Alana Abdulla Vs. The State of Gujarat 
INSC 695 (16 November
G.T. (J) Nanavati G.T. (J) Mukherjee M.K. (J) Nanavati, J.
1996 AIR 569 1996 SCC (1) 427 1995 SCALE (6)407
appeal is directed against the judgment and order dated 13.8.1991, passed by
the High Court of Gujarat in Criminal Appeal No.147 of 1990. The High Court
allowed the appeal, set aside the acquittal of the appellant (accused No.1) by
the learned Sessions Judge, Kuchchh, in Sessions Case No.62 of 1988 and
convicted him for the offences punishable under sections 3(1)(a) and 3(1)(c)
both read with section 9 and also under section 10 of the Official Secrets Act,
1923 (hereinafter referred to as the 'Act'). Rayna Alimohamad Hothi (accused
No.2) was also tried along with the appellant but it is not necessary to
mention the facts relating to him as he has not challenged his conviction.
2.6.1986 Rayna (accused No.2) was arrested while crossing the Indian Border
along with two other Pakistani nationals. During interrogation it was revealed
that since about 4 years they used to come to India, meet Alana (accused No.1) and two other Indian nationals
and obtain information useful to Pakistani intelligence.
on 4.7.1986, Police Inspector B.B. Dwivedi obtained warrants under section
11(2) of the Act for searching houses of the said three Indian nationals.
Police Inspector B.B. Dwivedi and the raiding party first searched the
residence of Rayna Sahab but nothing was found. Then they searched the house of
the appellant and found there from a map (Ex.66) prepared by the BSF, showing a
section of an underground pipe-line constructed for carrying water from Bhuj to
Khavda Border for the Army and BSF personnel. As he was found involved in collecting
and/or obtaining a map of the type referred to in section 3(1)(c) and supplying
the same to the said Pakistani nationals who were involved in the activity of
spying and as was also found harbouring accused No.2 he was charged and tried
for the offences for which he has now been convicted.
order to prove the recovery of map (Ex.66) from the house of the appellant, the
prosecution examined a panch witness in whose presence the said map was
recovered and the two Police Officers who were the members of the raiding
party, namely, Police Inspector B.B. Dwivedi and P.S.I. Gohil. The panch
witness did not support the prosecution.
learned Sessions Judge therefore held that though it was proved that the house
in question belongs to the appellant the evidence of the Police Officers alone
was not sufficient to prove that the map (Ex.66) was found from that house. He
also held that as the prosecution has failed to prove that the said map is a
secret document no offence under section 3 can be said to have been committed
by the appellant.
the learned Sessions Judge acquitted the appellant and also accused No.2 who
was tried along with him. In appeal, the High Court held that for establishing
the offence under section 3 it was not necessary for the prosecution to prove
that the map is a secret document. The High Court also held that from the
evidence on record it can safely be said that the map was found from the house
of the appellant and that he was consciously possessing the same.
High Court believed that the appellant had obtained the map with a view to help
accused No.2 who was engaged in spying for Pakistan. The High Court therefore convicted the appellant as stated above.
questions arise for consideration in this appeal.
first is: whether the map(Ex.66) was obtained or collected by the appellant?
The other question is: whether the High Court was right in holding that it is
not necessary for a conviction under section 3(1)(c) of the Act that the
sketch, plan etc. should be a secret document? The contention raised on behalf
of the appellant is that out of the prosecution witnesses examined for proving
that the map was recovered from the house of the appellant Panch witness Praful
Kumar(PW.5) did not support the prosecution.
P.C.Jasuba(PW.2) and H.C.Lachia(PW.3) who have deposed about recovery of the
map from the house of the appellant were standing outside the house and
therefore they could not have witnessed what happened inside the house.
P.I. B.B.Dwivedi and P.S.I. Gohil have stated that the map was found from the
house from a tin trunk kept on a cupboard. Therefore, in the absence of any
independent evidence the High Court ought not to have held that the appellant
was in conscious possession of the said map particularly when at the time of
the raid he was not present in the house. In support of the submissions that
the evidence of P.I. Dwivedi and P.S.I. Gohil should not be regarded as
sufficient it was also submitted that they had taken two persons of Bhuj as Panchas
to witness the raid instead of taking independent witnesses from the locality
i.e. village Nana Dinara and thus it becomes apparent that they were selected Panch
witnesses and therefore to that extent the investigation was not fair and
impartial. We find from the evidence that the prosecution has explained why the
Panch witnesses were taken from Bhuj and not from Nana Dinara. The reason given
by the prosecution that village Nana Dinara where the raid was to be carried
out being a small village and inhabited mostly by relations of the appellant it
would have been difficult to find an independent witness from that place was
considered and found acceptable by the High Court. Even on close scrutiny of
the evidence of P.I. Dwivedi and P.S.I. Gohil, we see no reason to disbelieve
this explanation. It cannot, therefore, be said that the investigation was not
fair and therefore independent corroboration was necessary. As nothing was
found from the house of Rayna Sahab no complaint was lodged against him. P.I. Dwivedi
had no reason to falsely involve the appellant if really no map was found from
their evidence cannot be rejected only on the ground that they are police
witnesses and were members of the raiding party. Their evidence receives
corroboration from the Panchanama(Ex.24). It may be stated that the other Pancha
witness could not be examined by the prosecution because he had expired before
his evidence could be recorded. In this connection, it may also be said that Abdulla(PW.4)
father of the appellant has stated in his evidence that his son was working as
a source for Pakistani intelligence and that he had gone to Pakistan once or
evidence discloses that the house from which the map was found belongs to the
appellant. The maner in which it was concealed indicates that the appellant was
in conscious possession of the same. As no explanation has been offered by the
appellant for possession of the map it has to be presumed, as required by
section 3(2) of the Act, that the map was obtained or collected by the
appellant for a purpose prejudicial to the safety or interests of the State.
next contended that the High Court has mis- interpreted section 3(1) (c) and
erroneously held that the sketch, plan, model, article or note or other
document or information need not be secret for establishing an offence under
that section. In order to appreciate this contention, it is necessary to refer
Section 3 which reads as follows:- "3. Penalties for spying--(1) If any
person for any purpose prejudicial to the safety or interests of the State -
(a)approaches, inspects, passes over or is in the vicinity of, or enters, any
prohibited place; or (b)makes any sketch, plan, model or note which is
calculated to be or might be or is intended to be, directly or indirectly,
useful to an enemy; or (c)obtains, collects, records or publishes or
communicates to any other person any secret official code or pass word, or any
sketch, plan, model, article or note or other document or information which is calculated
to be or might be or is intended to be, directly or indirectly, useful to an
enemy or which relates to a matter the disclosure of which is likely to affect
the sovereignty and integrity of India, the security of the State or friendly
relations with foreign States." The High Court held that the word 'secret'
in Clause (c) qualifies only the words "official code or pass word"
and not "any sketch, plan, model, article or note or other document or
information". The reason given by the High Court is that after the phrase
"any secret official code or pass word", there is a comma and what
follows is thus not intended to be qualified by the word 'secret'. The Calcutta
High Court in Sunil Ranjan Das vs. The State 77, Calcutta Weekly Note P.106 has
also taken the same view. It has held that the word 'secret' in the said
section qualifies official code or pass word and not any sketch, plan, model,
article or note or other document or information. This is clear from the comma
and the word 'or' which comes after the word 'password'.
opinion, the view taken by the Gujarat High Court in this case and by the
Calcutta High Court in the case of Sunil Ranjan Das is correct. We find that
the said interpretation also receives support from sub-section (2) of section
3. While providing for a presumption to be raised in prosecution for the
offence punishable under that section the phraseology used by the legislature
is "if any sketch, plan, model, article, note, document or information
relating to or used in any prohibited place, or relating to anything in such a
place, or any secret official code or password is made, obtained, collected,
recorded, published or communicated". From the way the said sub-section is
worded it becomes apparent that the qualifying word 'secret' has been used only
with respect to or in relation to official code or password and the legislature
did not intend that the sketch, plan, model, article, note, document or
information should also be secret. As we do not find any substance in the second
contention raised on behalf of the appellant it is also rejected. In the
result, the appeal fails and is dismissed.
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