espionage case pune judgement

7/31/2019 Espionage Case Pune Judgement

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1 R. C. C. No. 2361/2007

Received on : 06/07/2007Registered on: 06/07/2007

Decided on : 29-03-2011Duration : Ys. Ms. Ds.

IN THE COURT OF CHIEF JUDICIAL MAGISTRATE, PUNE AT : PUNE

( Presided over by Suchitra S. Ghodke )

R. C. C. NO. 2361 OF 2007

EXH.

State of Maharashtra ]through Police Inspector ]..Complainant.

Anti Extortion Branch, Pune. ]

V/S.Vishalkumar Premshankar Upadhyaya ]Age-27 years, Occu. Education ]R/at Sankat Mochan Marg, ] Accused.Bokaro city, Jharkhand. ]

CHARGE : Offence punishable under section

3, 9 of Official Secret Act, 1923 and120-B of Indian Penal Code.

APPEARANCE :- Shri. P.B. Gaikwad, Lrd., A. P. P. for the State.Shri R. V. Katore, Advocate for the accused.

J U D G M E N T

[ Dictated and Delivered on 29-03-2011 ]

1. The Anti Extortion Branch, Pune chargesheeted the

accused for the offence punishable under section 3 and 9 of Official

Secret Act, 1923 and under section 120-B of Indian Penal Code.
http://r.c.c/http://r.c.c/


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2. Assistant Police Inspector Mr. Raghunath Phuge lodged

the complaint to Deccan Police station vide C. R. No.173/2007 on

8/4/2007. On the very date he was posted in the Anti Extortion

Branch and was working with Mr. Barge, Police Inspector. On

6/4/2007 Mr. Barge has intimated him by calling him that they

received the information that one Mr. Vishalkumar Upadhaya, age

25 years residing at Ganga Lodge, Room No. 3, Deccan Gymkhana

had returned from Pakistan. He was holding documents of the Pune

Military and also the religious places of Pune City. He was having

photographs of religious places and CDs and he was going to send it

recently to the Pakistan through somebody. Complainant was asked

to keep watch on him. On 8/4/2007 at about 12.00 noon Mr.

Barge had called the complainant in his room and informed that on

the very date he was sending the documents CDs, photographsthrough unknown person. Due to which there was danger to the

security of the nation. He has also informed him that he should be

arrested by any means. Deccan Gymkhana Police Inspector Mr.

Patil was also intimated about the same and proposed raid. Mr.

Barge has obtained permission from Mr. Anil Kumbhare, Deputy

Commissioner of Crime Branch, Pune. Thereafter Mr. Barge along with staff and two panchas, B.R. Patil, had gone to the Ganga Lodge

Room No. 3, Deccan and knocked the door of room no. 3 wherein

one person had opened the door and on inquiry he had disclosed his

name as Vishalkumar Upadhaya, age 24 years, Sankat Mochan

Marg, Bokaro city, Jharkhand. Immediately the police have started

his personal search and on personal search inside pant pocket oneIndian Passport was found. Shirt having in and wherein he had


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kept one green colour envelope. The envelope was taken out on

which the Sallahudin Sha, Rashid Minhas Road, Javahar Mod,

Sunny pride,Block No. A, First floor, Karachi Pakistan was written.

On the backside of that envelope Mr. Vishalkumar Upadhya,

Hadapsar, Pune was written. Two CDs which were kept inside were

seen by the police on their laptop. In the said CDs the photographs

of military buildings were existing. Near about 34 photographs were

existing there. In the right side pant pocket of the accused one

black colour money purse was found in which Rs.300/-of Indian

currency and the five dollar of Australian dollars and one Western

Union customer received money receipt was found. The diary pages

were torn and the address of the Karachi Pakistan were written.

One black colour diary of the containing written Urdu diary, then

one I-card of Annasaheb Magar College was found. In the shirtpocket Nokia company mobile was found. Other articles like ten

CDs, wrist watch, plastic bags were found. All these documents and

articles were seized by the police by drawing panchnama on the

spot The labels were affixed on it by obtaining the signatures of the

panchas. During investigation it was transpired that accused was

having criminal conspiracy with Sallahudin Sha ISI agent of Pakistan and Tirmizi and Abdul Latif. After returning to Deccan

Police station A. P. I. Mr.Phuge lodged the complaint. According to

the complainant the accused has committed an offence punishable

under section 3, 9 of Official Secrets Act and under section 120-B of

the Indian Penal Code.


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3. The charge against accused was framed at Exh.8. Accused

denied the charge and claimed to be tried for the same. The defence

is taken by the accused is that he was having the love affair with a

girl of Pakistan Miss. Fatima Sallahudin Sha and he has also

admitted that he has visited two times at Pakistan and denied the

allegations about the collection of CDs and photographs and

intention to hand over the information to Pakistan which is likely to

affect the sovereignty, integrity and security of India. He has also

denied the charge of any criminal conspiracy with Sallahudin Sha,

Abdul Latif and Tirmizi.

4. Points for determination are -

POINTS FINDINGS1. Whether the prosecution proves that

on 8/4/2007 at about 3.00 p.m. atGanga Lodge, Branch No. 2, Room No.3,Deccan Gym. Pune the accused foundin possession the collected CDs andphotographs of military buildings andCDs & photographs of religious places of Punecity, which is useful to an enemy disclosing information which is likely to affect the sovereignty, integrity of India? ..In the affirmative.

2. Whether the prosecution proves thatthe accused on the said date, timeand place attempting to communicatethe collected CDs, photographs andinformation to Pakistan agent forthe purpose of prejudicial to the safety

of the State and which the information was directly and indirectly useful to theenemies? .. In the affirmative.


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3. Whether the prosecution proves thatthe accused on the said date, time

and place the accused committedcriminal conspiracy with the Pakistanresident Sallahudin Sha to othersto commit the offence? .. In the affirmative.

4. What order ? .As per final order.

R E A S O N S

AS TO POINT NOS. 1 TO 3 :-

5. Heard the learned APP Mr. P. B. Gaikwad for the State

and learned Advocate for the accused Mr. R. V.Katore.

6. The accused has been chargesheeted for the offence

punishable under section 3, 4 and 9 of the Official secrets Act, 1923and under section 120-B of Indian Penal Code.

7. Anti Extortion squad Pune Branch, Police inspector

Bhanupratap Barge received the confidential information on

06/04/2007 that one Vishalkumar Upadhayay Age 25 years,

Resident of Ganga Lodge, Room No. 3, Deccan, had visited thePakistan on 14/10/2006 and 23/01/2007 and taken the training for

terrorism activities. He has collected the information in two CDs of

Hindustan Antibiotics Factory, H. E. A Factory, NDA, BEG, Bombay

Shopper, Southern Command, the names and telephone numbers of

the Army Officers, Army confidential documents, CDs, photographs

as well as CDs and photographs of the famous Shrimant DagdusethHalwai Ganpati Mandir, RMS Sangthana Motibaug, Head office,


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Airport, Pune City religious places. It was intimated that he was

going to deliver it within short period to the person of Pakistan. On

the basis of this information the concerning investigation branch

kept the watch on the accused. His place of residence i.e. Ganga

Lodge, Branch No. 2, Room No. 3, Deccan Gymkhana, Pune was

raided. He was found in possession the above official secret

documents of Military, photographs, CDs as well as the photographs

and Cds of the religious places of Pune city. During the course of

investigation it was also transpired that he has attempted to send it

to Pakistan with the help of the Pakistani Agents Sallahudin Sha and

with the help of the two staff members Mr. Sayeed S. Hussain

Tirmizi and Abdul Latif working with the Pakistan High

Commission.

8. The accused has come before this court that he is student

of Annasaheb Magar Engineering College, Hadapsar, Pune. He has

denied the case of the prosecution. He has admitted his visits to the

Pakistan for two times. Accused has given the explanation that due

to the love affair with the girl of Pakistan he had gone there.

9. In order to establish the guilt of the accused the

prosecution has examined in all nine witnesses namely at Exh. 19

the complainant API Mr. Raghunath Vithal Phuge, at Exh. 68 Mr.

Sachin Chandrakant Jadhav, owner of Ganga Lodge, Deccan Gym,

Pune, at exh. 70 Mr. Raviraj Raosaheb Jadhav, the owner of Ganga

Cyber Cafe, Deccan Gymkhana, Pune, at exh. 73 Mr. Yogesh SharadThorat, the owner of Ambika Lodge, at Exh. 76 Mr. Shaikh Manchar


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Immam Narulhua, Maulana Imman Shahin Mazid, Hadapsar, Pune,

at Exh. 77 Mr. Namdeo Narayan Kunjeer the panch witness, at Exh.

80 Mr. Shubhan Nagraj Yadav the nephew of Santosh Yadav, the

owner of Icon Net Cafe Kothrud, at exh. 87 Mr. Bapu Narayan

Pawar the panch witness of the raid of Ganga Lodge and at exh. 95

Mr. Bhanupratap Shankarrao Barge, the police Inspector, Crime

Branch, Investigating Officer, Pune.

10. The complainant has narrated at Exh. 19 that on

6/4/2007 he was posted as API at Anti extortion Crime Branch,

Pune. Mr. Barge, Police Inspector was the unit commander of their

squad. On 6/4/2007 Mr. Barge has informed him that the accused

had gone at Pakistan for two times and he was residing at Ganga

Lodge in Room No. 3, Deccan Gymkhana, Pune. It was alsoinformed that he was having the CDs of defence buildings, Pune

area temple and pilgrim area. He was going to send it to Pakistan

through somebody. Hence, the direction was given to keep watch on

him. Accordingly, they kept the watch on him. On 8/4/2007 at

about 12.00 p.m.. Police Inspector Mr. Barge called him and

intimated him accused was going to send that confidentialinformation existing in CDs and the photographs through one

unknown person to Pakistan. It was dangerous to the nation and

national integrity. Mr. Barge has asked him to make attempt to

arrest him. At that time Mr B. R. Patil was the police inspector of the

Deccan Police station to whom the said witness has given the

information in summary. On the very date Mr. Barge had obtainedthe authority letter from Deputy Commissioner of Police Mr. Anil


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Kumbhare for the search of place where Vishalkumar was residing

and also taken the authority for his personal search. The said

evidence is corroborated as it is at Exh. 95 in his oral testimony. Mr.

Barge has narrated at Exh. 95 that he had issued a request letter

addressed to DCP on 8/4/2007 which document is produced at Exh.

96. Exh. 96 bears the signature of DCP and also bears the order

giving authority to Mr. Barge. The authority letter given by Mr. Anil

Kumbhare is produced at exh. 97. The said letter authorized the

Investigating Officer Mr. Barge to search the premises where the

accused was residing. It also discloses the authorization given to

him to do the personal search of the accused.

11. The complainant has further stated that he himself along

with two police staff, investigating officer Mr. Barge had gone to theDeccan Police station there they have also taken the police staff of

Deccan Police station and police inspector Mr. B. R. patil. They have

made the entry in the station diary of Deccan Police station. The

Investigating Officer Mr. Barge has narrated in his evidence in para

2 that he had also intimated to Mr. B. R. patil, the Senior Police

Inspector of Deccan Police station about the proposed raid in viewof the authority letter. He has given a report to the Inspector, Anti

Extortion branch, about their proceeding towards raid at Ganga

Lodge Room No. 3, The station diary No. 8/2007 at about 12.35

pm.. by the police station officer of crime branch. It is entry is at

exh. 99. Along with the police staff and panch they proceeded by

private vehicle towards Deccan Police station and reached at about1.00 p.m.. Their report in writing addressed to the Police Inspector


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of Deccan Police station is at exh. 100 and the police station diary

entry is bearing No. 15/07 taken by the concerned police station

officer of Deccan Police station which is marked as Exh. 101.

12. According to the prosecution witness the complainant

they reached at Ganga Lodge at about 13.15 hours. According to the

investigating officer the manager of Ganga Lodge Sachin

Chandrakant Jadhav was present there. They introduced themselves

and disclosed the reason for their visit. Sachin took them towards

the Room No. 3 situated on third floor. They knocked the door. The

accused had opened the door. At that time the complainant and

raiding party asked his name and address who has disclosed his

name as Vishalkumar Premshankar Upadhyaya whose age is 24

years old resident of Sankatmochan Marg, Gujarat Colony, Bokarocity, Jharkhand. They intimated him the reason for their visit and

also intimated about his personal search and search of his room.

13. The police have done the personal search and search of

the room in presence of panch witnesses as well as the in presence

of the owner of the Ganga Lodge. The accused has denied about hisresidence in the Ganga Lodge in Room No.3. According to him he

has never resided in the Ganga Lodge but he was residing at

Saipurva Hostel, Near to the Anna Saheb Magar College. To prove

his residence of the accused in the Ganga Lodge on 8/4/2007 the

prosecution has examined the witness Sachin Chandrakant Jadhav

at Exh. 68.


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14. In the testimony of this witness Sachin it has come on

record that he is owner of the Ganga Lodge situated at 1253,

Deccan having two branches. In the branch No. 1 of the Ganga

Lodge they used to keep the customer on daily basis and in the

branch No. 2 of Ganga Lodge on monthly basis. He has further

narrated that the accused Vishalkumar was his customer. He had

come to him on 30/3/2007. He was demanded room on monthly

cot basis. Here I would like to refer the one admission given in

statement under section 313 of Cr. P.C. by the accused that he used

to visit Ganga Cyber cafe, situated at 683, Deccan Gym. Pune.

15. The witness Raviraj Raosaheb Jadhav owner of Ganga

Cyber cafe narrated at exh. 70 that being the owner of Ganga Cyber

cafe he used to open the cafe at 9.00 a.m.. and used to close at10.00 p.m.. Rs. 10/- was the charge for the cyber cafe customer for

one hour. He used to take entry of the customer in register for how

many hours he was sitting there. He knows the accused Vishalkumar

who started visiting his cyber cafe from 21/3/2007. According to his

version accused used to visit between 10.30 to 11.00 a.m.. he was

doing chatting on the net of Yahoo messenger. On 30/3/2007 hehad come to his cyber cafe. The witness has told him that in the

lodge of his brother the place was available. Prior to that the

accused was residing at Motimahal lodge where he was required to

pay more fare. Hence he has requested the witness Raviraj for the

another place. Under these circumstances, the brother of this

witness, Sachin Jadhav has provided room to the accused on30/3/2007. With reference to the owner of cyber cafe Raviraj,


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accused had gone to the Ganga Lodge owned by the witness Sachin

Jadhav. His residence in the Ganga lodge is after his visits of

Pakistan. The date of Pakistan visit of the accused were 14/10/2006

and 23/01/2007. In the cross examination of the witness Sachin it

has come on record that cyber cafe owner Raviraj Jadhav who is his

brother. He has seen the accused on 6 th in the lodge. No specific

date of which month, year is asked in cross-examination. The

defence taken by the accused is that he was arrested on 5/4/2007

then such type of suggestion given by his Advocate discard his

defence. The witness Sachin has stated in the cross examination that

Raviraj is the owner of cyber cafe where the accused used to sit who

has referred him his Ganga lodge.

16. The witness Sachin Jadhav has further narrated thataccused has written his mobile No. 9823413471 and land line

06542235001, student come for education in the register entry. The

accused had paid him Rs.1000/- and he had signed on it. The entry

was taken in the register in regular course of the Ganga Lodge

register. At exh. 69 the witness has produced his original register.

In the said register at Sr. No. 3 there is a entry in the name of visitors Vishalkumar Upadhyaya, age approximate 23 years, Gujarat

Colony, Jharkhand, phone No. 9823413471 and 06542235001,

occupation as student, date and arrival 30/3/2007 at about 4.00

p.m.. the reason for the visit is study, amount is paid Rs.1000/-.

When he was residing in Saipurva hostel what was necessity to

reside in Ganga Lodge, it only suggest the ill intention of accused, asno explanation is given. The witness has narrated that the written


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contents are in the handwriting of accused. In the cross examination

of this witness nothing has been challenged by the accused. Only

the suggestion was given that receipt was not given to the accused.

But the explanation is given by the witness by saying that as the

accused has not paid the full amount he has not issued any receipt.

The witness Sachin has narrated and corroborated the case of the

prosecution about their visit on 8/4/2007 at Ganga Lodge Branch

No. 2. He has also supported the prosecution case that accused was

present in the room no. 3 and police have taken the search of his

room as well as his personal search. This given evidence is also

remained unrebutted.

17. From the said oral evidence the prosecution has

established that on the basis of information the Police Inpsector,complainant and the panch witnesses has raided the Ganga Lodge

No. 2 on 8/4/2007 at about 13.15 hours and raided the room no. 3

in presence of the owner of the Ganga Lodge Sachin Jadhav. In the

room the customer of Ganga Lodge residing from the date

30/3/2007 was existing in the room No. 3. It is also proved that the

police have started the search of his room and his personal search.The residence of accused on 8/4/2007 in the Ganga Lodge No. 2,

Room No. 3 is proved by the prosecution beyond reasonable doubt.

18. On the personal search one Indian Passport bearing no.

F1863965 was found in the right side pant pocket of the accused.

The accused has admitted the passport no. F 1863965 in hisstatement under section 313 of Cr. P. C. in question no. 8. but he is


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denying the search of the said passport in his right side pant pocket.

19. In respect of the said passport the police have done

investigation by issuing the letter to the Superintendent of Regional

Passport office on 13/4/2007. At exh. 128 the copy of the said letter

sent by Inspector Mr. Barge which is produced on record. The

photocopies of the passport, his application form and the documents

attached by the accused were asked to be submitted. The said

passport was issued at Ranchi on 7/3/2005. His expired passport

No. T 658836 issued at Patna on 16/01/1995 and its No. was

RCHKOO218104. From the said documents it is clear that the

accused had obtained his first passport in the year 1995 and later on

in the year 2005. The accused has admitted his passport. It was

issued being the Pakistan Visa which is marked at Exh. 26. The reply given by passport authority is at Exh. 167.

20. Thereafter one light green colour packet was traced out

on his person inside the shirt. On the said packet Sallahudin Sha,

Rashid Mias Road, Jawahar Mode, Salipride, Block No.A, Karachi,

Pakistan was written. On the other side of the said packet Vishalkumar Upadhyaya was written. They found two CDs inside it.

The police have seen two CDs which were seen on the laptop. In the

said CD the photographs of the building of the Defence and

photographs of the Lord Dagduseth Ganpati, photographs of

Bombay shoppers, ammunition factory and photographs of Airport

road were found. The envelope is at Exh. 56. Inside the exh. 56 thetwo cds and 48 photographs were found. On one CD NDA was


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written. It is marked as Exh. 57. On the another CD the Pune city

was written which is already marked at Exh. 48. The 48

photographs were in respect of Dagduseth Halwai Ganpati Temple,

Khadki Ammunition Factory, Hindustan Antibiotics Factory, Bombay

Shopper Vishrantwadi, BEG building and other building

photographs which were marked as Exh. 59.

21. In respect of this searched document in the possession of

the accused there is no cross examination nor any denial is on

record.

22. According to the prosecution further on the personal

search the accused was found in possession one black colour money

purse in his right side pant pocket which is at Exh. 27 in whichRs.300/-which is marked as Exh. 28, five Australian dollars which is

marked as exh.29, western union money transfer receipt Exh. 30,

including the senders name as Fatima Sallahudin and receiver name

was Vishalkumar Upadhyaya was found. The identity card of Anna

Saheb Magar College was found which is a Exh. 31. The torn blue

pages of diary in 13 numbers were found which is marked as exh.32. One Debit Card was found which is marked as exh.34. The

mobile of Nokia blue colour model No.3330 bearing Hutch company

SIM Card no. 8991270609041696512 was found in possession

which is marked as exh. 35. If we perused the statement of the

accused under section 313 of Cr. P. C. the questions were asked

about the seizer of the articles of his passport Exh. 26, the purse,Indian currency, Australian currency, the receipt of Western Union


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Money standing in the name of Fatima and money received by him,

his identity card of Annasaheb Magar College, then 13 blue and

white colour pages of the diary, the debit card of SBI Exh. 34, then

mobile of blue colour Nokia company Exh. 35 all these seized

articles from his possession by the police on 8/4/2007 admitted by

him in view of the questions asked him at Sr. No. 18 to 25.

23. Further during the course of seizer of the articles in the

white colour plastic bag the 29 pages information of Military officers

of different places numbers, was existing and the said list was seized

which is at Exh. 36. The railway map which is also seized which is

at exh. 39. The two white colour envelopes sent from Karachi on

the address of Annasaheb Magar College bearing Mobile No.

9860179763 having the seal were found which are marked as Exh.40, 41. These two envelopes were in the name of Raj. The accused

has admitted these two envelopes in view of the question no. 29

asked under section 313 of Cr. P. C. Exh. 42 is a document which is

a guidance file for the further education is admitted by the accused

found in his possession. The seized diary pages having the numbers

of Pune Mumbai which is at Exh. 43, the green colour page which isin the handwriting is a marun colour marked as Exh. 44. The

accused has admitted Exh. 43 the diary pages but he does not know

exh. 44. The one seized golden diary which is at exh. 45 is admitted

by the accused owned by him in view of the answer of Exh. 35. The

accused has admitted the seized wrist watch of Sico company which

is made in Japan having label of 91438 owned by him in view of question no. 34 of Statement under section 313. The accused has


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also admitted the seized the archy company wrist watch in blue

colour box which is at exh. 47 owned by him. The seizer of two pens

of Amazing company one red and blue colour is admitted by the

accused. The Exh. 49 radio mirchi of blue colour horizon 2000 is

owned by him in view of the answers given at eXh. 36 and 37

respectively. The accused is admitting the seizer of four greetings

cards which are owned by him which are marked as exh. 50. the

seized ten negatives of photo of Fatima produced at Exh. 51 are

admitted by him in view of the answer of question no. 38. The

accused has admitted teh seizer of the letter written by Sallahudin

Sha which is at exh. 53 and also admitted the two letters written by

Kashis to the accused in the name of Raj which are marked as exh.

54. The accused has admitted at the question 39 that they belongs

to him. There is seizer of one envelope in the name of SallahudinSha alleged to be written by the accused on the address Rasid Minaz

Road Karachi, Pakistan. Exh. 57 are the two CDs existing in the

plastic of cover of sony writeen as NDA were seized from the

possession of the accused. The CDs of moserber company of Pune

city produced at Exh. 58. There is a seizer of 48 photographs of the

temple lord ganesh Dagduseth Halwai, Khadki Ammunition Factory,Hindustan Antibiotics, Bombay Shoppers and other photographs at

exh. 49.The four CDs which are marked as Exh. 60 were seized out

of which the accused is admitting the CDs of marriage function of

Fatima's sister were owned by him and other CDs not of him.

24. After the seizer of the articles the panchnama was drawnon the spot in presence of the panch witnesses. If we perused the


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cross examination of the complainant nothing has been challenged

by the accused about the seized articles from his possession narrated

by the witness. The Advocate for the accused has argued that the

panchnama Exh. 88 is not duly proved. To secure the conviction the

seizer panchnama of the articles from the possession of the accused

is required to be proved. It is argued on behalf of the accused that

investigating officer is not aware of the number of workers working

with the owner of Ganga Lodge Sachin. Secondly he has argued that

the accused has never visited the Ganga Lodge. The investigating

officer has not made query that how many customers were existing

in his lodge. In the cross examination the suggestion was given by

the Advocate for the accused that at the time of search of room of

the accused except their police staff and the accused and panch

witnesses nobody was present there. The said suggestion shows thatthere is an admission of the raid of the police in the room of the

accused and the accused was residing in the Ganga Lodge.

25. To support the case of the prosecution the seizer panch

witness Mr. Bapu Narayan Pawar was examined at Exh. 87. The said

witness has acted as a panch witness at the time of raid at GangaLodge. He has narrated that on 7/4/2007 he was called by Anti

Extortion squad office, Pune. Deepak Eknath Jadhav another panch

was accompanied with him. Mr. Barge has asked him whether he

will act as panch witness at the time of visit at Deccan area. He had

gone along with the Mr. Phuge, Barge and the police staff by

government vehicle. They have visited teh Ganga Lodge Branch No.2, Sachin Jadhav met there. He took them to the third floor of the


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building then they knocked the room no. 3 and the person opened

the door who disclosed his name as Vishalkumar Upadhyaya. Police

started investigation. Before him police have taken the personal

search of the accused. They have taken the personal search. Then

articles were seized before him which he has narrated and identified

each and every articles in his chief examination. Further he has

stated that all the articles were seized and sealed before him and

panchnama was also drawn before him. The exh. 88 bears his

signature. The contents are true and correct. In the cross

examination it has come on record that the said panch has worked

in C. R. No. 57/2008 of RCC No. 983/2008. Though he has given

the said admission there is no further explanation that in what

context he has acted as a panch witness. There is no question that of

which police station the RCC No. 983/2008 was there in which hehas acted as panch witness. Even there is no explanation taken from

the witness that Mr. Barge has drawn that panchnama of that case

No. 983/2008. Only this admission to act as panch witness in C. R.

No. 57/2008 of RCC No. 983/2008 does not discard the evidentiary

value of his evidence which is supporting to the prosecution, to act

as panch witness he was present at the time of raid at Ganga Lodge. Advocate for the accused has drawn my attention towards the

reported rulings -

1. 1994 Cri. L. J. 1020Between

Mohammad Hussain Ramzan V/s.

State of Maharashtra


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The two accused were convicted under section 21 read

with 1C of N. D. P. S. Act and the said order of conviction was

challenged on the ground of seizer of heroin from the possession of

the two accused, and its taking of the sample from the accused. The

acted panch witness was established being used three times in the

said MIDC unit

In the reported ruling it was observed that the

prosecution has failed to establish about the reliability of the

evidence of panch witnesses.

2. 2000 (5) Bom. C. R. 585Between

Lalchand Yadav V/s.

State of Maharashtra.

The additional Sessions Judge, Greater, Bombay in

Session Case No. 1242/1992 convicted and sentenced the accused

to undergone imprisonment for life for the offence under section

302 of IPC against which the accused has filed an appeal.

In this case the observation relating to the public panch of

recovery was a habitual panch witness. In his cross-examination he

has admitted that he might have acted as a panchas once or twice

and post before the Court. The said evasive answer by him in the

view of the Hon'ble Supreme Court goes against his credibility. The

PSI has also answered that it may be possible that once or twice thepanch witness might have acted as a panch earlier. On that ground


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20 R. C. C. No. 2361/2007

it was observed that the police officer was to give straight forward

answer and when he does not give it but gives the evasive answer it

becomes very difficult for them to accept his evidence and it was

observed that it was extremely unsafe to place reliance on the

recovery evidence.

26. I have gone this reported ruling. The ratio laid of this

ruling are not applicable to the present case as the facts are totally

different.

27. The accused has admitted in the statement under section

313 of Cr. P. C. in this case the part of the articles were seized from

his possession on 8/4/2007. In the cross examination the panch

witness has stick up with his evidence in the chief examination. Hehas only supported to the prosecution case that at teh time of raid at

Ganga Lodge he was present there and before him the police have

done the personal search of the accused as well as his room and the

14 articles were seized before him as per the drawn panchnama

Exh. 88.

28. In the cross examination of the investigating officer themuch more questions were asked relating to the drawing of the

panchnama that the panchnama was drawn in the crime branch

officer where the signatures of the habitual panch witnesses were

obtained. There is nothing brought on the record to discard and

disbelieve the raid done by the investigating officer along with API

Mr. Phuge, complainant and panch witnesses at Ganga Lodge,Room No. 3.


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21 R. C. C. No. 2361/2007

29. The accused has not offered any explanation in respect of

the documents recovered from his possession. If we perused the

cross examination of teh complainant then panch witness Mr.

Pawar, Investigating officer there is no cross examination about the

denials of the given evidence of the seizer of documents articles,

collected by the accused and found in his possession.

30. The prosecution has come before the court that they have

seized the documents Cds, photographs from the possession of the

accused in view of exh. 88 which is duly proved. The said seized

documents from the possession of the accused are the classified

documents and also the photographs are of the military or the Army

related. The investigating officer has issued a letter in view of Exh.

161 to the General officer, Commending in chief, HeadquarterSouthern Command, Pune. The opinion of classified documents and

photographs was called. The opinion on the following points were

called.

(i) Nature of documents.

(ii) Is the information contained in the documents, if disclosed to unauthorized person can nbe prejudicial to

the safety, security, and interest of the State,

(iii) Whether the information / photographs contained can be

directly or indirectly useful to an enemy country (the

word enemy includes a potential enemy with whom the

country might be at war at some future date )(iv) Is the information / photographs contained directly or


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22 R. C. C. No. 2361/2007

indirectly connected wtih the defence matters of the

country.

31. The opinion is given by B. Mathew Lieutenant Colonel,

General Staff Officers Grade -1 (Intelligence) For General Officer

Commanding -in-chief as under :-

(a) The documents are of classified nature.

(b) The disclosing of the information contained in the

documents to unauthorized persons can cause breach of

security.

(c) The information contained can be of use to the enemy of

teh country.

(d) The information contained in the tele directory isconnected to the defence forces.

32. At Exh. 36 the document was seized from the possession

of the accused was in respect of the STD codes and CIV JN Nos of

MIL EXCHs. In the said document the Army, Naval and Air force

information of their offices, residence, hospitals is given. Theopinion given by the Lieutenant Colonel that the said information

tele directory is connected to the defence forces and which can be

used to the enemy of the country. The opinion is given that the

recovered documents are classified in nature.

33. The accused is a student of the Annasaheb Magar College,for his character the investigation is also done. At Exh. 118 the


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23 R. C. C. No. 2361/2007

letter is addressed to the Poona District Education Association

College of Engineering dated 13/4/2007 requesting to submit the

form fill up by teh accused at the time of admission enclosed with

his mark list and also his attendance list verified copy. The college

of Engineering Pune has submitted the copy of the application given

by the accused to the college at the time of admission in which the

Marks obtained as physics 58, chemistry 55, maths 37, PCM 300,

the application was dated 15/9/2004. At Exh.120 the application

for admission for second year degree course is produced. At exh.

121 the examination mark list of the month of May 2006 is

produced. Exh. 122 the mark list for the examination of November

2006 is produced. He got 83 marks out of 750. Exh. 121 on its

backside a letter written by the accused is existing. In which he has

written that he was able to fill up his fees as his father is not inIndia and there is some service problem.

34. At Exh. 123 the duplicate copy of school leaving

certificate issued by Bokaro Ispat Senior Secondary school is

produced on record. Exh. 124 is an affidavit given by the accused

for the admission for the year 2001-02. He has also taken a gap forthe period 2002-03. At Exh. 126 a letter dated 5/4/2007 addressed

to the Principal regarding recommendation letter He wanted to

appear for International English Language Testing System for future

academic help. The accused has admitted all these documents and

the led evidence by the prosecution produced at exh. 119 to 126. At

Exh. 127 the attendance copy of the accused for the year 2006-07 isproduced on record. In this year the accused has gone at Pakistan


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24 R. C. C. No. 2361/2007

on 14/10/2006 and on 23/1/2007 the accused is remained in the

absent in the college. His attendance sheet is marked as exh. 127

(1) to 127(6) admitted by the accused.

35. The accused who has obtained the passport from the

Ranchi in view Exh. 128 the passport officer Ranchi has replied at

exh. 167. It was intimated the date of issue of his passport was on

7/3/2005 and it was issued on the basis of valid old passport.

36. From the evidence of this documents it is clear that the

accused who has come here and admitted in Annasaheb Magar

College was not attending the college regularly.

37. He had gone at Pakistan for two times which is not deniedby him. The prosecution has brought on record the evidence of the

Airline tickets obtained by the accused from Riya Travels of Airlines.

At exh. 139 the invoice copy of Riya Travel of Airlines Pakistan

International having ticket No. 2638578756 in the name of accused

was booked. The said ticket is dated 9/12/2006 for the traveling

date 23/01/2007. Exh.140 is the receipt of the cash payment. Exh.141 is the ticket from Pune to Karachi. During the course of

statement under section 313 of Cr. P. C. the accused has answered

that his father is a company agent Wilfley, his father used to send

him Rs.8,000/- to Rs.10,000/- per month money. The accused has

admitted that he has received the money transfer through the

western union money transfer vide answer in the question no. 175and also in the question no. 21. At Exh. 145 the list of western


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money transfer is produced on record. It shows that the Fatima

Sallahudin Sha as well as Mohammad Sallahudin Sha sent the

amount to the accused. The dates of money sending are as under :-

Date Sender name Amount

12/8/2006 Fatima Rs.10000/-,

18/10/2006 Fatima Rs.2287.45

23/8/2006 Mahd. Salauddin Rs.16,000/-

31/8/2006 Fatima Rs.10,000/-

12/9/2006 Fatima Rs.2500/-

18/9/2006 Fatima Rs.4,500/-

22/9/2006 Fatima Rs.5,956.43

25/9/2006 Fatima Rs.5,000/-

27/12/2006 Mam.Sallahudin Rs.1,000/-

38. The said amount was sent from the city Karachi from thesame address of Flat no. 14, Block No. A, First Floor, Sunny Pride, J

and from the another address Flat No. 14, Sunny Pride Block No. A

Gulistan EJ, Karachi, the receiver name is mentioned as accused.

The receivers address is a different places .i.e. Saipurva Hostel,

Pune, Hotel Baramputra Prabhaganj, New Delhi, hotel

Sangatrvganj New Delhi. The said amount is received by theaccused admitted whose name is existing in the said information list

Exh. 145. From this document it appears that he used to go at Delhi

and residing in the hotel.

39. The address mentioned in exh. 145 is one and the same is

existing on the envelopes Exh. 39, 40 the white colour envelopeadmitted by the accused received in the name of Raj.


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40. The accused used to call at Pakistan. According to him he

used to call by his own mobile No. of hutch company mobile no.

9823413471. The DCP Mr. Kumbhare has called the details in

respect of call at Pakistan. It has also come in the evidence he had

also contacted to the Pakistan High Commission at Delhi and called

at Pakistan on this mobile number. The accused has answered in teh

affirmative in the questions No. 169 and 170 under statement under

section 313 of Cr. P. C. The prosecution has produced on record at

Exh. 163 a letter given to teh Director of Pak Division, Miya Akbar

Hotel Delhi asking the photographs of the staff Mr. Sayeed Tirmizi

and Abdul Latif Javed and their particular postings. At Exh. 164 the

photographs of Tirmizi and Abdul Latif members of Pak High

Commission provided. AT Exh. 170 the photograph of Sayeed

Tirmizi and at Exh. 171 the photograph of Abdul Latif are produced.In respect of these two accused the query was made by the

complainant in view of Exh. 165. The accused has given a

statement under section 313 of Cr. P. C. and given the statement

that there is no person by name Hafizi the police have no proof

about the existence of any personality by name Hafizi. He has

admitted that he used to call to teh Pakistan Embassy, customercare for his visa information. There is documentary evidence

produced on record by the prosecution that accused used to go at

Delhi reside in the hotel, receive the money sent from the Pakistan.

The Hafizi and Abudl Latif were working at Delhi. '

41. The said evidence brought on record by the prosecution

establishes that the accused was having the connection with thePakistan High Commission.


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27 R. C. C. No. 2361/2007

42. It is also case of the prosecution that the accused used to

call at Pakistan. At Exh. 134 the letter was addressed to the

Manager of Hutch mobile company to get teh details, with the

location activation of the cell of teh accused No. 9823413471. At

Exh. 134 the said letter issued by Anil Kumbhare DCP is produced.

The letter giving incoming and outgoing details from January are

given. There were 74 outgoing calls to the Pakistan Phone No.

923002592314 outgoing 17 92300360021 outgoing 51 and

incoming 3, 923002386994 five outgoing, 9232121241717, Mobile

No. 9899756401, SMS four. At Exh. 136 the details of the call are

produced. At Exh. 132 a letter issued by Anil Kumbhare, DCP,

crime branch, Pune city calling the details of the five numbers

addressed to the Airtel mobile is produced. The Five numbers are

9860179763, 9860489816, 9890546863, 98906611656,9890217996. The details of the Airtel call on these numbers in

which the number of accused is existing. The details from the BSNL

company were also called by issuing a letter by Anil Kumbhare to

the Manager about the land line No. 26997427. The accused has

admitted the calls from this number to the Pakistan in the statement

under section 313. At Exh. 147 the letter given by BSNL company of Mr. D. M. Purandare about the 31 calls to the mobile no.

9230025923141 are produced. From this document produced by

the Airtel company, Hutch Company, and BSNL it appears that the

accused was having the connection with the Pakistan and he used to

call at Pakistan and also Vice Versa call from Pakistan to the

accused.


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28 R. C. C. No. 2361/2007

43. At Exh. 150 the letter addressed to Bhandoriya

Commandant, Commandant Intelligence Officer, HQ, Mumbai was

issued. In respect of inquiry of one Ratnakar Dube. At Exh. 151 a

notification in respect of suspect of Ratnakar Dube in the crime is

produced on record. At Exh. 152 is a search warrant issued by

Commissioner of Police Pune under section 11 of Official Secret Act

about authorization given to Mr. Barge to search the residence of

Ratnakar Dube was dated 19/4/2007. At Exh. 154 a letter to the

Director of Navel Training Khadakwasla about the inquiry of Dube

request for furnishing detail of NDA Posting was called. According

to the investigating officer he has done the investigation with the

accused was having the connection. On 20/4/2007 the investigating

officer recorded the statement of Ratnkar Dube who had given a

statement that for two times the accused had visited the NDA whenhe was posted there. The statement was also given that accused has

promised to give admission to his niece in the Annasaheb Magar

College and it was found that the Ratnakar dube was not having any

nexus with the accused. The said evidence of investigating officer in

para 46 is nowhere challenged in the cross examination. Thus from

the evidence on record it is clear that the documents collected by the accused and found in possession of which the investigating

officer has drawn the panchnama exh. 88 where the documents

coming under the Secracy and security of the nation.

44. The documents which were obtained from the possession

of the accused for the purpose of prejudicial to the safety andintegrity of the India. The definition of the document under the


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official Secret Act, 1923 is given under section 2 which I would like

to reproduce on record.

45. It is also necessary to consider the definition under section

2(8) given in the Official Secret Act in respect of the photographs,

then the undeveloped films defined under the Act. The definition of

prohibited place is also given which I would like to reproduce it as

under :-

(8) Prohibited place means -

(a) any work of defence, arsenal, naval, military or airforce establishment or station, mine minefield, camp, shipor aircraft belonging to to, or occupied by or on behalf of Government, any military telegraph or telephone sobelonging or occupied, any wireless or signal station oroffice so belonging or occupied and any factory, dockyard

or other place so belonging or occupied and used for thepurpose of building, repairing, making or storing any munitions of war, or any sketches, plans, models ordocuments relating thereto, or for the purpose of gettingany metals, oil or minerals of use in time of war.

46. In this case the accused who has come before this court

that he was having love affair with a girl Pakistan with whom he has

chatted. That the accused was sitting in the cyber cafe. The

prosecution has examined the witness Namdeo N. Kunjeer at Exh.

77. The said panch witness is on the point of seizer o f the SIM card

of Airtel company on teh memorandum statement given by him. At

Exh. 77 the witness has narrated that he had gone at crime branch

Pune,. The accused was present there. Another panch Sunil Barne was present there. Accused has given a memorandum statement and

as per his memorandum statement they had gone at Icon Net Cafe


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at Kothrud. The memorandum statement given by the accused is at

exh. 63. The panchnama is drawn under section 27 of evidence Act.

As per the statement given by the accused Vishalkumar. There is a

search in the Icon Net cafe. That memorandum panchnama is at

Exh. 64. The accused has produced the concealed SIM cards of

Airtel company. If we perused the cross examination the cross

examination does not discard the panchnama drawn by the police

under section 27 of Evidence Act. The witness from the said Net

cafe Subham Yadav is examined at exh. 80. According to this

witness the accused used to come to their net cafe. He has requested

to keep his two suitcases till he will get the accommodation. On

14/2/2007 Vishalkumar had come to their net cafe. He has done

chatting work on Yahoo messengers. Again he had come on

21/2/2007. The witness has asked him to take his two suitcaseskept in the shop. But thereafter on 21/4/2007 the police had come

there. There is no reason to disbelieve the statement of the

witnesses as there is no cross examination or denials of the

statements given by the witnesses in the cross examination.

47. The recovery of the SIM card on the statement made by teh accused during investigation is admissible in evidence under

section 27 of the Evidence Act.

48. In respect of his chatting work the letter was issued

through the Cyber crime cell, crime branch, Pune addressed to the

Anti Extortion squad by referring the Email documents obtained by them. The said letter is at exh. 137. At Exh. 138 from the pages 2 to


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31 R. C. C. No. 2361/2007

80 the Email record is produced on record. If we see the Email

record on the pages 343 there is a Email dated 13/8/2006 from

Sadiya Fatima Sadiya Pak girl in which there is contention of the

sending of Rs.10,000/- and its bifurcation of the incurred expenses.

The page 341 Email dated 2/11/2006 from Sadiya Fatima related to

the nature of work to be done by a person being under any type of

education but it is not related to any love affairs.

49. The Email contacts page No. 355 the letter is given by one

Fatima addressed to Jog Wilson, subject is for admission wherein it

is mentioned that this is Fatima my brother is doing Engineering

from Pune University, India, he is studing in Second Year and he

wants to transfer overthere. The name of Vishalkumar along with

his contact numbers is given. From teh said contents of Email it canbe inferred that there was a relation between Fatima Sallahudin Sha

and the accused. Fatima is calling Vishalkumar as a brother where

as Vishalkumar saying Fatima is his lover.

50. According to the prosecution that the accused was having

contact with the Sallahudin Sha. At Exh. 76 one Shaikh MancharImam arulhuda is examined. He is Maulana Immam Shain Mazid

Hadapsar, Pune. He knows the accused who had gone to him in teh

month of May, June 2005 in Shahin Mazid. The witness has

narrated that accused told him that he was taking education in

Annasaheb Magar College At Hadapsar and he was having love with

a girl of Pakistan. He told him that he wanted to change his religionin Muslim and he wanted to marry with that girl. The witness has


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32 R. C. C. No. 2361/2007

refused to do that work. Again the accused two days after requested

him to talk with a father of the girl of Pakistan. Hence, they had

gone at STD booth of Annasaheb Magar College. According to the

witness he talked with the father of the girl at Karachi. Father has

told him that he had taught him Kalma and changed his religion.

Thereafter witness left teh place and returned to Mazid. The

investigating officer has told that Maulana has given a statement

that the father of that girl told that they have changed his religion

and kept his name as Bilal. In the Email record there is a reference

of Bilal.

51. In the 313 statement of Cr. P. C. teh accused had

admitted that he had talked with Maulana and also their talk with

the father of girl of Pakistan. The answere given by the accused inthe affirmative are in question no. 80,, 81 and 83.

52. The prosecution has also produced on record the accused

visit to the Ganga Cyber cafe, Deccan. At Exh. 71 (1) to 71(16) the

attendance of the accused in the cyber cafe is produced on record.

The evidence of the owner of Ganga Cyber Cafe of Raviraj Jadhav isnowhere challenged in the cross examination. The accused has also

resided at Ambika Lodge on 29/3/2006. The room No. 45/2A was

provided to the accused. The entry at Sr. No. 2328 in the register in

the regular course is taken wherein teh accused has made the entry

o fhis mobile no. 9823413471. the said document is at exh. 74.


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53. After the arrested of the accused he was taken to Narco

testing. The letter issued by the complainant to the Police Inspector

for Narco test is at exh. 61, a letter addressed to the medical

Victoria by complainant is at Exh. 62.

54. In respect of receiving the information confidentially the

arguments were submitted on behalf of the accused that from where

the information was received that evidence is not brought on

record. The API Mr. Barge is interested to get publicity, raid,

investigation is bogus. If we perused the evidence of Investigating

Officer he has done the investigation thoroughly. Since the

threshold of the case the investigation is legally sequence and

properly done. The statements of 11 witnesses were recorded under

section 164 of Cr. P. C. of which evidence is at Exh.193. Thestatement of Dnyneshwar, Raviraj, Yogesh, Mandar Mithilesh,

Laxman Niteshkumar, Bijli, Pramod recorded. According to the

accused Mithileshkumar statement supporting to him. I feel accused

could have examined him as defence witness which is not done.

55. The provisions of the section 13 (3) of the Official Secrets Act, 1923 are in respect of restriction on the trial of the offences.

The sanction is necessary. At Exh. 168 prosecution sanction letter

issued by Virendra Kumar, Under Secretary dated 2/7/2007 is

produced. The provisions of section 13(3) which are as follows -

13. Restriction on trial of offences : (1) No court (otherthan that of a Magistrate of the first class specially empowered in this behalf by the (appropriate Government


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34 R. C. C. No. 2361/2007

), which is inferior to that of a District or Presidency Magistrate, shall try any offence under this Act.

(3) No court shall take cognizance of any offence underthis Act unless upon complaint made by order of, or underauthority from, the (Appropriate Government ) or someofficer empowered by the (appropriate Government ) inthis behalf.

56. The Dy. Commissioner of Police have filed teh

chargesheet through the investigating officer Mr. Bhanupratap

Barge. In respect of receiving the information confidentially and not

examining the person who has given the information the advocate

for the accused has drawn my attention towards two reported

rulings -

1. 1983 Cri. L. J. 1276 (1) Supreme Court,Between

Bhagdomal Gangaram and others V/s.

State of Gujarat and others. The accused was convicted under section 65(A) read withsection 81 of Bombay Prohibition Act. The revision wasreversed. Their Lordships observed that the evidence of

admissibility comes and when the witness testifying as toinformation given to him about ( being a manager ortruck involved in that crime by specified person and thatlater person is not examined. Under these circumstances,

Apex Court observed that testimony of the witness is notadmissible.

2. Case Appeal No. 887/2007 Supreme Court of India

betweenKanya Mishra V/s. State of Bihar.


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35 R. C. C. No. 2361/2007

In this case the accused was convicted under section 302of IPC he was sentenced to death and pay fine of

Rs.5,000/-. In this case there were observations relatingto the investigation done by the Investigating Officer. Theaccused after occurrence of alleged incident abscondedfrom his house and surrendered to the court. The only evidence on the circumstances was that the investigatingofficer has stated that during the course of investigationhe received secret information that the appellant wasfleeing away wearing only the under garments and inorder ot verify the same left the police station along with

the armed forces in search of the accused, went to thehouse of Mithiklesh Jha, at village Murali, where he wasinformed that Chandra Mishra father of applicant hadgone there in search of him and he is having not for thereto the place of other relatives for searching him. This

witness nowhere stated that from whom he received thesecret information inasmuch as such information cannotbe made a basis to prove his circumstances for being usedagainst the appellant.

57. These rulings are related to the confidential information

i.e. Secret information from whom it is received and there is no

explanation for the same. In this case the information received by

the investigating officer is confidential and he has refused to give

the name of person giving the said information in the safety of the

person provided the information. The arguments submitted by the

Advocate for the accused that to just to get publicity nobody will do

such type of deep investigation in interest of security of a nation. I

do not agree with teh argument submitted by the Advocate for teh

accused.

58. The accused who is charged under section 3 of Official

Secrets Act. The section 3 of the Official secret Act is for the


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penaliies for spying and also for prejudicial act against the safety

and interest of the State. I would like to reproduce the contents of

section 3 as under :-

Section (3) : Penalties for spying : -(1) If any person for any purpose prejudicial to the safety or interest 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 iscalculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or(c) obtains, collects, records or publishes orcommunicates to any other person any secret official codeor password, or any sketch, plan or model, article, note orother document or information which is calculated to beor might be or is intended to be directly or indirectly,useful to an enemy [ or which relates to a matter thedisclosure of which is likely to affect the sovereignty and

integrity of India, the security of the State or friendly relations with the Foreign States ] he shall be punishable with imprisonment for a term which may extend, wherethe offence is committed in relation to any work of defence, arsenal, naval, military or air force establishmentor station, mine, minefield, factory, dockyard, camp, shipor aircraft or otherwise in relation to the naval, military orair force affairs of Government or in relation to any secretofficial code, to fourteen years and in other cases to three

years.

(2) On a prosecution for an offence punishable undersection it shall not be necessary to show that the accusedperson was guilty of any particular act tending to show apurpose prejudicial to the safety or interest of the State,and, notwithstanding that no such act is proved againsthim, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved,it appears that his purpose was a purpose prejudicial tothe safety or interests of the State, if any sketch, plan,model, article, note, document, or information relating to


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37 R. C. C. No. 2361/2007

or used in any prohibited place, or relating to anything insuch a place, or any secret official code or password is

made, obtained, collected recorded, published orcommunicated by any person other han a person actingunder lawful authority, and from the circumstances of thecase or his conduct or prejudicial character as proved itappears that his purpose was a purpose prejudicial to thesafety or interests of the state, such sketch, plan, model,article, note document, information, code or passwordshall be presumed to have been made, obtained collected,recorded, published, or communicated for a purpose

prejudicial to the safety or interests of the State.

59. The provisions of section 9 of the Official Secret Act of

which provisions are as follows -

Section 9 official Secrets Act. Attempts, incitements, etc.- Any person who attempts to commit or abets thecommission of an offence under this Act shall bepunishable with the same punishment, and be liable to beproceeded against in the same manner as if he hadcommitted such offence.

60. In respect of section 9 of the Official Secret Act, it is

argued that though accused found in possession of documents there

is no evidence of sending it to Pakistan. He might have changed his

mind and for this the Advocate for the accused has drawn my

attention towards the reported rulings -

1. 1997 Cri. L. J. 1660Between

Jagmohan Alias Manohar Lal V/s.

State of U. P.In this case the accused was convicted by the SpecialJudicial Magistrate under section 3 read with section 7 of the Essential Commodities Act, for contravening the


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provisions of U. P. Paddy and Rice Order, 1970 and he was sentenced to undergo RI for two years and pay fine of

Rs. 26,407/- and in default of fine to undergo further RIfor three months. The trial Magistrate acquitted thedriver of the bus but convicted the conductor of the busand owner of the rice bags. The conviction and sentenceof both were set aside an appeal filed by the presentapplicant Jagmohan dismissed and his conviction andsentence both were maintained by 3 rd Additional DistrictJudge. Against that order revision was filed. TheirLordships observed that in order that the person may be

convicted of an attempt to commit crime. He must shownfirst to have, had and intention to commit an offence andsecondly to have done the act which constitutes the actusrea of criminal attempt. The test of determining whetheract of the accused person constituted an attempt orpreparation is whether nor tacts already done are suchthat if an offender changes his mind and does not proceedfurther in its progress. The accused already done wouldbe completely harmless. It was held of seizer of truck of paddy in territory of Punjab cannot be said to be export

within the meaning of para 2 of the order, on the basis of this observations it was argued by the Advocate for theaccused that in this case the provisions of section 9 arenot attracted as there is no attempt. When the attempt

will be fulfilled when there is having intention. Accordingto the prosecution case in the near future so there is nospecific date mentioned in the complaint nor any evidenceis on record. The envelope which is seized is not havingthe handwriting of the accused and the accused hasdenied the existing handwriting on the envelope. There isno handwriting expert opinion. It is argued thatpresuming that he was possessing the document but hemight have changed his mind and he has not made any attempt to commit an offence of sending it outside hence,there is no offence.

2. Secondly, he had drawn my attention towards thereported rulings -


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1970 AIR 713Between

Malkiat Singh and Anr. V/s.State of Punjab

In this case also the offence under section 3 and 7 of theEssential Commodities Act. The truck carrying paddy wasstopped by the police of Punjab State and it was observed

whether any offence committed by the driver of the truck,Their Lordships observed that no offence has been

committed by the Appellant nor was there attempt tocommit the offence as the paddy was seized well insidethe Punjab boundary and there was no export of paddy outside the State of Punjab. It was also possible thatappellants might have changed their mind at any placebetween the place of seizer and the state of boundary.The acts of the appellants then would only constitutepreparation and not an attempt to commit an offence of export because the test of determining whether actsconstitute merely preparation and not an attempt is

whether the overt act already done are such that if theoffender changes his mind and does not proceed furtherthe acts already done would be completely harmless.

61. The ratio laid down in the said rulings are not applicable

to the present case as prosecution has proved the offence under

section 3 and also proved the offence under section 9 of the Official

Secret Act, 1923.

62. The accused is charged punishment for criminal

conspiracy. In this case the evidence produced on record by the

prosecution established that the accused hatched in the criminalconspiracy with teh sallahudin Sha and Tirmizi and Javed and

pursing to the same he has committed an offence under section 3 by


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collecting the secret information of teh nation. The secret Act

indicates that its provisions are essentially concern with the security

and sovereignty of India.. Under the garb of the love affair with a

girl of Pakistan the accused attempted to handover the secret

information of the nation which is a dangerous act on teh part of

the accused. The prosecution has established teh guilt of the

accused under section 3, and 9 of the Official Secret Act, 1923 and

also established the criminal conspiracy with the sallahudin Sha,

Tirmizi and Abdul Latif of teh absconded accused.

63. The accused who has come before the court that he is

student of second year engineering college and leaving in the

Saipurva Hostel, what was the necessity to reside him at different

lodges at Pune, Ganga Lodge, Amibka Lodge, Prabhat Lodge in viewof Exh. 160 entry made in the prabhat lodge of Room No.106. His

visits are at Delhi. Received the money from the Western Union at

Delhi. He has also resided at Delhi. The two accused Abdul Latif and

Tirmizi were staff members working at Delhi.

64. The evidence on record substantiate that the saidcollected documents were secret of Military, religious place of India,

the accused having intention to send from India to Pakistan

considering the entire gamete of conspiracy under section 120-B of

Indian Penal Code and a role played by the accused of collecting

the information of the military, Pune city is a ultimate achievement

of common goal of conspiracy.


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The provisions of Section 120-B of IPC is the punishment

for the criminal conspiracy. The elements of the criminal conspiracy

required to be considered that -(a) an object is to be accomplished

(b) a plan or scheme embodied means to accomplished that object

and (c) agreement or understanding between two or more persons

whereby they become definitely committed cooperate for the

accomplishment for the object and means embodied in the

agreement / understand. (d) In the jurisdiction where a statute

require and overt act.

65. Evidence shows that the accused was in thick of

conspiracy. The illegal act of accused is of collection of secret

documents and having common goal to send it Pakistan where he

has admitted visited for two times as on 14/10/2006 and23/1/2007 with the father of alleged girl Fatima, sallahudin Sha

and other two absconded accused Abdul Latif and Tirmizi.

66. It is clear that the accused has committed an offence

against teh safety, security of teh nation. Being a student of Anna

Saheb Magar Engineering College, under the false concocted loveaffair he wanted to misguide the people of the nation. If really the

working woman Fatima was having love affair with this accused and

they were going to marry she might have come, but not she nor her

father sallahudin Sha had come before the court to explain the real

truth. I do not believe the story of accused. By communicating the

secret information as discussed above including the photographs,CDs and I hold that he liable to be punished for the offences


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punishable under section 3,9 of Official Secret Act and 120-B of

Indian Penal Code. For this reason the points for determination nos.

1 to 3 are answered in the affirmative.

67. As the accused held guilty punishable under section 3, 9

of the Official Secret Act and under section 120-B of IPC. He is liable

for punishment.

68. Before imposing the punishment accused is required to be

heard on the point of sentence. Hence I have taken pause for the

same.

une. (Mrs. Suchitra S. Ghodke)Dt.29/03/2011. Chief Judicial Magistrate,

Pune.

69. The accused has been brought before me. I have informed

him the gist of the judgment and also intimated him that he has

been held guilty for the charges leveled against him and opportunity

is given to him to heard him on the point of sentence. Advocate for

the accused Mr. Katore R. V. is also present in the court hall. APPMr. P. B. Gaikwad is also present in the Court.

70. Heard the accused in person who has submitted that his

father is paralyze, two sisters are dependent on him. Hence, lenient

view may kindly be taken. Advocate for the accused has submitted

that the accused is in Jail from the year 2007. The age of accusedmay be considered. The family of the accused is dependent on him


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as he is the alone earning member in the family. Hence, lenient

view may kindly be taken. APP has submitted that the act of the

accused is against the nation. The offences charged against him are

duly proved hence, maximum punishment may be given.

71. After hearing the accused, his advocate and APP I feel that

a student, accused who was admitted by his parents in the

Annasaheb Magar Engineering college for his future. He had come

at Pune along with passport obtained from the Ranchi of the year

2005. The activities of the accused brought on record by the

prosecution are the anti social activities against the security and

sovereignty of the nation. The accused is 28 years old at this time in

view of the statement given under section 313 of Cr. P. C. as on

17/2/2011. The offences charged against the accused proved by theprosecution by doing the investigation in the interest of the nation.

Already I have observed that by taking pains for doing such type of

investigation and obtaining the sanction from the Government and

filing the case within time is not only the duty goes towards for

getting the publicity in the society. The investigating officer has also

done the deep investigation which cause result to bring home theguilt of the accused on record. A student of engineering college

doing such type of activities against the nation is also shameful.

However, considering his age, prayer and the offence proved against

him I feel the order of sentence will meet the ends of justice. In the

result,


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44 R. C. C. No. 2361/2007

O R D E R

1. The accused Vishalkumar Premchand Upadhyaya ishereby convicted under section 248(2) of Criminal Procedure Codefor the offence punishable under section 3, 9 of the Official Secret

Act, 1923 and under section 120 B of Indian Penal Code.

2. The accused is hereby sentenced to suffer R. I. For seven years for the offence punishable under section 3 of the officialSecret Act 1923.

3. The accused is hereby sentenced to suffer R. I. For seven years for the offence punishable under section 9 of the officialSecret Act, 1923.

4. The accused is hereby sentenced to suffer R. I. for seven years for the offence punishable under section 120-B of the IndianPenal Code.

5. All sentences shall run concurrently in view of theprovisions of section 427 of Cr. P. C.

6. The period of detention undergone by the accused isgiven set off against the sentences of imprisonment under section428 of Cr. P. C.

7. The muddemal property 12 Cds out of which the two Cdsof religious places of Pune city and the Army buildings and 48photographs be given in the custody of the Southern Command,Pune after appeal period is over.

8. The Indian Passport bearing No. 1863965 and thePakistan Visa of the accused is hereby canceled and be sent to thepassport authorities for the necessary order after appeal period isover.

9. The western union receipts, Nokia company handset, two wrist watch, one digital camera be confiscated to the Governmentafter appeal period is over.


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10. The holy Quran book be given to the school library AngloUrdu Girls High School, Pune after appeal period is over.

11. The muddemal property the military officers telephonenumbers and other information documents be given in the custody of Southern Command, Pune after appeal period is over.

12. The muddemal property .i.e. photographs the girl of Pakistan, identity card of accused of Engineering college, the diary pages having Pakistan addresses, the blue colour diary in which theUrdu writing is there, the green pista colour envelope and other

white colour envelopes , two cds of sony company on which NDA is written, then mosebear company is written, one photograph of lordDagduseth Hawai Mandir, Khadki Ammunition factory, H A Factory,Bombay shopper, BEG Khadki photographs and others, the black leather valet, ten Cds the guide book of other state education,amazing company two pens, one blue colour horizon 2000 company radio mirchi, the greeting cards, negatives of photograph of Pakistani girl and also letter to Sallahudin, one black colour bag, thecard reader writer, airtel company sim card one is white and onered colour and the white colour plastic bag be destroyed afterappeal period is over.

13. The muddemal property cash of Rs.300/- and the Australian dollar currency be confiscated to the Government afterappeal period is over.

14. The muddemal property register of Ganga Lodge bereturned to the owner after appeal period is over.

Pune. (Mrs. Suchitra S. Ghodke)Dt.29/03/2011. Chief Judicial Magistrate,

Pune.


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I affirm that the contents of this P. D. F. file Judgment are same word for word as per original Judgment.

Name of Steno : Patil Shivaji N.Court Name : Chief Judicial Magistrate, Pune.Date : 29/03/2011Judgment signed by Presiding officer on :- 30/03/2011Judgment uploaded on :- 31/03/2011

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