Mohd. Masroor @ Mansoor @ Guddu vs State Of U.P.
2023 Latest Caselaw 26906 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


High Court of Judicature at Allahabad
 
(Lucknow)
 
************
 
               Neutral Citation No. - 2023:AHC-LKO:64610-DB	Reserved on:09.08.2023
 
Delivered on:04.10.2023
 
Court No. - 9
 

 
Case :- JAIL APPEAL No. - 802 of 2013
 

 
Appellant :- Mohd. Masroor @ Mansoor @ Guddu
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Govt. Advocate,Dr.Krishna Singh,Manish Bajpai
 

 
Hon'ble Rajan Roy,J.

Hon'ble Ajai Kumar Srivastava-I,J.

(Per : Rajan Roy, J.)

1. This is an appeal by the accused/appellant from jail challenging his conviction and sentencing vide judgment dated 09.04.2013 passed in Sessions Trial No. 13 of 2009 (State Vs. Mohd. Masroor @ Mansoor @ Guddu) arising out of Case Crime No. 352 of 2008, under Sections 115, 120B, 121, 121A, 123, 420, 467, 468, 471 IPC, Section 3/4/9 of Official Secrets Act and 14 of Foreigners Act, Police Station - Rupaidiha, District - Bahraich.

2. The case of the prosecution in nutshell is that inputs were being received about Pakistani secret agents/spies having entered the country and in the State of U.P. and that one of its members was residing in Lucknow as a proxy concealing his real identity and was indulging in anti-national activities affecting the sovereignty and dignity of the nation and was transmitting confidential information to secret agents of a foreign country. After collecting such information and further processing them, the S.S.P., Anti-Terrorist Squad, U.P. Lucknow constituted a team under the leadership of Shri Tej Bahadur Singh, Inspector (PW-1) for taking appropriate action against such activities. The said team under the leadership of PW-1 (Tej Bahadur Singh) collected sensitive information from various sources and in this process an information was received from the informer that a foreign spy was residing in Lucknow for the past several years using a false identity and name and was transmitting sensitive information pertaining to Defence to foreign spy agents and that on getting a hint of police activities he had fled and was at present in District- Bahraich. The informer was sent to District- Bahraich to find out his whereabouts and activities, whereupon, the informer on 12.08.2008 at about 11.00 a.m. informed PW-1 (Tej Bahadur Singh) that the said foreign agent/spy would be going from Town Babaganj to Babaganj Railway Station at 7-8 p.m. Believing on the information of the informer, PW-1 (Tej Bahadur Singh), alongwith other police personnel, left for District- Bahraich by police vehicle. On reaching the place mentioned by the informer, they contacted him and took him along. For ensuring success of the operations, SHO, Rupaidiha was contacted and a plan was chalked out in this regard after discussing with him. He tried to find independent witnesses for the operation but nobody agreed. The entire team was divided into two groups. First team was headed by PW-1 (Tej Bahadur Singh) and the second team was headed by PW-5 (Ram Ekbal, SHO, Rupaidiha).

3. The two teams reached the place pointed out by the informer from two different sides concealing their identity. About 15-20 minutes after reaching the spot, a person was seen coming from Babaganj Town with a bag on his shoulders. The informer identified that person as the foreign agent, whereupon, PW-1(Tej Bahadur Singh) switched his torch on and on being sure that he was the foreign agent asked the informer to go away. In this process the foreign agent i.e. the appellant herein, started running but was accosted. The entire police team cordoned of the area and caught him 15-20 paces away at about 7.40 p.m. He was interrogated, whereupon, he told his name as Ramesh Chaudhary S/o Suresh Chaudhary a resident of I-15-D, Railway Mal Godown Colony, Charbagh, Lucknow and when proper interrogation was done then he revealed his name as Mohd. Masroor @ Mansoor Ahmad @ Guddu S/o Noor Mohammad, resident of Garden West Abdul Jabbar Compound 154/4, Karachi -33, Pakistan. He said that if he was let off, he would tell them about another spy. He accepted the fact that he was a member of the Pakistani Secret Agency and had been asked by his Commanders through internet that he should help 2 or 3 other agents, who would be sent, to undertake terrorist activities. One such person was known to him and his code name was 'Jabanz'. He had contacted him recently. On getting this information PW-1 immediately informed Additional Superintendent of Police, Anti-Terrorist Squad, West Zone and the Deputy Superintendent of Police Central Zone, telephonically. Thereafter, the aforesaid person was searched and the red bag, which he was carrying, was opened. Apart from two set of clothes, a black bag with 'mohabbatein' endorsed on it, was recovered and on being opened a coloured polythene, with reynolds mentioned on part of it in white, was found, from which the following documents as mentioned in Ex. Ka-1 (recovery memo) were recovered:-

¼1½ ,d vnn lsuk dk xksiuh; vaxzsth Hkk"kk esa vafdr izi= ftl ij Confidential-TELE-36142 Mukhyalaya Delhi Area HQ Delhi-Area Delhi Cantt lfgr vU; rF; vafdr gS A

¼2½ ,d vnn dkys jax ls gkFk ls cuk;k x;k uD'kk ftl ij mnwZ Hkk"kk esa LFkkuksa ds uke vafdr fd;s x;s gaSA

¼3½ ,d vnn dkys jax ls gkFk ls cuk;k x;k uD'kk ftl ij mnwZ Hkk"kk esa LFkkuksa ds uke vafdr fd;s x;s gSA

¼4½ ,d vnn dkys jax ls gkFk ls cuk;k x;k uD'kk ftl ij mnwZ Hkk"kk esa LFkkuksa ds uke vafdr fd;s x;s gSA

¼5½ ,d vnn lQsn dkxt ij dkys jax ls 71] 41] 12] 12]1@11] 3@8] 3 lfgr mnwZ Hkk"kk esa vafdr ys[k gSA

¼6½ N% vnn vfMZusal iSjk'kwV QSDVªh dkuiqj ds rFkk lh vks Mh dkuiqj lfgr lSU; {ks= ds izfrcfU/kr {ks=kas ds iksLVdkMZ lkbt QksVksxzkQ A

4. From the same black bag another polythene with 'Shital etc.' mentioned on it in English, was found, from which the following documents as is mentioned in Ex. Ka-1 (recovery memo) were recovered:-

¼1½ ,d vnn Mªkbfoax ykblsUl ftlds eq[; i`"B ij A-22499 INDIA DRIVING LICENCE STATE OF UTTAR PRADESH vaxszth esa dkys v{kjksa esa vafdr gS rFkk vUnj ds i`"Bksa dks [kksydj ns[kk x;k rks idM+s x;s O;fDr dk QksVksxzkQ pLik gS tks fd R.Chaudhry S/o S. Chaudhry LFkk;h irk 151 D jsyos ekyxksnke dkyksuh TkUe frfFk 10-6-81 pkyku vuqKfIr la[;k 11409@4C0@08 tkjh djus dh frfFk 9-5-08 vafdr gSA

¼2½ ,d vnn ihys jax dk ,ih,y jk'ku dkMZ ftldk uECkj 987848 fnukad 28-9-06 tks fd jes'k pkS/kjh S/o lqjs'k pkS/kjh ds uke gS ftlds vUnj ds i`"B ij idM+s x;s O;fDr dk QksVks pLik gS rFkk ifjokj ds lnL;ksa ds uke jes'k pkS/kjh] js[kk pkS/kjh vkSj lksuw pkS/kjh vafdr gSA

¼3½ ,d vnn ,y vkbZ lh dh ubZ chek xksYM ikfylh la[;k&216441571 fnukad 25-3-2008 tks mijksDr idM+s x;s O;fDRk ds y[kuÅ ds uke irk ls cuk;h xbZ gS ftlds ukfeuh ds :i esa lqfe=k nsoh flLVj vafdr gSA

¼4½ ,d vnn eq[;eU=h lfpoky; dk ikl ftl ij (114) o 18@09@07 rFkk vkxUrqd ds uke irs ij Jh f'kodqekj vafdr gSA ¼5½ ikap vnn jsyos ds okjk.klh] y[kuÅ] gkoM+k tD'ku] y[kuÅ t;iqj] gkoM+k tD'ku] ,ykgkckn taD'ku] y[kuÅ] rFkk t;iqj] gkoM+k tD'ku ds ;k=k fVdVA

¼6½ ,d vnn fnukad 16-1-07 dk cksfMZax ikl vkxjk To t;iqj ftldk uECkj 8373 gSA

¼7½ nks vnn laxzgky; izos'k i= ftlesa ,d xqykch jax dk izos'k i= flVh iSysl t;iqj dk o nwljk gYds gjs jax dk izos'k i= jktdh; laxzgky; eaMksj tks/kiqj dk gSA

¼8½ ,d vnn gksVy lezkV dksydkrk dh fcy jlhn fn0 10-1-07 dh ftldk fcy uEcj 59709 gSA

¼9½ nks vnn idM+s x;s O;fDRk ds ikl iksVZ lkbt QksVks xzkQ ftuesa ls ,d esa ewaN lfgr gS vkSj ,d ewaN jfgr gSA

¼10½ ,d vnn Hkkjrh; thou chek fuxe dh ikfylh uEcj 216441571 dh QLVZ izhfe;e jlhn fnukafdr 25-3-2008 ftlds /kujkf'k :0 751@& vafdr gSA

¼11½ ,d vnn ikdsV uksV cqd ftlds eq[; i`"B ij vaxszth esa Home town vafdr gS rFkk vUnj ds i`"Bksa ij fofHkUu uke irks lfgr dqN nwjHkk"k uEcj vafdr fd;s x;s gSA ftuesa ls ,d i`"B ij idM+s x;s O;fDr }kjk mijksDr crk;k x;k viuk ikfdLrku dk uke irk vkSj nwjHkk"k uEcj vafdr fd;k x;k gSA mijksDr ds vfrfjDr blh dkys jax ds cSx esa ls ,d vnn esVsfyd jksyj baph Vsi rFkk nks vnn Xykl dVj cjken gq,A rFkk ifguh gqbZ 'kVZ dh Åij dh tsc ls ,d vnn eksVksjksyk eksckby Qksu ftldk IMEI uECkj&354077014437966 vafdr gS blds vUnj gp dEiuh dk fledkMZ ftldk IMSI uEcj 89911500028118802022 gSA rFkk idM+s x;s O;fDr dh iguh iSaV dh fiNyh tsc ls ,d vnn yky Hkwjs jax dk ysnj ilZ ftl ij vaxszth esa POLO vafdr gS cjken gqvk ftlds vUnj ls nks ¼2½ vnn jsyos ;k=k fVdV fnukad 30-7-08 dk y[kuÅ ls ubZ fnYYkh rFkk fnukad 01-8-08 dks ubZ fnYYkh dSaV ls t;iqj dk gSA blh ilZ esa pkj vnn foftfVax dkMZ ftuesa ls ,d cychj flag ,.M lUl o rhu vnn foftfVax dkMZ lkxj ,Dosfj;e lqjs'k dqekj ds uke ds gSA blh ilZ es xqykch jax dk cukjl Xyklsl izkbosV fy0 dh LVhesV jlhn tkc uEcj 1907 Hkh cjken gqbZA blds vfrfjDr blh ilZ ls :0 1643@& ¼lksyg lkS rSrkyhl½ udn ftuesa ls rhu uksV ikap lkS ds ,d uksV lkS dk] pkj uksV nl ds vkSj ,d ,d :i;s ds rhu flDds gS] cjken gq,A

5. On further interrogation of the said accused, who is appellant herein, as regards his entry in the country and illegal residence therein, he disclosed that he had passed matriculation in the year 1992 and had taken admission in Islamia Law College, Karachi but could not complete his studies. He learnt the skills of auto mechanic, manufacture of Almirah etc. and in this process he came in contact of certain persons and committed a dacoity with their help in Sadar Bazar, Karachi. Thereafter, he started working in the defence area of Karachi where he came into contact with one Shakil and expressed his desire to work for the Army who took him to meet one Nadeem, an ISI Officer of the Pakistani Military Intelligence at Malir Cantt Sahrah Faisal Airport, Karachi in August, 2004 who in turn took him to meet higher officials that very year. The said Officers told him that he would be trained for six months and thereafter, he would have to go to India to collect sensitive information pertaining to the Indian Defence Services and will have to send the same to them through internet, fax, telephone etc., in return of which he and his family would be taken care of and they would be continuously paid money. He was also required to facilitate other agents who would be sent to India. Thereafter, he, underwent six months training at Industrial Area Multan. He passed the training in 2005. Thereafter, the officials of the Intelligence Agency of Pakistan provided him visa and passport in his real name as also a valid driving license in the name of Ramesh Chaudhary S/o Suresh Chaudhary R/o Serolai, Jaipur, Rajasthan and a matric pass certificate, at Karachi Airport. With the help of these documents he reached Dhaka, Bangladesh from Karachi Airport and then Kathmandu, Nepal. There, he met another ISI agent at bus stand Kathmandu who facilitated his entry into Patna, Bihar, from the Nepal border. He reached Lucknow on 28.11.2005 as he was required to collect sensitive information while staying in Lucknow in the first phase of his activity. Concealing his real identity he started living on the footpath along with Rikshawalas. As he knew glass work, he got a job at Banaras Glass House, Lalbag, Lucknow on remuneration of Rs.2,200/- per month. At this place he came in contact with certain persons with whose help he was able to obtain an accommodation at Railway Mal Godown Colony, Charbagh, Lucknow. He disclosed that while working at Banaras Glass House, Lalbag, Lucknow he started collecting sensitive information pertaining to the Defence Services of India and transmitted the same by email, internet chatting etc. to Nadeem and Major Chauhan in Pakistan. The said person admitted to his spying activities in India as per recitals contained in the recovery memo Ex. Ka-1. Based on the documents and information recovered/collected from the accused/appellant and as his activities constituted an offence under various provisions of law he was arrested at about 10.10 p.m. Higher Officials were informed in this regard. Based on the aforesaid, an F.I.R. was lodged on 13.08.2008 at 2.30 a.m. mentioning the date and time of incident leading to lodging of F.I.R. as 12.08.2008 at 22.10 p.m.

6. Ex. Ka-1 is the recovery memo prepared by PW-1 in respect of the recoveries referred above. Ex. Ka-6 is the site plan from where the appellant-accused was arrested. Ex. Ka-2 is the arrest memo.

7. The local police of Police Station- Rupaidiha conducted the investigation.

8. Statements of witnesses were recorded and charge sheet was filed against the appellant-accused under Section 115, 120B 121, 121A, 123, 420, 467, 468, 471 IPC and 3/4/9 Official Secrets Act, 1923 and Section 14 of the Foreigners Act, 1946 bearing Case Crime No. 352 of 2008, Police Station- Rupaidiha, District- Bahraich.

9. C.J.M., Bahraich committed the case to the Sessions Court on 03.01.2009. After taking cognizance the Sessions Court framed the charges against the accused/appellant on 21.01.2010 under Sections 115, 120B 121, 121A, 123, 420, 467, 468, 471 IPC and 3/4/9 Official Secrets Act, 1923 and Section 14 of the Foreigners Act, 1946. Charges were read out to the appellant-accused who denied the same and demanded trial.

10. Prosecution examined 7 witness i.e. PW-1 (Tej Bahadur Singh), PW-2 (Vimlesh Kumar Singh), PW-3 (Mohd. Riyaz), PW-4 (Krishn Mohan Tiwari), PW-5 (Ram Ekbal), PW-6 (Akshaywar Ram), PW-7 (Ramhit). One witness Mohd. Asif was examined as Court witness -CW-1.

11. The appellant's statement under Section 313 Cr.P.C. was recorded on 02.03.2013 and on 04.04.2013.

12. The appellant did not lead any evidence in defence.

13. The trial Court has convicted the appellant-accused of the offences referred hereinabove.

14. The accused/appellant has been convicted of the offences under Sections 115, 120B 121, 121A, 123, 420, 467, 468, 471 IPC and 3/4/9 Official Secrets Act, 1923 and Section 14 of the Foreigners Act, 1946. He has been sentenced to life imprisonment for the offence under Section 121 IPC with fine of Rs.10,000/- failing which he would have to undergo further imprisonment for two years. Likewise, he has been sentenced to life imprisonment for the offence punishable under Section 121A IPC with fine of Rs.10,000/- failing which he would have to undergo additional imprisonment for two years. For the other offences lesser sentence of 10 or less than 10 years has been awarded with or without fine. All the sentences have been ordered to run concurrently.

15. The appellant is in jail since 12.08.2008 i.e. he has remained in jail for a period of more than 15 years. Thus, he has already undergone the sentence imposed for the offences for which he has been convicted except under Section 121, 121A IPC.

16. The contention of learned amicus appearing for the appellant was that there is no evidence to satisfy the ingredients of the offence punishable under Section 121 IPC pertaining to waging or attempting to wage war or abetting waging of war against the Government of India. The findings of the trial Court in this regard are based purely on conjectures, surmises and presumptions which are not supported by any evidence. The prosecution has miserably failed to prove the commission of any offence which may be punishable under Section 121 IPC. Likewise, there is no evidence to satisfy the ingredients of Section 121A IPC and the trial Court has convicted the appellant merely on surmises and conjectures without there being any evidence in this regard. For these reasons he submitted that the conviction and sentence imposed under the aforesaid provisions is liable to be set-aside and as he has already undergone the sentence pertaining to the other offences, in fact more than what has been awarded by the trial Court, the appellant is entitled be released.

17. He very fairly submitted that in view of the evidence on record so far as offences under Section 420, 467, 468, 471 IPC are concerned, they are amply proved, as, admittedly, he was residing in the country under a fake identity and name and, from his possession documents were recovered which were in the name of Ramesh Chaudhary, which, he was using to conceal his real identity. He fairly submitted that so far as offence under the Official Secrets Act, 1923 and Foreigners Act, 1946 are concerned, they are also amply proved based on the evidence on record and the statement of the appellant himself under Section 313 Cr.P.C., however, he reiterated that for these offences he has already remained in prison for more than the sentence awarded to him.

18. It was also his submission that so far as the offence under Section 120B(1) IPC is concerned, the same is also not proved as he is the only accused and for any conspiracy there have to be at least two persons. Moreover, he submitted that there is no evidence that he was transmitting information to his alleged handlers in Pakistan by any means whether electronic or otherwise, therefore, offence under Section 121B(1) IPC is also not made out, but, again he submitted that in any case he has already undergone the sentence for this offence also.

19. His submission was that so far as the sentence of life imprisonment for the offences punishable under Section 121 and 121A IPC are concerned, they are liable to be set-aside and the appellant is liable to be released as he had already undergone the sentence for the other offences.

20. Learned A.G.A. on the other hand submitted that based on the documents recovered from possession of the appellant, the only inference is that these were being used for waging war against Government of India and that the appellant was involved in a conspiracy to wage war against Government of India or abetting waging of war against it. The recovery of documents and material from him raised a presumption in this regard and the trial Court has rightly convicted the appellant for the said offences.

21. We have heard Shri Manish Bajpai, learned Amicus Curiae for the appellant and Shri Shailendra Singh, learned A.G.A. for the State and perused the records.

22. The recovery of documents as mentioned in recovery memo Ex. Ka-1 has been proved by the witnesses PW-1 and PW-2 and merely because there are no independent witnesses that by itself does not make the recovery incredible or unbelievable. Of course, the appellant has denied such recovery but there is no reason for this Court to disbelieve recovery of the said documents from the appellant-accused, especially in view of his statement under Section 313 Cr.P.C., wherein, the appellant/accused has himself stated that he is a resident of Karachi Pakistan and that his family resides in Karachi, he had entered India in 2006 through Nepal, although, he has stated that he had come to India for earning a living. He has also stated that he does not have a passport and visa, therefore, obviously his entry in the country was illegal.

23. As regards the charge against the appellant/accused and his conviction under Sections 420, 467, 468 and 471 IPC, one of the documents recovered from him is a driving license with his photograph on it, but, the name is mentioned as R. Chaudhary S/o S. Chaudhary permanent address Railway Mal Godown Colony, date of birth as 10.06.1981 which was issued on 09.05.2008. Further, an APL Ration Card bearing No. 987848 dated 23.09.2006 was also recovered which was also in the name of Ramesh Chaudhary S/o Suresh Chaudhary with the appellant's photograph pasted on it. The name of his family members was mentioned as Rakha Chaudhary and Sonu Chaudhary. This apart, an LIC Gold Policy No. 216441571 dated 25.03.2008 was also recovered which was also in the same name and with the same address. He has stated in his statement under Section 313 Cr.P.C. that he is a resident of Karachi and that he had entered India in 2006 illegally without any passport or visa. He has also stated that his family resides in Karachi, therefore, he is obviously not an Indian National, but, a national of Pakistan who had entered India illegally and his name is not Ramesh Chaudhary and the documents recovered from his possession prove beyond doubt that they were fabricated and forged documents which were being used by him to conceal his identity, pass himself off as Ramesh Chaudhary fraudulently and dishonestly knowingly with intent to cheat, therefore, the offences under Section 420, 467, 468 and 471 IPC are proved and his guilt of offences punishable under the said provision is proved beyond reasonable doubt.

24. The recoveries made from his possession, such as confidential letter in English with the reference to Confidential-Tele-36142 Mukhyalaya Delhi Area HQ Delhi-Area Delhi Cantt; sketches and maps drawn by him with names and places written thereon in Urdu; photographs of Ordinance Parachute Factory, Kanpur and COD, Kanpur and other Defence/prohibited areas, are sufficient to establish the commission of the offence under Section 3 and 4 of the Official Secrets Act, 1923, especially in view of the statutory presumptions prescribed in this regard. Section 3, 4 and 9 of the Official Secrets Act, 1923 read as under:-

"3. Penalties for spying.--(1) If any person for any purpose prejudicial to the safety or interests of the State--

(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or

(b) makes any sketch, plan, model, or -note which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or

(c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy [or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States];

he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code, to fourteen years and in other cases to three years.

(2) On a prosecution for an offence punishable under this section it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, 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 to the safety or interests of the State; and if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place, or relating to any thing in such a place, or any secret official code or pass word is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State, such sketch, plan, model, article, note, document, information, code or pass word shall be presumed to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State.

4. Communications with foreign agents to be evidence of commission of certain offences. (1) In any proceedings against a person for an offence under section 3, the fact that he has been in communication with, or attempted to communicate with a foreign agent, whether within or without India, shall be relevant for the purpose of proving that he has, for a purpose prejudicial to the safety or interests of the State, obtained or attempted to obtain information which is calculated to be or might be, or is intended to be, directly or indirectly, useful to any enemy.

(2) For the purpose of this section, but without prejudice to the generality of the foregoing provision,--

(a) a person may be presumed to have been in communication with a foreign agent if--

(i) he has, either within or without India visited the address of a foreign agent or consorted or associated with a foreign agent, or

(ii) either within or without India, the name or address of, or any other information regarding, a foreign agent has been found in his possession, or has been obtained by him from any other person;

(b) the expression "foreign agent" includes any person who is or has been or in respect of whom it appears that there are reasonable grounds for suspecting him of being or having been employed by a foreign power, either directly or indirectly, for the purpose of committing an act, either within or without India, prejudicial to the safety or interests of the State, or who has or is reasonably suspected of having, either within or without India, committed, Or attempted to commit, such an act in the interests of a foreign power;

(c) any address, whether within or without India, in respect of which it appears that there are reasonable grounds for suspecting it of being an address used for the receipt of communications intended for a foreign agent, or any address at which a foreign agent resides, or to which he resorts for the purpose of giving or receiving communications, or at which he carries on any business, may be presumed to be the address of a foreign agent, and communications addressed to such an address to be communications with a foreign agent."

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"9. Attempts, incitements, etc.--Any person who attempts to commit or abets the commission of an offence under this Act shall be punishable with the same punishment, and be liable to be proceeded against in the same manner as if he had committed such offence."

25. From the nature and contents of documents recovered from his possession such as confidential letters pertaining to Defence Services, Sketch of Maps, photographs of ordinance factories, Defence areas and prohibited areas it is quite clear that he had committed/attempted to commit an offence under Sections 3, 4 and 9 of the Official Secrets Act, 1923, especially in view of the presumption mentioned therein.

26. As regards the offence punishable under Section 14 of the Foreigners Act, 1946, in view of the statement under Section 313 Cr.P.C. as regards his illegal entry in 2006 in this country, the fact that he was a Pakistani National but did not have any passport or visa and in view of his subsequent arrest on 12.08.2008 from Rupaidiha, District - Bahraich in the State of Uttar Pradesh which is also amply proved from the testimony of witnesses PW- 1 etc., the offence under Section 14 of the Foreigners Act, 1946 is also proved beyond reasonable doubt.

27. As regards offence under Section 120B IPC there is no evidence on record to show that there was any other person with whom the appellant was conspiring. In the F.I.R. only one accused is mentioned i.e. the appellant herein. Before the trial Court also there was only one accused against whom the charge was framed. There is no evidence of conspiracy involving 2 or more persons. There is no such evidence including electronic evidence, based on which prosecution may have proved that after collecting sensitive information the appellant herein had transmitted the same to any other person within or outside the country. In fact, it is rather surprising that investigation in such a sensitive matter was left in the hands of local police of Police Station- Rupaidiha instead of any specialized agency having undertaken the said investigation. A Motorola phone was recovered from the possession of the accused/appellant but there is no evidence on record about collection of any call details which could establish that the accused/appellant was in touch with his alleged handlers in Pakistan or elsewhere and had been transmitting sensitive information to them. In the absence any evidence, his conviction under Section 120B IPC is clearly presumptuous.

28. Even at the cost of repetition it needs to be stated that the appellant has already undergone the sentence imposed upon him for the offences discussed hereinabove.

29. Now, coming to the offence punishable under Section 121 IPC, the said provision along with illustration read as under:-

"121. Waging, or attempting to wage war, or abetting waging of war, against the Government of India.--Whoever, wages war against the [Government of India], or attempts to wage such war, or abets the waging of such war, shall be punished with death, or [imprisonment for life] [and shall also be liable to fine].

[Illustration]

[***] A joins an insurrection against the [Government of India]. A has committed the offence defined in this section."

30. The term 'waging war' has came up for consideration before Hon'ble the Supreme Court in various cases. While it is true that war contemplated by Section 121 is not conventional war between two nations, it is not to be understood in the international law sense of inter-country war involving military operations by and between two or more hostile countries, a fact which is also demonstrated from the illustration to the said provision as has been noticed by Hon'ble the Supreme Court in the case of State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsan Guru reported in (2005) 11 SCC 600, nevertheless, there has to be a war like operation or situation. In some cases it has also been held that merely being in possession of certain arms by itself would not constitute an offence of waging war against the Government under Section 121 IPC. A terrorist act may not always be an act of waging war against the Government of India, as was observed in the case of Mohd. Ajmal Mohd. Amir Kasab @ Abu Mujahid reported in AIR 2012 SC 356. Insurrection would amount to waging war but this connotes a violent apprising by a group directed against the Government of India in power or the civil authorities. There is no such evidence on record in this case to establish insurrection by the appellant-accused. Moreover, he is the only accused in this case. There is none else. In fact, it has also been held, as recently as, in the case of Mod. Irfan Vs. State of Karnataka; Criminal Appeal Nos. 201-202 of 2018 decided on 11.07.2022 that the expression "waging war" should not be stretched too far to hold that all acts of disrupting public order and peace irrespective of their magnitude and repercussions could be reckoned as acts of waging war against the Government. Of course, this is in the context where there are political agitations within the country, but, in the case at hand there is no such evidence of war like operations or war like situation having been created by the appellant who is the sole accused in the case, therefore, considering the language used in Section 121 IPC we are constrained to observe that without there being any evidence and without any attempt whatever to collect such evidence, as already noticed hereinabove, the appellant was charged with the said offence and has also been convicted by the trial Court, erroneously so, on mere conjectures and surmises. In fact, even at the cost of repetition we would like to say that no attempt was made by the Investigating Officer to collect call details and other evidence which he could have done to prove the charge under Section 121 IPC. As already stated, no specialized agency was involved in investigation of the crime.

31. For the same reasons as referred hereinabove in the context of the charge under Section 12B(1) and 121 IPC, we do not find any evidence whatsoever based on which the appellant could be held guilty of the offence under Section 121A and 123 IPC, which read as under:-

"[121A. Conspiracy to commit offences punishable by section 121.- Whoever within or without [India] conspires to commit any of the offences punishable by section 121, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government, shall be punished with imprisonment for life, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine.

123. Concealing with intent to facilitate design to wage war.--Whoever by any act, or by any illegal omission, conceals the existence of a design to wage war against the [Government of India], intending by such concealment to facilitate, or knowing it to be likely that such concealment will facilitate, the waging of such war, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

32. There is no evidence adduced by the prosecution to prove conspiracy to commit any of the offences punishable under Section 121 IPC so as to attract Section 121A IPC nor any evidence to prove concealment of a design to wage war so as to attract Section 123 IPC. Recoveries from the appellant by themselves do not prove the offence under Section 121, 121A and 123 IPC.

33. PW-1 (Tej Bahadur) is the Inspector of ATS who had arrested the appellant and made recoveries from him. He has referred to the confessions made by the appellant before him but these alleged confessions have not been made before any Magistrate in accordance with law (Section 164 Cr.P.C.), therefore, the reference to such confessions of the appellant in the testimony of PW-1 has no significance in the eyes of law. His (PW-1) testimony at best is relevant for proving the recoveries and factum of his illegal residence in India, but, nothing beyond it. His testimony is not relevant for proving the offence under Section 121, 121A and 123 IPC. There is nothing in his testimony to prove the guilt of the appellant under Sections 121, 121A and 123 IPC. In fact, he has admitted to the fact that he did not conduct any investigation and that except for recoveries made by him and information provided by the appellant-accused, he did not make any effort to collect evidence regarding the appellant having indulged in spying or he having undergone training from Pakistan etc.

34. PW-2 (Vimlesh Kumar Singh) is the Sub-Inspector of ATS who had accompanied PW-1 at the time of arrest of appellant and the recovery of material from him. His testimony is also not relevant for proving the offence under Section 121 and 121A IPC and there is nothing therein based on which we could hold that the appellant is guilty of such offence under Section 121, 121A and 123 IPC.

35. PW-3 (Mohd. Riyaz) is the Manager of Banaras Glass House, Lalbag, Lucknow where the appellant used to work. His testimony is relevant for the illegal residence of appellant in India but nothing beyond it. He has not stated anything to prove the appellant's guilt under Section 121, 121A and 123 IPC.

36. PW-4 (Krishan Mohan Tiwari) is the Constable who had made necessary entries in the GD and prepared the chik F.I.R.

37. PW-5 (Ram Ekbal) is the SHO, Police Station- Rupaidiha who had participated in the operations resulting in the arrest of the appellant on 12.08.2008. There is nothing in his testimony to prove the alleged offence by the accused-appellant under Section 121, 121A and 123 IPC.

38. PW-6 (Akshaywar Ram) the SI posted at police Station Rupaidiha District- Bahraich is the Investigating Officer of the case. He has not referred to any evidence which he may have collected to prove the guilt of the accused/appellant under Sections 121, 121A and 123 IPC. He had recorded the statements of the witnesses already referred, none of whom have testified about the offence under Section 121, 121A and 123 IPC. In cross-examination he has stated that apart from the statements recorded by him, he was not able to get any other evidence because the investigation had been transferred from him to Shri Ram Iqbal PW-5.

39. PW-5 (Ram Iqbal) was also not able to collect any evidence for proving the guilt of the appellant under Section 121, 121A and 123 IPC.

40. PW-7 (Ramhit) is the under Secretary, Govt. of U.P. who has testified the grant of sanction/permission on 16.11.2009 by his Excellency the Governor for prosecution of the appellant under the relevant provisions of law. CW-1 (Mohd. Asif), the Court witness, is the translator who translated the documents which were in 'Urdu' and were recovered from the accused/appellant to Hindi. These two witnesses are also of no relevance so far as proof of the offence allegedly committed by the accused/appellant under Sections 121, 121A and 123 IPC are concerned.

41. From the discussions made hereinabove, we are constrained to observe that the investigation was carried out in a very casual manner, as if, mere recovery of the documents and material referred earlier from possession of the appellant was sufficient to prove the offence punishable under Sections 121, 121A and 123 IPC which clearly discloses an absolute lack of understanding and knowledge about the ingredients required to be satisfied for conviction under the said provisions and imposition of punishment prescribed thereunder. Instead of handing over investigation to a specialized agency it was left to the mercy of local police of Police Station- Rupaidiha, which, it seems, was ill equipped to handle such a sensitive matter.

42. As regards presumptions as to the offences under Section 121, 121A and 123 IPC, Section 111-A of Evidence Act reads as under:-

"111-A. Presumption as to certain offences. -- (1) Where a person is accused of having committed any offence specified in sub-section (2), in --

(a) any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order; or

(b) any area in which there has been, over a period of more than one month, extensive disturbance of the public peace,

and it is shown that such person had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contrary is shown, that such person had committed such offence.

(2) The offences referred to in sub-section (1) are the following, namely: --

(a) an offence under section 121, section 121A, section 122 or section 123 of the Indian Penal Code (45 of 1860);

(b) criminal conspiracy or attempt to commit, or abetment of, an offence under section 122 or section 123 of the Indian Penal Code (45 of 1860)."

43. The case at hand is not a case covered by Section 111-A of the Indian Evidence Act, 1872. No such evidence has been led to prove the prerequisites mentioned in the said provision for its attraction to the case at hand. As such, there is no question of presumption spoken of under Section 111-A of the Act, 1872 in the present case. Oblivious of this the trial Court has convicted the accused/appellant for the said offences.

44. In view of the above discussion we have no hesitation in saying that the trial Court has convicted the accused/appellant under Sections 121, 121A and 123 IPC without there being any evidence on record to support it.

45. The appellant has already remained in jail for more than 15 years and has carried out the sentence imposed upon him with regard to the other offences for which we have found him guilty, however, considering the fact that he is an illegal entrant in the country without a valid passport and visa, he can not be released. If there are any centers which may have been earmarked or designated by the Government of India for keeping such illegal entrants, the appellant shall be released from jail and kept in such centers as per law, unless of course his custody is required in any other case in which case the law shall take its own course. However, if there are no such centers, then, there is no other option but to keep the appellant in the prison where he is being kept at present but not as a prisoner who has been convicted of the offences referred hereinabove as he has already undergone the sentence, but, as one who is an illegal entrant in the country, till he is dealt with in accordance with law by the Government of India, in the sense, if he is to be deported back to Pakistan or if some other arrangement is permissible and required to be made in law, till it is made.

46. Accordingly, the jail appeal is allowed in part.

47. As regards the compliance of Section 437-A Cr.P.C., considering the fact that we have acquitted the appellant of some of the offences, in the peculiar facts notice hereinabove we provide that such compliance be made if occasion so arises, as far as possible.

48. The original records shall be remitted back to the trial Court for necessary action, if any.

49. Learned Amicus, Shri Manish Bajpai shall be entitled to Rs.25,000/- (Rupees Twenty Five Thousand Only) from the High Court as fee for his services.

 (Ajai Kumar Srivastava-I,J.)     (Rajan Roy, J.)
 
Order Date :- 04.10.2023
 
R.K.P.