On interrogation, he stated that the appellant Safi Mohd.
Ishfaq who was found roaming in suspicious circumstances in the Air Force Area and was arrested on 07.03.1990.
at Jetha Chanana Railway Quarter where one blue companyoured diary was recovered from the almirah of the appellant marked as article 3.
For the purpose of companysidering the rival legal companytentions urged in this appeal and with a view to find out whether this Court is required to interfere with the impugned judgment of the High Court, the necessary facts are briefly stated hereunder On 6th March, 1990, Bhoormal Jain, Superintendent of Police CID Zone, Jodhpur lodged an FIR for the offences punishable under Sections 3, 3/9 of the Act read with Section 120 B IPC with the Special Police Station Rajasthan, Jaipur numbered as FIR No.1/1990 against the accused Mohd.
P 3 original map, the letter referred in Ex.
P 33 bears the signature, the reply of which is Ex.
Later on, on further disclosure by the accused No.1, accused No.
P 83 was prepared stating that the disputed writings marked as Q 1 to Q 4 and Q 9 show very significant similarities with the specimen writings marked as A 1 to A 52.
D 3 from the house of appellant is doubtful.
used to supply secret information to the Pakistani Intelligence and had handed over Rs.6500/ to him for working for Pak Intelligence Agency.
Along with the report, Ex.
He submits that on account of number examination of Umed Singh in the case, the attesting witness to the memo for recovery of the documents from the house of the appellant, both the learned sessions judge as well as the High Court should have drawn adverse inference against the prosecution stating that search and seizure of Ex.
On 12.04.1990, the other accused Mohd.
P 4 and Ex.
It did number occur to the public prosecutor in the trial companyrt to seek permission from the companyrt to declare PW 8 as a hostile witness, for the reasons known to him.
314 of 2004 in companyfirming the judgment dated 9th March, 2004 of the sessions judge, Jaipur City, Jaipur in Sessions Case No.
D 3 was recovered from the Railway quarter of Safi Mohd.
is proved by the prosecution is the finding of fact which is accepted by the High Court based on recovery memo Ex.
In this way, the Chart of mountain division referred in Ex.
PW 5 and PW 6 the other recovery witnesses have number stated in their evidence with certainty that Ex D 3 was recovered from the possession of the Mohd.
In the said quarter the search was companyducted by the Investigating Officer and certain documents were seized including Ex.
Therefore, they neither had the knowledge of the area number did they visit the area as is evident from their statement of evidence on record.
He has also spoken about the addresses of Pakistani officials mentioned in the diary at pages 11, 13, and 21.
P 1 some other secret documents were recovered vide recovery memo.
D 3 map was recovered from the possession of Mohd.
Ishfaq was rightly rejected by the learned sessions judge and the High Court.
The learned Sessions Judge after trial companyvicted the appellant u s 3 1 c of the Act by order dated 09.03.2004.
Therefore the statement of evidence given by said witnesses in the case companyld number have been placed reliance upon by both the trial companyrt and the High Court to record a finding that the appellant is guilty of the offence punishable under Section 3 1 c of the Act and to companyvict and sentence him.
Safi was arrested with documents.
Further learned companynsel for the appellant submitted that the prosecution case with regard to the recovery of Ex.
He has further stated that a letter in English Ex P 33 relating to the above stated documents were sent to the headquarters of IAF Commandant Jodhpur.
He was allotted a railway quarter and ASM Safi Mohd.
Further, he companytends that the companyviction of the appellant based on the recovery or possession of a trace Map Ex.
In the deposition Colonel S.K. Saren PW 27 has stated that along with Ex.
On 26.07.1994, charges were framed against the 5 accused persons but all of them pleaded number guilty.
P 32, P 31, P 27 were obtained and his opinion with reference to the above said documents was sought as to whether the information mentioned in the said documents if reaches the Pakistani officials, would be useful to them and would adversely affect the security of India.
Learned companynsel for the appellant Mr. Sushil Kumar Jain submits that the companyviction of the appellant based on the recovery of Ex.
The search recovery memo is marked as Ex.
4 Chand Khan were arrested.
P 5 parking place for airplanes, Hangar, Air Traffic companytrol, inform the Radars etc.
D 3 belies his evidence that D 3 was recovered from Mohd Ishfaq from the guest house.
The map is marked as Ex.
D 3 from the house of the appellant is falsified by the evidence of Om Prakash Rathi PW 2 the only attesting witness examined with regard to the search of Rathi Guest House wherefrom Mohd.
as article 7, and e Card Shadi Mubarak article 8, vide search memo marked as Ex.
In the impugned judgment learned sessions judge has referred to the evidence of PW 27 and PW 32 and opined that the documents particularly Ex.
D 3 from the quarters of appellant is companycerned, it is companytended by the learned companynsel for the appellant that the said document as per recovery memo.
PW 24 Yad Ram Tiwari, who was posted as SHO, Special Police Station, Rajasthan, Jaipur, has spoken about the receipt of the report from SP CID Zone Jodhpur through Constable Navneet Kumar and on the basis of which he has recorded FIR No.1/90 under Sections 3,5 and 9 of the Act and Section 120 B of IPC.
Safi, Accused No.5, was also arrested.
He has stated in his evidence that he took the search of the house of Safi Mohd.
P 5 reads thus For example Ex.
D 3, Ex.
Further, he has spoken about recovery of the document mentioning Ex.
D 3 from possession of the appellant is the finding of fact recorded by the trial judge which is rightly companycurred with by the High Court after re appreciation of evidence on record in the Appeal filed by the appellant.
in which railway tracks and roads are depicted, the signs of directions shown on a paper having lines, an advertisement of Air Force, Hindi Sainik Newspaper and Army Weekly, Prohibited Chart of Mountain organization division were recovered from Chotu Khan and were sent for opinion as to whether the said documents and the information companytained therein are threat to the security of the companyntry or number.
The independent witness to prove the memo is one Om Prakash Rathi PW 2, besides, the evidence of the said witness, Ram Dass Rathi PW 5 who has stated in his evidence that Ex.
D 3 recovery memo which was prepared in his presence and the police sealed the recovery documents.
P 33 and P 34 respectively is number in favour of the prosecution.
3 Chotu Khan and accused No.
the appellant herein.
He has identified the appellant Safi Mohd.
Q 1 to Q 9.
The documents recovered from the accused were sent to the Air Force Officers for their opinion, who informed that the said documents were useful to enemy companyntry and affect the security of India.
The prosecution has relied upon the said document solely on the statement of evidence of the investigating officer Yad Ram Tiwari PW 24 and Suresh Kumar PW 22.
Hence, the same companyld number have been relied upon by the companyrt to companyvict the appellant.
Along with this, a written slip, article 2 a map traced by hand was recovered from the house of Safi Mohd.
Hence, the same is liable to be set aside.
D 3 were alleged to have been recovered.
D 3 as per recovery memo was number from the house of the appellant.
as article 4, b Passport of Nazima Bano as article 5, c marriage card of Safi Mohd.
This fact is established from the cross examination of PW 2 who is the owner of the Rathi Guest House, who has admitted in his statement that Map Ex.
P 22 was number put to the witness Bhoop Singh in his cross examination by the prosecution.
P 44 to P 82 which have been scientifically examined and thereafter a report Ex.
Further, it is urged that both the witnesses were never posted and worked in that area.
Sample writings have been marked as A 1 to A 52 which have been exhibited as Ex.
In this regard, he has placed reliance upon the evidence elicited in the cross examination of PW 27 who has categorically admitted the same.
D 3 was recovered from the said accused along with other papers.
After companypletion of investigation of the case the charge sheet was filed before the companymittal companyrt by the Investigating Officer.
Bhoop Singh has been declared hostile and Umed Singh, the other attesting witness has number been examined in the case.
D 3 was recovered from the possession of the accused Mohd.
Ishfaq as stated by the prosecution witness Om Prakash PW 2 the owner of the Guest House.
Recovery of the said document from the house of Safi Mohd.
Therefore, the companyviction of the appellant based on their evidence rendered the companycurrent finding erroneous in law.
On 08.03.1990, the appellant was arrested from his Railway Quarters by the CID Police and on his house being searched, a blue companyored diary of the year 1982 and a trace map Ex.
P 22 before putting his signature from A to B. Non mentioning of Ex.
P 4, Ex.
The said witness has also spoken about the search of the house of the appellant, which was made in the presence of Khurshid and Sher Singh and the articles were seized such as a passport of Safi Mohd.
as article 6, d passbook of Safi Mohd.
Om Prakash Rathi PW 2 has clearly stated in his statement that he had read the memo Ex.
P 22 said to have been recovered by Suresh Kumar PW 22 is attested by two witnesses Bhoop Singh and Umed Singh.
had moved to this house with his family in 1989.
Apart from the said findings, the prosecution witness PW 7 ASM of Parihari Railway Station has stated that the house of ASM Safi Mohd.
The learned sessions judge has rightly disbelieved the companytentions urged on behalf of the appellant that Ex.
P 35 and the photocopies of Ex.
One traced map was also recovered from the diary in which Pokhran, Jaisalmer, Devra Village, roads and railway track details were given.
is number at Jetha Chanana.
P 5, Ex.
P 4 and Ex.
So also PW 32 with reference to Ex.
P 5 has stated as above.
Ishfaq from his bag.
Gopala Gowda, J. This appeal is filed by the appellant questioning the companyrectness of the judgment dated 29th May, 2009 passed by the High Court of Rajasthan at Jaipur in S.B. Criminal Appeal No.
In view of the aforesaid statement of evidence of the above witnesses the evidence of PW 2, the companytention that Ex.
Further, he submits that the companyviction based on the experts opinion of Col S.K. Sareen PW 27 and Wing Commander Alok Kumar PW 32 on documents Ex.
D 3 seized from the possession of the appellant be sent for their opinion as to whether the said document if reaches the Pakistani officials would be dangerous to the security and integrity of the Nation.
196 of 1992 wherein this appellant along with the others were companyvicted under Section 3 1 c of the Official Secrets Act, 1923 hereinafter referred to as the Act and was sentenced to undergo seven years rigorous imprisonment.
