1. The appellants were convicted under S. 3(1) of the Official Secrets Act, 1923 by the learned Addl. Sessions Judge, New Delhi and were sentenced to undergo to rigorous imprisonment for 3 years.
2. The charge against the appellants is that they were working as peons in the Directorate of Naval Engineering Naval Headquarters, Sena Bhawan, New Delhi and in that capacity they had access to the secret and classified documents and files. The allegation against them is that they were passing on classified information and documents till Jan. 1980 to one Mohd. Haroon under the assumed name of Raj Kumar and to one Mohd. Ashraff under the assumed name of Balbir and both these persons belonged to the Pakistan Intelligence and were working in the Pakistan Embassy as foreign agents. It is also alleged that on several occasions the appellants used to sneak out the files and classified documents from the Naval Headquarters and were handing over the same at different contact points to these foreign agents who would take a photo copy of the same, return these and then the appellants used to secretly bring the files back to the Naval Headquarters and put them at their proper places. This the appellants allegedly continued to do for a period of years and they were regularly accepting payments for the same.
3. Thus the charge against the appellants is that they have been passing on secret information and classified documents to foreign agents and that these documents and information was useful to the enemy agents and related to matters the disclosure of which was likely to adversely affect the sovereignty and integrity of India, security of the State and the friendly relations with the foreign States. The documents, according to the prosecution related to the naval establishment of the Government of India.
4. At trial the stand of the appellants was that of denial. That they were serving in the Naval Headquarter as peons at the relevant time is not denied. It is, however, denied that they had any access to the files. The fact of having made any disclosure before the Investigating Officer has also been denied.
5. I have carefully considered the facts, and circumstances and the evidence recorded in the case as also the arguments advanced by the learned counsel for the parties. The entire prosecution case rests on the testimony of three sets of witnesses. PW-4 and PW-6, namely; Suraj Narain and Bhagwati Pershad were supposed to tender evidence that the appellants had approached them along with one Mohd. Ashra Malid alias Balbir with a view to lure them into supplying the classified information to the foreign agents. At trial, however, both these witnesses have been declared hostile and they have stated nothing incriminating against the appellants.
6. The next set of witnesses have tendered evidence to the effect that in their presence the appellants had pointed out several places in Delhi where they had on many occasions met the foreign agents and passed on information and classified documents and files. This part of the prosecution story is testified by PWs. 8, Mahabir Singh, PW-9, Girdhari Lal, SI PW-13 Satinder Singh and PW-20 Inspector Raj Bir Singh.
7. The third set of witnesses have tendered evidence to the effect that in pursuance of disclosure statements the appellants had pointed out the documents and files in the Naval Headquarters, which they had passed on to the foreign agents. These are PW-14 Commander S.P Dutt, PW-18 Commander B.S.K Swamy and also Commander S. Wilson and PW-19 Commander K.V Sonalker. Disclosure statements Ex. PW. 16.C and PW. 16.D have been proved in this case by P.W 16 Inspector Raghunath Singh. P.W 5 Shri S.L Kaura has testified to the effect that the appellants had access to these documents.
8. On examination of the judgment of the learned trial Judge I find that the learned Judge by a very strange and curious reasoning found the entire evidence admissible and came to the conclusion that it was sufficiently incriminating. In doing so the learned Judge has mis-directed himself by devising a principle unknown to the criminal jurisprudence. In respect of the admissibility and evidentiary value of the disclosure statement, Ex. PW-16.C and Ex. PW-16.D he has observed at para 35 of his order as under;
“As regards the evidentiary value and their admissibility the provisions of sub-sec. (2) of S. 3 of the Official Secrets Act are conspicuous and they in a way distinguish these cases from ordinary criminal cases as to the standard of proof.”
9. The learned trial Judge seems to be labouring under the impression that sub-sec. (2) of S. 2 of the Official Secrets Act lays down a rule of evidence, which in fact it does not. Nor does it in any way dilute the degree of proof required for proving the criminal case which includes a case under the provisions of Official Secrets Act as well. It is this strange and curious notion of the learned trial Judge which has resulted in absolutely wrong approach to the case. sub-sec. (2) of S. 3 of the Official Secrets Act, 1923 reads as under:
“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 anything 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 interest of the State.”
10. A plain reading of the aforesaid provision would show that it lays down a rule of presumption. In a trial of this nature the prosecution need not prove any particular act of the accused tending to show a purpose prejudicial to the safety or interest of the State. In the absence of proof of any such particular act, it entitles the Court to convict an accused if from the proved circumstances of the case or from the proved conduct of the accused or his proved character it appears that his purpose was a purpose prejudicial to the safety or interest of the State. Here again, this inference can only be drawn if there is some proof, admissible material on the record and not otherwise.
11. By no stretch of imagination sub-sec. (2) of S. 3 of the Official Secrets Act, has in any way diluted the burden of the prosecution to prove its case. A case under this Act has also to be proved like any other criminal case and the burden on the prosecution is in no way lessened. The principle that no conviction can be based on assumptions and conjectures or on suspicion, however, strong equally applies to a case under the Official Secrets Act.
12. The evidence tendered by the prosecution in respect of the disclosure made by the appellants and the conduct of the appellants in pointing out the place where according to the prosecution they used to contact foreign agents and provide the secret information and the disclosure as to where these documents were lying in almirah is totally inadmissible evidence. No incriminating discovery is shown to have been made in pursuance of those disclosures. The evidence of this nature neither conceived nor covered by the provisions of S. 27 of the Evidence Act, on the other hand, if I may say so, this evidence is inadmissible under S. 25 of the Evidence Act. By all norms the information contained in the disclosure statements is a plain admission of guilt made before a police officer.
13. Proceeding on the assumption that the appellants had access to the documents, this inadmissible evidence is of no help to the prosecution. There is further no evidence in respect of the fact that the appellants have ever met any foreign agent. The pointing out of the meeting place by the appellants as such is meaningless. Apart from the fact that the disclosure statements Ex. 16.C, 16.D are hit by S. 25 of the Evidence Act I would also like to point out that there is no description of any documents which the appellants had undertaken to point out.
14. In those circumstances one fails to understand as to what evidentiary value these disclosures can have. Mere pointing out of the documents in the circumstances of this case is meaningless unless it is further proved that at a particular stage these documents were actually taken out from the files.
15. If that evidence were there, one could in that event draw an inference that these were taken away with a purpose prejudicial to the security and interest of the State.
16. There is further no evidence worth the name on the record on the basis of which one could reasonably conclude about the involvement of the appellants in this case. In short, there is no legal evidence worth the name on the record to warrant a conclusion that the appellants are guilty of the offence of which they have been charged.
17. With these observations this appeal is allowed and the appellants are acquitted of the charge. The sureties and the bonds shall stand discharged.
18. Appeal allowed.
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