Sunil Ranjan Das v. State

P.C.Borooah, J.:-

(1) The petitioner sunil ranjan das is being tried with three others, namely, mohit chowdhury, tarapada chakrabarty and a. L. Das in case no. C - 472 of 1967 before the additional chief presidency magistrate, calcutta. By an order dated the 2nd of september, 1970, passed by sri h. Barari, additional chief presidency magistrate, calcutta; a charge under section 120b i. P. C. Read with section 3 (1) (c) and section 5 of the official secrets act, 1923, was framed against the petitioner and the three other accused persons. This was the only charge against the petitioner, but there were other specific charges under different sections of the official secrets act against the other accused persons. Against this order the petitioner only has come up before this court in revision and obtained the present rule.

(2) The present case against the petitioner and the other accused person was started on the 10th of july, 1967, on the basis of a petition of complaint filed by sri ramendra singh, dy. Superintendent of police, special police establishment division, central bureau of investigation new delhi.

(3) Initially a case was registered at the burtolla police station, calcutta against the petitioner and others but this case was subsequently made over for investigation to the c. B. I. , who on 24. 10. 66 registered a case, being r. C. No. 15/1966 under sections 120b, 124a and 505 i. P. C. , section 11 of the west bengal security act and section 3 of the official secrets act. On 12 june 1967the police submitted a final report in respect of two of the accused persons but did not submit any final report or challan as regards the petitioner and two others, who were thereupon discharged by the learned additional chief presidency magistrate. On the same day the police submitted a complaint before the learned additional chief presidency magistrate against the petitioner and against the other two discharged accused persons and against a. L. Das on allegations of offences under the official secrets act. By an order dated 5, july, 1967 all the accused persons including the petitioner were discharged on account of the absence of the complainant. There after on, july 1967 a fresh complaint was filed on the basis of which the aforesaid case was started and charges were framed against the petitioner and the others,

(4) The case made out in the aforesaid complaint filed on 10 july 1967 was briefly as follows : for the preservation of the port of calcutta the government of india decided to build a barrage at farakka across the ganga and a feeder canal taking off from the barrage and falling into the bhagirathi, in order that adequate supply of water from the ganga in the bhagirathi hooghly waterway through which the ships gain access to calcutta port is sustained. A project report called "the project report for the preservation of the port of calcutta" was accordingly prepared and was finalized towards april, 1959, by the government of india. It was kept secret and marked "for official use only". Each copy of the report was numbered and a specified number of copies only were cyclostyled out of which 5 copies of the report were sent to west bengal including a copy meant for the chief engineer, irrigation and waterways, west bengal, calcutta, namely, the accused a. L. Das, who was the chief engineer, irrigation and waterways from april, 1957 to september 1980.

(5) The government of pakistan was await of the farakka barrage scheme and was anxious to find out whether the scheme did not divert water to the extent as might adversely affect the economy of east pakistan. Pakistan had been pressing india all along that before india took any final decision, it should be established to the satisfaction of pakistan that the decision would not affect its riparian rights. Pakistan also was anxious to obtain details of the project.

(6) India on its part had asked for the details of pakistan's ganges - kobadak project to assess pakistan's requirements and finally in the first quarter of 1960 pakistan was informed that india would be willing to exchange on reciprocal basis the available data at an expert level meeting in april/may, 1960. In april, 1960, a request was received from pakistan for a copy of the project report. The first meeting of the water resources experts of india and pakistan was held in new delhi from the 28th june to 3rd july, 1960, but the project report for the preservation of the port of calcutta was not officially handed ever to pakistan as the government of india's stand was that the project report would be exchanged with the project report of the ganges - kobadak project of pakistan.

(7) It was further alleged in the said petition of complaint that during the period from june, 1959 to april, 1961, in calcutta and other places the accused petitioner and the other three accused persons along with others, were parties to a criminal conspiracy and they, either jointly or severally, for a purpose or purposes prejudicial to the safety or interest of india obtained, collected or communicated to the then deputy high commissioner for pakistan in india at calcutta, namely, mr. Ahmed ali, notes or otter documents or information, including the project report for the preservation of the port of calcutta, which were calculated to be or might have been or were intended to be directly or indirectly useful to an enemy.

(8) 52 witnesses were examined on behalf of the prosecution and numerous documents were exhibited. After considering the evidence and the documents on record the learned additional chief presidency magistrate by his order dated the 2nd of september, 1970, framed charges against the accused petitioner and other accused persons as aforesaid.

(9) Mr. Ghose appearing on behalf of the petitioner has challenged the order of the additional chief presidency magistrate framing a charge against the accused petitioner on several grounds. According to mr. Ghose the charge of criminal conspiracy to commit an offence punishable under sections 3 (1) (c) and 5 of the official secrets act, 1923 is not sustainable, because before a person can be charged with an offence under section 3 (1) (c) of the said act it has first to be established that the document or plan sought to be communicated is a secret document and secondly such document or plan must be useful to an enemy. According to the prosecution the document in question was "the project report for the preservation of the port of calcutta" which was marked for 'official use only' and was not marked 'secret' and which could not be a secret document because the data regarding the said project was being exchanged with the government of pakistan. Mr. Ghosh further argued that the petitioner and the accused persons, even if they had communicated the said report to pakistan, section 3 (1) (c) would not be attracted because pakistan was never during the period covered by the alleged conspiracy an enemy of india. Mr. Ghosh has further submitted that the term 'enemy' has not been defined in the official secrets act, but it has been defined under the defence of india act, 1962, and as the defence of india act and the official secrets act are 'pari materia' the term 'enemy' must be given the same meaning under the official secrets act.

(10) Mr. Ghosh has further argued that the indian official secrets (amendment) act, 1967 was passed on the 15th of august, 1967, that is, after the present complaint was filed. By the amendment act the words "with imprisonment for a term which may extend to 14 years" in section 3 (2) of the principal act have been omitted and the said section has been sought to be made applicable to the petitioner. Mr. Ghose's submission is, if section 3 (2) is made applicable to the petitioner, he would be greatly prejudiced in his trial. According to mr. Ghosh the law as laid down under section 3 (2) of the said act is substantive law and it cannot have any retrospective effect, and as such the said section should not be made applicable to the case of the petitioner. Mr. Ghosh has lastly argued that the evidence as adduced is wholly in sufficient for framing of a charge against the petitioner, and as such the charge should be quashed.

(11) Mr. J. M. Banerjee appearing for the state submitted that the word 'enemy' as used in section 3 (1) (c) of the official secrets act does not necessarily mean an actual 'enemy' with whom this country is at war, but includes a potential enemy. In support of this argument my attention has been drawn to a decision of the rajasthan high court, namely, (1) kutbuddin and others v. State of rajasthan, reported in a. I. R. 1967 raj. 257 and also to a case under the official secrets act, 1911, of great britain, namely, (2) rex v. Parrot reported in (1913) 8 criminal appeal reports 186. As regards the application of section 3 (2) of the said act mr. Banerjee has submitted that the section is purely procedural law and as such the provisions contained therein can be made applicable to the trial of the petitioner. Mr. Banerjee also submitted that the charge framed against the petitioner is that of conspiracy to commit certain offences and as such no overt act need be attributed to him.

(12) Mr. Sankardas banerjee appearing on behalf of the central bureau of investigation has drawn my attention to section 4 of the official secrets act under which the fact that a person has been in communication with a foreign agent is relevant for proving that he has been acting with a purpose prejudicial to the safety or interest of the state within the meaning of section 3 (1) (c) of the said act. As regards the point raised by mr. Ghosh that the project report is not a secret document, mr. Banerjee has drawn my attention to the evidence of p. W. 1, k. K. Mehra, according to whom the said report was marked 'secret' and it was decided that only 50 copies would be cyclostyled and each copy would be given a serial number; and also to the evidence of p. W. 2, k. K. Franji who also categorised the said report as secret and has given the reasons for doing so in his evidence. Mr. Banerjee has also taken me through portions of the evidence of p. Ws. 18, 20, 23, 27, 41, 43, 45 and 47 as well as referred to certain exhibits, namely, exts. 35, 36, 39, 112, 113; 114 and 181. All this according to mr. Banerjee is sufficient to show that there is a prima facie case for framing a charge of conspiracy against the petitioner.

(13) section 3 (1) (c) of the official secrets act before the amendment act of 1967 read as follows: "if any person for any purpose prejudicial to the safety or interest of the state, obtains, collects, records or publishes or communicates to any other person any secret official code or password, 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; he shall be punishable. " by the indian official secrets (amendment) act, 1967 after the words "useful to an enemy" in the said section the following words were added, namely, "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". For the purpose of this case it is not necessary to take into consideration the words added to section 3 (1) (c) by the amending act.

(14) The word 'secret' in the said section qualifies official code or pass ward and not any sketch, plan, model, article or note or other document or information. This is clear from the comma and the word 'or' which comes after the word 'password'. Therefore, in order to make a person liable for an offence under section 3 (1) (c) for obtaining and communicating a plan, it is not necessary to prove that the plan which was obtained and communicated to any other person was a secret plan. It would suffice to show that the plan obtained and communicated to any other person was calculated to be or might or was intended to be, directly or indirectly, useful to an enemy.

(15) The next question that arises is the interpretation of the words "useful to an enemy". If it was the intention of the legislature that the word 'enemy' as used in the said section would only refer to an actual enemy with whom the country was in a state or war the whole object of the act would be frustrated. In that event any person could at anytime communicate to any other foreign power, with whom this country is not at war, any material or information which might be useful to that country, and after doing so take shelter under the that he had not committed any offence under section 3 (1) (c) of the official secrets act because he has not communicated any information to any enemy country. The word 'enemy' must necessarily mean a potential or future enemy or an unfriendly power with which this country might be at some future date in a state of war. A similar view was expressed by the rajasthan high court in the case of kutbuddin and others v. State of rajasthan and in this decision the english case of rex v. Parrot was also referred to. The rajasthan high court in the said case observed as follows:

"on the question of the construction of the word "enemy" in section 3 of the act the argument is that pakistan was not enemy of india at the material point of time when the information was collected and, therefore, section 3 was not attracted. In my opinion, the argument is untenable. If the argument was accepted it would come to this : that the active spies may collect valuable information and pass to a foreign state before the actual hostilities at the pain of a small punishment to the great prejudice of the state without falling within the mischief of offence under section 3 punishable with 14 years' rigorous imprisonment. This could not have been the intention of legislature. In my opinion, the term "enemy" in section 3 includes 'any unfriendly state. Under the official secrets act, 1911, of great britain on the pattern of which our act of 1923 has been apparently drafted, the word "enemy" came to be interpreted in the case of r. V. Parrot (1913) 8 cri. App. Rep. 186 by philip more, j. The learned judge observed as follows : "when the statute uses the word "enemy" it does not mean necessarily some one with whom this country is at war, but a potential enemy with whom we might some day be at war. "

(16) I also do not agree with mr. Ghosh's argument that the official secrets act, 1923 and the defence of india act, 1962 are 'parameter' and the word "enemy" in the official secrets act should have the same meaning is the definition of "enemy" in section 2 (c) of the defence of india act. The official secrets act is a peace time legislation intended to be in operation both while this country is at peace or in a state of war. Whereas, on the other hand, the defence of india act, 1962 was passed after the president had declared by proclamation under clause (1) of article 352 of the constitution that a grave emergency exists whereby the security of india is threatened by external aggression.

(17) As regards the application of section 3 (2) of the official secrets act after the amendment to the trial of the petitioner i do not find any substance in mr. Ghosh's argument. The amendment act came into operation on the 15th august, 1967 after the learned additional chief presidency magistrate had taken cognizance of the present case on the 10th july 1967. Section 3 (2) of the official secrets act is purely procedural law, and the law is well settled that any amended law relating to procedure operates retrospectively, and as regard spending cases the law as amended will apply to the future stages of the proceedings.

(18) I do not also find any substance in mr. Ghose's argument that the material before the magistrate is not sufficient to frame a charge against the accused petitioner. I have gone through the portions of the evidence referred to by mr. Sankardas banerjee and i am satisfied that there is a prima facie case for framing a charge of conspiracy against the petitioner. In the circumstances aforesaid the application must fail and the rule is discharged. Let the learned magistrate proceed with the trial expeditiously. The records should be sent down as soon as possible. Rule discharged.