Case Type: Criminal
Case No: Crl. A. No. 428 of 2017 & Crl. M (Bail). No. 992 of 2019
Decided On: 07.11.2019
Appellant: Asif Hussain
Respondent: State
Bench: Hon’ble Mr Justice Vibhu Bakhru
Statutes Referred:
Section 474 in The Indian Penal Code
Section 3 in The Official Secrets Act, 1923
The Official Secrets Act, 1923
Section 14A in The Foreigners Act, 1946
The Code Of Criminal Procedure (Amendment) Act, 2005
Facts:
It is the prosecution’s case that information had been received that a Pakistani national living in Kolkata, Asif Hussain (appellant herein), was working as a spy for the Pakistani army and collecting and sending sensitive information about the Indian Army to them.
On the day of the incident – that’s on 13.02.2012 – further secret information was received that the said accused was coming to Delhi for meeting his contact and would be returning an equivalent day. He might be apprehended if an instantaneous raid was conducted.
A raiding party was constituted and took positions near Chelmsford Road, IRCA Building, New Delhi railroad station . a couple of passersby were requested to hitch the raiding party but they didn’t agree. After a while , the accused was seen approaching foot and upon identification by the key informer, he was apprehended.
The raiding party disclosed their identity and offered the accused an choice to search them, however the accused refused. On searching the accused, raiding party found a white envelope containing documents concerning the Indian army.
The accused couldn’t offer an evidence for possessing the said documents. The said documents were seized and sealed and were signed by the accused, also because the witnesses. Accused was further searched and from his bag, his Indian passport, PAN card, driver’s license , Voter card , open-end credit and railway tickets were found, which were also seized.
Thereafter, the rukka was sent and further investigation was marked to the Investigating Officer (IO). IO received the spot and arrested the accused. The documents recovered were handed over to him. On obtaining PC remand, the accused thereafter led them to his house at Kolkata, from where further documents and another driver’s license was recovered and seized.
The prosecution stated that each one the documents were sent for verification and it had been revealed that the documents of the Indian Army recovered from the accused were restricted and were for official use. Unauthorized communication of an equivalent was prejudicial to the interests and safety of the State.
One driver’s license and therefore the accused’s school certificate were found to be forged and fabricated and other documents like the Passport, Pan card, I-card etc., were found to be obtained on the idea of forged and fabricated documents and disclosures.
The prosecution contended the accused had entered India under the name Kamran Akbar, registered himself with the Foreigners Regional Officer Kolkata, but had not returned to Pakistan. it had been also stated that the accused had disclosed the name of his sponsor but he wasn’t found. He also didn’t reside at the address disclosed by the appellant.
Issues Involved:
The appellant has filed this appeal impugning the judgment dated 28.10.2016 gone by the learned ASJ convicting the appellant of an offence under Section 3 of the Official Secrets Act, 1923 for being in possession of restricted documents concerning the Indian Army, which might be prejudicial to the safety and interest of the State.
The appellant was also convicted of an offence under Section 474 of the Indian legal code , 1860 (IPC) for possessing forged documents like driver’s license , card , school certificate, false disclosure regarding his address and date of birth for obtaining his first passport.
Observations/Obiter Dicta:
This Court has also examined the evidence as noted above and there is no doubt that the documents in question were recovered from the appellant.
The next question is whether the appellant’s conviction under Section 474 IPC can be sustained.
The appellant was convicted for an offence under Section 474 IPC and sentenced to serve a period of four years. The Trial Court had examined the evidence and had concluded that the driving licence recovered (Ex.P-8) was forged. PW-3 had produced the extract of the driving licence, which established that the same had been issued in the name of Mohd. Arif Tola S/o Manover Hussain Tola. The Trial Court also found that the Ration Card (Ex.PW-9/B) and the School Certificate (Ex.PW-8/B), which were submitted by the appellant at the time of applying for his passport, were also forged. The ration card (Ex.PW- 9/B) was also found to be issued to one Aqswari Begum and not to the accused. The Trial Court held that the appellant was in possession of the forged driving licence (Ex.PW-8) and had used the forged Ration Card (Ex.PW-9/B) and the School Leaving Certificate (Ex.PW-8/B) for obtaining the passport. He had also made as false declaration as to his address for the said purpose.
Section 474 IPC reads as under: –
“474. Having possession of document described in section 466 or 467, knowing it to be forged and intending to use it as genuine. –
Whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, shall, if the document or electronic record is one of the description mentioned in section 466 of this Code], be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if the document is one of the description mentioned in section 467, shall be punished with [imprisonment for life], or with imprisonment of either description, for a term which may extend to seven years, and shall also be liable to fine.”
Rationale:
Mr Hashmi, the learned counsel appearing for the appellant submitted that there are serious doubts on whether the documents belonging to the Indian Army, stated to possess been recovered from the appellant were classified as “restricted documents”. He drew the eye of this Court to the testimony of PW-19 (Capt. H. Lamchinthang), who had deposed that the documents in question (Ex.PW-2/A1, Ex.PW-2/A2 and Ex.PW-2/A3) are restricted documents. He acknowledged that in his cross-examination, he had stated that there’s list of restricted documents within the office.
However, no such list was produced. Subsequently, PW-19 was involved further examination and he had retracted his testimony that an inventory of restricted documents was available in his office. In variance to his earlier testimony, he now stated that there was a circular/literature regarding classification of documents and on the idea of an equivalent, the documents might be classified as top secret, secret, confidential, restricted and unclassified. He had also stated that the words like ‘restricted’ would be written on the document to suggest its classification.
The learned counsel for the appellant submitted that the documents in question didn’t bear any such notation. And, the testimony of PW-19 to the effect that the documents in question were restricted documents, couldn’t be relied upon.
Mr Gupta, learned APP appearing for the State countered the aforesaid submissions.
During the course of arguments, Ex.PW-2/A1, Ex.PW-2/A2 and Ex.PW-2/A3 were far away from the sealed cover and perused. The said documents were also shown to the counsel. Mr Hashmi is correct in remarking that the said documents don’t bear the notation ‘restricted’. This, essentially, Court is unable to simply accept that the said documents are unclassified. Lieutenant Col. Chander Shekhar had submitted a report (Ex.Pw-14/C) after examining the documents in question.
In his opinion, the documents in question were classified as restricted, which essentially meant that an equivalent were for official use only and weren’t to be published or communicated to anyone apart from official purposes. He also expressed his opinion that the knowledge contained within the document, if disclosed to unauthorised persons, might be prejudicial to the security, security and interest of the State.
He unequivocally stated that the knowledge contained might be directly or indirectly useful to an enemy country.
A clear reading of the documents indicate that information contained therein relates to defence matters. The documents relate to arms and ammunition and therefore the manner during which the ammunition stores are to be used. Undeniably, the said information can’t be considered together which is required to be disseminated or published to unauthorized persons. The knowledge contained in these documents is, indisputably, just for the utilization of officials.
In sight of the opinion rendered by Lieutenant Col. Chander Shekhar (Ex.PW-14/C), there are often little question that the documents in question are classified documents. PW-19 had also unequivocally affirmed that Ex. Pw-2/A1 to Ex.PW-2/A3 are restricted documents and therefore the information contained in these documents are often useful to an enemy country.
Initially, he had stated that an inventory of such documents was available within the office. However, on further examination, he clarified that he meant to mention that there was an inventory regarding classification of documents.
He also produced a Circular during this regard (Ex.PW-19/A). the very fact that PW-19 had clarified his earlier testimony doesn’t , in any manner, render his testimony unreliable. Ex.PW-19/A clearly indicates the categories of classified documents. It specifies that classification as ‘restricted’ shall be applied to information and material which is actually meant for official use only and which shouldn’t be published or communicated to anyone apart from official purposes.’
A bare perusal of Ex.PW-2/A1 to Ex.PW-2/3 also indicates that the documents warrant being classified intrinsically, can’t be disputed, considering the character of data contained within the said documents.
In the given circumstances, this Court has little question that the documents in question are classified as restricted documents.
Judgement:
In view of the above, the next question to be examined is whether the aforesaid documents qualify the description as set out in Section 466 or 467 of the IPC. Section 467 relates to forgery of valuable security, will, etc. Clearly, the documents mentioned do not fit the said description. However, the forged Ration Card and Driving Licence do qualify the description of documents as set out in Section 466 of the IPC.
This Court finds no infirmity in the decision of the Trial Court convicting the accused for offence under Section 3 of the Official Secrets Act, 1923 and Section 474 of the IPC.
The appellant was sentenced to undergo rigorous imprisonment for a period of nine years for committing an offence under Section 3 of the Official Secrets Act, 1923 and to undergo rigorous imprisonment of four years along with fine of ₹10,000/- for an offence under Section 474 of the IPC, and in default of payment of fine, to undergo further simple imprisonment for a period of nine months.
It is noted that at the time of his conviction, the convict was aged forty-one years. He was married and had two minor children. It is also noticed that the appellant has no history of previous conviction or involvement in any criminal case.
It is also relevant to mention that although the documents found on the appellant (Ex.PW-2/A1, Ex.PW-2/A2 and Ex.PW-2/A3) are classified documents, they are not highly sensitive documents. In terms of the Circular (Ex. PW 19/A), official documents are divided into five categories of security gradings: Top Secret, Secret, Confidential, Restricted and Unclassified. Restricted documents are the lowest category of classified documents from the stand point of security.
Given that the appellant is married and has two minor children; this Court is of the view that further leniency ought to have been afforded to the appellant.
This Court is of the view that the sentences awarded to the appellant ought to have been directed to run concurrently and not sequentially. If the said benefit is not granted, the appellant would be required to serve a period of thirteen years. In the given circumstances, this Court does find that the same is harsh and not commensurate with the mitigating circumstances.
In view of the above, it is directed that the sentences awarded to the petitioner for the offence under Section 3 of the Official Secrets Act, 1923 and for the offence under Section 474 of the IPC, shall run concurrently and not sequentially. The impugned order dated 09.11.2016 is modified to the aforesaid extent.
The appeal is disposed of in the above terms.
The pending application is also disposed of.
Conclusion:
In the case of Asif Hussain v. State, the appellant Asif Hussain was known to be a Pakistani national living in Calcutta and delivering sensitive info on the Indian Army. Appropriated documents were verified and verified that they were for restricted and official functions.
The appellant was guilty associate degreed sentenced to a amount of nine years of imprisonment for being charged of an offense underSection three of the Official Secrets Act, 1923 and another term of four years with a fine of ₹10,000 for associate degree offense below Section 474 of the IPC. The court had command that the sentences awarded to the appellant had to work “concurrently and not consecutive.”
Prepared by Anushka Choudhary