant

recorded the complaint of PSI Shri Rodrigues and FIR was lodged in

Byculla Police Station bearing Crime No. 114/10 for the offences

punishable under Section 120-B of the IPC and Sections 3(1)(C), 4

and Section 9 of the Official Secrets Act, 1923. The work of

investigation was entrusted to API Shri Ajay Kashaba Sawant. He

has conducted the investigation and after completion of

investigation, the Investigating Officer (hereinafter will be referred

to as the "I.O." for short) has filed charge sheet in the Additional

Chief Metropolitan Magistrate, 37th Esplanade Court, Mumbai.

4. The Learned Addl. C.M.M. Court after compliance of

Section 207 of the Cr.P.C., committed the case to the Court of

Sessions, Mumbai by its order dated 15.12.2011 under Section 209 of

the Cr.P.C., as the offences punishable under Section 120-B of the

IPC, Sections 3(1)(C), 4 and Section 9 of the Official Secrets Act are

exclusively triable by the Court of Sessions. Then it was made over


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to this Court for trial.

5. The accused appeared before the Court and he abjuredthe guilt. My Learned Predecessor Shri Bhillare has framed the

Charge below Exhibit-7. The contents of charge were explained to

the accused and he pleaded not guilty and claimed to be tried. The

accused has examined himself and two more witnesses. The

statement of accused under Section 313 of the Cr.P.C. is recorded.

6. After going through the record, the statements at bar andthe evidence available on record, the following points arose for my

determination and I recorded my findings and reason for the same

as under :

Sr.No. Points Findings

1. Whether the prosecution has proved that

during the period from 2007 to 2010 the

accused was handing over official secret

documents to wanted accused Abdul Latif

Bhatti @ Jamal, which is an illegal act and

thereby collected the secret documents

regarding the Defence Establishments of the

Sovereign India and the act was done inpursuance of the agreement and that thereby

committed offence punishable U/s 120-B of

the IPC ?

InNegative


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Sr.No. Points Findings


during the abovesaid period, the accused

for the purpose of prejudicial to the safety

or interest of the State having obtained/

collected record i.e. secret official record in

respect of Defence Establishments and the

information, which is calculated to be or

might be or is intended to be directly orindirectly useful to an enemy and that

thereby committed offence punishable U/s

3(1)(C) of the Official Secrets Act?

In

Affirmative


during the abovesaid period, the accused

has attempted to commit or abet the

commission of offence U/s 3(1)(C) and 4 of

the Official Secrets Act and that thereby

committed offence punishable U/s 9 of the

Official Secrets Act ?

In

Affirmative

4. Whether the prosecution has proved any

offence against the accused?

Offence

U/s 3(1)(C), 4

& 9 of OfficialSecrets Act

5. What Order ? The accusedis convictedas per final

order


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R E A S O N S

7. To bring home the guilt against the accused, theprosecution has examined total 24 witnesses :

1. PW-1, PSI Mr. Wilson Melvin Rodriguesat Exhibit-14.

2. PW-2, Mr. Jahangir Nabijan Khan, the panch witness of

raid at Exhibit-21.

3. PW-3, Mr.Balu Limbaji Bhumkar, the Police person who

has registered the crime against the accused in BycullaPolice Station at Exhibit-27.

4. PW-4, Mr. Fakir Mohammed Mansoor, the independent

witness, to whom the accused used to send to High

Commission of Pakistan Embassy at Exhibit-33.

5 PW-5, Mohd. Haroon Haji Abdul Rehman at Exhibit-36.

6. PW-6, Mohd. Salim Walimohammad Mamdani at

Exhibit-37.

7. PW-7, Mrs. Sabira Mohd. Salim Mamdani at Exhibit-39.

8. PW-8, Mohd. Tahermiya Ahmed Chaiwala at Exhibit-40.

9. PW-9, Suleman Kasam Patel at Exhibit-43.

10. PW-10, Mohammed Salim Ismail Motiwala. at

Exhibit-47.

11. PW-11, API Mr. Deepak Tukaram Sawant at Exhibit-49.

12. PW-12, Nitin Mahadev Yadav, an independent witness,

who has drawn the sketch of wanted accused at

Exhibit-53.

13. PW-13, Ahmed Haji Abdul Rehman Lakdawala at

Exhibit-56.


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14. PW-14, Mahesh Dinkar Paranjape at Exhibit-60.

15. PW-15, Kulsum Abdul Gafoor Mozawalaat Exhibit-62.

16. PW-16, Abdul Hamid Noor Dhiyan at Exhibit-65.

17. PW-17, Krishna Anna Dhamapurkar at Exhibit-66.

18. PW-18, Firoz Ahmed Izaz Ahmed at Exhibit-67.

19. PW-19, Anil Shantiswaroop Bali at Exhibit-75

20. PW-20, Virendrakumar Channanramat Exhibit-79

21. PW-21, DCP Mr. Nissar Pir Mohammed Tamboli, who

has lodged the complaint before the Magistrate Courtafter receiving the authorization from the Government of

India at Exhibit-85.

22. PW-22, Chief Intelligence Officer, Mr. Dnyanoba

Pandurang Chaudharyat Exhibit-22.

23. PW-23, the I.O. API Ajay Khashaba Sawant at Exhibit-91.

24. PW-24, Chief Operation Officer - 14 Corps Aviation Base,

Mr. Vinit Singh Jawla Singh at Exhibit-101.

8. The prosecution has also proved and relied on the

documents such as -

1. Exhibit-15, the House Search Panchanama

2. Exhibit-16, the complaint

3. Exhibit-16A, Printed FIR

4. Exhibit-17 (colly.) Xerox copies of extract of SDE

5. Exhibit-18, Application filed by accused for directing the

Nodal officer of IDEA with regard to CDR of Mobile

numbers.

6. Exhibit-19, Application filed by accused for calling upon


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the prosecution to produce the Laptop

7. Exhibit-20, Application filed by accused for his medical

treatment

8. Exhibit-22, the Panchanama dtd. 15.12.2010 of opening

of the documents in presence of Panch witness

9. Exhibit-23, the Panchanama dtd.9.2.2011 of opening of

the documents in presence of Panch witness

10. Exhibit-26, Application filed by accused for production

of Visitor Book/register11. Exhibit-28, Copy of Station Diary of Byculla Police

Station

12. Exhibit-29, Letter received from Crime Branch to Byculla

Police Station

13. Exhibit-38, Xerox copies of three passports referred

during cross examination of PW-6

14. Exhibit-41, Xerox copies of 5 passports verified from

originals

15. Exhibit-42, the original forms of Pakistan Embassy

16. Exhibit-48, Copy of affidavit

17. Exhibit-50, Certified xerox copy of FIR

18. Exhibit-51,Chargesheet with report

19. Exhibit-52 (colly), Certified copies of Affidavits20. Exhibit-54, Sketch of Salim

21. Exhibit-55, Sketch of Abdul Latif @ Bhatti

22. Exhibit-57, Application filed by accused for seeking

production of a book a record and exhibiting the same

23. Exhibit-58, Advertisement of Al-Rehmand International


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for Pakistan Visa

24. Exhibit-61 (colly.), Reply dtd. 4.2.2011 @ notification

25. Exhibit-63, Signature Portion of PW-15 on Exh.50

26. Exhibit-68, Entry No. 10368 dtd. 15.5.2006 of Javed Abdul

Gafoor

27. Exhibit-69, the contents such as Room No., Number of

persons, Sr. No. in the register @ the date made by PW-16

on xerox copied of PAN Card.

28. Exhibit-70, Entry dtd. 25.3.2007 in the Register29. Exhibit-71, the Entry No.9444 dtd. 22.4.2005 at page 130

in the register

30. Exhibit-72, the Entry No.9794 at Page No.153 in the

register

31. Exhibit-73, The Entry No. 10120 at Page No.175 in the

register

32. Exhibit-74, the Entry No.10282 at Page no.185 in the

register

33. Exhibit-76, Xerox copy of Notification of year 1971

34. Exhibit-77, Office copy of letter dtd. 7.1.2011

35. Exhibit-78, Reply dtd. 11.1.2011 by Outward No.112

36. Exhibit-80, Covering letter dtd. 1.3.2011

37. Exhibit-81, Order No. is 17017/32/2010ISI dtd. 1.3.201138. Exhibit-82, the opinion of Western Naval Command

39. Exhibit-83, the opinion of Head Quarters M.G. & G. area

dtd. 11.1.2011

40. Exhibit-86, Complaint dtd. 5.3.2011

41. Exhibit-88, Letter issued by the Senior police officer of


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Bandra Railway Police Station Mr. Survegandh to Senior

PI Crime Branch CIU on 24.1.2011 vide Outward No.

341/11

42. Exhibit-89 (colly.) Signatures of PW-22 since 21.3.2007 on

case diary of Crime No.3/07

43. Exhibit-90 (colly.) Xerox copies of Case Diary of Crime

No.3/07

44. Exhibit-94, E-mail received from Vodafone Co., Delhi

Desk45. Exhibit-95, Application filed by PW-23 before the

Magistrate

46. Exhibit-96, Application for permission to open sealed

packet before Ld. Magistrate

47. Exhibit-97, Application for permission to open the

sealed packets which were seized from the house of the

accused.

48. Exhibit-98, Letter dtd. 22.12.2010, Outward No.1080 to

Naval Command

49. Exhibit-99 (colly.), two letters to Head Quarters of

Maharashtra, Goa, Gujrat and Colaba, Mumbai dtd.

8.1.2011 Outward No.20 and 21

50. Exhibit-100, application filed by SPP to interpose theWitness PW-24, Mr. Vinit Singh Jawla Singh who was

coming from Leh Ladakh

51. Exhibit-102, Page No. 10 of Article-2 (colly.)

52. Exhibit-103, (Article 37), Letter dtd. 21.1.2011 to Tata

Power @ Two Photographs


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53. Exhibit-104, Letter to Air Force Station Lonavala on

29.12.2010

54. Exhibit-105, Letter dtd. 6.1.2011 to C.A. @ one Pen Drive,

three mobile phone, four CDs and one floopy

55. Exhibit-106, Reminder letter to C.A. on 31.1.2012

56. Exhibit-107 (colly), C.A. Reports

57. Exhibit-108, Office copy of letter dtd. 7.1.2011 vide

Outward No. 19/2011

58. Exhibit-109, Letter received on 8.2.2011 from ProtocolSection of Ministry of External Affairs

59. Exhibit-110, Letter dtd. 29.1.2011 sent to Ministry of

Home Affairs

60. Exhibit-111, Reply on 23.2.2011 through the Additional

C.P. Crime Branch

61. Exhibit-112, Reply from the Air Force Station Lonavala

regarding Six photographs

62. Exhibit-113, Portion marked 'A' in statement of PW-5

63. Exhibit-114, Portion marked 'B' in statement of PW-5

64. Exhibit-115, Portion marked 'C' in statement of PW-5

65. Exhibit-116, Portion marked 'A' in statement of PW-15

66. Exhibit-117, Portion marked 'B' in statement of PW-15

67. Exhibit-118, Portion marked 'A' in statement of PW-768. Exhibit-119, Portion marked 'B' in statement of PW-7

69. Exhibit-120, One Photograph (Article-8 colly.)

70. Exhibit-121, Application by advocate for accused for

forwarding Camera and Memory Card to CFSL

71. Exhibit-122, application filed by SPP to deposit the Sony


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Camera and Memory Card (Article-52)

72. Exhibit-123, Page No.171 of Visitor's Register

73. Exhibit-124, Extract of Computerized copy

74. Exhibit-131, Application to Magistrate by accused

75. Exhibit-133, Article 49

76. Exhibit-133A, Envelope @ Exh.133

77. Exhibit-134(colly.), The order passed by the State

Government and other communication.

78. Exhibit-135,original certificates from Andhra PradeshHaj Committee.

79. Exhibit-136, Envelope.

80. Exhibit-137, Reply to letter of accused

81. Exhibit-138(colly.), (Article 48) the reply received by RTI

Cell Headquarters Southern Command, Pune addressed

to accused and he received it at Arthur Road jail.

82. Exhibit-139, copy which was marked as Article 48 is

received by the accused in Arthur road Jail.

83. Exhibit-140, information received by the Southern

Command office & addressed to the accused at Arthur

Road jail.

84. Exhibit-141, application under RTI Act for C.C.T.V.

footage of the places of the photographs.85. Exhibit-142, The reply received to said application is

addressed to the accused which is received by him at

Arthur Road Jail.

86. Exhibit-143, Reply received by the accused from Thane

Commissioner of Police.


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87. Exhibit-144(colly.) original copies of income tax returns

and bank deposits and LIC receipts and undertaking

signed by accused and given to the Central Haj

Committee.

88. Exhibit-145, Photograph at Serial No.16 from Article-8

(colly.)

89. Exhibit-146, Photograph at Serial No.19 from Article-8

(colly.)

90. Exhibit-147, Application of accused under RTI Act to PIOHQ MG & G Area Colaba

91. Exhibit-148, Signature of accused on label on the

envelope at Article 9.

92. Exhibit-149, Signature of accused on label on the

envelope at Article 7.

93. Exhibit-150, Signature of accused on Article 3.


95. Exhibit-152, Signature of accused on Article 4

96. Exhibit-152A, Signature of accused on Article 6

97. Exhibit-153(colly.) Signature of accused on Art-5(Colly.)


99. Exhibit-155, application filed by advocate for accused for

re-examining DW 1.100. Exhibit-156, application filed by advocate for accused for

direction to the judicial clerk of Mazgaon M.M. Court to

produce FIR filing register

101. Exhibit-159 (colly.) Complaint given by DW-2 to

Commissioner's office


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102. Exhibit-160(colly.), Application of DW-2 to

Commissioner's office @ reply

103. Exhibit-161 (colly.),Copy of First Appeal to office of

Deputy Commissioner's of Police

104. Exhibit-162 (colly.) Reply to RTI application

105. Exhibit-165, Complaint of DW-3 to Commissioner's

office

106. Exhibit-166, Reply to application under RTI for R.A.

Register107. Exhibit-169, Acknowledgment of service to the

Commissioner's office

108. Exhibit-171, Registers from the office of Commissioner

of Police @ forwarding letter

109. Exhibit-172, the report of C.C.T.V. footage

As to Point Nos. 1 to 4 :

9. The prosecution case is based on the raid conducted by

the police officer on receiving information. To prove the raid and in

connection with complaint, the prosecution has examined PW-1,

PW-3, PW-17, PW-20, PW-21 and PW-23. There are allegations

against the accused for spying for Pakistan by providing secret

information through the person in Pakistan Embassy of Delhi. The

raid was conducted after receiving information.

10. PW-1, Wilson Melvin Rodrigues is the complainant. He

has received the information. He has categorically stated the

procedure after receiving the secret information. As he received the


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information about Javed Mozawala that he is having some

documents of Defence Establishment and is providing said

documents to the Pakistan High Commission and is having some

photographs, he gave said information to the Senior PI Shri

Sandbhor and then, both of them informed it to Assistant

Commissioner of Police Shri Duraphe. Shri Duraphe asked them to

confirm the information.

11. On 7.12.2010, they received the information at night.

They confirmed the information that said person is staying on the

given address. On the direction of the Senior officer, they made the

preparation for conducting raid on 8.12.2010 and the raid was

conducted in presence of panch witnesses in the morning at about

10.50 a.m., the PW-1 alongwith the members of raiding party

reached at the house of accused, where the accused was in his house

with his family. He was sleeping at that time. PW-1 alongwith theSenior officer took the search of his house and seized some articles

from his house. They found some incriminating article viz. the

photographs, the pages of directory and other documents and

therefore, they seized all those documents and took the accused to

police station. Thereafter, the panchanama was drawn at the spot in

laptop in presence of panch witnesses. The printouts of the said

panchanama were taken at police station and the signatures of

panch witnesses are taken on said panchanama in police station.

The I.O. Mr. Sawant has recorded the complaint of PW-1 on the

direction of Senior PI Shri Sandbhor.

12. PW-1, Wilson Melvin Rodrigues has deposed as per his


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complaint. During the cross examination, the counsel for accused

tried to brought on record that the panchanama was not prepared

on the spot, as it was signed by the panch witnesses at police

station. The printouts were taken at police station, which is

admitted by PW-1 and PW-23. Though this is a laps on the part of

investigation, the investigation cannot be said to be faulty. During

the cross examination, the counsel for accused has tried to brought

on record that he himself has not lodged the complaint at Byculla

Police Station and his complaint was not recorded by SHO. As hiscomplaint was recorded by Mr. Sawant being higher in cadre, he has

immediately registered it at Byculla Police Station. Immediately

after completing the procedure, his complaint was recorded and

thereafter the FIR was lodged before the Byculla Police Station,

which was having jurisdiction. When the cognizable offence was

made out, immediately the complaint is registered.

13. Preparing panchanama on laptop and not taking the

printouts, are the lapses in the instance of investigation. I will

consider this point with other evidence. The counsel for accused

has given the suggestion that from where the said photographs can

be snapped and the number of directory are available in the BSNL

Directory, which is denied by the witness. The evidence of this

witness is not shattered during cross examination due to bringing

abovesaid lapses about investigation on record. The evidence of this

witness is reliable and cogent.

14. After recording of complaint by Mr. Sawant, he went to

Byculla Police Station to register the FIR. Cognizance is already


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taken by the Crime branch. As the spot which is the house of

accused comes under the jurisdiction of Byculla Police Station, Mr.

Sawant went to Byculla Police Station alongwith the complainant

and seized articles for lodging complaint.

15. PW-3, who has registered the FIR at Byculla Police

Station, Mr. Balu Limbaji Bhumkar has stated that on 8-12-2010, he

was attached to Byculla police station as PSI. On that day, he was on

duty as S.H.O. and his duty timing was 8.00 p.m of 8-12-2010 to 8.00

a.m. of the next morning. On that day at about 9.30 p.m., API Mr.

Ajay Sawant of Crime Branch came to him along with the statement

i.e. complaint of PSI Wilson Rodrigues. On the basis of that

complaint, he has registered an offence vide C.R.No.226/2010 U/s.

3(1) (C), 4, 9 of Official Secrets Act r/w Sec.120 (B) of IPC and on the

basis of that complaint he filled the printed format of FIR, which is

at Exhibit-16A.

16. He has further stated that an offence was registered at

about 22.05 hours. After registration of the offence, he informed this

fact to his superior officer and with his permission, the offence was

transferred to the Crime branch for further investigation. He made

necessary entry in the station diary, which is at Exhibit-28. He also

identified the letter received from Crime Branch, which is at

Exhibit-29 .

17. During the cross examination of PW-3, the counsel for

accused brought on record that he made entry in respect of

provisions of IPC and not under Official Secrets Act and therefore,


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offence under Official Secrets Act was not disclosed. He has not

recorded the supplementary statement of the complainant and he

was not brought before him. Copy sent to Metropolitan Magistrate

Mazgaon Court is admitted by this witness. Entry is not there in

Column No.15 of sending of FIR to Mazgaon Court is admitted by

this witness. It is also brought on record that reason for delay in

lodging FIR is not given. Though all these things are brought on

record, his evidence is reliable, as he has registered the FIR as per

the procedure.

18. The counsel for accused argued that the delay in lodging

FIR is not mentioned in FIR. The cognizable offence was disclosed

at about 3.30 p.m. Thereafter, the FIR was registered at 11.00 p.m.

Delay in lodging FIR is not properly explained. In support of his

argument, he relied on the judgment of Hon'ble Supreme Court

reported in (2012) 1 Supreme Court Cases (Cri) 717 in the matter of

Kailash Gour and Others Vs. State of Assam. In the case in hand in

Column of FIR, the entry of immediate FIR is given, therefore, there

is no need of explanation of delay. The counsel for accused further

argued that copy of FIR was not sent to Mazgaon Court immediately

and therefore has failed to follow the procedure. It is held by

Hon'ble Supreme Court in case reported in (2009) 1 Supreme Court

Cases (Cri) 2012 in the matter of Ramesh Baburao Devaskar and

Others Vs. State of Maharashtra that Section 157 of Cr. P.C.

mandates that FIR should be sent to the nearest Magistrate within a

period of 24 hours. After going through the record, I found that the

copy of FIR was received by Addl. Chief Metropolitan Magistrate,

Esplanade Court on 9.12.2010, which was known to the accused,


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which gives sanctity and authenticity and therefore it does not

require to send to Mazgaon Court.

19. The objection was raised that the complainant was not

present at the time of registration of FIR. The complaint was

recorded by one of the police officer. The complainant is also a

police officer, therefore, there is no need of presence of complainant

at the time of registering FIR.

20. As per the requirement of 13(3) of Official Secrets Act,authorization of Central Government was obtained. PW-20

Virendrakumar Channaram received the proposal from State

Government through the Central Government, registry of Home

Ministry. PW-20 has deposed that firstly they received the proposal

from the State Government through the Central Government

registry of the Home Ministry. Thereafter the proposal was prepared

for Ministry of Law for their views, comments and vetting.

Thereafter they in the Home Department examined the proposals,

documents and the views expressed by the Law ministry and by

other departments including Law Ministry of the State Government

and then put up the note in a file for approval of the higher authority

of the Home Department, who is a Competent Authority. The Home

Secretary is the Competent Authority in this case. After getting the

approval from the authority, they prepared this order after

examining all the documents and sent it to the State Government

and conveyed the decision to the State Government. This is a

procedure, which he had adopted. In this case, all the precautions

are taken and all the necessary steps are followed. Along with the


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proposal, he received the documents including the documents

specified in the order. By this order at Exhibit-81, he has authorized

DCP Shri Nisar Tamboli of Crime Branch to lodge complaint on

behalf of Union of India. He has signed said order on behalf of

President of India. His evidence is consistent to the procedure,

which he has followed. The accused tried to brought on record that

he has signed the papers without verifying the papers. The evidence

of this witness shows that he has adopted the procedure required for

authorizing the person.

21. As per the requirement under the Official Secrets Act,

after collecting the opinion and after going through the record, the

Union of India authorized the DCB (CID) to file complaint against

the accused on behalf of Government.

22. PW-21, DCP Mr. Nissar Pir Mohammed Tamboli is the

witness relating to filing of complaint. PW-21 has lodged the

complaint on behalf of the State, as he was authorized by

Government of India to lodge the complaint.

23. After collecting the proof against the accused, when it is

proved that the prima facie case is made out against the accused,

the Government of India has authorized to complainant, PW-21 tolodge the complaint and has lodged the complaint as per Exhibit-86,

the complainant has gone through each and every document and

Expert's opinion filed on record and then lodged the complaint

against the accused. The offence punishable under Section 120-B of

the IPC and Section 3 (1)(c), 4 and 9 of the Official Secrets Act is


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registered at Exhibit-86. He has lodged the complaint as per the

documents placed before him. In this case, during cross

examination accused asked the question that except the opinion of

expert of Tata Power, the opinion of the other experts is that these

photographs cannot be said to be classified. Witness gave answer

that the photographs with other documents if shown are harmful

from the point of view of security of the nation. Other question was

again about except photographs of Lonavala Dam the other

photographs are not of classified as per the experts opinion. Answerwas other than Tata Hydrolic Power, the CISS has opined that the

photographs are of classified nature, which proves that the

complaint was filed after verifying the documents and after coming

to the conclusion that prima facie case is made out. The evidence of

this witness is reliable.

24. PW-23, API Ajay Khashaba Sawant is the I.O. of CrimeNo.114/10. He has deposed that C.R.No.114/10 arises out of C.R.No.

226/10. He was instructed by ACP Shri Duraphe to investigate the

crime. He has collected the articles, which were seized by the

raiding party, the panchanama and the complaint, which was

lodged by Mr. Rodrigues. He went to Byculla police station to

complete the formality of registering the FIR alongwith the

complaint and the panchanama and other documents alongwith

letter of Senior PI for registering the Crime at Byculla Police Station.

He has given said documents to PW-2 and the FIR was registered

against the accused. After registering the FIR, he collected all the

documents as per Exhibit-29. By this letter, the investigation was

with CIU and it is directed by Sr.PI to handover the said documents


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to PW-23. PW-23 being I.O. has obtained the opinions about the

articles seized during raid and after getting the opinion and other

incriminating proof against the accused, has filed the Chargesheet

in the Addl. Chief Metropolitan Magistrate, 37th Esplanade Court.

25. During cross examination of PW-23, the accused had

tried to brought on record the loophole in the investigation such as,

the subscriber of mobile number of the wife of accused is not

investigated, the charge sheet is not filed in proper Court having the

jurisdiction for conducting the offence under the provisions of

Official Secret Act, the FIR was not lodged properly, the

panchanama was not prepared on the spot, which shows that he is

falsely implicated in this case. Direct allegations are made against

this witness that he has prepared all false documents. He has

snapped the photographs, which are filed alongwith charge sheet

and has falsely implicated in this case. Though some lapses ininvestigation are brought on record, whole evidence of this witness

can not be discarded. He has categorically stated, what

investigation he has done. His evidence is reliable.

26. It is argued by the counsel for the accused that the

mandate of law i.e. Section 154 of Cr.P.C. as well as Section 8 of

Official Secrets Act has been violated in letter as well as in spirit. The

complaint was not recorded by the police station in-charge. I found

after the perusal of documents that the complaint was recorded by

Mr. Sawant and he has obtained the authority letter from Sr.PI for

registering the crime at Byculla Police Station and went to Byculla

Police Station.


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27. It is further argued that the FIR filed on record is

purported and not as prescribed under Section 154 of Cr.P.C as well

as Section 8 of the Official Secrets Act and deserves to be discarded.

The conduct of PW-1, PW-3 and PW-23 with regard to the

registration of FIR was so lenient and liberal that it caste reasonable

doubt about his fairness. Under the law, there is no provision by

which it can be inferred that PW-23 can produce the report of PW-1

recording the same at different place by treating the same as crime.

Law has prescribed a procedure that has to be followed. The counselfor accused relied on the judgment of Nazir Ahmed Vs. Emperor

reported at AIR, 1936, PC 253, which is considered by the Hon'ble

Bombay High Court in the matter of State of Maharashtra Vs.

Ahmed Gulam Nabi Shaikh and Others, reported at 1997 in

Criminal Law Journal, at page 2377 also relied on judgment of

Hon'ble Supreme Court reported in (2009) 3 Supreme Court Cases

(Cri) 421 in the matter of Ganesh Gogoi Vs. State of Assam. The

judgments referred by counsel are about FIR but it is about lodging

FIR after commencement of investigation and about giving copies

of documents to accused. The authorities are not helpful to

defence.

28. In this case, the raid is conducted after receivinginformation. In such type of cases, the investigation starts

immediately after receiving the information and at the end of raid,

the person who has conducted the raid, lodge the complaint. The

panchanama starts even before conducting the raid, when they

proceed for raid. Here, in this case, the complaint was lodged by the

police officer Mr. Rodrigues. It was recorded by another police


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officer Mr. Sawant at Crime branch. In this case, the FIR was not

registered because it is stated by PW-23 that at that time, FIR

proforma form was not available with CIU and therefore, there is

every possibility that it was not registered as 00 number to send it to

the police station having jurisdiction. Byculla Police Station was

having jurisdiction. Therefore, Mr. Sawant after completing

formalities, went to Byculla Police Station and FIR was registered. I

found no violation of the provisions of law or fault in registering the

FIR.

29. There is no delay in lodging the FIR. The complaint was

immediately recorded by competent person. The FIR was registered

thereafter by Byculla Police Station and therefore, it is rightly argued

by Learned SPP that it does not mean that CIU was not having

jurisdiction.

30. In this matter, the raid was conducted by the CIU DCB

office, which is the Crime Detection Branch and having jurisdiction.

Only to complete the formality of registering the complaint, the FIR

was registered in Byculla Police Station. There is no defective

investigation.

31. This is not the usual case. After receiving the informationfrom the informant, the raid was conducted. The articles were

seized and thereafter, the complaint of the person, who has received

the information, was recorded by one of the police officer. There is

no lacuna. The registration of FIR is the formality. The compliant

was already recorded and as per the authorization, PW-23 has


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rightly after recording the complaint registered the FIR and then

investigated the offence.

32. The case of prosecution is totally based on seizure

panchanama. The evidence of PW-2 is important from the point of

view of seizure panchanama. PW-2, Mr. Jahangir Nabijan Khan has

deposed that on 9.12.2010 at about 9.00 a.m., he was called by police

in Crime Branch office at Crawford market. At that time, police

officer Shri Rodrigues and 2-3 Inspectors and some policemen

including two ladies police were present. At that time, police officer

informed him that one person namely Javed is supplying secret

information to the Pakistan High Commission. Police officer further

told him that they want to take search of the house of said Javed and

requested him to act as a panch witness. He consented for the same.

At that time another panch witness was present there and his name

was Jagtap. Thereafter their names and addresses were noted downby the police officer. Police officer offered their personal search to

them but nothing was found. Police collected envelope, Laptop,

Papers and sealing materials. Thereafter they went to one building

namely 'Infinity' situated at Mazgaon by two police vehicles. He

went there by Innova Vehicle, which was belongs to the police. At

that time police officer Shri Rodrigues and another 2-3 police

officers were accompanied with him. Another pancha went there by

Scorpio Jeep, which was belongs to the police. Thereafter after

parking their vehicles in the compound of the said building, they

went to room No.103 situate on first floor of building. They reached

there after 10.30 a.m. but before 11.00 a.m. Police officer Shri

Rodrigues knocked the door of Room No.103. Upon which, one lady


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opened the door. Police officer Rodrigues asked the name of said

lady. She disclosed her name as Fatima Javed Mozawala. Said lady

disclosed to police that her husband is sleeping in the bedroom.

Before entering into house, police officer introduced themselves to

the said lady. Thereafter, the police officer disclosed to the said lady

that they want to take search of the house. Police officer Rodrigues

went into the bedroom alongwith said lady and PW-2 followed

them. Police officer awakened the person namely Javed. Police

officer took Javed to Hall from bedroom. Thereafter, police officerasked the said person about his name, on which he disclosed his

name as Javed Mozawala. Police officer disclosed to the said Javed

Mozawala that they want to take search of his house. Thereafter, all

the police personnels entered into the hall. Police personnels

offered their personal search to Javed Mozawala but he refused for

the same. Police started taking search of the house of said Javed.

Initially, hall was searched, but nothing incriminating articles was

found in hall. Thereafter, police started taking search of bedroom of

the said Javed. Before entering into the bedroom, police inspected

the papers found in the hall and three mobile hand sets. When they

entered into the bedroom, two children were sleeping on the bed.

Their mother (Fatima) took the children away from the bedroom.

Thereafter, police started taking search of the bedroom. Drawer ofthe show case was opened. In the drawer, police found one Pen

Drive, one Floppy and 3 to 4 Compact Discs were there. There were

some certificates, some papers were found in the drawer of the

table. Thereafter, search of the bed was taken.

33. During search of the bed, it was found that there was box


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type bed. Its box was opened, in which one polythene bag was

found. The polythene bag was taken out of the box and in the said

bag there were some papers, photographs and passports. He had

seen those articles. All photographs were colour photographs.

Some photos of Dam, Port Trust and Government Building and

Gates. 15 passports were found. He had seen those passports.

Alongwith the passports there were printed forms which were

affixed with photographs of the person whose photographs were

appearing in the passport. There were 13 forms. On the form, word"Pakistan" as well as address at Delhi was printed. Some papers in

English having word "Islamic" were found. On some papers there

were S.T.D. code numbers. So also, there were two certificates were

found. The certificates bears name of Javed with different surnames.

Except the photographs and the passport, police officer numbered

the pages of the papers, which were found there. On back side of

each and every photograph, police obtained their signatures as well

as signature of accused and put their signatures. Police separately

packed all the articles and were sealed. The mobiles were also

packed and sealed after obtaining the mobile numbers from

accused. After sealing the articles, police obtained their signatures

as well as signature of accused and put their signature. PW-2

identified the accused in the Court.

34. At that time, police officer made inquiry with the

accused with regards to the articles found in his house but the

accused failed to give its satisfactory answer. Thereafter alongwith

the seized articles and the accused they returned to Crime Branch

office. Panchanama was typed on the laptop in the house of


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accused. Printout of the panchanama was taken in the Crime

Branch office. Police asked PW-2 and other panch witness to read

the contents of the panchanama. They read over the panchanama

as well as police read over panchanama to them. Panchanama was

written in Marathi language. Contents in the panchanama are

correct. He put his signatures on the said panchanama, another

pancha also put his signature on panchanama. One police officer

namely Sandbhor put his signature on panchanama. PW-2

identified his signature appearing on panchanama, which is atSr.No.1, signature of another panch witness at Sr. No.2 and below all

the signatures, there was a signature of accused. Towards extreme

left side there is a signature of police officer Shri Rodrigues. On each

sheet of panchanama there are signatures of himself, another panch

witness, police officer and accused. He identified the articles

opened in the Court viz. Article Nos.2, 3, 5 (colly.), 6, 8, 9, 11, 12, 14,

15, 17 (colly.), 18, 21, 22, 24, 25, 26, 27, 29, 30, 32 and Article No. 33.

PW-2 identified the panchanama which is at Exhibit-15. It bears his

signature as well as signatures of another panch witness, police

officer and accused. Contents therein are correct.

35. On 15.12.2010, again he was called by police in DCB CID

office at about 1.30 p.m. At that time, police officer disclosed to him

that they want to break the seals, which were sealed on 8.12.2010.

They showed them 10 sealed packets. They carefully seen those

sealed packets. The seals of the packets were intact. Police told

them that they want to take the xerox of the articles kept in the

sealed packet. In their presence i.e. himself, another panch witness

and accused, six packets were opened by breaking their seals. Police


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took out the photographs from the packets. Code Word book,

certificates, passport, Visa Forms. Police took the xerox copies of the

above all documents from one xerox machine, which was besides

the office. Thereafter again they returned to the office and again the

articles were packed as per their previous order and then those were

sealed in their presence. The previous envelope was inserted in new

envelopes respectively and then it was affixed with label having his

signature, signature of another panch witness and signature of

police officer. Police officer Shri Sawant prepared the panchanamaon 15.12.2010, which is marked as Exhibit-22.

36. Article-1 having label bears the signature of PW-1.

Article Nos. 4, 7, 10, 13 and 19 having labels also bears his

signatures. On 15.12.2010, the xerox copies of those documents

were taken, which were seized from the house of accused on

8.2.2010. Co-panch was the same person, who acted as a panch on8.12.2010.

37. On 9.2.2011, PW-2 again called by the officers of DCB

CID in office. He went there at about 5.00 p.m. to 6.00 p.m. At that

time, police officer Shri Sawant was present there. Police officer

disclosed them that as per the order of Court, the seized passports

are to be returned to the respective person and they want to break

the seal and open the packet in which the passports were sealed. In

his presence one sealed packed, in which the passport were seized

was opened. 13 passports were taken out from the packet and two

passports were previously kept were again kept in a new envelope.

The packet was sealed and accordingly panchanama dtd. 9.2.2011


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was prepared in his presence, which is at Exhibit-23. It bears his

signature, signature of co-panch and signature of police officer.

After preparing the panchanama, it was read over to them. He had

seen total 15 passports on that day. Particulars of passports were

noted down in panchanama.

38. After going through the evidence of this witness, it

reveals that same panch witnesses are called by police in connection

with panchanama at Exhibit-15. The pancha witness is the panch

for Seizure panchanama and whenever it required to open said seal,

same panchas were called.

39. PW-2 has categorically stated that their personal search

was taken by police and they also took the search of police. The

procedure was followed by police before conducting raid. He has

conducted the panchanama for second and third time only because

the documents were opened and xerox copies were taken and

therefore, again at that time same panch witnesses were called by

police. It cannot be said that the panch witness were habitual

witness and on that ground only the seizure panchanama cannot be

discarded.

40. The panchanama was prepared on laptop andimmediately after taking printouts, it was signed by panch

witnesses, police officer and the accused. Panchanama Exhibit-15

shows that each page bears signature of witnesses, accused and is

counter signed by the police officer. Date is also mentioned in this

panchanama. Evidence of this witness corroborates with the


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evidence of PW-1. Only because he was called for 3 times to

conduct the panchanama, his evidence cannot be discarded. As it is

very difficult to get panch witness in such type of offences, same

witnesses are called and also for the purpose of maintaining the

secrecy. The evidence of this witness is reliable. Seizure

panchanama at Exhibit-15 is proved through this witness.

41. It is argued by the counsel for the accused that the

panchanama which is before the Court at Exhibit-15 is admittedly

computerized document. Bear perusal of the panchanama

Exhibit-15 suggests that it started at 9.30 a.m. at the office of DCB

CID, CIU and he left the office at 10.15 a.m. alongwith the sealing

material and reached to the house of the accused at 10.50 a.m. and

thereafter the search and seizure concluded at 3.30 p.m. With this

evidence, what the prosecution is suggesting, is that the entire

exercise of drawing the panchanama and concluding the same wasdone on the laptop. The law does not ask to the officer to draw the

panchanama on the laptop. It was the discretion of PW-1 upon

dictate of his so called superior officer, who never turned to depose

this Court. The counsel for the accused has relied on the judgment

of Hon'ble Bombay High Court in the matter of Laxman Baban

Wagh Vs. State of Maharashtra, 2006, AL MR (Criminal), Page 165,

in which it is held that the police officer of getting the panchanama

signed in the police station after effecting the seizure at 3rd place

has been deprecated severely. If the Senior officer has decided to

draw the panchanama on laptop, then it was his duty to see that

printouts have taken out at the place of seizure itself.


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42. The prosecution has not explained, as to why the

panchas have carried out from the office of CIU, when the persons

were available from their houses. The panch witnesses were

repeatedly used for conducting panchanama and they were brought

from the office of CIU. The counsel for accused relied on the

judgment in the matter of State of Maharashtra Vs. Pyarelal

Sridhar Kher, reported at ALL MR (Criminal) 2005, page 2321, in

which it was observed that panchas were not taken from the locality

and were taken from police station. This creates doubts about theveracity of the case of the prosecution. The raid was conducted.

The panchanama starts from the police station when they proceed

for conducting raid and therefore, panch witnesses were brought by

police with them. Therefore, there is no reason for creating doubt

about panch witnesses.

43. Though the panchanama was conducted on the spot and

the printouts were taken out at the police station, at that time also

the panch witnesses were present. The printer was not taken by the

police at the time of recording the panchanama is the loophole at

the part of investigation. But benefit of non compliance of

formalities cannot be given to the accused. The Learned SPP rightly

relied on the judgment of Hon'ble Apex Court in the case of1954 of

2009 in the matter of Safi Mohd. Vs. State of Rajasthan. It is

observed by the Hon'ble Apex Court in this matter even if the search

is made by the I.O. in illegal manner, the same does not affect the

legality of the search and investigation made by the I.O. 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. Though


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the printout of panchanama is taken out in the police station, the

seizure of articles on the spot is proved by the panch witness.

44. The counsel for accused has argued that the

panchanama has not drawn on the spot and witness PW-2 is a stock

panch witness. The laptop was not produced before the Court and

no say is given by the prosecution for producing the laptop in the

Court, which is at Exhibit-19. After going through the application,

which is at Exhibit-19, it reveals that it is for production of seized

laptop and not the laptop, in which panchanama was drawn and

therefore, no adverse inference can be drawn against the

prosecution.

45. It is argued by the counsel for accused that the Evidence

act does not insist for quantity of evidence but the criteria is for

quality. DW-2, wife of the accused, who was present at the time of

raid and her statement was recorded, the prosecution has not

examined said witness.

46. The prosecution has examined PW-1 and PW-2, who has

conducted raid. Their signatures are thereon each page. Only

because PW-1 is a police witness, he cannot be said to be interested

witness. The panchanama is proved, which bears dates. It is thechoice of prosecution whom to examine. It is but natural that the

wife of accused will not suppose to support the prosecution and

therefore, no adverse inference can be drawn against the

prosecution for not examining the wife of accused as prosecution

witness. The contents of statement were not touched during cross


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examination of his wife and therefore, there is no violation of

Section 162 of Cr.P.C. The accused has also stated that at the time of

conducting raid, his wife was present there. The accused was not in

exclusive possession of articles but she was not suspected and

police had not inquired about said articles to her. In support of his

argument, the counsel for accused relied on judgment of Hon'ble

Supreme Court reported in (2006) 1 SCC 549 (Cri) 549 in the matter

of Gayadin Vs. State of M.P. After going through the judgment, I

found that the judgment is about plea of alibi in murder case andhence is not applicable. The information was about accused only

and he was doing the business of agent, therefore, there is no

question of suspecting his wife.

47. The articles bear the signatures of panch witnesses, the

accused and the police officers, in which the date is also mentioned,

hence, it is proved that the articles are seized on 8.12.2010 and not

on 7.12.2010 or 9.12.2010.

48. It is the case of prosecution that the accused was in

contact with Pakistan High Commission at Delhi, as he was working

as an agent for obtaining Visa in Pakistan. He was working for Haj

Committee and working for obtaining Visa. The prosecution has

therefore, examined PW-4, 5, 6, 7, 8, 9, 13 i.e. total six witnesses, who

approached the accused for obtaining Visa for Pakistan. PW-5, PW-6,

PW-7 and PW-9 turned hostile but from their evidence it is proved

that he was doing business for obtaining Visa, which is not denied

by accused. Some passports, Visa forms were seized from the house

of accused. All witnesses were the relatives of accused and


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therefore, they have not supported to prosecution case. The counsel

for accused relied on the evidence of these witnesses and stated that

the prosecution witnesses has not supported to their case. The

witnesses are his relatives and they were examined for limited

purpose of his connection withe Pakistan Embassy and was working

there as agent.

49. PW-13, Ahmed Haji Abdul Rehman Lakdawala was also

doing the job of Tours and Travels and agent for obtaining Visa and

helping persons having difficulty in obtaining Visa. From the

evidence of this witness, it proves that the person from Pakistan

Embassy, somebody was there to help him to get Visa by going out of

procedure and therefore, he referred the persons to accused for

obtaining Visa, who were having difficulty to obtain it in regular

procedure.

50. PW-15, Kulsum Abdul Gafoor Mozawala is the mother of

accused. She went to Delhi with some passports and while

returning, she has lost her bag alongwith passports of unknown

persons and therefore, she has lodged the complaint. The

complaint at Exhibit-63 is proved by this witness, which proves that

she went to Delhi and she was carrying some passports. The witness

turned hostile but her evidence about lodging complaint is relevant

to prosecution case.

51. The prosecution has examined PW-22 Dnyanoba

Chaudhari, who has investigated the crime registered on the

compliant of PW-15.


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52. PW-4, Mr. Fakir Mohammed Mansoor is the witness, who

went to Pakistan Embassy on say of accused. The name of Mr.

Bhatti was known to him. His phone number was also given to this

witness and he talked with said Jamal Bhatti on telephone. PW-4

has deposed that he is teaching Kuran at Chunabhatti, Masjid at

Mohd. Ali Road behind Suleman Bakery. He knows the accused

Javed Mozawala because he used to come to him for learning Kuran.

He knows the accused since 5 to 6 years. He is residing at Kambekar

Street. On one occasion, the accused asked him whether he can dowork for him, on which he replied affirmatively. The accused asked

him by saying, he has to go to Pakistan Embassy at Delhi. He agreed

for the same. As at that time he was not having good financial

condition and therefore, he agreed for the work of accused. This

things happened in the year 2008. Prior to 3 to 4 years for the first

time, he went there. He had gone to Pakistan Embassy at Delhi. At

that time, he went there alongwith five passports for obtaining Visa.

He went there for obtaining the Visa of Pakistan. In Pakistan

Embassy at Delhi, he went to counter No.6 and inquired about Visa.

Accused Javed Mozawala had given said five passports to him and

he had given railway tickets to him and also gave expenses. The

accused asked him to meet the officer namely Bhatti at Pakistan

Embassy. At Delhi, he stayed at Zakaria Guest House and then hewent to Pakistan Embassy. When he went to Counter No.6 of

Pakistan Embassy, he made inquiry with the persons there about

officer namely Bhatti. He got reply that Mr. Bhatti was not there.

The officer who was present at Counter No.6 asked him to deposit

the passport at Counter No.6. The person from the embassy asked


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him to come on next day for collecting the passports. He had

handed over the passport to the officer at Counter No.6 for getting

Visa endorsement. He told to the officer that Javed had given the

said passport to him for being given to Bhatti. On next day, when he

went to counter no.6, at that time, the officer who is sitting at

adjoining counter called him by announcing his name. He does not

know the name of the said officer, who called him. After making

Visa endorsement, the concerned officer gave him the said passport.

Thereafter, he returned to Mumbai and handed over the saidpassports to the accused. When he went to Pakistan Embassy, at

that time he could not meet Mr. Bhatti. Thereafter after 2 to 3

months, again he went to Delhi for visa endorsement at the instance

of accused Javed. At second time, the accused handed over him

packed brown envelope. The accused had given railway tickets and

the money for expenses. The accused asked him to take the

envelope and deliver it at Counter in Pakistan Embassy.

Accordingly, he went to Delhi and he deposited the packed envelope

at Counter no.6 of Pakistan Embassy. While handing over the

packed envelope, he told to the officer to give the envelope to Mr.

Bhatti. He was called by the officer at evening time of same day for

collecting the visa. He does not know the name of the officer, who

called him to come at evening time for collecting the visa. When hewas at Delhi, he informed the accused on telephone that he had

handed over the packet to the officers of Pakistan Embassy. After

the evening prayer (Asar), again he went to Pakistan Embassy and

six passports were returned to him with the endorsement of visa.

He could not meet Mr. Bhatti. The accused had given him phone


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number of Mr. Bhatti. Before the first visit, the phone number of

Bhatti was given to him and same number was given to him at the

time of his second visit. When he went to Delhi at first time, at that

time he had talk with Mr. Bhatti by telephone and he asked him to

deposit the passport at Counter No.6. In all three occasion, he had

gone to Pakistan Embassy, Delhi for getting Visa endorsement at the

instance of accused. On third occasion after 15 to 20 days from

second visit, he had gone to Delhi at Pakistan Embassy. At that time,

accused had given five passports, railway tickets and money forexpenses. When he reached at Delhi, he made telephonic call to Mr

Bhatti. He asked him to come at Counter No.6. Accordingly, he

went to Counter No.6 in Pakistan Embassy. When he reached at

Counter No.6, police accosted him. Thereafter, police took him to

one garden. They had taken passports and money from him and

after 1 to 2 hours, police returned the passports to him and asked

him the leave that place and go away. Thereafter, he returned to

Mumbai directly and returned the passports to accused and

informed him that he was accosted the police. He could not meet

Mr. Bhatti at any time. He had no occasion to see him. Thereafter,

he was never asked by accused for doing such work.

53. On 10.12.2010, PW-4 was called by police officer Shri

Sawant through his constable. The said constable came towards

him at Chunabhatti, Masjid. He took him to Crime Branch office

and his statement was recorded by police. Except the money for

expenses, the accused had not given any amount to him. The

statement was read over to him by police officer Shri Sawant and it

was recorded as per his say. On second day again, he was called by


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police for statement. On third day, his statement was recorded by

the Metropolitan Magistrate at Killa Court. He had voluntarily gave

statement before the Magistrate. Statement was read over to him

and thereafter he put his signature on it. Magistrate recorded the

statement as per his say.

54. During cross examination, PW-4 has admitted the

suggestion given by the accused about showing photographs of

Jamal Bhatti and deposing as per the say of Mr. Sawant. As the

witness has stated that he is deposing on say of I.O., according to

counsel for accused, which renders his testimony valueless. In

support of his arguments, the counsel for accused relied on

judgment of Hon'ble Madhya Pradesh High Court reported in 1985

CRI.L.J. 1773 in the matter of Ramvilas and Others Vs. State of

Madhya Pradesh. The counsel for accused has stated that he is the

star witness of prosecution. He has deposed against the

prosecution, therefore, the prosecution would have declare him

hostile. But the prosecution relied on this witness. The counsel for

accused relied on the judgment of Hob'ble Supreme Court reported

in 2005 Supreme Court Cases (Cri) 1037 in the matter of Mukhtiar

Ahmed Ansari Vs. State (NCT OF DELHI) in support of his

argument that defence can not rely on this witness.

55. After going through the evidence, I found that the

evidence of this witness during examination-in-chief was

consistent. He has admitted some facts in cross examination. It

creates doubt that witness is tutored by accused but it is proved

from his evidence that one person namely Jamal Bhatti was working


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at Pakistan Embassy, as the suggestion of Bhatti was not working in

Pakistan Embassy is denied and the person was known to him is

denied.

56. As the name of Jamal Bhatti was transpired during

investigation his information was called from Ministry of Home

Affairs, which is at Exhibit-108 by letter dated 7.11.2011 for

providing the information about Mr. Abdul Latif and the

information about said person has received as per Exhibit-109 dated

31.3.2011, which proves that he was working in Pakistan High

Commission, New Delhi. He was working there as Assistant and was

from Pakistan. His details were given as his date of birth is

30.10.1962. He came in India on 27.1.2005 and departed on

25.5.2010 and one other name was also disclosed i.e. Jamal Bhatti.

They inquired about said person to Ministry of Home Affairs by

letter dated 29.2.2011 at Exhibit-110 and they received theinformation on 9.2.2011 at Exhibit-111 that no such person with

given name Mr. Jamal Bhatti was working in Pakistan High

Commission, New Delhi and therefore, it was suspected that he

must be worked there on fictitious name. The version of PW-4

corroborates with the information received from external home

affairs.

57. Due to some admissions during cross examination, his

evidence cannot be discarded. He has admitted that the statement

was read over to him, refreshing of memory is permissible. Hence,

evidence of this witness is reliable.


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58. Before receiving this information during the

investigation, the accused disclosed the names of abovesaid persons

and therefore the I.O. called sketch drawer and he drew the pictures

as per the description given by accused. PW-12 is the witness who

drew the sketches of wanted accused as per description given by

accused. The witness identified the sketches at Exhibit-54, the

sketch of wanted accused Salim and at Exhibit-55, the sketch of

Abdul Latif. This witness is independent witness. There is no reason

for him to depose against the accused. Suggestion was given that itwas drawn after 8.2.2011, after providing the photographs is denied

by the witness.

59. The strong objection was raised by the accused that the

evidence of this witness is not admissible as it was recorded during

the investigation in presence of police.

60. Though it is the part of investigation, the statement of

this witness was not recorded by police and the description was

given as a part of investigation. There is no signature of police

officer. It is not the statement recorded by police, therefore, there is

no bar of Section 162(1) of Cr.P.C. The witness has stated that he has

drawn the picture as per say of accused. Exhibit-55 tallies with the

photograph at Exhibit-109.

61. The phone No.9654832784 was reflected in mobile

number of accused. During investigation, it was found that it was

the number of Jamal Bhatti. PW-7 has investigated about it. He

found that it was in the name of one Mithilesh Kumar and the


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address was 54/B, Himalton Road, Kashmira Galli, Delhi. The said

address was not in existence and the person was also not found.

62. The CDR also followed by this witness to trace out the

real owner. As he was one of the member of raiding party, the

suggestion was given that, when he went to the house of accused on

7.12.2010 and he saw accused in Commissioner's office on

8.12.2010, which was denied. The witness has made the

investigation about the mobile number. It is proved that it was on

the name of person, who was not in existence but was used by the

accused only to contact said person creates doubt about the

activities of accused.

63. PW-18, Firoz Ahmed Izaz Ahmed was examined by

prosecution to prove that he used to stay in Hotel Palace at Delhi.

The accused used to use visiting card of Mr. Hamid from Haj

Committee. The accused used to use this card for staying there. It

proves the conduct of the accused. To prove the said visiting card,

the prosecution has examined PW-16, Abdul Hamid Noor Dhiyan.

He has stated that he knows the accused. He is in his distant

relation. He gave his visiting card to accused, when he was in Haj

Committee in year 2002. Exhibit-39, Visiting Card is proved through

this witness. The accused was working as Seasonal Clerk is proved

through this witness. It was not known to him that the accused is

using his visiting card for his benefit.

64. The I.O. Mr. Sawant sent the articles seized in raid for

opinion of different authorities. The photographs, which were of the


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Defence Establishments, were sent for opinion that whether said

photographs are of classified nature or dangerous to sovereignty of

nation. PW-14, PW-21 and PW-24 are the witnesses, who gave their

opinion on the articles given to them.

65. PW-14, Mahesh Dinkar Paranjape is the in-charge of Tata

Power House in Raigad area and Dams in Pune District. He is in-

charge of dams and also Power Houses. He has deposed that since

last 5 years, his designation is Deputy General Manager. He is

Electrical Engineer. He is well conversant to Tata Power House and

dams in Pune district. He has stated that electricity is generated by

water pressure and hence all the dams are situated at higher

Elevation in Pune district and power houses are situated at lower

Elevation in Raigad district.

66. He has deposed that the water in the dams is brought

down to Power houses through tunnel and pen stock. These dams

store huge quantity of water, which they accumulate during the

rainy season and the water is used for power generation throughout

the year. The power thus generated is supplied to Mumbai area

where Tata power has license to distribute the power. They have 5

major dams namely Mulshi, Walvan, Shirota, Lonvala and

Thokarwadi. Mulshi dam is near Pahud area in Pune. These dams

directly come under his supervision.

67. He has further deposed that in Lonavala area of vicinity

they have three major dams Walvan, Shirota and Lonvala. These

three dams feed Khopoli Power house. Shirota dam empounds 198


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million cubic meters of water. Walvan and Shirota empounds 52 &

11 million cubic meters of water respectively. The security of dams

and power houses is under him and Tata Power controls the security

aspect. All the dams and all related structures under the Official

Secrets Act are under prohibited area. Once the location is declared

as prohibited area, the entries are restricted. The photographs are

not allowed and they keep the records of activities happening on

dams.

68. The maintenance persons, government officials and

police officers with prior permission are allowed for entry. Out of

Article-8, two photographs are shown to him. The photographs

shown to him are of Lonavla Dam and they show spillway section of

the dam. He has deposed that if the dam is full, this spillway section

allow the water to overflow. Both the photographs are of one and

the same dam. The photograph No. 18 is the close photograph ofspillway section. The photograph no. 18 is specifically marked as

Article 8-A. The photograph no. 10 shows the spillway along with the

dam. The photograph no. 10 is marked as Article 8-B. The capacity

of Lonavala dam is 11 m.c.m.

69. In January 2011, he received the letter from DCB CID for

the opinion on said photographs. He received two photographs

along with said letter by post. The letter was on the security aspect

of the dam and his opinion was asked on the point of security aspect

on the photographs.

70. Query No. 1 was regarding the name and address of the


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establishment as seen in the photographs. The details of security

aspect and particulars were asked for. He had replied that letter on

04/02/2011. The notification is issued by Government of

Maharashtra dated 08/12/2008. It mentions the Lonavla dam and

spillway as prohibited area. The reply along with notification is at

Exhibit-61(colly.). Since he is the In-charge of security aspect of

dams, the opinion is given on his knowledge and experience and as

per the guidelines of the notification.

71. PW-14 further deposed that for Lonavla dam they used

the water in monsoon period itself and in other areas they use the

water throughout the year. He observed the photograph which is at

Article 8-B is the photograph of dam during the monsoon period

and spillway section is a very crucial part of the dam especially from

the security point of view.

72. Article 8-A is closer photograph of spillway is also a very

crucial part from the security point of view. He cannot give the

opinion about the intention of the person taking the photograph but

from the observation of the photograph, he can say that if

something goes wrong at the location of dam, the entire lake water

will get drained into Lonavla city. As the quantity is huge, there will

be flood in the city. It will cause damages to the life and property. It

will cause havoc in the Lonavala city.

73. The witness was extensively cross examined by counsel

for accused. The suggestion given to the witness that the said

photographs are available on Internet and are not of restricted


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nature and anybody can snap said photographs from public way.

The witness denied it. He has stated that the photography is

prohibited in said area and if it is snapped, then it is illegal. The

photographs, which were shown to witness during cross

examination by accused, he has stated that it is from the top view.

Suggestion of giving false evidence on say of police is denied by this

witness. The witness is an expert witness and there is no reason to

disbelieve him. Hence, the photographs at Article-8A and 8B are

said to be of classified nature and are dangerous to the security ofnation, if placed in the hands of enemy is proved.

74. PW-19, Anil Shantiswaroop Bali has deposed about the

photographs at Article 8-C, which belongs to Pir Pau Jetty. He has

deposed that since last 17 years, he is attached to 'Central Industrial

Security Force'. His headquarters is in Delhi. They have their west

sector headquarters at Navi Mumbai. He is posted at Navi Mumbaisince 16/05/2012. Before that he was posted as a 'Commander' at

Mazgaon Dock, CISF unit and also holding additional charge of

CISF Unit, Mumbai Port Trust.

75. His duties and functions are defined by CISF Act. Their

duty is to protect the assets and vital installations at Mumbai Port.

CISF unit has not taken over the entire Mumbai Port. They are given

vital installations namely Princess Dock, Victoria Dock, Indira Dock,

Ballard Pier, Jawahar Dweep (Butcher Isand), and Pir Pau Jetty.

These installations are entrusted for safeguard to CISF. For all these

installations, CISF guards are posted for safety and protection. On

24/04/2010 CISF was inducted in this port after considering threat


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perception in this area.

76. One photograph amongst Article-8 is shown to him. Heidentified it. He has stated that that photograph belongs to Pir Pau

Jetty. It is under the protection of CISF. Since April 2010, Pir Pau Jetty

installation comes under the CISF. However, this area is declared as

"prohibited" as per the Official Secrets Act since the year 1971. The

copy of notification is brought by him. As per the notification of

year 1971, this area comes under the "prohibited" as per Official

Secrets' Act. The xerox copy of said notification is taken on record

and marked as Exhibit-76. Copy of the notification is given to the

accused. This photograph which is at Serial No. 21 is marked as

Article 8-C.

77. He had visited said place and he had regular supervisory

check post of that place. He is well conversant with the place. The

photograph is taken closely from the front side of the main gate

from the road side. The location of Pir Pau Jetty is at the backwater

of Mumbai. The landside approach is from Mahul Village and there

is only one approach road to the main gate from Mahul Village. This

location is the last portion before the backwater starts. At one side

of this place, there is a Tata Power Station and on the other side

Bharat Petrol Chemical Limited and on two sides, it is covered with

backwater sea.

78. During his tenure, on 07/01/2011 he received the

confidential communication from DCB C.I.D., Mumbai. There was

a copy of photograph along with letter. The letter includes the


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information regarding the photograph and the location. He had

responded this letter on 11/01/2011 by outward No. 112. The reply

is prepared by him and signed by him. He replied the letter on the

basis of notification and on the basis of his personal knowledge.

79. His opinion is that this photograph undoubtedly from

the front gate of Pir Pau Jetty. The entire area is declared as

prohibited because this is a sensitive place. This area is sensitive

because hazardous chemicals, petrochemicals, natural gases, L.P.G.

and other industrial important chemicals are downloaded from the

ships and transferred to their clients on an average this jetty caters

for 450 to 470 ships annually and the traffic of around 2.5 lacs

tonnes of hazardous chemicals annually. He had correctly given his

opinion in the report.

80. The Board is displayed that the photography is

prohibited as this area is prohibited under Official Secrets Act. If

anybody is found taking photography, he will be arrested and

handed over to the police. Nobody is allowed to enter the Pir Pau

Jetty as it is a prohibited area. Anybody entering with authorization

in said area is subject to security check and is not allowed to carry

camera and match sticks, etc. If the photograph of said sensitive

area is in the hands of enemy of nation, he can plan attack or

sabotage of this place thereby causing economic distress and

industrial disaster of a massive proportion. This may immediately

affect the fuel supply to Mumbai City.

81. Again the counsel for accused gave suggestion that all


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the photographs are available at Internet, which is denied by

witness. During cross examination, Article-44 shown to the witness,

as a photograph of Pir Pau Jetty is denied by the witness. He has

stated that Articles-45 and 46 downloaded from Internet and shown

to him in cross examination are not from prohibited area. He has

stated that Internet photographs can be manipulated. From the

evidence of this witness, Photograph at Article-8C is proved as a

classified and is dangerous to security of nation, if falls in the hands

of enemy nation.

82. To prove the pages of Directory seized in raid and some

photographs, the prosecution has examined PW-24, Mr. Vinit Singh

Jawla Singh, who is the Chief Operation Officer. He was the Colonel

General staff of AIGG. He has deposed that he is working as a 'Chief

Operation Officer' in 14 Corps Aviation Base since 01/05/2011. It

comes under the Indian Army. He was commissioned in the IndianArmy on 10/06/1989 as a 'Second Lieutenant'. Since the year 1989,

he is aware about the association, organization and functions and

also of its various establishments. They have a Head Quarter at

Colaba, Mumbai for Maharashtra Gujrat and Goa area. It was

situated at 28 Assaey Building, Bhagat Singh Marg, Colaba. Before

going to Leh, he was at Colaba office for 1 & 1/2 years.

83. In January 2011, he was Colonel General Staff of

Maharashtra, Gujrat and Goa area. His office was at Assaey

Building, Colaba. Colonel General deals with the operations with

intelligence, security and training. They lay down the policies and

ensure the implementation of various operations. He had received


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two letters from the Crime Intelligence Unit of DCB CID in January

2011. He had brought the copy of said both letters dated 08/01/2011.

Exhibit-99(colly.) shown to him are the office copies which were

received by him. The outward numbers of said letters are

20/AS/2011 and 21/AS/2011. With the letter outward No.

20/AS/2011 there was one enclosure about the copy of telephone

directory of Headquarters Southern Command, Pune. With the

letter Outward No. 21/AS/2011 the enclosure was the photograph of

his office i.e. Headquarters. He brought the copies of the enclosureswhich were received by him. The enclosure of telephone directory

contains 42 pages. Article 2 shown to him is the same copy received

by him. The photograph at serial No. 2 at Article 8 (colly.) shown to

him is the photograph of his office and it was received by him. The

Crime branch sent both these documents and they asked him about

the opinion of said documents as contained in the letters.

Accordingly he submitted his opinion/report on 11/01/2011. Report

dated 11/01/2011 contains the opinion about both the documents.

The opinion given in said report is correct as per his knowledge,

experience and his long association with the department.

84. He has deposed that the photograph is of headquarters

of Maharashtra, Gujrat and Goa where his office is also situated. It is

taken from Bhagat Singh Marg. The area where his office is situated

is prohibited area and photography is not permissible. The boards

are also displayed about prohibiting the photography and no

trespassers as it is an important Headquarters of defence area. It

has its own security implications. This building is not tourist kind or

historical building. Therefore anybody who is taking the photograph


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must have the different intention. If it connects with any other

photographs of the defence establishment, then it may have security

concern.

85. The directory is of the Headquarters Southern Command

Pune which is important command of Indian Army. This directory

contains all the telephone numbers of all the appointments of the

command Headquarters. The directory also indicates the

organization of the Command Headquarters. The directory is not

available in public. It is a restricted document. The copies are

available with the restricted appointments of the army. This

document cannot be publicly available. Each page contains at the

top and at the bottom the word "restricted" means it is one of the

security classification. First Page Nos. 1 to 4 are the STD codes of

various stations of Army and it also gives the Civil Junctions. Page

Nos. 5 gives the access codes to the Army Exchange of thatparticular army station. Page No. 6 to 42 are the army telephone

numbers or various appointments of the Headquarters Southern

Command and various establishments under it. It is a restricted

document. These numbers are not available in any civil public

directory. There is no any source to get this copy of directory by the

civilians. If it goes in the hands of any civilians with a wrong intent,

then there is a possibility of misuse to draw out the secured

information and it can also give the organizational structure of the

defence establishments. From said directory, one can obtain the

detailed information about the establishment and functioning of

the army. The Pakistan Intelligence Operatives have been giving

calls at the army numbers and trying to draw the information about


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the organization, its appointments and functions. Therefore, it is a

matter of security concern and it is an important tool for Pakistan

Intelligence Operatives to gather intelligence and information from

various establishme

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