Jalaluddin vs State Of U.P.
2017 Latest Caselaw 2624 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved.
 
Court No. - 44
 

 

 
Case :- CRIMINAL APPEAL No. - 6116 of 2003
 
Appellant :- Jalaluddin
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ashwini Kumar Awasthi,Manish Tiwary,P.K. Pandey
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Shailendra Kumar Agrawal,J.

(Delivered by Hon. Bharat Bhushan, J)

1. Appellant Jalaluddin is admittedly resident of Bilal Nagar Colony, Police Station (PS) -Garibabad, Sindh, District Thattar, Pakistan. He has been convicted under Section 3 of the Official Secret Act, 1923 (hereinafter referred as Official Secret Act), Section 14 of the Foreigners Act, 1946 (hereinafter referred as the Foreigners Act) and Sections 468, 471 of the Indian Penal Code, 1860 (hereinafter referred as IPC) by the impugned judgment and order dated 17.11.2003 passed by Addl. Sessions Jude, Fast Track Court No. 4, Varanasi in Sessions Trial No. 474 of 2002 arising out of Case Crime No. 446 of 2001, P.S. Cantt, District Varanasi.

2. The appellant was sentenced to 14 years rigorous imprisonment under section 3 of the Official Secret Act, 5 years rigorous imprisonment and fine of Rs. 5000/- with default stipulation under Section 14 of the Foreigners Act, 7 years rigorous imprisonment and fine of Rs. 3000/- with default stipulation under Section 468 IPC and finally 7 years rigorous imprisonment along with fine of Rs. 3000/- with default stipulation under Section 471 IPC. All the sentences were directed to run consecutively. In essence, appellant has to suffer total 33 years of rigorous imprisonment along with various fines with default stipulations.

3. Prosecution has alleged that appellant was arrested on 3.10.2001 at about 4.10 p.m. by Station House Officer (SHO) P.S. Cantt Sri D.P. Shukla (informant/P.W-2) along with his companions at Unique Cyber World located near the police line crossing within P.S. Cantt, District Varanasi on the information furnished by informant while he was transmitting several documents of strategic importance to the safety and security of the Nation to the Pakistan. Recovered articles indicated that appellant had been visiting Fort Williams, Barrackpur of Eastern Command Unit and Assam Rifles, etc. He had transmitted locational information's, maps and other information with a purpose prejudicial to the safety or interest of the Nation. Indian Passport No. B-3062545 valid up to 7.12.2010 in the name of one Juber Khan son of Liyakat Khan resident of A-515 Camp II, J. J. Colony, Nangloi, Delhi was also recovered upon which a Visa of Pakistan was visible at page no. 5.

4. The appellant was also taken to resident of Ali Abbas in Village Devchandrapur, P.S. Saidpur, District Ghazipur on 5.10.2001 where he was residing. From this residence, normal clothes, some cash and an affidavit in the name of Juber Khan, and ration card etc were also recovered.

5. The police also found that in the Indian Passport issued in the name of Juber Khan, the photograph of appellant had been substituted. Submission is that the appellant was using this Indian Passport by partially forging this Indian Passport. He used to travel at various places within India in the name of Juber Khan. It is also alleged that he was receiving instructions from one Major Akbar of Pakistani Secret Agency, (I.S.I). Informant D. P. Shukla lodged the First Information Report (FIR) Ex-Ka-4 at P.S. Cantt on 3.10.2001 at 18.15 p.m. Fard Ex-Ka-1 of recovered articles was prepared on 3.10.2001. Subsequently another Fard Ex-Ka-2 was prepared after recovery of incriminating articles from Village Devchandrapur, P.S. Saidpur, District Ghazipur on 5.10.2001. Sanction of Home Ministry to prosecute the appellant is available on record as Ex-Ka-19.

6. The matter was investigated and a criminal case was initiated. The then Addl. Sessions Judge, Fast Track Court No. 4, Varanasi charged the appellants under Section 3 of the Official Secret Act, under Section 14 of the Foreigners Act, under Section 468 IPC and Section 471 IPC.

7. Prosecution has adduced as many as eight witnesses in support of its allegations namely P.W.-1 S. I. Shesh Dhar Pandey (arresting witness), P.W.-2 S.H.O. Devi Prasad Shukla (informant), P.W.-3 Squadern Leader S. N.G. Hussain Khan of Indian Air-force, P.W.-4 Constable Prasiddhan Ram, P.W.-5 Colonel G. S. Jairam of General Staff Intelligence, Central Command, P.W.-6 S.I. Diwakar Singh (first Investigating Officer), P.W.-7 Inspector Jaiprakash Singh (Subsequent Investigating Officer) and P.W-8 Cosntable Shami Yadav.

8. Statement of appellant was recorded under Section 313 Cr.P.C. He has denied all allegations and claimed false implication. He has also denied ever possessing Passport of Juber Khan. His argument is that he came on his own Passport on 9.7.2001 to India and that he was arrested from Village Devchandrapur on 26.9.2001 and subsequently shown to have been arrested on 3.10.2001. Accused also summoned one witness from Passport Office R. K. Puram, New Delhi and produced him as D.W.-1 Rukum Singh Rawat who has testified that the Passport allegedly recovered from appellant was issued in favour of one Juber Khan of Delhi, however, photograph affixed on this Passport does not match with the photograph of owner of Passport available on application form.

9. On conclusion of the trial, learned Sessions judge convicted appellant Jalaluddin as aforesaid by the impugned judgment and order dated 17.11.2003. This judgment is under challenge before this court.

10. We have heard Sri P. K. Pandey, learned Amicus curiae for the appellant and learned AGA Sri Ajeet Kumar Singh on behalf of State.

11. Learned Amicus curiae has argued that information of arrest of appellant was received some where around 3 p.m. and yet more than 3-4 hours were taken into various documentation. He has expressed surprise that the FIR was lodged at 6.15 p.m. despite the fact that the Police Station is merely 2 Kms away from the Unique Cyber World. It is further pointed out that owner of this Unique Cyber World has not been produced by the prosecution.

12. Learned Amicus curiae has also claimed that stated information allegedly transmitted to Pakistan is easily available as per testimony of P.W.-3 S. N. G. Hussain Khan and P.W.-5 Col. G. S. Jairam. Submission is that no evidence of recovery dated 5.10.2011 is available on record. Submission further is that Ali Abbas at whose residence the appellant was residing, has not been produced in evidence.

13. To the contrary, learned AGA has argued that testimony of police witnesses cannot be disbelieved merely because of nature of their employment. Submission is that owner of Unique Cyber World was afraid to testify in this case. Prosecution evidence in this regard is sufficient. He has also drawn attention of this court towards the provision of Section 3 of the Official Secret Act which provides that prosecution is not obliged to prove any particular act of accused in order to show the purpose was prejudicial to safety of the country.

14. We have carefully examined all the materials available on record. The fact of the matter is that Section 3 of the Official Secret Act makes it abundantly clear that prosecution is not obliged to prove any particular act of accused tending to show a purpose prejudicial to the safety or interest of the country in order to establish its case. Provision indicates that accused can be convicted if from the proved circumstance of the case or from the proved conduct of the accused and his companions, it is established that intention of accused was prejudicial to the safety and security of the country.

15. It is pertinent to point out that act of spying is not defined under the Act. The complete and plain reading of the provision would indicate that accused shall be guilty of offence of spying, if such person, for the purpose prejudicial to the safety and security of the State, approaches, inspects, pass-over or is in the vicinity or enters any prohibited place or makes any sketch, plan, model or note which is calculated to be or intended to be directly or indirectly useful to enemy or obtains, collects records or publishes or communicates to any other person, any secret official code or password or any sketch, plan, model, articles or note, other documents or information which is calculated to be or might be or is intended to be directly or indirectly useful to enemy or which relate to a matter, disclosure of which is likely to affect the sovereignty and integrity of Country, security of State or friendly relations with Foreign State.

16. The fact that information is easily available or available with difficulty is not pertinent question in this regard. If the passing of such information adversely affect, sovereignty and integrity of the State then the person responsible for this communication can be convicted under the Act.

17. We have meticulously scanned the entire evidence of prosecution in this regard. P.W.-1 S. D. Pandey has testified that he had been instructed along with S. I. Ajay Srivastava to reach the shop of Unique Cyber World in private dress by S.H.O. P.S. Cantt. Subsequently, P.W.-2 D. P. Shukla also arrived at the alleged Unique Cyber World. Apparently, D. P. Shukla has been given information by one informant. At 3.10 p.m. the appellant arrived in this Unique Cyber World and obtained permission from the owner Shailesh Tripathi to use Computer. He typed detailed e-mail for 25-30 minutes. Then he was intercepted by the police personnel. E-mail in question contained various information regarding Air Force Installation and Army Selection Office.

18. Appellant was arrested. A diary was recovered from him wherein several telephone of foreigners including the telephone number of Pakistanis were found. His address was found. One Ration Card indicating his Delhi residence, three cards and several other materials were also recovered. The appellant was arrested at 4.15 p.m. Printouts were taken from the Computer. Surprisingly private citizens available at Unique Cyber World declined to become witness, however, several police personnel were present and they prepared Fard Ex-Ka-1.

19. On 5.10.2001 accused was taken to house of one Ali Abbas in Village Devchandrapur, P.S. Saidpur, District Ghazipur where the said appellant was residing. His residential area was searched in presence of two witnesses namely Ram Lal Sonkar and Gopal Kharwar. Ali Abbas gave out a cash amount of Rs 4400/-. Some domestic articles as well as railway tickets for various places were also found. Some information pertaining to Eastern Command Barrackpur, Fort Willium etc were also found. Fard Ex-ka-2 was prepared.

20. The question is whether public witness is necessary in each and every case. We do not think that there is any law or legal requirement to support the prosecution case by necessarily producing the public witness. We believe that learned Sessions Judge has rightly accepted the testimonies of police witnesses to prove the recovery of documents and same cannot be rejected merely on the ground that these witnesses belong to police department. Recovery of documents from the appellant has been established not only by the testimony of P.W.-1 S. D. Pandey but also by P.W.-2 D. P. Shukla who infact initiated the entire process.

21. Recovery of Indian Passport in the name of one Juber Khan gives the game away. Admittedly, appellant belongs to Pakistan. He has given his address as Bilal Nagar Colony, Police Station (PS) -Garibabad, Sindh, District Thattar, Pakistan in his statement under Section 313 Cr.P.C. There is no dispute about his nationality. The fact that he was arrested in Benaras is also clear.

22. Now the question is if he entered India legally then where are his valid travel documents. A valid Passport is required to visit India. All Pakistani nationals require not only Pakistani Passport but also Indian Visa to visit India. No such documents were found with the appellant. On the contrary he was in possession of a Passport issued by Indian Authorities in the name of one Juber Khan with Pakistani Visa. There is absolutely no explanation for possession of this Passport. The claim of appellant that he had come on a regular Pakistani Passport with Indian Visa to India could have been proved very easily by him. Every valid traveler leaves documentary trail which can be gathered, summoned and proved in the court of law.

23. Another question is whether the stated information being transmitted to Pakistan contain any information prejudicial to the security and safety of State. Both P.W.-3 S. N. G. Hussain Khan and P.W.-5 Col. G. S. Jairam have testified that this information was easily available in Varanasi but both have also testified that transmission of stated information to the enemy country is certainly prejudicial to the safety and security of the Nation. We also believe that there are some information which are easily available to the citizens of this country but the same may create problem for the safety and security of the Nation if transmitted to enemy country. In any case Section 3 (2) of the Official Secret Act entails that it would not be necessary for the prosecution to show that accused person was guilty of any particular act tending to show a purpose prejudicial to the safety and interest of the country. If a person is transmitting any information with the purpose prejudicial to the safety and interest of the Nation then he can be booked and convicted under the aforesaid Act.

24. We have carefully perused all the materials available on record. We believe that evidence on record discloses offence under section 3 of the Official Secret Act. The fact that appellant was living in India without any valid document is also clear, therefore, offence under Section 14 of the Foreigners Act also stands proved.

25. Appellant has also been punished under Section 468 IPC. It appears that he was using a Passport issued in the name of one Juber Khan a Indian Citizen resident of Nagloi, Delhi after removing his photograph and affixing his own photograph in the Passport. Prosecution has claimed that this is forgery. Same must be punished. Section 468 IPC entails punishment for the forgery for the purpose of cheating. Cheating is defined under Section 415 IPC. We believe that offence of forgery is made out as the appellant has indeed prepared false documents within the meaning of Section 464 IPC, however, we are not convinced that ingredients of offence of cheating are made out. We believe that conduct and act of appellant would not fall withing the domain of Section 468 IPC. However, the appellant was using a forged Passport as a genuine which he knew or had reason to believe to be forged. Therefore, his punishment under Section 471 IPC is legally sustainable.

26. Learned Trial Judge has convicted and sentenced the appellants under Section 3 of the Official Secret Act, Section 14 of the Foreigners Act and Sections 468, 471 IPC. We do not approve the conviction of appellant under Section 468 IPC; that leaves three conviction and sentence against the appellant emanating from the single trial. Trial Judge has also imposed fine under Section 14 of the Foreigners Act and Section 471 IPC with default stipulation. Learned Sessions Judge ordered that sentences so awarded shall run consecutively.

27. Learned Amicus curiae has argued that consecutive sentences are contrary to Section 31 of the Criminal Procedure Code, 1973 (hereinafter referred as Cr.P.C.). Section 31 of Cr.P.C. is reproduced herein below:-

Section 31 in The Code Of Criminal Procedure, 1973 Sentences in cases of conviction of several offences at one trial.

(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments prescribed therefore which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.'

(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court: Provided that-

(a) in no case shall such person be sentenced to imprisonment for longer period than fourteen years;

(b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence.

(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence.

28. Bare perusal of the aforesaid provision would show that when a person is convicted for two or more offences in a single trial, only then competent court can sentence offender to several punishment prescribed for the offences. The proviso to Section 31 of Cr.P.C. entails that sentenced person cannot be imprisoned for a period longer than 14 years and aggregate punishment must not exceed twice the punishment which the Court is competent to inflict for a single offence. The Full Bench of Apex Court in the case of O.M Cherian @ Thankachan vs State Of Kerala & Ors, (2015) 2 SCC 501, has said thus:-

Section 31 (1) Cr.P.C. enjoins a further direction by the court to specify the order in which one particular sentence shall commence after the expiration of the other. Difficulties arise when the Courts impose sentence of imprisonment for life and also sentences of imprisonment for fixed term. In such cases, if the Court does not direct that the sentences shall run concurrently, then the sentences will run consecutively by operation of Section 31 (1) Cr.P.C. There is no question of the convict first undergoing the sentence of imprisonment for life and thereafter undergoing the rest of the sentences of imprisonment for fixed term and any such direction would be unworkable. Since sentence of imprisonment for life means jail till the end of normal life of the convict, the sentence of imprisonment of fixed term has to necessarily run concurrently with life imprisonment. In such case, it will be in order if the Sessions Judges exercise their discretion in issuing direction for concurrent running of sentences. Likewise if two life sentences are imposed on the convict, necessarily, Court has to direct those sentences to run concurrently.

29. We believe that whether sentence is to run concurrently or consecutively would depend upon nature of offence and the facts and circumstances of the case but it is also clear that combined and aggregate period of imprisonment shall not be more than 14 years and the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to award. It is true that in a case triable by Sessions Court, there is no limitation to award any punishment, sanctioned by law including capital punishment but proviso 1 of Section 31 of Cr.P.C. also stipulates that in cases falling under sub section 2 the sentence shall not in any case go beyond 14 years. In the instant case, the sum total of the sentences awarded to appellant on different count comes to 33 years, therefore, in view of the above settled legal position with regard to the application and interpretation of Section 31 of Cr.P.C., in our opinion, the learned trial Court has grossly erred in directing the sentences awarded against the accused-appellant to run consecutively.

30. In the circumstances, the appeal is partly allowed. The conviction of appellant for the offence punishable under Section 3 of the Official Secret Act, Section 14 of the Foreigners Act and Section 471 IPC and the sentence awarded on each aforesaid count along with fine, if any, are confirmed. However, the conviction of appellant under Section 468 IPC is hereby quashed. Further, the direction with regard to running of sentences consecutively is set aside and it is directed that the sentences awarded to the appellant would run concurrently. Further it is provided that the appellant on completion of awarded sentence shall be deported back to his country of origin i.e. Pakistan. The concerned Jail Authority, Concerned Court and Inspector General of Police, Varanasi Zone will make arrangement for the deportation of the appellant with the help of appropriate central authorities.

31. Office will certify this order to the court concerned within ten days. Trial court shall thereafter communicate compliance of this judgment within a month thereafter.

Order Date :- 24.07.2017

RavindraKSingh

(Justice S. K. Agrawal) (Justice Bharat Bhushan)