Gujarat High Court
Mohammed Sajjad Mohammed Imtiyaz vs State Of Gujarat on 19 December, 2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10666 of 2023
(FOR REGULAR BAIL - AFTER CHARGESHEET)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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MOHAMMED SAJJAD MOHAMMED IMTIYAZ
Versus
STATE OF GUJARAT
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Appearance:
MR RR MARSHAL, Sr. Adv. with MR ASHISH M DAGLI(2203)
for the Applicant(s) No. 1
MR MANAN MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 19/12/2023
CAV JUDGMENT
1. The present application is filed under Section 439
of the Code of Criminal Procedure, 1973, for
regular bail in connection with the FIR being C.R.
No.7/2023 registered with the Anti Terrorist
Squad, Ahmedabad for the offence punishable under
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Sections 121(a), 123, 465, 468, 471 and 120(B) of
the Indian Penal Code.
2. Heard learned Senior Counsel, Mr. R. R. Marshal
assisted by learned advocate, Mr. Ashish Dagli for
the applicant and learned APP Mr. Manan Mehta for
the respondent - State of Gujarat.
3. Learned Senior Counsel for the applicant submitted
that the alleged incident has taken place for the
period between from the year 2012 to 25.10.2021
and FIR has been lodged on 25.10.2021 and on the
very same day i.e. on 25.10.2021, the applicant
has been arrested and since then, he is in
judicial custody i.e. since last more than 2
years. Learned Senior Counsel submitted that now
the investigation is completed and after
submission of the chargesheet, the present
application is preferred. Learned advocate
submitted that in fact, the present applicant is
working in BSF as Constable and it is alleged that
while serving in BSF, the applicant has forwarded
certain confidential/ sensitive information
pertaining to the movement of the Army to one
Khali Uncle @ Unclekhan (original accused no.2),
who is at Pakistan and during the above stated
period, the applicant was in contact with the
original accused no.2 through WhatsApp chat and he
has also sent images and documents through
WhatsApp and which as per the case of the
prosecution, the said information would fall under
the category of confidential and sensitive in
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nature and, therefore, the applicant - accused has
been apprehended. Learned Senior Counsel submitted
that during the course of investigation,
transcripts purportedly call details between the
present applicant and the accused no.2, Khalid
Uncle was produced and if the Hon'ble Court would
cursorily make a glance upon the said evidence, in
that event, it can safely be said that the said
version would not fall under the category of
sensitive/ confidential in nature information.
Learned Senior Counsel submitted that one another
document is also found out, wherein the name and
posting of the officer in the cadre of DIG was
forwarded to the so-called person residing at
Pakistan and the said information is already found
available in the public domain through which one
can easily identify the location/ posting of those
officers, therefore by no stretch of imagination,
it can be said that the said information would
fall under the category of confidential in nature
and/or sensitive and would make any compromise of
the security of the country and ultimately damage
the shield of security of the country. Learned
Senior Counsel submitted that the charge of waging
war is leveled against the applicant - accused but
the documents supplied along with the compilation
of the chargesheet do not substantiate the said
allegations at this juncture.
4. Learned Senior Counsel submitted that the present
applicant was posted at Tripura and at the
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relevant point of time as per the case of the
prosecution, through there also, he has forwarded
certain sensitive information and in lieu of that,
the applicant has received certain amount from the
person, who is stated to be resided at Pakistan
and connected with the Inter Service Intelligence
of neighbouring country and that particular person
(agent of Pakistan) has not yet been arrested,
therefore, entire theory of conspiracy leveled
against the present applicant is falsified as in
absence of any concrete material and/or arrest of
the co-accused from Pakistan, simply on the basis
of the assumptive charge, the applicant - accused
cannot be put behind the bar for indefinite period
and considering the same, the present application
may be allowed.
5. Learned Senior Counsel submitted that the present
applicant is basically belonging to Jammu &
Kashmir and in the year 2012, he has joined the
services in BSF and it is also an admitted
position of fact that number of relatives of the
present applicant are residing in POK and before
joining BSF, he has gone to Pakistan on valid visa
to meet his relatives and, therefore, his activity
would be treated as suspicious. Learned Senior
Counsel submitted that this is not a case, where
the present applicant is the only member in the
family, who has joined security post but there are
more than 15 persons in the family, who have also
joined the arm force and working in the armed
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force with full of sincerity, honesty and
integrity and always worked in the welfare of the
country as a member of the force. It is,
therefore, urged that considering the above facts,
the present application may be allowed.
6. On the other hand, learned APP has objected the
grant of present application and submitted that
the present applicant is working in BSF at Kutch-
Bhuj and at that point of time, his activity was
found to be suspicion, therefore, his activity was
kept under observation by the office and
subsequently, it is found out that the present
applicant is in live touch and constant contact
with the accused no.2, Khalid Uncle, who is
residing at Pakistan and not only that, the
present applicant has forwarded many confidential
information, which is sensitive in nature through
WhatsApp to the accused no.2 and also talked with
that person from Pakistan through WhatsApp call
continuously and all those datas were also deleted
by the applicant. To support the aforesaid
contention, learned APP took the Court to the
entire chain of events of the conspiracy as
reflected in chargesheet and referred to various
statements of witnesses recorded under Section 161
Cr.P.C and 164 Cr.P.C and other documents and
chats of Whatsapp groups to buttress his point of
conspiracy. Learned APP submitted that the
individual role of conspirators is not to be seen
rather a holistic view is to be taken while
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looking at a prima facie involvement of
conspirators in the chain of conspiracy. Learned
APP further submitted that the present applicant
has prepared forged and fabricated affidavit,
wherein incorrect date of birth was mentioned and
on the strength of said affidavit, he has obtained
passport and before joining BSF, he had gone to
Pakistan on this very passport and the said fact
is fortified from the collection of buch of
evidence by the Investigating Authority that
before joining service in BSF, the applicant -
accused had gone to Pakistan. Learned APP further
submitted that even the applicant - accused has
mentioned different date of birth in the form at
the time of filling up form for joining force, the
applicant has provided different date of birth,
which clearly goes on to show that there was
guilty intention and "mens rea" on the part of the
present applicant - accused. Learned APP submitted
that the present applicant is basically belonging
to Jammu & Kashmir and initially, he was posted at
Tripura and while working at Tripura, the
applicant has also forwarded certain sensitive and
confidential information to the accused no.2 and
in lieu of the same, the applicant has also
received certain amount of consideration in the
account of his brother and sister and the said
fact is also supported by perusal of the bank
statements of his brother and sister. Learned APP
submitted that during the course of investigation,
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the concerned investigating agency had gone to
Tripura to catch hold of the persons, who had
deposited the amount in the account of the brother
and sister of the applicant through one person
viz., Sahu, however no such person was in
existence, whereas during the course of
investigation, it is found out that the said
accused prepared forged and fabricated documents
like Aadhar Card etc. and pasted photograph upon
the bank opening form and on the strength of said
matter, the so-called sender has opened the bank
account, however, account opening form is not at
all found in existence, despite the fact that,
intense search was carried out to trace out the
said person but all effects had gone into vein and
the investigating agency could not be traced out
the said person as he is not at all in existence,
therefore, big and systematic racket is organized
by the accused in connivance with each other.
Learned APP submitted that during the course of
investigation, it is found out that the present
applicant was having two sim-card and two
different mobiles and with the help of it, certain
sensitive and confidential information were
forwarded through WhatsApp and numbers of WhatsApp
calls and chats were being made and, hence, the
said evidence clearly goes on to show that the
present applicant was in live and constant touch
with the co-accused. Not only that, after
forwarding those information, the present
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applicant has deleted those information but during
the course of investigation, the concerned
Investigating Officer has retrieved the data from
the mobile of the present applicant and on the
strength of the collected material, the IO tried
to inquire about the nature of information from
the office of the Armed Force and as a part of
investigation, written a letter to the higher rank
officer of the Army for the purpose of
verification of authenticity of those documents.
Learned APP submitted that it was found that those
documents are directly related to the
administrative work of the Army and would
certainly fall under the category of confidential
and sensitive in nature. Learned APP submitted
that the present applicant was working as
Constable and he could not get access to those set
of evidence even though he is working in the BSF
Department, the applicant has procured/ collected
it and forwarded it to his counter part at
Pakistan and the concerned Investigating Officer
has tried his level best to carry out
investigation in that direction as to how the
present applicant has received those set of
evidence and forwarded it to the co-accused, who
is a member of ISI and residing in neighbouring
country, therefore, as certain jurisdictional
limitation was there on the part of the IO, the
co-accused could not be apprehended nor inquiry in
that direction has been made out but from the
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evidence available on record, the involvement of
the present applicant - accused is clearly found
out. Learned APP submitted that at the stage of
bail, material/evidence collected by the
investigating agency in reference to the
accusation against the accused, must prevail
unless contradicted and overcome or disproved by
other evidence and on the face of it, shows the
complicity of the such accused in the commission
of the offence and elaborate discussion of
evidence is not required to be done at this stage
and the Court is merely expected to record a
finding on the basis of broad probabilities
regarding the involvement of the accused in the
offence. Learned APP, therefore, urged that the
present application may not be entertained.
7. I have heard the learned advocates appearing on
behalf of the respective parties and perused the
papers of the investigation and considered the
allegations levelled against the applicant and the
role played by the applicant. I have also
considered the reasoning given by the concerned
court while rejecting the bail application and the
affidavit filed by the IO opposing the said
application.
8. It is the settled position of the law that, at
this juncture detailed discussion of evidence and
canvassing of the allegations contained in FIR as
well as affidavit of the concerned Investigating
Officer or the merits of the case as well, is not
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necessary and should be avoided.
9. The law on conspiracy is briefly adverted to. For
constituting a conspiracy, meeting of minds of two
or more persons for doing an illegal act or any
act by illegal means is the condition and it is
not at all necessary that all the conspirators
must know each and every detail of the conspiracy.
It is also not necessary that every one of the
conspirators must take active part in commission
of each and every conspiratorial acts. The
agreement among the conspirators can be inferred
by necessary implications. Mostly, the conspiracy
are proved by circumstantial evidence as the
conspiracy is seldom an open affair. The existence
of conspiracy and its object are normally deduced
from the circumstances of the case and the conduct
of the accused involved in the conspiracy.
10. It is found out from the material and evidence
available on record that the applicant - accused
was in constant contact with the original accused
no.2, Khalid Uncle with the help of two sim-cards
through WhatsApp and in connivance with each
other, they have hatched conspiracy and the said
fact is supported by the investigation papers. It
is found out that when the applicant - accused was
workign BSF at Kutch-Bhuj, his activity was found
to be suspicious, therefore, his activity was kept
under observation by the office and while keeping
watch, the present applicant is found in live
touch and constant contact with the accused no.2,
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Khalid Uncle, who is residing at Pakistan and not
only that, it has also come on record that the
present applicant has forwarded many confidential
and sensitive information through WhatsApp to the
accused no.2. It is also found out that for the
purpose of obtaining passport as well as obtaining
job in BSJ, the applicant - accused has submitted
forged and fabricated documents by cancealing true
and correct fact and based on it, the applicant -
accused has obtained job in BSJ just to achieve
his ill-intention because at the time of obtaining
passport, different date of birth was mentioned,
whereas at the time of obtaining job, different
date of birth was mentioned and for that, the
applicant - accused had forged certain documents,
which clearly goes on to show that there was
guilty intention and mens rea on the part of the
present applicant - accused. Over and above that,
it has also come on record that while working at
Tripura, the applicant has also forwarded certain
sensitive and confidential information to the
accused no.2 and in lieu of the same, the
applicant has also received certain amount of
consideration as a reward and said amount has been
deposited in the account of his brother and sister
and the IO has also collected evidence evidence
during the course of investigation but no such
persons, who have deposited such amount, where in
existence. The concerned Investigating Agency has
also retrieved the data from the mobile of the
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applicant - accused, which he had deleted after
sending to the original accused no.2. Thus from
the above facts of the case, it is clear that the
applicant - accused has actively participated in
the commission of crime and since beginning as the
part, conspiracy is hatched by the enemy of the
country and as a part of conspiracy, the applicant
forwarded secret and confidential information to
other country through WhatsApp, which is required
to be viewed strictly as the applicant - accused
has committed offence against the nation.
11. Further as stated above, now the investigation is
completed and the chargesheet has been filed and
thus, the concerned Investigating Officer has
collected all material documents, which connect
the applicant - accused with the commission of
crime. It is the specific case of the prosecution
that the applicant - accused has forged certain
documents for the purpose of obtaining passport
and/or for the purpose of obtaining job and the
applicant - accused has used two different date of
birth and the said fact is found out from the
documents, which were collected by the
Investigating Officer during the course of
investigation. On minutely going through the
investigation papers, it is found out that the
prosecution has proved the theory of forgery of
the documents by the applicant - accused by
collecting ample and sufficient documents.
12. At this stage, I would like to put reliance upon
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following decisions of the Hon'ble Apex Court,
12.1 In State (NCT of Delhi) Vs. Shiv Charan Bansal &
Others, reported in 2019 SCC OnLine SC 1554, it
was, inter alia, held that :
"44. A criminal conspiracy is generally hatched
in secrecy, and it is difficult, if not
impossible, to obtain direct evidence.
Reliance is placed on the judgment of this
Court in R. Venkatkrishnan v. CBI. The
manner and circumstances in which the
offence has been committed, and the lever of
involvement of the accused persons are
relevant factors. Each conspirator plays his
separate part in one integrated and united
effort to achieve the common purpose. Each
one is aware that he has a part to play in
the general conspiracy, to accomplish the
common object.
45. Conspiracy is mostly proved by
circumstantial evidence by taking into
account the cumulative effect of the
circumstances indicating the guilt of the
accused, rather than adopting an approach by
isolating the role played by each of the
accused. The acts or conduct of the parties
must be conscious and clear enough to infer
their concurrence as to the common design
and its execution. Reliance is placed on the
judgment of State (NCT of Delhi) v. Navjot
Sandhu."
12.2 In State of Kerala Vs. P. Sugathan & Anr.,
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reported in (2000) 8 SCC 203, Hon'ble Supreme
Court of India held that :
"Criminal conspiracy is defined under
Section 120(A) of the Indian Penal Code as
under: "Definition of criminal conspiracy.
When two or more persons agreed to do, or
cause to be done.
(1) an illegal act, or (2) an act which
is not illegal by illegal means, such an
agreement is designated a criminal
conspiracy:
Provided that no agreement except an
agreement to commit an offence shall amount
to a criminal conspiracy unless some act
besides the agreement is done by one or more
parties to such agreement in pursuance
thereof.
Explanation immaterial whether the
illegal act is the ultimate object of such
agreement, or is merely incidental to that
object." Section 120B prescribes the
punishment for criminal conspiracy which by
itself is an independent offence, punishable
separately from the main offence. The
offence of criminal conspiracy can be
established by direct evidence or by
circumstantial evidence. Section 10 of the
Evidence Act introduces the doctrine of
agency and will be attracted only when the
court is satisfied that there is reasonable
ground to believe that two or more persons
have conspired together to commit an offence
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or an actionable ground, that is say, there
should be a prima facie evidence that the
person was a party to the conspiracy before
his acts can be used against the co-
conspirators. This Court in Bhagwan Swarup
Lal Bishan Lal vs. State of Maharashtra [AIR
1965 SC 682] held that the expression "in
reference to their common intention" in
Section 10 is very comprehensive and it
appears to have been designedly used to give
it a wider scope than the words "in
furtherance of" in the English law; with the
result, anything, said, done or written by a
co-conspirator, after the conspiracy was
formed, will be evidence against the other
before he entered the field of conspiracy or
after he left it. Anything said, done or
written is relevant fact only "as against
each of the persons believed to be so
conspiring as well for the purpose of
proving the existence of the conspiracy as
for the purpose of showing that any such
person was a party to it". It was further
held: In short, the section can be analysed
as follows: (1) There shall be a prima facie
evidence affording a reasonable ground for a
Court to believe that two or more persons
are members of a conspiracy; (2) if the said
condition is fulfilled, anything said, done
or written by any one of them in reference
to their common intention will be evidence
against the other; (3) anything said, done
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or written by him should have been said,
done or written by him after the intention
was formed by any one of them; (4) it would
also be relevant for the said purpose
against another who entered the conspiracy
whether it was said, done or written before
he entered the conspiracy or after he left
it; and (5) it can only be used against a
co-conspirator and not in his favour."
We are aware of the fact that direct
independent evidence of criminal conspiracy
is generally not available and its existence
is a matter of inference. The inferences are
normally deduced from acts of parties in
pursuance of purpose in common between the
conspirators. This Court in V.C. Shukla v.
State [1980(2) SCC 665] held that to prove
criminal conspiracy there must be evidence
direct or circumstantial to show that there
was an agreement between two or more persons
to commit an offence. There must be a
meeting of minds resulting in ultimate
decision taken by the conspirators regarding
the commission of an offence and where the
factum of conspiracy is sought to be
inferred from circumstances, the prosecution
has to show that the circumstances giving
rise to a conclusive or irresistible
inference of an agreement between the two or
more persons to commit an offence. As in all
other criminal offences, the prosecution has
to discharge its onus of proving the case
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against the accused beyond reasonable doubt.
The circumstances in a case, when taken
together on their face value, should
indicate the meeting of the minds between
the conspirators for the intended object of
committing an illegal act or an act which is
not illegal, by illegal means. A few bits
here and a few bits there on which the
prosecution relies cannot be held to be
adequate for connecting the accused with the
commission of the crime of criminal
conspiracy. It has to be shown that all
means adopted and illegal acts done were in
furtherance of the object of conspiracy
hatched. The circumstances relied for the
purposes of drawing an inference should be
prior in time than the actual commission of
the offence in furtherance of the alleged
conspiracy.
12.3 In the case of Rajesh Ranjan Yadav @ Pappu Yadav
Vs. CBI Through its Director, reported in (2007) 1
SCC 70, wherein, the Apex Court has laid down
that, while considering an application for regular
bail, the Courts shall have to take into
consideration, the following aspects,
"(a) The nature of accusation and the severity of
punishment in case of conviction and the
nature of supporting evidence;
(b) Reasonable apprehension of tampering with
the witness or apprehension of threat to the
complainant;
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(c) Prima facie satisfaction of the court in
support of the charge;"
12.4 In the aforesaid case, the Hon'ble Apex Court,
further, observed at Paragraphs Nos.10 and 16 as
under;
"10. In our opinion none of the aforesaid
decisions can be said to have laid down any
absolute and unconditional rule about when
bail should be granted by the Court and when
it should not. It all depends on the facts
and circumstances of each case and it cannot
be said there is any absolute rule that
because a long period of imprisonment has
expired bail must necessarily be granted.
16. We are of the opinion that while it is true
that Article 21 is of great importance
because it enshrines the fundamental right
to individual liberty, but at the same time
a balance has to be struck between the right
to individual liberty and the interest of
society. No right can be absolute, and
reasonable restrictions can be placed on
them. While it is true that one of the
considerations in deciding whether to grant
bail to an accused or not is whether he has
been in jail for a long time, the Court has
also to take into consideration other facts
and circumstances, such as the interest of
the society."
13. The Court has also gone through the decision/s
relied upon by the learned advocate for the
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applicant. There cannot be any dispute with regard
to the ratio laid down in the same. However, in
the facts and circumstances of the case on hand
and this being discretionary relief, which
requires to be granted judiciously, the said
decision/s would be of no help to the present
applicant at this juncture.
14. Over and above that, strong apprehension has been
shown by prosecution that if the applicant is
released on bail then, there is possibility of
tampering with the evidence and fleeing away from
the trial as he is resident of Jammu & Kashmir.
Thus, on the perusal of the chargesheet and
accompanying documents, considering the nature of
offence, role attributed to the applicant and
played by him, I am of the opinion that
allegations against the applicant - accused are
prima facie true and, hence, the present
application deserves to be rejected.
15. Accordingly, the present application is rejected.
Rule is discharged.
16. Needless to say that observations made herein
above are confined to decision of the present bail
application.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
