State Of U.P. v. Taseen Azeem @ Lareab Khan

Hon'ble Mrs. Saroj Yadav,J.

1. The above criminal appeal has been filed by the State against the judgment and order dated 10.04.2014 passed by Special Judge (Scheduled Caste and Scheduled Tribes Act)/ Additional 2Sessions Judge, District Lucknow in Sessions Trial No.237 of 2007 arising out of Crime No.132 of 2006, under Sections 115, 120-B, 121, 121A, 123, 420, 467, 468 and 471 of the Indian Penal Code 1861 (in short I.P.C.) and Section 3/9 and 5/9 of Official Secrets Act, 1923 and Section 3/14 of Foreigners Act, 1946, Police Station Cantt., Lucknow, whereby the accused/respondent has been acquitted of charges under Sections under Sections 115, 120-B, 121, 121A and 123 of I.P.C. and accused/respondent was punished with allegedly lessor sentence under Sections 467, 468 and 471 of

I.P.C. and Section 3/9 and 5/9 of Official Secrets Act and Section 3/14 of Foreigners Act. The State-appellant prayed also for enhancement of the sentence, awarded to the accused/respondent.

2. The above petitioner for writ of Habeas Corpus has been filed by the petitioner/accused for his release and deportation to his own country i.e. Pakistan. This Criminal Appeal and this Habeas Corpus Writ Petition are interrelated, so we are disposing them of with a common judgment.

3. The brief factual matrix of the case is as under:

I. The respondent/accused Taseen Azeem @ Lareab Khan was arrested by Special Task Force, U.P. Lucknow on 13.09.2006 at 12:05 P.M. on the basis of information received. Upon his arrest it 3was revealed that he was living in India illegally with fake identity in the name of Lareab Khan son of Gulab Khan and working as an agent of Pakistan Intelligence Agency and transmitting the confidential information of India through email. He also got prepared forged driving license, educational certificates of High School, Intermediate and B.A. in the name of Lareab Khan. Some documents in the name of Precyze Company, some maps and other documents were recovered from the respondent/accused. It was also found that respondent/accused was staying in India since two years with a fake name of Lareab Khan and stayed at different places on rent and also stayed in the hotels at different places. It has also been mentioned in the First Information Report (in short F.I.R.) that during the course of stay in India with the help of Imtiyaz Ahmad he got the job in one placement Company situated in Gomti Nagar, Lucknow, thereafter he also did the job in Life Line and started a partnership Company alongwith Rahul Siddhartha and Fariuddin Ahmad and got prepared the documents by Miraz alias Pappu and stayed for nine months at Akhtar Guest House in Mumbai. He also shared a room with some Merchant Navy personnel. It has also been alleged that a book 'C.I.A. Vs. India, Asia and Afghanistan' was also recovered from the possession of respondent/accused. It has also been alleged that respondent / accused used to give information on mobile phone to 4I.S.I., cross border through one Javed. He used five email ids for transferring the information to Pakistan. The information sent in respect to Indian Army to Pakistans I.S.I. and were written in coded language. Allegedly some Secret documents related to military were also recovered from the possession of the accused/respondent. It was also found that through Western Union Money Transfer Bank the respondent/accused used to receive money from Pakistan. When the accused/respondent was interrogated upon arrest, he told the arresting official that his real name is Taseem Anzim son of Raees Azam, resident of House No.A 522 Sector 11 A Northern Karachi, Pakistan. He has four brothers and three sisters and all are younger to him and his father does some glass business in Karachi. He came to India for spying. He was sent by Pakistani officials after giving some training there. He used to send some documents related to army and some important informations to the Pakistan Intelligence Agency. He was doing this job since he was unemployed. Recovery memo was prepared and the articles recovered from the accused/respondent which include two secret documents related to military, two driving licenses, one mobile phone and charger, educational certificates of High School, Intermediate and B.A. and one purse, two diaries, one small telephone diary, two maps, one book, one cheque book, some photostat papers related to Precyze Company 5and Rs.1,290/- (one thousand two hundred and ninety). The case was registered against the accused/respondent at Case Crime No.132 of 2006, under Sections 115, 120-B, 121, 121A, 123, 420, 467, 468 and 471 of I.P.C. and Section 3/9 and 5/9 of Official Secrets Act and Section 3/14 of Foreigners Act.

II. After investigation chargesheet was submitted against the accused/respondent under Sections 115, 120-B, 121, 121A, 123, 420, 467, 468 and 471 of I.P.C. and Section 3/9 and 5/9 of Official Secrets Act and Section 3/14 of Foreigners Act, the concerned Magistrate took cognizance and committed the matter to Sessions Court for trial. Sessions Court framed the charges under Sections 115, 120-B, 121, 121A, 123, 420, 467, 468 and 471 of I.P.C. and Section 3/9 and 5/9 of Official Secrets Act and Section 3/14 of Foreigners Act. The accused/respondent denied the charges and claimed to be tried.

III. The prosecution in order to prove it's case examined 15 witnesses which are as under:- a. P.W.1 Vijay Bhushan, Superintendent of Police, City. b. P.W. 2 Shahab Rasheed Khan, Deputy Superintendent of Police. c. P.W. Sub Inspector S.N. Dohre. d. P.W.4 Constable Umrai Lal. 6e. P.W.5 Head Constable Manoj Rai. f. P.W. 6 Sub Inspector Shyam Awadh Singh. g. P.W. 7 Sub Inspector Chotte Lal. h. P.W. 8 Parshuram Verma.

I. P.W.9 Mahesh Kumar Gupta. j. P.W.10 U.C. Mishra. k. P.W. 11 R.B. Mishra.

l. P.W. 12 Mahendra Babu. m. P.W. 13 Daljeet Singh. n. P.W. 14 Sub Inspector N. K. Nagar. o. P.W. 15 Pramod Kumar Mishra.

IV. Apart from above witnesses, documentary evidence Exhibit Ka-1 to Ka-12 were also proved which includes as under:-

i. Original recovery memo Exhibit Ka-1

ii. Original FIR Exhibit Ka-2

iii. Chick FIR Exhibit Ka-3

IV. Site Plan, Exhibit Ka-4.

v. Charge-sheet Exhibit Ka-5

vi. Sanction Order of U.P. Government Exhibit Ka-6 and Ka-7

vii. Certificate of C.A.V. Intermediate College, Exhibit Ka-8

viii. Letter of Police Station Cantt. Exhibit Ka-9 7ix. Confidential report of Allahabad University, Exhibit Ka-10

x. Letter of Police Station Cantt. to Hisar, Exhibit Ka-11

xi. Report of P.S. Kareli, Exhibit Ka-12

V. After completion of evidence of prosecution the statement of accused/respondent under Section 313 of the Code of Criminal Procedure (in short Cr.P.C.) was recorded, wherein he denied all the allegations and said the evidence is false. He admitted that he is a Pakistani citizen but stated that he was arrested from Nepal border, he never transmitted any information to Pakistan Intelligence Agency, no driving license, no secret documents or educational documents were recovered from him. He also stated that P.W. 9 Mr. Mahesh Kumar Gupta was not the competent authority to give sanction. All the evidences have been created falsely against him. He has been implicated because he is a Pakistani citizen. He also stated that it is true that he came to India without passport, but he did not do any act against the Indian Government or against the country. He did not know who is Lareab Khan, he is confined in jail since last more than seven years and feeling ashamed of his mistake. He also stated that he wants to be a good citizen in the future, so a chance should be given to him to reform. His parents are ill and they are very poor. He did not adduce any evidence in defence. 8VI. After hearing the arguments of prosecution and of the accused/ respondent in person the learned trial court came to the conclusion that accused has accepted that he is a Pakistani citizen and came to India without any passport, so he is guilty of offence under Section 3/14 of Foreigners Act. It was also concluded by the trial court that accused/respondent was living in India by adopting the name of Lareab Khan, the forged educational certificates of High Schools, Intermediate and B.A. were recovered from the possession of the accused/respondent and that recovery has been proved by the witnesses examined by the prosecution.

VII. The learned trial court came to the conclusion that prosecution has proved the charges levelled against the accused/respondent under Sections 467, 468 and 471 of I.P.C. beyond reasonable doubt. Learned trial court also came to the conclusion that it has been proved by the prosecution that one book 'C.I.A. Vs. India, Asia and Afghanistan' was recovered from the possession of accused/respondent and it has also been proved that some emails were also sent by him to one Javed residing in Pakistan, which includes some informations related to Indian Army which were sent to Pakistan's Intelligence Agency, but it could not be proved what informations were sent, so only offence under Section 3/9 and 5/9 of Official Secrets Act were proved and rest of 9the offences were not found proved because the accused/respondent did not do any act, which can be termed as terrorist activities or any conspiracy against the India for waging war against India. It has also not been proved that information transmitted related to Army, were of secret nature. Hence, the trial court found and held accused/respondent guilty under Sections 467, 468 and 471 of I.P.C. and under Sections 3/9 and 5/9 of Official Secrets Act, 1923 and under Sections 3/14 of Foreigners Act and punished the accused/respondent in the following manner:- Sections Sentences awarded

1. Under section

467 I.P.C. Rigorous imprisonment of eight years coupled with fine of Rs.5,000/- and in default of payment of fine six months additional rigorous imprisonment.

2. Under section

468 I.P.C. Rigorous imprisonment of five years coupled with fine of Rs.3,000/- and in default of payment of fine six months additional rigorous imprisonment has been awarded.

3. Under section

471 I.P.C. Rigorous imprisonment of five years coupled with fine of Rs.3,000/- and in default of payment of fine six months additional rigorous imprisonment has been awarded.

4. Under section 3/9 Official Secrets Act. Rigorous imprisonment of eight years coupled with fine of Rs.5,000/- and in default of payment of fine six months additional rigorous imprisonment has been awarded.

5. Under section Rigorous imprisonment of three years 5/9 Official Secrets Act coupled with a fine of Rs.5,000/- and in default of payment of fine six months additional rigorous imprisonment has been awarded.

6. Under section 3/14 Foreigners Imprisonment of five years coupled with a fine of Rs.5,000/- and in default of payment of fine six months additional rigorous imprisonment has been awarded.

VIII. Learned trial court acquitted the accused/respondent of charges under Sections 115, 120-B, 121, 121A, 123 and 420 of

I.P.C. Police Station Cantt., Lucknow. Being aggrieved by this judgment and order the State/appellant preferred this appeal against acquittal as well as for enhancement of sentence awarded.

4. On the other hand, the convict Taseen Azeem @ Lareab Khan filed a Habeas Corpus Petition No.5249 of 2020 praying for the following reliefs:- "a. Issue a writ, order or direction in the nature of Habeas Corpus directing the opposite party No.1 & 2 to release the petitioner from the custody/detention. b. Issue a writ in the nature of mandamus to Opposite Party No.3 to deport the petitioner to his Country."

5. In this writ petition it has been stated that petitioner/convict was sentenced for eight years imprisonment in S.T. No.237 of 2007 (State Vs.Taseen Azeem @ Lareab Khan) which he completed on 01.09.2014, on the same day i.e. on 01.09.2014 one false F.I.R. was registered by Police Officer bearing Case Crime No.379 of 2014 under Sections 353, 504 & 506 of I.P.C. and Under Section 3/14 of Foreigners Act, Police Station Mohanlanganj, Lucknow. In the aforementioned Case Crime No.379 of 2014 the petitioner/convict was sentenced with four years imprisonment which he completed on 30.08.2018, since then petitioner is under illegal detention of the jail authorities. The State has filed an appeal for enhancement of the sentence being Criminal Appeal No.1486 of 2016, in which the Hon'ble High Court has directed to send the petitioner back to the jail when he had been called before the Hon'ble High Court on 09.10.2017. Treating this order as interim relief the petitioner is being illegally detained in the District Jail, Lucknow by the State. Even though on the pretext of the pendency of appeal the petitioner cannot be detained in jail as deemed convict which amounts to violation of Article 21 of the Constitution of India. The petitioner /convict challenged the validity of the orders dated 09.10.2017 and 06.03.2019 passed in Criminal Appeal No.1486 of 2016.

6. It has further been stated in the petition that on 09.10.2017 the petitioner was produced for the first time before this Hon'ble High Court in regard to Criminal Appeal No.1486 of 2016 (State Vs. Taseen Azeem @ Lareab Khan) and on that date a co-ordinate Bench of this Court has passed the following order:- " In compliance of this Court's order dated 13.07.2017, this accused respondent Taseen Azeem @ Lareab Khan was produced before this Court by learned A.G.A., who was brought by Dy. S.P., LIU Lucknow, R.S. Rai. He informed that earlier he had engaged the counsel but he has not turned up and he may be permitted to argue this case personally. Summon the lower court record if not received as yet, thereafter, office to proceed for preparation of paper book, as per Rules of the Court. After preparation of paper book, list this appeal for final hearing, in due course before appropriate Bench. The accused respondent Taseen Azeem @ Lareab Khan shall be taken back to the District Jail, Lucknow."

7. On 30.08.2018 the petitioner pleaded guilty in Case Crime No.379 of 2014, P.S. Mohanlalganj, Lucknow as the trial was not conducted/commenced and the petitioner already served the stipulated period of sentence in jail and thereafter he was convicted and sentenced under Section 353 of I.P.C. for two years Simple Imprisonment, under Section 504 I.P.C. for two years Simple Imprisonment; under Section 506 of I.P.C. for four years Simple Imprisonment and a fine of Rs.2,000/- by Learned ACJM-III, Lucknow, in Case Crime No.379 of 2014, P.S. Mohanlalganj, Lucknow.

8. The convict/petitioner was not provided any legal assistance during trial to defend him. The counsel who wanted to help the petitioner were beaten and threatened not to defend the petitioner, as such, no proper defense was laid before the Trial Court. The petitioner was arrested on 13.09.2014, on the first occasion he was sentenced for a maximum of eight years rigorous imprisonment, which expired on 12.09.2014 excluding the period of remission. On the second count for an alleged offence committed on 01.09.2014 four years maximum sentence was awarded which also expired on 30.08.2018 excluding the period of remission, as such, the petitioner has already passed about three years more, if remission is counted, i.e. more than the sentence awarded.

9. Heard Shri S.N. Tilhari, learned Additional Government Advocate for the State-appellant and Shri I.B. Singh, Senior Advocate (Amicus Curiae) assisted by Shri Sajeet Kumar Singh and Ms. Beena Rajesh, learned counsel appearing on behalf of convict/respondent. None turned up for Union of India.

10. Shri S.N. Tilhari, learned A.G.A. on behalf of State/appellant submitted that the trial court though held guilty the convict/respondent under Sections 467, 468, 471 of I.P.C. and under Sections 3/9 and 5/9 of Official Secrets Act and under Sections 3/14 of Foreigners Act yet awarded a very meager punishment commensurate to the crime committed by the convict/respondent. The maximum punishment prescribed under

I.P.C. for the offences committed under Sections 467 and 471 of

I.P.C. is life imprisonment, but the trial court awarded eight years rigorous imprisonment for the offence which is not proper, so the punishment awarded to the convict/respondent should be enhanced. He further submitted that there is evidence for the offences under Sections 115, 120-B, 121, 121A, 123 and 420 of

I.P.C. but the trial court has acquitted the convict/respondent for the above offences without applying its legal mind and without appreciating the evidence properly. Hence, the convict/respondent should be convicted for these offences also and the punishment awarded for the offences for which the convict was held guilty should be enhanced.

11. Learned A.G.A. has relied upon following case laws:- a. Bhim Singh Vs. Union of India and others 2012 SCC online SC b. A.K. Gopalan Vs. Government of India AIR 1966 (SC) 816 c. Abdul Latif Abdul Wahab Sheikh Vs. B.K. Jha, 1987 (2) SCC 22 d. Mohd. Amran @ Naveed Vs. State 2009 SCC online Del. 3364. e. Lal Singh Vs. State of Gujarat 2001 (3) SCC 221 f. Hazara Singh Vs. Raj Kumar and others 2013 SCC online SC

369. g. Govind Ramji Jadhav Vs. State of Maharashtra 1990 (4) SCC

718.

12. Contrary to it learned Senior Advocate Shri I.B. Singh, appearing for the convict as Amicus Curiae submitted that it is an admitted fact that convict/respondent is a citizen of Pakistan and he was residing in India without any valid passport or visa, but the allegations that he was involved in anti national activities against India or transmitting the confidential information relating to Indian Army to his own country has not been proved by the prosecution. The Prosecution remained unable to prove that convict/respondent did any terrorist or criminal activity in India which amounted to a threat to the Security of India. Even if it is assumed that the alleged recovery is true, even then the fact that the informations transmitted by the convict/respondent were confidential, has not been proved by any army personnel, so in such a situation it cannot be assumed that the convict/respondent was involved in anti- national activities and was transmitting confidential informations relating to Indian Army to some one in Pakistan.

13. Perusal of the record of the trial court shows that though the prosecution has alleged that the convict/respondent used to transmit information to I.S.I. cross border through one Javed by a mobile phone, but the prosecution did not produce the call details of the alleged mobile phone before the learned trial court. The prosecution has also alleged that the convict/respondent used five email ids for transferring the information cross border to Pakistan, but the prosecution did not adduce any evidence to establish the fact that through the alleged email ids who sent mails and to whom, and also that what was the material sent through the alleged email ids. It was the allegation against the convict/respondent in the FIR that information in respect to Indian Army which would have been sent to I.S.I. was written in coded language, but no evidence has been adduced to show that any effort was made by the Investigating Officer to get decoded the language. It has also been mentioned in the F.I.R. that the convict/respondent used to receive money from Pakistan through Western Union Money Transfer, Bank, but the prosecution did not adduce any evidence in this regard like receipt to show the transfer of money to the convict/respondent through the aforesaid Western Union Money Transfer, Bank.

14. No Army personnel was produced in the Court to prove the fact that information transferred by the convict/respondent was confidential information relating to Indian Army. Admittedly, there is no allegation and evidence of doing any terrorist activity or any such act which may be termed as threat to the security and safety of the nation. In other words, there is no evidence on record to establish the charges levelled against the convict/respondent under Sections 115, 120-B, 121, 121A, 123 and 420 of I.P.C., hence the learned trial court has rightly acquitted the convict/respondent for the aforesaid offences.

15. Now comes the question of enhancement of sentence. The learned trial court held guilty the convict/respondent under Section

467 of I.P.C. awarded sentence of eight years rigorous imprisonment coupled with fine of Rs.5,000/-, under Section 468 of I.P.C. awarded sentence of five years rigorous imprisonment coupled with fine of Rs.3,000/-, under Section 471 of I.P.C. awarded sentence of five years rigorous imprisonment coupled with fine of Rs.3,000/-, Section 3/9 and 5/9 of Official Secrets Act and Section 3/14 of Foreigners Act awarded sentence of three years rigorous imprisonment coupled with fine of Rs.5,000/- and in default of payment of fine, further six months each, additional imprisonment was awarded.

16. Learned A.G.A. submitted that this punishment was insufficient as the offences which were committed by the convict/respondent were of grave nature and he was working as an agent of Pakistan's Intelligence Agency. He forged certain documents to hide his identity to reside in India, so he should have been punished with maximum sentence prescribed under Section

467 of I.P.C. i.e. Life Imprisonment.

17. Learned A.G.A. has placed reliance on case law Mohd. Amran @ Naveed Vs. State (Supra), where the Delhi High Court has held as under:- "11. We agree with the submissions made by the learned counsel for the State that for offences relatable to terrorism, no leniency in the imposition of sentence has to be shown, more so, when the crime is committed by foreign national who trespasses into the territory of the Union of India and attempts to over awe the very existence of the State."

18. Learned A.G.A. also submitted that convict/respondent was staying in India without any valid Passport or Visa, so inference should be drawn that he was doing some anti-national activities here, against India. On this submission he relied upon a case law cited in Lal Singh Vs. State of Gujarat (Supra), wherein the Hon'ble Supreme Court has held as under:- "In our view, this submission is required to be considered from a different angle in view of the fact that A-2 is a Pakistani national. If a foreign national is found staying in the country without valid passport and visa and his movements from one place to another with A-1 are established and from the premises occupied by A-1, large quantities of arms and ammunitions etc. are found, it would be prudent and reasonable to draw inference of criminal conspiracy."

19. Here it is evident from the record, the convict/respondent was found guilty and punished on the basis of the evidence that some forged documents which includes two driving licences and mark-sheets of High School, Intermediate and B.A. were recovered from the possession of the convict/respondent, but by using these documents any henious or grave offence was committed by him has not been established by the prosecution. So, considering the nature of the crime committed by the convict/respondent and established by the prosecution, it appears just that trial court awarded the sentence commensurate to the offence committed by the convict/respondent. The case law relied upon by learned A.G.A. i.e. Mohd. Amran @ Naveed Vs. State (Supra) is of no help to the State because in that case the accused was found guilty of offence related to terrorism who was a Foreign National and attempted to over awe the very existence of the State. In the present matter, no such offence has been alleged or established. There is no evidence on record that convict/respondent was involved in terrorist activities or activities which are dangerous to the security and safety of the nation.

20. The case law Lal Singh Vs. State of Gujarat (Supra) is also of no help to the State-appellant as in the cited case law it was established that from the premises occupied by the accused a large quantity of arms and ammunition etc. was found, so on the basis of that the Hon'ble Supreme Court held that " it would be prudent and reasonable to draw inference of criminal conspiracy". But in the present case, there is no such allegation or recovery. Hence considering the facts and circumstances of the case and the evidence available on record there appears no need to interfere with the judgment and order passed by the trial court.

21. It is admitted that convict/respondent has served out the sentence awarded to him in Case Crime No.132 of 2006 and also in Case Crime No.379 of 2014 and now to detain further the convict/respondent in prison shall be illegal and in clear violation of Article 21 of the Constitution of India.

22. In the case of Chairman Railway Board and others Vs. Chandrima Das (MRS) and others 2000 (2) SCc 465 the Hon'ble Supreme Court has held that fundamental rights enshrined under Articles 20, 21 and 22 of the Constitution of India are available to non citizens also. In the word of Hon'ble Apex Court reads as Under:- "30. In Anwar Vs. State of Jammu and Kashmir, it was held that the rights under Articles 20, 21 and 22 are available not only to "citizens" but also to "persons" which would include "non-citizens.

31. Article 20 guarantees right to protection in respect of conviction for offences. Article 21 guarantees right to life and personal liberty while Article 22 guarantees right to protection against arbitrary arrest and detention. These are wholly in consonance with Article 3, Article 7 and Article 9 of the Universal Declaration of Human Rights."

23. In the case of Bhim Singh Vs. Union of India and others (Supra) the Hon'ble Supreme Court has held as under:- "5. In Para 11 of the additional affidavit filed Shri Payingattery Venkiteswaran Sivaraman, it is stated that there are 37 Pakistani prisoners who have completed their sentence but they could not be repatriated as their nationality has not been confirmed by the Pakistan High Commission so far. It is also stated that besides, in respect of 11 Pakistani fishermen, Government of Gujarat has informed that no offence has been registered and they have no objection to their repatriation to Pakistan. However, in respect of these 11 Pakistani fishermen also, nationality has yet not been confirmed by the Pakistan High Commission. The list of these 37 Pakistani prisoners and 11 Pakistani fishermen is placed on record as Annexure G. Of the 37 Pakistani prisoners who have completed their sentence, 21 are stated to be mentally challenged. Most of these 21 persons have completed their sentence in 2007, 2008 and 2009, but their nationality has not been confirmed by the Pakistan High Commission though it appears that the consular access with regard to them was provided a few months before the completion of their sentence. It is indeed unfortunate that these 37 Pakistani prisoners who have served out their sentence and are not required under the Indian laws have been kept in jail because their nationality has not been confirmed. Whatever may be the reason for delay in confirmation of their nationality, we have not even slightest doubt that their continued imprisonment is uncalled for. In no way, can these 37 Pakistani prisoners be treated as prisoners once they have served out their sentence. It is true that unless their nationality is confirmed, they cannot be repatriated and have to be kept in India but until then, they cannot be confined to prison and deprived of basic human rights and human dignity."

24. Hence in the present matter admittedly the convict/respondent has served out the sentence awarded to him in the matter under appeal as well as under another case which was registered against him on the date when he completed the sentence awarded in the present case. Now he cannot be kept in jail and his confinement in jail is uncalled for.

24. Hence in light of the above discussion, we are of the considered view that since convict/respondent has already served out the sentence awarded to him and he is a foreign national without any passport or visa, therefore he must be deported to his own country. The Union of India/respondent No.3 and respondent No.4 are directed to deport him to his own country in accordance with law, unless required in any other case.

25. The above appeal is dismissed and writ petition is disposed of accordingly.

26. The learned A.G.A., as well as Senior Registrar of this Court are directed to send the copy of this judgment to the concerned authorities/departments at the earliest. (Mrs. Saroj Yadav, J.) (Ramesh Sinha, J.) Order Date :- 30.05.2022 A.K.Singh