Ashique Ali , Shahneel , Shaneel Tahir Ahmedi, Dt Hyderabad v. The State Of A.P., Rep. By P.P., High Court, Hyderabad

THE HON'BLE SRI JUSTICE SURESH KUMAR KAIT AND THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO CRIMINAL APPEAL No.340 of 2011 JUDGMENT: (Per Hon'ble Sri Justice U.Durga Prasad Rao) This appeal is filed by appellant/A1 aggrieved by the judgment dated 18.10.2005 in S.C.No.45 of 2004 passed by the II Additional Sessions Judge (Fast Track Court), Nizamabad, whereby the learned Judge convicted him on three counts for the offences under Sections 121, 121-A IPC and Section 14 of Foreigners Act, 1946 and sentenced him to suffer imprisonment for life, 10 years and 5 years respectively. All the sentences are directed to run concurrently. 2) Briefly stating, the prosecution case is that A.1 is a Pakistani national and he in conspiracy with A.2-Major Chaudry Zahid Ahmed, A.3-Hawaldar Mahemood and A.

4-Hawaldar Tahir, all Pakistan Nationals (against whom case was separated) intended to collect sensitive and strategic defence information relating to Indian Armed Forces and in pursuance of the said lethal conspiracy, A.2 to A.4 sent A.1 to India on 15.06.2001 vide Passport bearing No.J-970511 and Visa No.P210841 under the guise of a Tourist for 30/60 days to visit Delhi and Kanpur only. After entering Delhi via Samjautha Express, A.1 destroyed his Passport to conceal his identity. In violation of the Visa and passport rules and the provisions of the Foreigners Act, A.

Maharashtra State and overstayed at Hyderabad in India for collection of the defence information and he did not inform about his overstay in India to concerned authorities as required under Section 3/14 of Foreigners Act, 1946 and during the period of illegal overstay, he in pursuance of the conspiracy, collected the defence information of Secunderabad Army cantonment area and passed over the same through e-mails to A.2 to A.4 by using the Passwords in order to wage war against the Government of India. Ultimately he was caught at a telephone booth while talking with his Pakistani Masters on the night of 26.01.2002 near Jannapally Junction, Nizamabad. a) PW21-CI of Police took up investigation and examined PWs.1 and 2 and recorded their statements. He obtained police custody of A1 for further investigation. On 30.01.2002, I.O took A.

1 and interrogated in the presence of PWs.8 and 9; he examined PW3-Mutawalli of Ahmedian Mosque, Afzal Gunj and seized some materials. On 31.01.2002 he proceeded to Banjara Darbar Hotel, Punjagutta, Hyderabad and examined PW4 and recovered an amount of Rs.8,000/- belonging to A1 in the presence of PW10 and one Purundla Surendher under a cover of panchanama. On 04.02.2002, PW21 proceeded to SNR Cybernet of PW.5 and there recovered through A1 the e-mails sent and received by him and seized.

b) On 05.02.2002, on the request of PW21, PW17-Special JFCM, Nizamabad took the sample writings of A1 in English and Urdu languages in open Court and sent the same to A.P. Forensic Science

Laboratory, Hyderabad for comparison with the writings found in the possession of A1. After completion of investigation PW21 laid charge sheet against A1 to A4 which was numbered as PRC 37 of 2002. As A2 to A4 were absconding, case against them was split up and numbered as PRC 50 of 2003. Hence, we are concerned with A1 only. c) On appearance of the accused, the trial Court framed charges against him under Sections 121, 121-A, 201 IPC; Sections 3 and 9 of Official Secrets Act, 1923 and Section 14 of Foreigners Act, 1946 and conducted trial.

d) During trial, PWs.1 to 21 were examined and Exs.P1 to P54 were marked on behalf of prosecution. On behalf of defence, no oral evidence was adduced but Exs.D1 to D3 were marked.

e) The Trial Court considering the evidence on record held A.1 guilty of charges under Sections 121, 121-A IPC and Section 14 of Foreigners Act and accordingly convicted and sentenced him as stated supra. It however acquitted him of the charges under Sections 3 and 9 of Official Secrets Act, 1923.

Hence, the instant appeal.

3) Heard arguments of Md. Osman Shaheed, learned counsel for appellant and learned Public Prosecutor for the State (Telangana). 4) The point for determination in this appeal is: "Whether the conviction and sentence recorded by the Trial Court factually and legally sustainable?"

5) POINT: A close scrutiny would manifest that the prosecution case pivots on circumstantial evidence. The Apex Court in the following judgments laid down the principles for appreciation of circumstantial evidence:

Hanumant vs. The State of Madhya Pradesh1; Sharad Birdhchand Sarda vs. State of Maharashtra2 and State of Goa vs. Sanjay Thakran and another3.

a) Circumstances from which the conclusion of guilt to be drawn should be fully established.

b) The facts so established should be consistent only with the hypothesis the guilt of the accused.

c) There must be chain of evidence so complete and not to leave any reasonable grounds for the conclusion consistent with the innocence of the accused.

Hence, it has to be seen whether the prosecution could establish all the suspicious circumstances to bring home the guilt of accused. The prosecution projected the following suspicious circumstances:

1) A.1 entered into a conspiracy with A.2 to A.4 who belonged to Military Intelligence of Pakistan Army and pursuant to such conspiracy, he agreed to work as their Agent in India and transmit strategic defence related information of India to them.

2) A.1 was sent to India by A.2 to A.4 on a Visitor's Visa under the guise of a visitor to visit Delhi and Khanpur between 26.04.2001 and 25.06.2001. Contrary to Visa stipulation, he 1 AIR 1952 SC 343 2 AIR 1984 SC Pg.1622 3 (2007) 3 SCC 755

not only overstayed in India but also visited Qadian, Amritsar, Nagpur, Hyderabad, Mumbai, which places were not mentioned in his Visa application. He did not inform the Indian authorities about his overstay and visit of unscheduled places.

3) During his stay at Hyderabad, he stealthily collected strategic defence information relating to Indian Armed Forces and passed over to his Pakistani Masters by e-mails. 6) Circumstance No.1: It is the case of prosecution that A.2 is the Major and A.3 and A.4 are Hawaldars of Military Intelligence of Pakistan Army. Since their presence could not be secured, they were shown as absconding in the charge sheet. Conspiracy among A.1 to A.4 is concerned, prosecution relied upon only circumstantial evidence. Learned counsel for appellant vehemently argued that the prosecution miserably failed to establish the alleged conspiracy among A1 and A2 to A4. Inasmuch as, though it is alleged that A1 used to have telephonic conversations with A2-Major Chaudry, the prosecution could not establish the telephonic number as belonged to A2.

Similarly, though prosecution produced certain e-mails said to have been exchanged between A1 and A2, it failed to establish that the e-mails sent from chaudry@zeenext.com were in fact sent by A2. In other words, it failed to establish the origin of the aforesaid e-mail address. Hence conspiracy could not be established.

7) It must be noted, conspiracies by their nature are not hatched in the open but are secretly planned. Privacy and secrecy are the

characteristics of conspiracy than proclamation and publicization. Hence, it is not always possible to place direct evidence to prove conspiracy which is a rare species. Therefore, circumstances proved before, during and after occurrence have to be considered to decide on the complicity of accused. It was so held by the Apex Court in the following decisions:

i) V.C.Shukla v. State (Delhi Administration)4 ii) Baburao Bajirao Patil v. State of Maharashtra5 iii) Nazir Khan and others v. State of Delhi6 Since in the instant case, the conspiracy was allegedly hatched in secrecy by the accused in Pakistan, the same cannot be established by direct evidence but only inferentially. Hence conspiracy aspect can be determined only after deciding the other circumstances. 8) Circumstance No.2: This suspicious circumstance relates to A1's visiting to India as a visitor and his roaming different unscheduled places and his overstay without intimation to the Indian authorities. The prosecution on this aspect produced Exs.P22, P49, P50 and also examined PWs.3, 18 and 19.

a) PW19-M.Anil Kumar, Immigration Officer at Attari Railway Station, on the instructions of his superiors, produced Exs.P48 to P50. Ex.P48 is the Photostat copy of relevant entry in the Immigration Register. Entry at Sl.No.4441 dated 15.06.2001 in the said Register relates to Ashique Ali S/o. Kamis Khan giving particulars as: Passport 4 (1980) 2 SCC 665 5 (1971) 3 SCC 432 6 (2003) 8 SCC 461

No.J-970511 dt.02.04.2001; Date of birth: 1981; Visa No:210841 dt.26.04.2001; intended place of visit: Ahmed Ali, R/o. 1123, Churu Jamma Masjid, Delhi.

Then, Ex.P49 is the Visa application of A1 submitted to High Commission of India, Islamabad. It shows that it was issued for the period 26.04.2001 to 25.06.2001 on which date the Visa expires. The valid places for stay are Delhi and Kanpur. The addresses of relatives as mentioned in Ex.P49 are 1. Ahmed Ali (uncle) H.No.1123, Churiwalan, Jamma Masjid, Delhi. 2. Hasib Ali (uncle) H.No.6/2, Ajeet Gunj Colony, Kanpur.

Ex.P50 is the Disembarkation Card dated 15.06.2001. In it also the particulars are mentioned as Ashik Ali, Hyderabad Pakistan, Businessman, passport No.J-970511; period 26.04.2001 to 25.06.2001. The purpose of visit is business.

b) Thus, Exs.P48 to P50 which belong to A1 would show that he visited India as a visitor for a limited period between 26.04.2001 to 25.06.2001on business purpose and also to meet his relations at Delhi and Kanpur. It is suggested to PW19 that Exs.P48 to P50 are fabricated in his office. This suggestion leads nowhere. If these documents are created to implicate A1 as argued, then the crucial question that would arise is, how, when and for what purpose A1 descended to India. The responsibility to answer squarely lies with him. It is pertinent to note that except giving denial suggestions to all the important prosecution witnesses, A1 has not disclosed about his defence by way of suggestions

to any of the witnesses including IO. For instance, he only suggested to PW1, PW20 and PW21 that the police brought him from Hyderabad on 24.01.2002 to Nizamabad and illegally detained him there and created Exs.P2 to P9. There is no suggestion to these witnesses as to why he was at Hyderabad. If Exs.P48 to P50 were fabricated documents, then the burden lay heavily on A1 to show his Visa and Passport and submit to the Court as to when he arrived India and for what purpose. Therefore, mere denial of Exs.P48 to P50, in our considered view, will not establish his innocence. It should not be forgotten that A1 is a foreign national and the burden always lies on him to establish his credentials. Therefore, we believe the evidence of PW19 and Exs.P48 to P50. Their evidence is fortified by PWs.3 and 18.

9) PW3 in-charge of Ahmedia mosque at Afzalgunj deposed that in the last week of June, 2001 accused came to him and informed that he came from Delhi and he converted into Ahmedia sect and showed the visiting card of Mr.Kalmuddin who was in charge of Ahmedia Mission at Tuglakabad. On enquiry, A1 stated that he was a resident of a basti behind Lal Quilla and his father was a leader of Zamat-e-Islami and since A1 converted into Ahmedia sect, his father necked him out and hence requested to provide shelter. After enquiring Kalimuddin, he provided shelter to A1. The remaining part of his evidence is not essential at this stage which will be discussed later. Thus, the evidence of PW3 would show A1 misrepresented facts. Mischievously, he did not inform that he belonged to Pakistan.

that A1 never came to his mosque and resided there. At the same time, it was suggested to PWs.1, 20 and 21 that he was lifted from Hyderabad and shown as arrested at Nizamabad. This suggestion shows A1 admittedly resided at Hyderabad. Therefore, if not with PW3, with whom he resided at Hyderabad should be explained by him, but no such explanation comes-forth. Thus we find the testimony of PW3 reliable, as he has no reason to lie against A.1.

a) PW18 who worked in Armed forces at Secunderabad deposed that in July, 2001 he went to Jabalpur on duty and while returning to Secunderabad he boarded A.P. Express at Itarsi. As he had no reservation, he sat on a single seat in sleeper class belonged to A1 and he permitted him to sit. During conversation A1 informed he was a resident of Delhi, studying there and going to Hyderabad as a tourist. This witness gave his address and telephone number to A1. Fifteen days thereafter, A1 came to his house in his absence. Later in March, 2002 when police went to his office, he came to know that A1 was a Pakistani national. A1 of course denied travelling in A.P. Express and conversing with PW18. On scrutiny, we find no reason for PW18 to speak falsehood.

Learned counsel for appellant argued that PW18 ought to have been shown as an accused because as per the confession statement of A1, he offered money to PW18 to disclose the defence information. However, PW18 staunchly denied such suggestion and stated that during the journey or at any time accused never offered him any money for supplying the defence information to him.

indeed A1 travelled along with PW18 in A.P. Express from New Delhi to Hyderabad.

b) Then, Ex.P22 Northern Railway ticket No.47277674 from New Delhi to Amritsar dated 18.06.2001 seized from A1 shows he visited Amritsar.

Thus, on a scrutiny of concerned evidence, we hold prosecution could establish Circumstance No.2.

10) Circumstance No.3:

Regarding this circumstance, the prosecution relied upon 4 confessions and 5 seizure panchanamas as observed by trial Court which are thus:

S.

No Date Confessional statements of A.1 Evidence Seizure Reports/ panchanamas Ex.P.1-confessional statement of A.1 made before police at Jannapally cross roads, while making ISD call to Pakistan.

Witnesses: PWs.1, 2, 6, 7, 14, 15 Exhibits: Exs.P1 to P9 and P12 Ex.P.1 26.01.2002 Ex.P.13-confession, leading to seizure of articles at Ahmedian Mosque at Afzalgunj, Hyderabad & seizure of Rs.8000/- from PW.4 Witnesses:PWs.3,4, 8, 9, 10, 21 Exhibits:Exs.P13 to 20, 22 to 24 Ex.P.19, Ex.P.23 30.01.2002 Witnesses:

PWs.5, 13 Exhibits:

Exs.P30 to 36 Ex.P.31 04.02.2002 Ex.P.30-confession leading to retrieval of emails in CyberNet café of PW.5 05.02.2002 Ex.P.26-further confession leading to recording of A.1's conversation Witnesses: PWs.5, Exhibits: Ex.P.29 Ex.P.27 It is pertinent to note that the confessions by A.1 under Exs.P.1, P.13, P.26 and P.30, were all made by A1 either to the Police or to the third persons while in the custody of police and hence, they are inadmissible. Law governing the confessions of accused is envisaged under Sections 24 to 27 of Indian Evidence Act, 1872.

a) Section 24 lays down that a confession made by an accused person is irrelevant in a criminal proceeding if such confession appears to the Court to have been caused by any inducement, threat or promise by a person in authority. The object behind rejecting such confession is, the law requires confession made voluntarily by the accused to be admissible.

b) This Court in Naga Reddy Narasa Reddy and others v. State of Andhra Pradesh7 held thus:

Section 24 of the Evidence Act lays down that a confession made by an accused person is irrelevant if it appears to the court that it has been caused by any inducement, threat or promise from a person in authority, sufficient in the opinion of the court, to make the accused person believe that by making such a confession he would gain an advantage with reference to the proceedings against him. There is no legal bar to convict an accused on the basis of voluntary confession. But it is settled law that the rule of prudence requires that whenever possible, the confession should be corroborated by independent evidence.

The following decision also reiterates the same principle:

1) Sevantilal Karsondas Modi vs. The State of Maharashtra and another8 c) Section 25 says that no confession made to a Police Officer shall be proved as against a person accused of any offence. This Section raises an embargo as regards proof of confession before a Police Officer. It must be noted that by the time a person makes a confession before a Police Officer, he need not be in police custody nor he be an 7 1994 CriLJ 2545 8 AIR 1979 SC 705

accused, still his confession will not be admissible at the trial because at the time of proving the confession, he becomes an accused (vide State of U.P vs. Deoman Upadyaya9).

d) Section 26 lays down that no confession made by any person whilst he is in the custody of a Police Officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. The object of Section 26 is to prevent the abuse of powers by the police and secure confession by unlawful method. This Section reminds that confession must always be voluntary (vide Ramlal Lohar v. State of Assam10).

e) Then, Section 27 provides an exception to the above Sections. It lays down that provided that when the fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to confession or not, as relates distinctly to the facts thereby discovered may be provided.

As can be seen, Sections 24, 25 and 26 of Evidence Act exclude certain confessions. While Section 24 excludes the admissibility of confession achieved by threat, promise or inducement, Section 25 excludes confession made to a Police Officer and Section 26 excludes confession made to any person not being Magistrate, while the accused was in the custody of policemen. However, Section 27 is an exception to the aforesaid general rule. It says that so much of the statement of the 9 AIR 1960 SC 1125 10 1981 Crl.L.J.1734

accused is admissible in evidence which distinctly lead to discovery of a fact (vide Anter Singh vs. State of Rajasthan11). 11) Going by the jurisprudence on confessions, it is clear that the confession made by A1 under Exs.P1, P13, P26 and P30 are inadmissible in evidence except the discovery of facts covered by Section 27 of Evidence Act. Thus, it has now to be seen, whether the discoveries claimed to have been made by the prosecution are reliable and they connect the accused to the offences charged. 12) In Ex.P1, A1 has stated that under the guise of a press reporter, he secured the information relating to:

1) College of Defence Management (CDM) where foreign trainees are trained for Missile Research Courses;

2) Four (4) EME Centres located at Secunderabad;

3) Three (3) Artillery Brigade, located at Golconda, Hyderabad;

4) Golconda Centre is the biggest Artillery Centre of Asia;

5) Information relating to the likely movement of Missiles from Golconda to Visakhapatnam in the month of January/February, 2002.

A1 further disclosed that he personally observed Cantonment areas and drew some sketches and took photographs of defence areas and sent the information to A2 through e-mail address i.e, chaudry@zeenext.com through A1's e-mail address:

greatkh@hotmail.com. He further informed that on 26.01.2002 at 21.45 11 AIR 2004 SC 2865 = 2004 (10) SCC 657

hours, he made ISD call to Hyderabad, Sindh, Pakistan to speak with A2, he rang up phone No.0092221651588 and also to another phone no. 0092221551588 and spoke to him. A1 further disclosed that he kept some photographs, sketches of cantonment area of Hyderabad, diaries etc. at Ahmedia Mosque, Afzal Gunj, Hyderabad. Basing on the said disclosure, PW1 claimed to have seized Exs.P2 to P9 and P12 in the presence of PWs.6 and 7.

a) Ex.P2 is the computerized telephone bill for telephone calls made to the numbers 0092221651588 and 0092221551588. Ex.P3 is the original e-mail message from chaudry@zeenext.com. Ex.P4 is the email message from shahneel@yahoo.com to zaidchaudry@yahoo.com. Ex.P5 is the e-mail message from MAILER-DAEMON@yahoo.com dated 17.02.2002. Ex.P6 is the DD bearing No.307484440 dated 27.07.2001 for Rs.5,000/- drawn on IOB Siliguri in favour of Shahnabil Tahir payable at Hyderabad Central Clearing Office remitted by Dilshah. Ex.P7 is the rough sketch drawn on white paper with blue ink showing Secunderabad Cantonment and Golconda Artillery Centre with distances. Ex.P8 are three colour photographs of college of Defence Manager, Defence Area, Secunderabad. Ex.P9 is the telephone diary containing telephone numbers. Ex.P12 is cash of Rs.8820/-. 13) To establish the seizure of above articles the prosecution examined PWs.6, 7 and 14.

PWs.6 and 7 are friends and residents of Nizamabad. PW6 is a Lab Technician and PW7 is a grocer. Their version is that on

26.01.2002, they went to Basara to see the parents of PW6 and stayed there till night and returned to Nizamabad on a scooter. On the way, they stopped at the STD booth of PW14 to make a call to parents of PW6 to inform about their safe return to Nizamabad, A1 was making calls in the booth and so they waited outside. In the meanwhile, PWs.1 and 2 and other police came and apprehended A1 and on their request these witnesses enquired him and police seized the aforesaid exhibits in their presence.

14) PW14 is a worker in Swayam Krushi Praja telephone booth at Janapally X roads. His version is that on 26.01.2002 at about 10.45 PM A1 came to their booth and made two calls and while he was making third call PW1 and other constables came there and caught hold him. 15) PWs.6, 7 and 14 identified A1.

16) These witnesses have clearly deposed about the presence of A1 at the telephone booth on the night of 26.01.2002 and making calls and police apprehending him and recovering the above articles from him. These witnesses were extensively cross-examined but nothing useful could be extracted to impeach their credibility. These witnesses are independent witnesses and have had no obligation with police to assist them to foist a false case. Thus, we believe the recovery of Exs.P2 to P9 and P12. We will discuss after a little while about the incriminating nature of the articles seized.

17) Ex.P13 is the second confessional statement of A1 dated 30.01.2002 made in the presence of PWs.8, 9 and 21 which lead to recovery of Exs.P13 to P20, 22 to 24. After arresting A1 at Janapally telephone booth and extracting the Ex.P1 confessional statement and registering FIR, the case was entrusted to PW21-CI of Police, Nizamabad Rural for investigation. On 31.01.2002 he brought A1 to railway police station, Nampally where, in the presence of PWs.8 and 9-the mediators, A.1 made a further confession. As already discussed supra, Ex.P13 is admissible only to the extent of discovery of facts under Section 27. In that context, when perused Ex.P13, he stated that while he stayed at Ahmedia Mosque, Afzalgunj, he kept photos, diaries, Islamic books etc. and left them. He further stated he gave an amount of Rs.8,000/- to Momin (PW4) in the 2nd week of January, 2002 for safe custody as he(A1) had no bank account. He further disclosed about his e-mail ids and their passwords as follows:

1. Greatkh@hotmail.com PW: noosheen

2. Shahneel@yahoo.com PW: baloch Noosheen is his girl friend. Hence, he kept the said name as his password. He further disclosed that he took photographs of College of Defence Management, Secunderabad and the defence areas and sent them to A2 through e-mail and deleted the same in his e-mail account. a) Exs.P.14 and P15 are diaries. Ex.P16 is the photograph of a girl. Ex.P17 are clothes. Ex.P18 is a bag. Ex.P20 are books in Urdu

language. Ex.P21 is bus ticket. Ex.P22 is railway ticket. Ex.P23 is the seizure report. Ex.P24 is cash of Rs.8,000/-. 18) Prosecution examined PWs.4 and 10 to prove the seizure of cash of Rs.8,000/-.

a) PW4 deposed that he is the manager of Hotel Banjara. The accused approached him six or seven months after he joined in the hotel stating that he left his parents at Delhi and came to Hyderabad and was residing in Mosque at Afzalgunj. A1 requested him to provide a job. So he appointed him as assistant. Having found him not attending duties regularly he removed. Twenty days thereafter, A1 again came to him and requested him to keep Rs.8,000/- with him. He handed over the said amount to police in the presence of mediators. He denied the suggestion in cross-examination that accused never gave him Rs.8,000/- and the same was not seized by police. PW10-K.Venkataramana who is one of the mediators for seizure of Rs.8,000/- from PW4 under Ex.P23seizure report supported the version of PW4. b) PWs.3, 8 and 9 were examined to prove the seizure of other exhibits.

PW3 in-charge of Ahmedia mosque at Afzalgunj deposed that in the last week of June, 2001 accused came to him and informed that he came from Delhi and he converted into Ahmedia sect and showed the visiting card of Mr.Kalmuddin who was in charge of Ahmedia Mission at Tuglakabad. On enquiry, A1 told that he is a resident of a basti behind

Lal Quilla and his father is a leader of Zamat-e-Islami and since A1 converted into Ahmedia sect, his father necked him out and requested to give shelter. After enquiring Kalimuddin, he provided shelter to A1. PW3 further stated that A1 informed that he gave the address of PW3 to receive letters. Once PW3 received an envelope from one Sitara, he opened the cover and found one draft of IOB and found the name of payee as Shahneel Tahir. When enquired, accused wrote his name as Shahneel Tahir. PW3 got confirmed from the sender through telephone that the draft was sent to Shahneel Tahir and then handed over DD to accused. Before that he enquired accused as to while his father and uncle were residents of Delhi, how he got DD from Siliguri.

Then, A1 replied that a friend of his uncle was residing at Siliguri and he sent the amount on the instructions of his uncle. The said DD could not be encashed. PW3 further deposed that on 17.08.2001 A1 went away from mosque but was attending Friday sermons. One day he took him to the house of PW4. In November, 2001 A1 requested him to give his bank account number so as to get money into his account by transfer from the account of his uncle at Delhi. On 06.12.2001 they checked the bank account and he handed over Rs.5,000/- to accused which was received in his account. On 15.04.2001 his wife informed him that the cousin of accused was in serious condition and asked him to inform accused. When he informed the same to accused, he left Hyderabad saying that he was going to see his cousin and again returned on 12/13.01.2002.

It should be noted that this witness did not support the prosecution case regarding police recovering a bag and articles of A1 from his mosque. However, PWs.8 and 9, who are third party mediators emphatically stated that A.1 led them to the mosque of PW.3 and there they recovered Exs.P.14 to P.18, P.20 to P.22. PW.8 is a native of Kerala, who works as a Railway coolie, whereas PW.9 is an auto driver and they are independent witnesses and we see no reason for them to support police to implicate A.1. Therefore, despite PW.3 did not support prosecution on the aspect of recovery, going by the evidence of PWs.8 and 9 we accept the said recovery. We will discuss about the incriminating nature of the above materials little while later. 19) Ex.P.30 is the third confessional statement of A1 dated 04.02.2002 made in the presence of PWs.

5 and 13 which led to the recovery of Exs.P.30 to 36. Under Ex.P.30, A.1 disclosed before police and PW.13-the mediator, that he used to send defence related material by e-mail to Major Chaudry and if he is taken to the Cyber Net cafe, he would retrieve the e-mails and show to the police. Then the police took him to SNR Cyber Net, Nizamabad, belonging to PW.5 and there A.1 retrieved certain e-mails by using his two e-mail addresses stated earlier.

20) In this regard PW.5, who is the owner of SNR Cyber Net, wherein internet, e-mail, STD and ISD facilities were available, deposed that on 03.02.2002, PW.21 brought the accused and asked him to provide a system for sending e-mails but due to snag in BSNL lines,

internet could not be connected. Again on 04.02.2002, they came to his shop and on that day, the police got opened e-mail through accused and verified the same and they obtained printouts. Thereafter, they asked accused to make an ISD call to his relatives and while he was talking, his conversation was recorded in a micro audio cassette. On the next day also, the police made accused to make ISD calls and recorded in audio cassette. The police paid the bills. In the cross-examination, there was no suggestion to PW.5 to the effect that his evidence was false. Therefore, there is nothing on record to disbelieve the version of PW.5. a) The above evidence was corroborated by PW.13. The said witness, who stood as mediator, deposed that on 04.02.2002 at the instance of PW.21, himself and LW.20 enquired accused and a panchanama under Ex.P.

30 was prepared. Thereafter, the police took all of them to the Cyber Net of PW.5 and the accused operated the computer and printouts were taken which contained information of defence establishments. Thereafter, the accused informed that he will talk with his family members at Pakistan. He telephoned and talked with his girlfriend and the same was recorded by C.I of Police in a tape recorder cassette. Ex.P.31 is seizure report; Ex.P.32 is telephone bill; Ex.P.33 is micro cassette; Ex.P.34 is floppy and Ex.P.35 is the C.D and Ex.P.36 is eight(8) e-mail messages. In the cross-examination he stated that at the Cyber Net cafe, accused opened the internet and PW.5 took the printouts, the entire process was completed in 11⁄2 hours. He denied the suggestion that himself and LW.

nothing had happened. Except the denial suggestion, nothing specific could be extracted in cross-examination to impeach the credibility of PW.13. His evidence is in consonance with PW.5. Thus the recovery of Exs.P.32 to P.36 can be believed.

21) Ex.P.26 is the fourth confessional statement of A1 dated 05.02.2002 made in the presence of PWs.5 and 12 which led to recovery of Ex.P.29. As per Ex.P.26, A.1 disclosed before police and the mediators i.e. PW.12 and LW.21 that on previous day i.e, on 04.02.2002 he spoke to his relatives and this day he would like to contact over telephone to Pakistan and asked them to take to Telephone Booth. a) Then PW.12 deposed that he is a clerk in the Rice Mill, residing at Nallapur and on 05.02.2002 at the instance of Police he went to Nizamabad Rural Police Station where LW.21 was present and both of them enquired the accused and recorded the panchanama under Ex.P.26. Thereafter, all of them went to Cyber Net, situated near Zilla Parishad Guest House and there PW.

21 made the accused to make calls and the same were recorded through a tape recorder. The police seized some papers and cassette under Ex.P.27. Ex.P.29 is the mini tape recorder cassette. He denied the suggestion in the cross-examination that he and LW.21 did not enquire accused and they did not go to Cyber Net. As can be seen, the credibility of this witness could not be shattered in the cross-examination. PW.12 is an independent witness and nothing useful is extracted to discredit him. Thus the recovery of Ex.P.29 can be believed.

22) Thus, our discussion in Paras 12 to 21 would show that the police recovered Exs.P2 to P9, P13 to P20, P22 to P24, P29, P30 to P36 under the cover of different confessional statements of A1 and seizure reports. It has now to be seen which of the above materials are relevant and crucial to connect A1 to the offences.

23) Of the above, Exs.P2 to P9, P14 to P16, P28, P29, P32 to P36 are important.

i) Ex.P2-computerized telephone bill would show that on 26.01.2002 between 21.52 and 22.01 hours A1 made three telephone calls from the telephone booth of PW14. Out of which two calls were made to 009222165158800 and one call to 009222155158800. As per Ex.P9-diary, the e-mail address of A1 is greatkh@hotmail.com and e-mail address of Major Chaudry Zaheed Ahmed is chaudry@zeenext.com and his phone number is 0092221651588. Thus, A1 made two calls to Major Chaudry.

ii) Exs.P3 to P5 are the e-mail messages seized from the possession of A1 under Ex.P1-panchanama. Ex.P3 mail was sent from the e-mail address of Major Chaudry on 24.01.2002 to the e-mail address of A1. In Ex.P3, there is a reference about Golconda, Secunderabad and Trivandrum. In the mail it is mentioned that A1 is to get married soon in a good family. Secunderabad vala uncle has three sons and their addresses are Golconda, Secunderabad and Trivandrum and his one daughter is residing at Secunderabad. The message apparently looks odd and cryptic. If A1 intended to visit India only as a tourist for a brief period of two months, the sender of mail generally does not wish A1 married with a person in India. Hence, Ex.P3 would appear to be a steganographic message.

Ex.P4 e-mail message was sent by A1 to Major Chaudry. This is also in cryptic form.

Ex.P5 was sent from MAILER-DAEMON@yahoo.com to A1's mail.

iii) Ex.P6 is the DD for Rs.5,000/- drawn from Siliguri Branch of IOB in favour of Shahnabil Tahir. PW3 deposed that after confirming from the sender, he gave the said draft to A1. As rightly doubted by him, when A1 did not have any relations at Siliguri, it is strange how he got a draft from that place. The explanation of A1 that a friend of his uncle sent the draft was not convincing because there was no covering letter to that effect. Further, as per Ex.P49-Visa application, A1 was permitted to stay in India between 26.04.2001 and 25.06.2001 and permitted to visit Delhi and Kanpur only. Hence, his visit to Hyderabad and receiving DD there is quite suspicious. Though in Ex.P49 he named two persons i.e. Ahmed Ali and Hasid Ali as his uncles staying at Delhi and Kanpur respectively, he did not examine any of them to establish his credentials. iv) Ex.P7 is the sketch map of Secunderabad cantonment showing locations of Hakimpet Air Force Station, various EME centres and Golconda Artillery centre and distance from railway station Secunderabad etc.

v) Ex.P8 is three photographs showing gates of College of Defence Management, College of Air Force etc.

Except denying above exhibits, A1 did not give any reason for possessing those crucial documents.

vi) Ex.P9, as already discussed, is a small diary containing e-mail addresses and telephone numbers.

vii) Ex.P14 is a big diary belonged to A1which contains some Urdu writings. Prosecution did not file the English translation and hence its contents are unknown.

viii) Ex.P15 is a small pocket diary of A1 containing addresses and telephone number of PWs.3, 4, 18 and others and some e-mail addresses.

ix) Ex.P16 is the photo of Noosheen allegedly the girl friend of A1. x) Ex.P28 is a computerised telephone bill showing that on 05.02.2002 A1 made telephone calls to 0092221651588 i.e. to Major Chaudry. xi) Ex.P29 is mini tape recorder cassette and Ex.P33 is a micro cassette. In para-54 of its judgment the trial Court going by the memo filed by PW21 observed that those two cassettes contained conversation in Sindh mixed with Urdu made by a lady and the prosecution did not claim any incriminating material therein. They were filed only to show A1 is a Pakistani national.

xii) Ex.P32 is the computerised telephone bill dated 04.02.2002 showing A1 made calls. Out of which two calls were made to 00922216518800 i.e. Major Chaudry and another call to 0092221875325.

xiii) Ex.P36 is a bunch of e-mail messages between A1 and Major Chaudry. These mails also contain steganographic messages. For instance, in the mail dated 19.01.2002 sent by Major Chaudry it is mentioned "u said u do not know about that man hammmmmmm & even then u want 2 go with him. ok. If u have promised with him go. always recite/repeat AITUL KURSI. KEEP ON RECITING WHEN U FEEL SOME PROBLEM.

24) Thus, the above mails give raise any amount of doubt about A1. At this juncture, the evidence of PWs.16 and 20 is vital. a) PW.20-the S.P of Nizamabad, deposed that on 12.03.2001, he addressed Ex.P.51-letter to Commander, Andhra sub-area, Bollaram and sought information regarding the following five relevant points:

1) That the information pertaining to defence units and their movements may be termed as classified in nature and whether they are true or not.

2) Whether passing over/communicating by an unauthorised person to prejudicial, to the safety/security of the Nation/State.

3) Whether the information relating to the aforesaid units be directly or indirectly useful to an enemy country (the word enemy includes a potential country with whom our country might be at war at some future days).

4) Whether the information contained above is directly or indirectly connected with the defence matters of the country.

5) Whether preparing/processing/passing on the sketches of the cantonment areas be termed as unauthorised and be directly indirectly useful to the enemy country and thus can be prejudicial to the safety and security of the Nation/State. He stated that a sketch map (Ex.P.7) of Secunderabad Cantonment showing the locations of various units, Air Force Stations, 333 Missile Units, besides distances of different establishments and units from Secunderabad Railway Station have also been sent for opinion to the Sub-Area Commander and PW.16 who was the Army Officer gave reply to the above queries. He stated that basing on his reply, having come to know that the information secured by A.1 pertains to defence matter of the country which is useful to the country with hostile intentions, it was decided to seek prosecution orders from Home Secretary of the Government of India under Official Secrets Act. In cross-examination he stated that the accused confessed that he communicated in cryptic language using "uncle" as code for 54 division; "sons" as units; "house nos." as number of units; "name of

colony's place" as code for location of the units. He denied the suggestion that accused was not arrested at Nizamabad and that he was brought from Hyderabad and a false case was foisted against him. b) Then, PW.16-Army Officer, who worked in Secunderabad in 2001 and 2002, deposed that he gave reply to Ex.P.51 under Ex.P.38 stating that the information with regard to identity, strength, location, command structure and movements of defence units are classified information and the communication of the same by any unauthorised or enemy will endanger the nation and national security and the information can be used by enemy for hostile operations against our country.

He also stated that preparing, processing, passing on the sketches of the cantonment area which should not be published are communicated to anyone except for official purpose is unauthorised and may be useful to any country with hostile intentions and is prejudicial for the internal security point. In the cross-examination he stated that there is only a copy of sketch which was recovered from accused was enclosed. He denied the suggestion that his answer No.7 is only a general one.

25) So when Ex.P.7-sketch, Ex.P.8-photos and Exs.P.3 to P.5 and P.36-e-mails, whose particulars were already discussed are scrutinised in the light of evidence of PW.16, it is crystal clear that the information which was stealthily obtained and passed over by A.1 to his Pakistani Masters through various e-mails is certainly a classified information unauthorisedly communicated to the other country, which can be used

for hostile operations. So taking the holistic picture presented in the evidence, we have no demur to hold that there was a conspiracy among the accused pursuant to which A1 sent defence information of India to A2 by e-mails. It is argued that the telephone number and origin of email address of A2 are not established. We are unable to accept this argument. It is true that the police could not record direct telephonic conversation between A1 and A2. However, the exchange of e-mails between them in cryptic and steganographic form establishes their conspiracy. It must be noted that Exs.P3 to P5 and Ex.P36 e-mails exchanged between A1 and A2 were all prior to the date of arrest of A1 i.e. 26.01.2002. Most of them contain A2's e-mail address as either zaidchaudry@yahoo.com or chaudry@zeenext.com. So, the conspiracy is obvious.

Though it is argued that the e-mails and their dates were manipulated, the appellant could not technically establish that fact. Above all, the handwriting of A1 on some of the crucial exhibits was established through Ex.P53-FSL report. The argument of the appellant that he was forcibly made to draw the sketch and write in other documents cannot be accepted.

26) Offences are concerned, the Trial Court convicted and sentenced him for the offences under Sections 121, 121-A of IPC and Section 14 of Foreigners Act, 1946, while acquitting him for the offence under Sections 3 & 9 of Officials Secrets Act. Hence, it has to be seen whether the conviction and sentence recorded by the Trial Court for the offences

under Sections 121, 121-A of IPC and Section 14 of Foreigners Act is sustainable or not.

27) Section 121 IPC lays down that whoever wages war against the Government of India or attempts to wage such war or abets the waging of such war shall be punished with death or imprisonment for life and shall also be liable to fine.

It is interesting to note that the three acts i.e. waging of war, attempt to wage war or abetment of waging war are treated equally in the matter of imposing sentence in view of gravity of the offence, as each one of them directly affect the sovereign existence of the country. Further, the qualifying word "whoever" indicates that the section applies not only to the citizens of the country but also to those who show allegiance either perpetual as in the case of a subject by birth or naturalisation or temporary as in the case of a foreigner, who make rebellion against the established Government.

28) Learned counsel for appellant having regard to the fact that the term "waging of war" was not defined in the Code, would argue that the acts of A1 in collecting some crucial defence materials even if believed, would not amount to waging of war because, there is no application of force or violence or destruction of any infrastructure. We are afraid this argument is not correct. It is true neither IPC nor General Clauses Act, 1897 did define what is waging of war, perhaps purposefully in our understanding. Thus, what amounts to waging of war is a contextual phenomenon.

involved and the modus operendi they have chosen, the lethal and gravest impact of their acts, if accomplished, would inflict on the sovereign polity of the country, is the deciding factor to term their acts as waging of war. Viewing in that context, the acts of A1 in stealthily collecting the strategic defence information of the country and communicating them across the border is nothing but abetting the waging of war. For any country tri-guard defence i.e. Army, Navy and Air-force is the fore-front protector of the Sovereignty of the Nation, and its people. The potential and sensitive defence secrets if stealthily captured and fell in the hands of enemy nations, they can easily make an attack and thereby the entire defence fabric of the country will be debilitated and ruptured.

Therefore, stealing vital defence information by espionage is no less than waging war by warheads. In State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru and others12 popularly known as 'Parliament attack case', the Apex Court gave instances of what amounts to waging of war. Para-284-The single most important fact which impels us to think that this is a case of waging or attempting to wage war against the Government of India is the target of attack chosen by the slain terrorists and conspirators and the immediate objective sought to be achieved thereby. The battle front selected was the Parliament House Complex. The target chosen was the Parliament- a symbol of the sovereignty of the Indian republic.

xxxx 12 AIR 2005 SC 3820

Nor do we endorse the argument of learned senior counsel Mr. Sushil Kumar that in order to give rise to the offence waging war, the avowed purpose and design of the offence should be to substitute another authority for the Government of India. According to learned counsel, the deprivation of sovereignty should be the pervading aim of the accused in order to bring the offence under Section 121 and that is lacking in the present case. We find no force in this contention. The undoubted objective and determination of the deceased terrorists was to impinge on the sovereign authority of the national and its Government. Even if the conspired purpose and objective falls short of installing some other authority or entity in the place of an established Government, it does not in our view detract from the offence of waging war. There is no warrant for such truncated interpretation.

Para-288-It was next contended that foreign nationals who intrude into the territory of India and do not owe even temporary allegiance to the Government of India cannot be charged of the offence of waging war. In other words, the contention is that a person who is not a citizen nor a resident alien cannot be accused of high treason.

xxxx We find it difficult to sustain the argument of learned Senior Counsel. The word 'whoever' is a word of broad import. Advisedly such language was used departing from the observations made in the context of Treason statute. We find no good reason why the foreign nationals stealthily entering into the Indian territory with a view to subverting the functioning of the Government and destabilizing the society should not be held guilty of waging war within the meaning of Section 121. The section on its plain terms, need not be confined only to those who owe allegiance to the established Government. We do not have the full text of the Law Commissioners' Report and we are not in a position to know whether the Law Commissioners or

the drafters of Indian Penal Code wanted to exclude from the ambit of Section 121 the unauthorized foreigners sneaking into Indian territory to undertake war like operations against the Government. Moreover, we have no material before us to hold that the views of Law Commissioners on this aspect, were accepted. Those views, assuming that they are clearly discernible from the extracted passage, need not be the sole guiding factor to construe the expression 'waging war'. Though the above observations were noticed in Nazir Khan's case, the ultimate decision in the case shows that the guilt of the accused was not judged from that standpoint. On the other hand, the conviction of foreigners (Pakistani militants) was upheld in that case. (Emphasis supplied) The present case is of no less grave and in our considered view, stealthily collecting the nation's defence information is also one type of waging war. Hence, the acts of accused certainly attract Section 121 IPC.

29) The next argument of the appellant is that in Ex.P25, sanction was granted to prosecute only for the offences under Section 3 and 9 of Official Secrets Act, 1923 r/w 120-B IPC but no sanction was granted in respect of offences under Section 121 and 121-A IPC and therefore the trial and conviction of A1 for the aforesaid offences is vitiated by law i.e. Section 196 Cr.P.C.

Reliance is placed on the following decisions:

1) Altaf Hussain @ Mohd. Altaf @ Rohit @ Abdul Rahman vs. State of U.P.13

2) Nanjappa vs. State of Karnataka14 13 Crl.A.No.1636/2008 dt.17.01.2017 of Allahabad High Court 14 AIR 2015 SC 3060

30) In oppugnation, learned Public Prosecutor would argue that in Ex.P.25 while granting sanction to prosecute A.1 under Sections 3 & 9 of Official Secrets Act, 1923, it was clearly mentioned that he be tried for the aforesaid offence and "other cognate offences"(emphasis supplied). He would argue that the term "cognate offence" means, related offences and in the present context, related offences are none other than the offences under Sections 121 and 121-A IPC. He further argued that in the last para of Ex.P25, it was further reiterated that A1 be prosecuted for the said offences and others (emphasis supplied), which means Sections 121 and 121-A IPC. Further, A1 did not challenge the sanction order before the trial Court. Hence, it is preposterous to contend that there was no sanction to prosecute A1 for the offences under Section 121 and 121-A IPC.

31) We gave our anxious consideration to respective arguments. As per Section 196 Cr.P.C., sanction of the Central Government or State Government is essential to prosecute an accused for the offences under Sections 121 and 121-A IPC. Be that it may, under Ex.P25, the Central Government granted sanction dated 19.04.2002. PW11 the Under Secretary to GOI, Ministry of Home Affairs who issued sanction was examined. A perusal of Ex.P25 would show that in para-2 it was mentioned that a case vide Cr. No.19/2002 dated January, 27, 2002 PS Nizamabad Rural, against the accused Ashique Ali was registered under Section 121, 121-A IPC, Sections 3 and 9 of Official Secrets Act, 1923 and investigated.

a) Then, in para-3 it was mentioned that whereas the aforesaid commission and omission of the said accused Ashique Ali are considered prejudicial to the safety, security, interest of the State and constitute offence punishable under Sections 3, 9 of Official Secrets Act, 1923 r/w 120-B IPC.

b) In para-4 it was mentioned, the Central Government after carefully examining the facts and material in regard to the said allegation and circumstances of the case are satisfied that the said person be tried in a Court of law for the aforesaid offence and other cognate offences.

c) In para-5 it was mentioned that the Central Government in pursuance of the provisions of sub-section (3) of Section 13 of Official Secrets Act, 1923 do hereby order that said Ashik Ali be prosecuted in the Court of competent jurisdiction for the said offences and others and authorise SP, Nizamabad to lodge a complaint in this respect in the court of competent jurisdiction.

32) Thus, in para-4 it was stated that A1 be tried for the aforesaid offence and other cognate offences. The term aforesaid offence means the offence under Sections 3, 9 of the Official Secrets Act, 1923. Now, coming to the term cognate offences, as per Concise Oxford English Dictionary (12th Edition 2011), cognate means related, connected. In the present context, the related or connected offences can be taken as those under Section 121 and 121-A IPC. Even otherwise, in the final para of the order also it was mentioned that A1 be tried for said offences and

others. The other offences are obviously under Section 121 and 121-A IPC. Therefore, we cannot accept the argument of the appellant. In Altaf Hussain's case (13 supra) admittedly there was no sanction to prosecute the accused under Section 121-A IPC. That is not the situation here.

In Nanjappa's case (14 supra) it was held that validity of sanction can be questioned even at the appellate stage. There is no dispute with this proposition.

33) The next argument of the appellant is that the trial Court acquitted him of the offences under Sections 3 and 9 of Official Secrets Act, 1923 and therefore, he cannot be punished for waging war under Section 121 and 121-A IPC. His argument precisely is that when he was found not guilty of collecting and communicating any official secrets and acquitted of the offences under Section 3 and 9 of Official Secrets Act, he cannot be convicted for the same offence under Section 121 and 121A of IPC which amounts to double jeopardy. He relied on State of Jharkhand through SP, CBI vs. Lalu Prasad Yadav15. 34) The above argument though appears sound, but does not hold substance. It must be made clear that the trial Court acquitted him of the offences under Sections 3 and 9 of Official Secrets Act, 1923 not on the factual finding that he has not visited India and collected the crucial defence information and communicated to other accused but it acquitted 15 (2017) 8 SCC 1

him on a wrong interpretation of Section 1 of Official Secrets Act, 1923. In para-68 of the judgment, the trial Court gave a clear factual finding that the evidence on record would prove that A1, a Pakistani national came to India on 15.06.2001 on the premise of tourist visa for 30 days to visit Delhi and Kanpur only, but visited several places in Punjab, Hyderabad and Nizamabad in A.P. and Bombay and Nagpur in Maharashtra State, collected information with regard to location of EME Centres of Secunderabad Cantonment Area, Artillery Centres at Golconda, Hyderabad, Army and Air-Force Training Centres, Hyderabad and communicated to his masters in Pakistan with whom A1 conspired to wage war against Government of India. Basing on this factual finding, the trial Court convicted A1 for the offence under Section 121 and 121-A IPC.

However, while applying the same factual finding to Section 3 and 9 of Official Secrets Act, 1923, the trial Court committed a grave interpretational error. In para-71 of the judgment, while referring sub-section (2) of Section 1 of Official Secrets Act, 1923, it observed that the provisions of said Act are applicable to Government Servants and to the citizens of India in India and outside; A1 is neither a Government Servant nor a citizen of India or outside India and admittedly he is a Pakistani national and therefore, the offences under Official Secrets Act, 1923 are not attracted against A1 and hence he is not liable under Sections 3 and 9 of Official Secrets Act, 1923. In essence, the trial Court held as if the said Act has no application to the foreigners who come to India and commit offences under the said Act.

35) We are constrained to observe that it is a perverse interpretation of a plain section. Section 1 of Official Secrets Act, 1923 reads thus: "Section 1: Short title, extent and application-

(1) This Act may be called the Official Secrets Act, 1923.

(2) It extends to the whole of India and applies also to servants of the Government and to citizens of India outside India." Thus, it is obvious that the Act extends to whole of India and also applies to servants of the Government and to the citizens of India outside India. Hence, the Act is applicable to all those whether they are citizens of India or foreigners who commit the offences under this Act within India. Further, the Act has extra-territorial jurisdiction in the sense that it applies also to servants of the Government and the citizens of India, who reside outside India and commit the offences under this Act. Therefore, the Trial Court was palpably wrong in holding that the Act has no application to a foreign national like A1 when he committed the offence in India.

i) In Abbas Ali Khan v. State of Madhya Pradesh16, the High Court of MP (Gwalior Bench) confirmed the conviction of appellant for the offence under Section 3 of Official Secrets Act, 1923 and some other offences on the proven facts that the appellant, who was a Pakistani national entered India under a valid Passport and Visa for a prescribed period but continued to stay in India without returning back to his country and visited various places as a spy using fictitious names and secured defence information at Gwalior.

16 2014 (3) MPHT 347

ii) In Sajjad Haider and others v. The State (Govt. of NCT, Delhi)17, the facts are similar as above. When the trial Court acquitted the accused for the offences under Section 3 and 9 of Official Secrets Act, 1923, on appeal by the State, the High Court of Delhi found him guilty under Section 3 and 9. In that case also the accused was held to be a Pakistani spy residing at Delhi and involved in supplying confidential information relating to Indian Armed Forces to his Pakistani Mentors. Hence, the above rulings would manifest that the interpretation of the Trial Court is wrong. Be that it may, since the State has not preferred appeal, the acquittal recorded by the trial Court in respect of the charges under Sections 3 and 9 of Official Secrets Act, 1923 will no doubt hold good.

However, the offences under Section 121 and 121-A IPC are concerned, there is a clear factual finding rendered by the Trial Court that A.1 visited India on the premise of a tourist for a limited period and overstayed and visited unscheduled places and collected vital defence information and passed over the same to the Pakistani Mentors. The said factual finding is held to be correct in this appeal also. Since the aforesaid acts would amount to one type of waging of war and its abetment, the A.1 is certainly liable for the offences under Sections 121 and 121-A IPC.

different enactments but they are not same offences. Therefore, the bar of double jeopardy laid under Section 300 Cr.P.C. does not apply in the instant case as both the offences are different offences but not the same offences. Hence, the acquittal for the charges under Sections 3 & 9 of Official Secrets Act which is wrong in our view, has no impact on the conviction for the charges under Sections 121 and 121-A IPC as they are distinct offences. Our view is fortified by the decision in State of Madhya Pradesh v. Veereshwar Rao Agnihotry18. In that case, the accused was tried by a Special Judge, for the offences under Sections 409 IPC and under Section 5(2) of Prevention of Corruption Act. The Trial Court convicted him for the offence under Section 409 IPC but the offence under Section 5(2) of P.C.

Act is concerned, it held that he could not be tried for the said offence because the same was not investigated by a Police Officer of the Rank of Deputy Superintendent of Police as stipulated under Section 5(4) of P.C.Act. On appeal by the accused against the conviction under Section 409 IPC, the High Court of Madhya Bharat applying the doctrine of autrefois acquit held that when once on the same facts, the Trial Judge found the accused not guilty of an offence under Section 5(2) of P.C.Act, it tantamount to an acquittal for the offence under Section 409 IPC. The High Court accordingly, acquitted him of the offence under Section 409 IPC. In the appeal by the State, the Apex Court held that the offences under Section 409 IPC and Section 5(2) of P.C.

offences are one and the same is wrong. The Apex Court further held that there can be no objection for the trial and conviction under Section 409 IPC, even if the accused was acquitted for the offence under Section 5(2) of P.C. Act. More or less, the same principle was reiterated in Lalu Prasad Yadav (15 supra) cited by the appellant. Hence we are unable to accept the argument advanced by the learned counsel for appellant. 36) The offence under Section 14 of Foreigners Act is concerned, the evidence on record such as Ex.P.49-visa application and Ex.P.50disembarkation card, would show that A.1 is a Pakistani National and visited India on 15.06.

2001 as a Tourist for a period of 30 days to visit Delhi and Khanpur but overstayed and also visited other unscheduled places like Batala, Amritsar and Qadian in Punjab State, Hyderabad and Nizamabad in Andhra Pradesh State and Mumbai and Nagpur in Maharashtra State and overstayed at Hyderabad in India for collection of the defence information and thus he violated the provisions of Sections 3 and 14 of the Foreigners Act. Though not suggested to witnesses, however before the Trial Court it was argued that he lost his documents and as such he could not go back to Pakistan and overstayed in India. If that were true, he ought to have informed this fact to the Police or concerned authorities in India to make arrangements for his migration. He never adopted such course. Hence, in the absence of such attempts, his argument cannot be accepted.

Therefore, the accused is liable for the offence under Section 14 of the Foreigners Act.

37) So, on a conspectus of the facts and evidence, we hold that the Trial Court rightly convicted and sentenced A.1 for the offences under Sections 121, 121-A IPC and Section 14 of Foreigners Act and we find no reason to interfere with its judgment.

38) In the result, this Criminal Appeal is dismissed by confirming the judgment of the Trial Court in SC No.45 of 2004. As a sequel, miscellaneous applications pending, if any, shall stand closed.

________________________ SURESH KUMAR KAIT, J _________________________ U. DURGA PRASAD RAO, J Date: 27.04.2018 Scs / Murthy