SAMA ALANA ABDULLAversusSTATE OF GUJARAT

                       SAMA ALANA ABDULLA                                         A
                                      v.
                          STATE OF GUJARAT

                          NOVEMBER 16, 1995

           [M.K. MUKHERJEE AND G.T. NANAVATI, JJ.]                                B

      Official Secrets Act, 1923-Section 3(1)(C)-lnterpretation of
'secret'-!! qualified sketch, plan, model Etc.

     Evidence Act-Generally-Police witnesses-Evidence of-Reliability.
                                                                                  c
      During interrogation of one R and two other Pakistani nationals, it
was revealed that the appellant was involved in passing on information
useful to Pakistani intelligence. ~ raid was conducted in the house of
appellant and a map prepared by the BSF, showing a sect~on of an
underground pipe-line constructed for carrying water to border area for D
the Army and BSF personnel, was recovered from the said house. There
were two panch witnesses to the recovery of the map.

      During the trial only one panch witness was examined as the other
witness had died. The said panch witness did not support the case of the
prosecution. The other two persons who were present at the time of                E
recovery and supported the case of the prosecution were police witnesses
who were members of the raiding party.

      The appellant was charged under Sections 3(l)(a) and 3(1)(c) read
with Section 9 and Section 10 of the Official Secrets Act, 1923.
                                                                                  F
       Section 3(l)(c) of the Official Secrets Act, 1923 prescribes penalty
inter alia for obtaining, collecting, recording or publishing or communicat-
ing "any secret official code or passward, or any .sketch, plan, model, article
or note or other document or information."

      The Sessions Court acquitted the appellant on the ground the G
prosecution could not establish that the map was a secret document and
also on the ground that the evidence of the police officers was not sufficient
to prove that the map was recovered from the house of the appellant. In
appeal, the High Court set aside the acquittal of the appellant. Hence the
present appeal.                                                                H
                                      279
    280                   SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A         Dismissing the appeal, this Court

          HELD : 1. The word 'secret' in section 3(1)(c) of the Official Secrets
    Act, 1923 qualifies "otlicial code or pass word" and not "any sketch, plan,
    model, article or not or other document or information". This is clear from
    the comma and the word 'or' which comes after the word "password". From
B   the way the 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.
                                                                [283-B-C; D-E]
c         Sunil Ranjan Das v. The State, 77 CWN 106, approved.

           2. The evidence of the police witnesses cannot be rejected only on the
    ground that they are police witnesses and were members of the raiding
    party.

D         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    648 of 1991.

         From the Judgment and Order dated 5/6 & 13.8.91 of the Gujarat
    High Court in Crl. A. No. 147 of 1990.

E         Krishan Mahajan, Ms. Simmi and P.H. Parekh for the Appellant.

         Yashank Adhyaru, Ms. Nandini Mukherjee and Ms. Hemantika
    Wahi for the Respondent.

          The Judgment of the Court was delivered by
F
          NANAVATI, J. This 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,
G   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
    (l}~reinafter referred to as the 'Act').

          Rayna Alimohamad Hothi (accused No. 2) was also tried along with
H, the appellant but it is not necessary t.i mention the facts relating to him
                S.A.ABDULLAv. STATE[NANAVATl,J.]                     281

as he has not challenged his conviction.                                    A

      On 2.6.1986 Rayna (accused No. 2) was arrested while crossing the
Indian Border along with two other Pakistani nationals. During interroga-
tion 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.
                                                                            B

       Therefore, on 4.7.1986, Police Inspector B.B. Dwivedi obtained war-
rants 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 ~<ayna Sahab but nothing was found. Then they C
searched the house of the appellant and found therefrom 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 obtain-
ing a map of the type referred to in section 3(1)(c) and supplying the same D
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.

       In 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 E
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. The 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 F
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. Therefore, the learned Sessions Judge ac-
quitted the appellant and also accused No. 2 who was tried along with him. G
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. The High Court
believed that the appellant had obtained the map with a view to help H
    , 282                   SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A     accused No. 2 who was engaged in spying for Pakistan. The High Court
      therefore convicted the appellant as stated above.,

             Two questions arise for consideration in this appeal. The first is:
      whether the map (Ex.66) was obtained or collected by the appellant? The
B     other question is: whether the High Court was right in holding that it is
      not necessary for a conviction under section 3(l)(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.
c     Sajan (PW-1), 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. Only P.I. B.B. Dwivedi and P.S.I. Gohil
      have stated that the map was found from the house from a tin trltnk kept
D     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
E     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
F     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.l. Dwivedi
      and P.S.I. Gohil, we see no reason to disbelieve this explanation. It cannot,
G     therefore, be said that the investigation was not fair and therefore inde-
      pendent corroboration was necessary. As nothing was found from the
      house of Rayna Sahab no complaint was lodged against him. P.1. Dwivedi
      had np reason to falsely involve the appellant if really no map was found
      from his house. Again their evidence cannot be rejected only on the ground
H     that they are police witnesses and were members of the raiding party. Their
                S.A.ABDULLAv. STATE[NANAVATl,J.]                        283

evidence receives corroboration from the Panchanama (Ex.24) It may be A
stated that the other Panch witness could not be examined by the prosecu-
tion 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 twice. The evidence B
discloses that the house from which the map was found belongs to the
appellant. The manner in which it was concealed indicates that the appel-
lant 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 inter- C
ests of the State.

       It was 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 estab·
lishing an offence under that section. In order to appreciate this contention, D
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 -
                                                                               E
             (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                                            F

             (c) obtains, collects, records or publishes or communicates
             to as 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 G
             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 H
    284                    SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A   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 v. The State,
    77, Calcutta Weekly Note P.106 has also taken the same view. It has held
B   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'.

C          In our 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 prosecu-
    tion for the offence punishable under that section the phraseology used by
   the legislature is "if any sketch, plan, model, article, note, document or
D 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
E 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 appel-
    lant it is also rejected. In the result, the appeal fails and is dismissed.

     B.K.M.                                                    Appeal dismissed.