Espionage Case Mumbai-Judgement

1 OralJudgmentinS.C.No.
22/12
ExhibitNo.174 INTHECOURTOFSESSIONSFORGREATERBOMBAY SESSIONSCASENO.22OF2012 (C.C.No.3700195/PW/2011) TheStateofMaharashtra (ThroughDCB,CIDCIU(OP),Mumbai inC.R.No.114/2010) Versus 1.JavedAbdulGafoorMozawala Age30years,Residingat RoomNo.103,BuildingNo.1, InfinityTowers, ShivdasChapsiMarg, Mazgaon,Mumbai.
...Complainant
...Accused
CORAM:HERHONOURTHEADDL.SESSIONSJUDGE, V.V.JOSHI (COURTROOMNO.29) DATED:15thJULY,2013. LearnedSPPShriShettyfortheState. LearnedAdvocateShriAbdulWahabKhanfortheaccused. ORALJUDGMENT 1. TheaccusedJavedAbdulGafoorMozawalaisfacingthe
charges for spying for Pakistan that he was in possession of documents such as secret official record in respect of Defence Establishment,whichisdirectlyorindirectlyusefultoenemyand abeted the commission of offence with supporting of wanted accusedAbdulLatif@BhattipunishableunderSection120Bofthe IndianPenalCode,1860(hereinafterwillbereferredtoasthe"IPC" forshort)andSections3(1)(C),4andSection9oftheOfficialSecrets Act,1923.
2 OralJudgmentinS.C.No.22/12
2.
Thebrieffactsoftheprosecutioncaseareasunder: The Police Sub Inspector Shri Rodrigues attached to
DCB,CIDCIU(OP),Mumbaireceivedtheinformationon7.12.2010 from the informant that one Zaved Abdul Gafoor Mozawala, resident of Room No.103, Building No.1, Infinity Towers, Shivdas Chapsi Marg, Mazgaon, Mumbai, is supplying the secret information in respect of Defence Establishments, to officers of PakistanHighCommission,Delhi.HeisworkingforPakistanHigh Commission,Delhi. Afterreceivingthisinformation,ZavedAbdul Gafoor Mozawala disclosed it to Senior Police Inspector Shri SandbhorandbothofthemwenttotheAssistantCommissionerof PoliceShriDurapheandinformedaboutsaidinformation.ACPShri DuraphegaveinstructionstoMr.Rodriguestoconfirmthenews. Thereafter,Mr.RodriguesalongwithPoliceConstableShriMalusure went to the Infinity Tower to verify the information about Javed AbdulGafoorMozawala. Aftervisitingtheplace,itwasinformed thatsaidZavedAbdulGafoorMozawalaisresidingatInfinityTower alongwithhiswifeandtwodaughters.HedisclosedthisfacttoACP ShriDurapheandShriDuraphehasdirectedhimtotakethesearch ofthehouseofZavedAbdulGafoorMozawalainpresenceofpanch witnesses. 3. On 8.12.2010, the Police Inspector Shri Sandbhor, API
ShriDeshmukh,HeadConstableShriNaik,oneLadyConstableand two panch witnesses formed the raiding party and went to the houseoftheaccusedabout10.50a.m. Thedoorofthehousewas opened by the wife of accused. At that time, the accused was
sleepinginthebedroom.Themembersofraidingpartyintroduced themselvesanddisclosedtheirpurpose.Theaccusedwassleeping inthebedroom.Afterseekingpermission,themembersofraiding partyenteredintothebedroomofaccusedandbroughthiminthe hall. TheSeniorPIinquiredabouthimandtheyinformedabout their visit. They took the search of the house of accused. They seizedsomearticlesfromhishouseviz.21photographs,directory and printed material containing 8 pages, which was about 5th lessonmeansofcommunication,transportationand13passports alongwithVisaapplications.TheyalsoseizedtheFloopy,Compact Disc and Pen Drive from the house of accused. They took the accused and seized articles in CIU Unit. Thereafter, Mr. Sawant recordedthecomplaintofPSIShriRodriguesandFIRwaslodgedin Byculla Police Station bearing Crime No. 114/10 for the offences punishableunderSection120BoftheIPCandSections3(1)(C),4 and Section 9 of the Official Secrets Act, 1923. The work of investigationwasentrustedtoAPIShriAjayKashabaSawant. He has conducted the investigation and after completion of investigation,theInvestigatingOfficer(hereinafterwillbereferred toasthe"I.O."forshort)hasfiledchargesheetintheAdditional ChiefMetropolitanMagistrate,37thEsplanadeCourt,Mumbai. 4. The Learned Addl. C.M.M. Court after compliance of
Section 207 of the Cr.P.C., committed the case to the Court of Sessions,Mumbaibyitsorderdated15.12.2011underSection209of theCr.P.C.,astheoffencespunishableunderSection120Bofthe IPC,Sections3(1)(C),4andSection9oftheOfficialSecretsActare exclusivelytriablebytheCourtofSessions.Thenitwasmadeover
tothisCourtfortrial. 5. TheaccusedappearedbeforetheCourtandheabjured
the guilt. My Learned Predecessor Shri Bhillare has framed the ChargebelowExhibit7.Thecontentsofchargewereexplainedto theaccusedandhepleadednotguiltyandclaimedtobetried.The accused has examined himself and two more witnesses. The statementofaccusedunderSection313oftheCr.P .C.isrecorded. 6. Aftergoingthroughtherecord,thestatementsatbarand
theevidenceavailableonrecord,thefollowingpointsaroseformy determinationandIrecordedmyfindingsandreasonforthesame asunder: Sr.No. 1. Points Whether the prosecution has proved that during the period from 2007 to 2010 the accused was handing over official secret documents to wanted accused Abdul Latif Bhatti @ Jamal, which is an illegal act and thereby collected the secret documents regardingtheDefenceEstablishmentsofthe Sovereign India and the act was done in pursuanceoftheagreementandthatthereby committedoffencepunishableU/s120Bof theIPC? In Negative Findings
Sr.No. 2.
Points Whether the prosecution has proved that during the abovesaid period, the accused forthepurposeofprejudicialtothesafety or interest of the State having obtained/ collectedrecordi.e.secretofficialrecordin
Findings
In
respectofDefenceEstablishmentsandthe Affirmative information, which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy and that therebycommittedoffencepunishableU/s 3(1)(C)oftheOfficialSecretsAct? 3. Whether the prosecution has proved that during the abovesaid period, the accused has attempted to commit or abet the the Official Secrets Act and that thereby committedoffencepunishableU/s9ofthe OfficialSecretsAct? 4. Whether the prosecution has proved any offenceagainsttheaccused? Offence U/s3(1)(C),4 &9ofOfficial SecretsAct 5. WhatOrder? Theaccused isconvicted asperfinal order In commissionofoffenceU/s3(1)(C)and4of Affirmative
REASONS 7. To bring home the guilt against the accused, the
prosecutionhasexaminedtotal24witnesses: 1. 2. 3. PW1,PSIMr.WilsonMelvinRodrigues atExhibit14. PW2,Mr.JahangirNabijanKhan,thepanchwitnessof raidatExhibit21. PW3,Mr.BaluLimbajiBhumkar,thePolicepersonwho hasregisteredthecrimeagainsttheaccusedinByculla PoliceStationatExhibit27. 4. PW4,Mr.FakirMohammedMansoor,theindependent witness, to whom the accused used to send to High CommissionofPakistanEmbassyatExhibit33. 5 6. 7. 8. 9. 10. 11. 12. PW5,Mohd.HaroonHajiAbdulRehmanatExhibit36. PW6, Mohd. Salim Walimohammad Mamdani at Exhibit37. PW7,Mrs.SabiraMohd.SalimMamdaniatExhibit39. PW8,Mohd.TahermiyaAhmedChaiwalaatExhibit40. PW9,SulemanKasamPatelatExhibit43. PW10, Mohammed Salim Ismail Motiwala. at Exhibit47. PW11,APIMr.DeepakTukaramSawantatExhibit49. PW12, Nitin Mahadev Yadav,an independent witness, who has drawn the sketch of wanted accused at Exhibit53. 13. PW13, Ahmed Haji Abdul Rehman Lakdawala at Exhibit56.
14. 15. 16. 17. 18. 19. 20. 21.
PW14,MaheshDinkarParanjapeatExhibit60. PW15,KulsumAbdulGafoorMozawalaatExhibit62. PW16,AbdulHamidNoorDhiyanatExhibit65. PW17,KrishnaAnnaDhamapurkaratExhibit66. PW18,FirozAhmedIzazAhmedatExhibit67. PW19,AnilShantiswaroopBaliatExhibit75 PW20,VirendrakumarChannanramatExhibit79 PW21, DCP Mr. Nissar Pir Mohammed Tamboli, who has lodged the complaint before the Magistrate Court afterreceivingtheauthorizationfromtheGovernmentof IndiaatExhibit85.
22. 23. 24.
PW22, Chief Intelligence Officer, Mr. Dnyanoba PandurangChaudharyatExhibit22. PW23,theI.O.APIAjayKhashabaSawantatExhibit91. PW24,ChiefOperationOfficer14CorpsAviationBase, Mr.VinitSinghJawlaSinghatExhibit101.
8.
The prosecution has also proved and relied on the
documentssuchas 1. 2. 3. 4. 5. Exhibit15,theHouseSearchPanchanama Exhibit16,thecomplaint Exhibit16A,PrintedFIR Exhibit17(colly.)XeroxcopiesofextractofSDE Exhibit18,Applicationfiledbyaccusedfordirectingthe Nodal officer of IDEA with regard to CDR of Mobile numbers. 6. Exhibit19,Applicationfiledbyaccusedforcallingupon
theprosecutiontoproducetheLaptop 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. Exhibit20,Applicationfiledbyaccusedforhismedical treatment Exhibit22,thePanchanamadtd.15.12.2010ofopening ofthedocumentsinpresenceofPanchwitness Exhibit23,thePanchanamadtd.9.2.2011ofopeningof thedocumentsinpresenceofPanchwitness Exhibit26,Applicationfiledbyaccusedforproduction ofVisitorBook/register Exhibit28, Copy of Station Diary of Byculla Police Station Exhibit29,LetterreceivedfromCrimeBranchtoByculla PoliceStation Exhibit38, Xerox copies of three passports referred duringcrossexaminationofPW6 Exhibit41, Xerox copies of 5 passports verified from originals Exhibit42,theoriginalformsofPakistanEmbassy Exhibit48,Copyofaffidavit Exhibit50,CertifiedxeroxcopyofFIR Exhibit51,Chargesheetwithreport Exhibit52(colly),CertifiedcopiesofAffidavits Exhibit54,SketchofSalim Exhibit55,SketchofAbdulLatif@Bhatti Exhibit57, Application filed by accused for seeking productionofabookarecordandexhibitingthesame Exhibit58,AdvertisementofAlRehmandInternational
forPakistanVisa 24. 25. 26. 27. Exhibit61(colly.),Replydtd.4.2.2011@notification Exhibit63,SignaturePortionofPW15onExh.50 Exhibit68,EntryNo.10368dtd.15.5.2006ofJavedAbdul Gafoor Exhibit69,thecontentssuchasRoomNo.,Numberof persons,Sr.No.intheregister@thedatemadebyPW16 onxeroxcopiedofPANCard. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. Exhibit70,Entrydtd.25.3.2007intheRegister Exhibit71,theEntryNo.9444dtd.22.4.2005atpage130 intheregister Exhibit72, the Entry No.9794 at Page No.153 in the register Exhibit73, The Entry No. 10120 at Page No.175 in the register Exhibit74, the Entry No.10282 at Page no.185 in the register Exhibit76,XeroxcopyofNotificationofyear1971 Exhibit77,Officecopyofletterdtd.7.1.2011 Exhibit78,Replydtd.11.1.2011byOutwardNo.112 Exhibit80,Coveringletterdtd.1.3.2011 Exhibit81,OrderNo.is17017/32/2010ISIdtd.1.3.2011 Exhibit82,theopinionofWesternNavalCommand Exhibit83,theopinionofHeadQuartersM.G.&G.area dtd.11.1.2011 Exhibit86,Complaintdtd.5.3.2011 Exhibit88,LetterissuedbytheSeniorpoliceofficerof
BandraRailwayPoliceStationMr.SurvegandhtoSenior PI Crime Branch CIU on 24.1.2011 vide Outward No. 341/11 42. 43. 44. 45. 46. 47. Exhibit89(colly.)SignaturesofPW22since21.3.2007on casediaryofCrimeNo.3/07 Exhibit90(colly.)XeroxcopiesofCaseDiaryofCrime No.3/07 Exhibit94, Email received from Vodafone Co., Delhi Desk Exhibit95, Application filed by PW23 before the Magistrate Exhibit96, Application for permission to open sealed packetbeforeLd.Magistrate Exhibit97, Application for permission to open the sealedpacketswhichwereseizedfromthehouseofthe accused. 48. 49. Exhibit98, Letter dtd. 22.12.2010, Outward No.1080 to NavalCommand Exhibit99 (colly.), two letters to Head Quarters of Maharashtra, Goa, Gujrat and Colaba, Mumbai dtd. 8.1.2011OutwardNo.20and21 50. Exhibit100, application filed by SPP to interpose the Witness PW24, Mr. Vinit Singh Jawla Singh who was comingfromLehLadakh 51. 52. Exhibit102,PageNo.10ofArticle2(colly.) Exhibit103, (Article 37), Letter dtd. 21.1.2011 to Tata Power@TwoPhotographs
53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71.
Exhibit104, Letter to Air Force Station Lonavala on 29.12.2010 Exhibit105,Letterdtd.6.1.2011toC.A.@onePenDrive, threemobilephone,fourCDsandonefloopy Exhibit106,ReminderlettertoC.A.on31.1.2012 Exhibit107(colly),C.A.Reports Exhibit108, Office copy of letter dtd. 7.1.2011 vide OutwardNo.19/2011 Exhibit109, Letter received on 8.2.2011 from Protocol SectionofMinistryofExternalAffairs Exhibit110, Letter dtd. 29.1.2011 sent to Ministry of HomeAffairs Exhibit111,Replyon23.2.2011throughtheAdditional C.P.CrimeBranch Exhibit112,ReplyfromtheAirForceStationLonavala regardingSixphotographs Exhibit113,Portionmarked'A'instatementofPW5 Exhibit114,Portionmarked'B'instatementofPW5 Exhibit115,Portionmarked'C'instatementofPW5 Exhibit116,Portionmarked'A'instatementofPW15 Exhibit117,Portionmarked'B'instatementofPW15 Exhibit118,Portionmarked'A'instatementofPW7 Exhibit119,Portionmarked'B'instatementofPW7 Exhibit120,OnePhotograph(Article8colly.) Exhibit121, Application by advocate for accused for forwardingCameraandMemoryCardtoCFSL Exhibit122,applicationfiledbySPPtodeposittheSony
CameraandMemoryCard(Article52) 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. Exhibit123,PageNo.171ofVisitor'sRegister Exhibit124,ExtractofComputerizedcopy Exhibit131,ApplicationtoMagistratebyaccused Exhibit133,Article49 Exhibit133A,Envelope@Exh.133 Exhibit134(colly.), The order passed by the State Governmentandothercommunication. Exhibit135,original certificates from Andhra Pradesh HajCommittee. Exhibit136,Envelope. Exhibit137,Replytoletterofaccused Exhibit138(colly.),(Article48)thereplyreceivedbyRTI CellHeadquartersSouthernCommand,Puneaddressed toaccused andhereceiveditatArthurRoadjail. 82. 83. Exhibit139, copy which was marked as Article 48 is receivedbytheaccusedinArthurroadJail. Exhibit140, information received by the Southern Commandoffice&addressedtotheaccusedatArthur Roadjail. 84. 85. Exhibit141, application under RTI Act for C.C.T.V. footageoftheplacesofthephotographs. Exhibit142, The reply received to said application is addressed to the accused which is received by him at ArthurRoadJail. 86. Exhibit143,Replyreceivedbytheaccusedfrom Thane CommissionerofPolice.
87.
Exhibit144(colly.)originalcopiesofincometaxreturns and bank deposits and LIC receipts and undertaking signedby accused and given to the Central Haj Committee.
88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99.
Exhibit145, Photograph at Serial No.16 from Article8 (colly.) Exhibit146, Photograph at Serial No.19 from Article8 (colly.) Exhibit147,ApplicationofaccusedunderRTIActtoPIO HQMG&GAreaColaba Exhibit148, Signature of accused on label on the envelopeatArticle9. Exhibit149, Signature of accused on label on the envelopeatArticle7. Exhibit150,SignatureofaccusedonArticle3. Exhibit151,SignatureofaccusedonArticle1. Exhibit152,SignatureofaccusedonArticle4 Exhibit152A,SignatureofaccusedonArticle6 Exhibit153(colly.)SignatureofaccusedonArt5(Colly.) Exhibit154,SignatureofaccusedonArticle10. Exhibit155,applicationfiledbyadvocateforaccusedfor reexaminingDW1.
100. Exhibit156,applicationfiledbyadvocateforaccusedfor directiontothejudicialclerkofMazgaonM.M.Courtto produceFIRfilingregister 101. Exhibit159 (colly.) Complaint given by DW2 to Commissioner'soffice
102. Exhibit160(colly.), Application of DW2 to Commissioner'soffice@reply 103. Exhibit161 (colly.),Copy of First Appeal to office of DeputyCommissioner'sofPolice 104. Exhibit162(colly.)ReplytoRTIapplication 105. Exhibit165, Complaint of DW3 to Commissioner's office 106. Exhibit166, Reply to application under RTI for R.A. Register 107. Exhibit169, Acknowledgment of service to the Commissioner'soffice 108. Exhibit171,RegistersfromtheofficeofCommissioner ofPolice@forwardingletter 109. Exhibit172,thereportofC.C.T.V.footage AstoPointNos.1to4: 9. Theprosecutioncaseisbasedontheraidconductedby
thepoliceofficeronreceivinginformation.Toprovetheraidandin connection with complaint, the prosecution has examined PW1, PW3, PW17, PW20, PW21 and PW23. There are allegations against the accused for spying for Pakistan by providing secret informationthroughthepersoninPakistanEmbassyofDelhi.The raidwasconductedafterreceivinginformation. 10. PW1,WilsonMelvinRodriguesisthecomplainant.He
has received the information. He has categorically stated the procedureafterreceivingthesecretinformation.Ashereceivedthe
information about Javed Mozawala that he is having some documents of Defence Establishment and is providing said documentstothePakistanHighCommissionandishavingsome photographs, he gave said information to the Senior PI Shri Sandbhor and then, both of them informed it to Assistant CommissionerofPoliceShriDuraphe.ShriDurapheaskedthemto confirmtheinformation. 11. On 7.12.2010, they received the information at night.
Theyconfirmedtheinformationthatsaidpersonisstayingonthe givenaddress.OnthedirectionoftheSeniorofficer,theymadethe preparation for conducting raid on 8.12.2010 and the raid was conductedinpresenceofpanchwitnessesinthemorningatabout 10.50 a.m., the PW1 alongwith the members of raiding party reachedatthehouseofaccused,wheretheaccusedwasinhishouse withhisfamily. Hewassleepingatthattime. PW1alongwiththe Seniorofficertookthesearchofhishouseandseizedsomearticles from his house. They found some incriminating article viz. the photographs, the pages of directory and other documents and therefore,theyseizedallthosedocumentsandtooktheaccusedto policestation.Thereafter,thepanchanamawasdrawnatthespotin laptopinpresenceofpanchwitnesses. Theprintoutsofthesaid panchanama were taken at police station and the signatures of panchwitnessesaretakenonsaidpanchanamainpolicestation. The I.O. Mr. Sawant has recorded the complaint of PW1 on the directionofSeniorPIShriSandbhor. 12. PW1, WilsonMelvinRodrigueshasdeposedasperhis
complaint. Duringthecrossexamination,thecounselforaccused triedtobroughtonrecordthatthepanchanamawasnotprepared on the spot, as it was signed by the panch witnesses at police station. The printouts were taken at police station, which is admittedbyPW1andPW23.Thoughthisisalapsonthepartof investigation,theinvestigationcannotbesaidtobefaulty.During thecrossexamination,thecounselforaccusedhastriedtobrought onrecordthathehimselfhasnotlodgedthecomplaintatByculla PoliceStationandhiscomplaintwasnotrecordedbySHO. Ashis complaintwasrecordedbyMr.Sawantbeinghigherincadre,hehas immediately registered it at Byculla Police Station. Immediately after completing the procedure, his complaint was recorded and thereafter the FIR was lodged before the Byculla Police Station, which was having jurisdiction. When the cognizable offence was madeout,immediatelythecomplaintisregistered. 13. Preparing panchanama on laptop and not taking the
printouts, are the lapses in the instance of investigation. I will considerthispointwithotherevidence. Thecounselforaccused hasgiventhesuggestionthatfromwherethesaidphotographscan besnappedandthenumberofdirectoryareavailableintheBSNL Directory, which is denied by the witness. The evidence of this witnessisnotshatteredduringcrossexaminationduetobringing abovesaidlapsesaboutinvestigationonrecord.Theevidenceofthis witnessisreliableandcogent. 14. AfterrecordingofcomplaintbyMr.Sawant,hewentto
Byculla Police Station to register the FIR. Cognizance is already
taken by the Crime branch. As the spot which is the house of accusedcomesunderthejurisdictionofBycullaPoliceStation,Mr. SawantwenttoBycullaPoliceStation alongwiththecomplainant andseizedarticlesforlodgingcomplaint. 15. PW3, who has registered the FIR at Byculla Police
Station,Mr.BaluLimbajiBhumkarhasstatedthaton8122010,he wasattachedtoBycullapolicestationasPSI.Onthatday,hewason dutyasS.H.O.andhisdutytimingwas8.00p.mof8122010to8.00 a.m.ofthenextmorning.Onthatdayatabout9.30p.m.,APIMr. AjaySawantofCrimeBranchcametohimalongwiththestatement i.e. complaint of PSI Wilson Rodrigues. On the basis of that complaint,hehasregisteredanoffencevideC.R.No.226/2010U/s. 3(1)(C),4,9ofOfficialSecretsActr/wSec.120(B)ofIPCandonthe basisofthatcomplainthefilledtheprintedformatofFIR,whichis atExhibit16A. 16. Hehasfurtherstatedthatanoffencewasregisteredat
about22.05hours.Afterregistrationoftheoffence,heinformedthis facttohissuperiorofficerandwithhispermission,theoffencewas transferredtotheCrimebranchforfurtherinvestigation.Hemade necessaryentryinthestationdiary,whichisatExhibit28.Healso identified the letter received from Crime Branch, which is at Exhibit29. 17. DuringthecrossexaminationofPW3,thecounselfor
accused brought on record that he made entry in respect of provisionsofIPCandnotunderOfficialSecretsActandtherefore,
offence under Official Secrets Actwas not disclosed. Hehas not recordedthesupplementarystatementofthecomplainantandhe wasnotbroughtbeforehim.CopysenttoMetropolitanMagistrate MazgaonCourtisadmittedbythiswitness. Entryisnottherein ColumnNo.15ofsendingofFIRtoMazgaonCourtisadmittedby this witness. Itis also broughton record that reason fordelay in lodging FIR is not given. Though all these things are brought on record,hisevidenceisreliable,ashehasregisteredtheFIRasper theprocedure. 18. Thecounselforaccusedarguedthatthedelayinlodging
FIRisnotmentionedinFIR.Thecognizableoffencewasdisclosed atabout3.30p.m. Thereafter,theFIRwasregisteredat11.00p.m. DelayinlodgingFIRisnotproperlyexplained. Insupportofhis argument, he relied on the judgment of Hon'ble Supreme Court reportedin(2012)1SupremeCourtCases(Cri)717inthematterof KailashGourandOthersVs.StateofAssam.Inthecaseinhandin ColumnofFIR,theentryofimmediateFIRisgiven,therefore,there isnoneedofexplanationofdelay.Thecounselforaccusedfurther arguedthatcopyofFIRwasnotsenttoMazgaonCourtimmediately and therefore has failed to follow the procedure. It is held by Hon'bleSupremeCourtincasereportedin(2009)1SupremeCourt Cases(Cri)2012inthematterofRameshBaburaoDevaskarand Others Vs. State of Maharashtra that Section 157 of Cr. P .C. mandatesthatFIRshouldbesenttothenearestMagistratewithina periodof24hours.Aftergoingthroughtherecord,Ifoundthatthe copy of FIR was received by Addl.Chief Metropolitan Magistrate, Esplanade Court on 9.12.2010, which was known to the accused,
which gives sanctity and authenticity and therefore it does not requiretosendtoMazgaonCourt. 19. Theobjectionwasraisedthatthecomplainantwasnot
present at the time of registration of FIR. The complaint was recorded by one of the police officer. The complainant is also a policeofficer,therefore,thereisnoneedofpresenceofcomplainant atthetimeofregisteringFIR. 20. As per the requirement of 13(3) of OfficialSecrets Act,
authorization of Central Government was obtained. PW20 Virendrakumar Channaram received the proposal from State Government through the Central Government, registry of Home Ministry.PW20hasdeposedthatfirstlytheyreceivedtheproposal from the State Government through the Central Government registryoftheHomeMinistry.Thereaftertheproposalwasprepared for Ministry of Law for their views, comments and vetting. ThereaftertheyintheHomeDepartmentexaminedtheproposals, documents and the views expressed by the Law ministry and by otherdepartmentsincludingLawMinistryoftheStateGovernment andthenputupthenoteinafileforapprovalofthehigherauthority oftheHomeDepartment,whoisaCompetentAuthority.TheHome SecretaryistheCompetentAuthorityinthiscase.Aftergettingthe approval from the authority, they prepared this order after examiningallthedocumentsandsentittotheStateGovernment and conveyed the decision to the State Government. This is a procedure,whichhehadadopted.Inthiscase,alltheprecautions aretakenandallthenecessarystepsarefollowed. Alongwiththe
proposal, he received the documents including the documents specifiedintheorder.BythisorderatExhibit81,hehasauthorized DCP Shri Nisar Tamboli of Crime Branch to lodge complaint on behalf of Union of India. He has signed said order on behalf of President of India. His evidence is consistent to the procedure, whichhehasfollowed.Theaccusedtriedtobroughtonrecordthat hehassignedthepaperswithoutverifyingthepapers.Theevidence ofthiswitnessshowsthathehasadoptedtheprocedurerequiredfor authorizingtheperson. 21. As per the requirement under the Official Secrets Act,
aftercollectingtheopinionandaftergoingthroughtherecord,the UnionofIndiaauthorizedtheDCB(CID)tofilecomplaintagainst theaccusedonbehalfofGovernment. 22. PW21, DCPMr.NissarPirMohammedTamboliisthe
witness relating to filing of complaint. PW21 has lodged the complaint on behalf of the State, as he was authorized by GovernmentofIndiatolodgethecomplaint. 23. Aftercollectingtheproofagainsttheaccused,whenitis
provedthattheprimafaciecaseismadeoutagainsttheaccused, theGovernmentofIndiahasauthorizedtocomplainant,PW21to lodgethecomplaintandhaslodgedthecomplaintasperExhibit86, thecomplainanthasgonethrougheachandeverydocumentand Expert's opinion filed on record and then lodged the complaint againsttheaccused.TheoffencepunishableunderSection120Bof theIPCandSection3(1)(c),4and9oftheOfficialSecretsActis
registered at Exhibit86. He has lodged the complaint as per the documents placed before him. In this case, during cross examinationaccusedaskedthequestionthatexcepttheopinionof expertofTataPower,theopinionoftheotherexpertsisthatthese photographscannotbesaidtobeclassified. Witnessgaveanswer thatthephotographswithotherdocumentsifshownareharmful fromthepointofviewofsecurityofthenation.Otherquestionwas again about except photographs of Lonavala Dam the other photographsarenotofclassifiedaspertheexpertsopinion.Answer wasotherthanTataHydrolicPower,theCISShasopinedthatthe photographs are of classified nature, which proves that the complaintwasfiledafterverifyingthedocumentsandaftercoming totheconclusionthatprimafaciecaseismadeout.Theevidenceof thiswitnessisreliable. 24. PW23, APIAjayKhashabaSawantistheI.O.ofCrime
No.114/10.HehasdeposedthatC.R.No.114/10arisesoutofC.R.No. 226/10. HewasinstructedbyACPShriDuraphetoinvestigatethe crime. He has collected the articles, which were seized by the raiding party, the panchanama and the complaint, which was lodged by Mr. Rodrigues. He went to Byculla police station to complete the formality of registering the FIR alongwith the complaint and the panchanama and other documents alongwith letterofSeniorPIforregisteringtheCrimeatBycullaPoliceStation. HehasgivensaiddocumentstoPW2andtheFIRwasregistered againsttheaccused. AfterregisteringtheFIR,hecollectedallthe documentsasperExhibit29. Bythisletter,theinvestigationwas withCIUanditisdirectedbySr.PItohandoverthesaiddocuments
toPW23. PW23beingI.O.hasobtainedtheopinionsaboutthe articlesseizedduringraidandaftergettingtheopinionandother incriminatingproofagainsttheaccused,hasfiledtheChargesheet intheAddl.ChiefMetropolitanMagistrate,37thEsplanadeCourt. 25. During cross examination of PW23, the accused had
triedtobroughtonrecordtheloopholeintheinvestigationsuchas, the subscriber of mobile number of the wife of accused is not investigated,thechargesheetisnotfiledinproperCourthavingthe jurisdiction for conducting the offence under the provisions of Official Secret Act, the FIR was not lodged properly, the panchanamawasnotpreparedonthespot,whichshowsthatheis falselyimplicatedinthiscase. Directallegationsaremadeagainst this witness that he has prepared all false documents. He has snappedthephotographs,whicharefiledalongwithchargesheet and has falsely implicated in this case. Though some lapses in investigationarebroughtonrecord,wholeevidenceofthiswitness can not be discarded. He has categorically stated, what investigationhehasdone.Hisevidenceisreliable. 26. It is argued by the counsel for the accused that the
mandate of law i.e. Section 154 of Cr.P.C. as well as Section 8 of OfficialSecretsActhasbeenviolatedinletteraswellasinspirit.The complaintwasnotrecordedbythepolicestationincharge.Ifound aftertheperusalofdocumentsthatthecomplaintwasrecordedby Mr.SawantandhehasobtainedtheauthorityletterfromSr.PIfor registeringthecrimeatBycullaPoliceStationandwenttoByculla PoliceStation.
27.
It is further argued that the FIR filed on record is
purportedandnotasprescribedunderSection154ofCr.P.Caswell asSection8oftheOfficialSecretsActanddeservestobediscarded. The conduct of PW1, PW3 and PW23 with regard to the registrationofFIRwassolenientandliberalthatitcastereasonable doubtabouthisfairness. Underthelaw,thereisnoprovisionby whichitcanbeinferredthatPW23canproducethereportofPW1 recordingthesameatdifferentplacebytreatingthesameascrime. Lawhasprescribedaprocedurethathastobefollowed.Thecounsel for accused relied on the judgment of Nazir AhmedVs. Emperor reportedatAIR,1936,PC253,whichisconsideredbytheHon'ble Bombay High Court in the matter of State of Maharashtra Vs. Ahmed Gulam Nabi Shaikh and Others, reported at 1997 in Criminal Law Journal, at page 2377 also relied on judgment of Hon'bleSupremeCourtreportedin(2009)3SupremeCourtCases (Cri)421inthematterofGaneshGogoi Vs. StateofAssam . The judgmentsreferredbycounselareaboutFIRbutitisaboutlodging FIRaftercommencementofinvestigationandaboutgivingcopies of documents to accused. The authorities are not helpful to defence. 28. In this case, the raid is conducted after receiving
information. In such type of cases, the investigation starts immediatelyafterreceivingtheinformationandattheendofraid, thepersonwhohasconductedtheraid,lodgethecomplaint. The panchanama starts even before conducting the raid, when they proceedforraid.Here,inthiscase,thecomplaintwaslodgedbythe police officer Mr. Rodrigues. It was recorded by another police
officerMr.SawantatCrimebranch. Inthiscase,theFIRwasnot registered because it is stated by PW23 that at that time, FIR proformaformwasnotavailablewithCIUandtherefore,thereis everypossibilitythatitwasnotregisteredas00numbertosenditto the police station having jurisdiction. Byculla Police Station was having jurisdiction. Therefore, Mr. Sawant after completing formalities,wenttoBycullaPoliceStationandFIRwasregistered.I foundnoviolationoftheprovisionsoflaworfaultinregisteringthe FIR. 29. ThereisnodelayinlodgingtheFIR.Thecomplaintwas
immediatelyrecordedbycompetentperson.TheFIRwasregistered thereafterbyBycullaPoliceStationandtherefore,itisrightlyargued by Learned SPP that it does not mean that CIU was not having jurisdiction. 30. Inthismatter,theraidwasconductedbytheCIUDCB
office,whichistheCrimeDetectionBranchandhavingjurisdiction. Onlytocompletetheformalityofregisteringthecomplaint,theFIR was registered in Byculla Police Station. There is no defective investigation. 31. Thisisnottheusualcase.Afterreceivingtheinformation
from the informant, the raid was conducted. The articles were seizedandthereafter,thecomplaintoftheperson,whohasreceived theinformation,wasrecordedbyoneofthepoliceofficer.Thereis nolacuna. TheregistrationofFIRistheformality. Thecompliant was already recorded and as per the authorization, PW23 has
rightly after recording the complaint registered the FIR and then investigatedtheoffence. 32. The case of prosecution is totally based on seizure
panchanama.TheevidenceofPW2isimportantfromthepointof viewofseizurepanchanama.PW2,Mr.JahangirNabijanKhanhas deposedthaton9.12.2010atabout9.00a.m.,hewascalledbypolice in Crime Branch office at Crawford market. At that time, police officer Shri Rodrigues and 23 Inspectors and some policemen includingtwoladiespolicewerepresent.Atthattime,policeofficer informed him that one person namely Javed is supplying secret informationtothePakistanHighCommission.Policeofficerfurther toldhimthattheywanttotakesearchofthehouseofsaidJavedand requestedhimtoactasapanchwitness.Heconsentedforthesame. Atthattimeanotherpanchwitnesswaspresentthereandhisname wasJagtap.Thereaftertheirnamesandaddresseswerenoteddown bythepoliceofficer. Policeofficerofferedtheirpersonalsearchto them but nothing was found. Police collected envelope, Laptop, Papersandsealingmaterials.Thereaftertheywenttoonebuilding namely 'Infinity' situated atMazgaon by two police vehicles. He wenttherebyInnovaVehicle,whichwasbelongstothepolice. At that time police officer Shri Rodrigues and another 23 police officerswereaccompaniedwithhim.Anotherpanchawentthereby Scorpio Jeep, which was belongs to the police. Thereafter after parkingtheirvehiclesinthecompoundofthesaidbuilding,they wenttoroomNo.103situateonfirstfloorofbuilding.Theyreached there after 10.30 a.m. but before 11.00 a.m. Police officer Shri RodriguesknockedthedoorofRoomNo.103.Uponwhich,onelady
openedthedoor. PoliceofficerRodriguesaskedthenameofsaid lady.ShedisclosedhernameasFatimaJavedMozawala.Saidlady disclosed to police that her husband is sleeping in the bedroom. Beforeenteringintohouse,policeofficerintroducedthemselvesto thesaidlady.Thereafter,thepoliceofficerdisclosedtothesaidlady thattheywanttotakesearchofthehouse.PoliceofficerRodrigues went into the bedroom alongwith said lady and PW2 followed them. Police officer awakened the person namely Javed. Police officertookJavedtoHallfrombedroom.Thereafter,policeofficer askedthesaidpersonabouthisname,onwhichhedisclosedhis nameasJavedMozawala.PoliceofficerdisclosedtothesaidJaved Mozawalathattheywanttotakesearchofhishouse.Thereafter,all the police personnels entered into the hall. Police personnels offeredtheirpersonalsearchtoJavedMozawalabutherefusedfor thesame. PolicestartedtakingsearchofthehouseofsaidJaved. Initially,hallwassearched,butnothingincriminatingarticleswas foundinhall.Thereafter,policestartedtakingsearchofbedroomof thesaidJaved.Beforeenteringintothebedroom,policeinspected thepapersfoundinthehallandthreemobilehandsets.Whenthey enteredintothebedroom,twochildrenweresleepingonthebed. Theirmother(Fatima)tookthechildrenawayfromthebedroom. Thereafter,policestartedtakingsearchofthebedroom.Drawerof theshowcasewasopened. Inthedrawer,policefoundonePen Drive,oneFloppyand3to4CompactDiscswerethere.Therewere some certificates, some papers were found in the drawer of the table.Thereafter,searchofthebedwastaken. 33. Duringsearchofthebed,itwasfoundthattherewasbox
type bed. Its box was opened, in which one polythene bag was found.Thepolythenebagwastakenoutoftheboxandinthesaid bagthereweresomepapers,photographsandpassports. Hehad seen those articles. All photographs were colour photographs. Some photos of Dam, Port Trust and Government Building and Gates. 15 passports were found. He had seen those passports. Alongwith the passports there were printed forms which were affixed with photographs of the person whose photographs were appearinginthepassport.Therewere13forms.Ontheform,word "Pakistan"aswellasaddressatDelhiwasprinted.Somepapersin Englishhavingword"Islamic"werefound. Onsomepapersthere wereS.T.D.codenumbers.Soalso,thereweretwocertificateswere found.ThecertificatesbearsnameofJavedwithdifferentsurnames. Exceptthephotographsandthepassport,policeofficernumbered thepagesofthepapers,whichwerefoundthere. Onbacksideof eachandeveryphotograph,policeobtainedtheirsignaturesaswell assignatureofaccusedandputtheirsignatures. Policeseparately packed all the articles and were sealed. The mobiles were also packed and sealed after obtaining the mobile numbers from accused.Aftersealingthearticles,policeobtainedtheirsignatures as well as signature of accused and put their signature. PW2 identifiedtheaccusedintheCourt. 34. At that time, police officer made inquiry with the
accused with regards to the articles found in his house but the accusedfailedtogiveitssatisfactoryanswer. Thereafteralongwith theseizedarticlesandtheaccusedtheyreturnedtoCrimeBranch office. Panchanama was typed on the laptop in the house of
accused. Printout of the panchanama was taken in the Crime Branchoffice. PoliceaskedPW2andotherpanchwitnesstoread thecontentsofthepanchanama. Theyreadoverthepanchanama aswellaspolicereadoverpanchanamatothem.Panchanamawas written in Marathi language. Contents in the panchanama are correct. He put his signatureson the said panchanama, another panchaalsoputhissignatureonpanchanama. Onepoliceofficer namely Sandbhor put his signature on panchanama. PW2 identified his signature appearing on panchanama, which is at Sr.No.1,signatureofanotherpanchwitnessatSr.No.2andbelowall thesignatures,therewasasignatureofaccused. Towardsextreme leftsidethereisasignatureofpoliceofficerShriRodrigues.Oneach sheetofpanchanamatherearesignaturesofhimself,anotherpanch witness, police officer and accused. He identified the articles openedintheCourtviz.ArticleNos.2,3,5(colly.),6,8,9,11,12,14, 15,17(colly.),18,21,22,24,25,26,27,29,30,32andArticleNo.33. PW2identifiedthepanchanamawhichisatExhibit15.Itbearshis signature as well as signatures of another panch witness, police officerandaccused.Contentsthereinarecorrect. 35. On15.12.2010,againhewascalledbypoliceinDCBCID
officeatabout1.30p.m.Atthattime,policeofficerdisclosedtohim thattheywanttobreaktheseals,whichweresealedon8.12.2010. They showed them 10 sealed packets. They carefully seen those sealed packets. The seals of thepacketswereintact. Policetold them that they want to take the xerox of the articles kept in the sealedpacket.Intheirpresencei.e.himself,anotherpanchwitness andaccused,sixpacketswereopenedbybreakingtheirseals.Police
took out the photographs from the packets. Code Word book, certificates,passport,VisaForms.Policetookthexeroxcopiesofthe abovealldocumentsfromonexeroxmachine,whichwasbesides theoffice.Thereafteragaintheyreturnedtotheofficeandagainthe articleswerepackedaspertheirpreviousorderandthenthosewere sealedintheirpresence.Thepreviousenvelopewasinsertedinnew envelopesrespectivelyandthenitwasaffixedwithlabelhavinghis signature, signature of another panch witness and signature of policeofficer.PoliceofficerShriSawantpreparedthepanchanama on15.12.2010,whichismarkedasExhibit22. 36. Article1 having label bears the signature of PW1.
Article Nos. 4, 7, 10, 13 and 19 having labels also bears his signatures. On 15.12.2010, the xerox copies of those documents were taken, which were seized from the house of accused on 8.2.2010.Copanchwasthesameperson,whoactedasapanchon 8.12.2010. 37. On 9.2.2011, PW2 again called by the officers of DCB
CIDinoffice.Hewentthereatabout5.00p.m.to6.00p.m.Atthat time, police officer Shri Sawant was present there. Police officer disclosedthemthataspertheorderofCourt,theseizedpassports aretobereturnedtotherespectivepersonandtheywanttobreak thesealandopenthepacketinwhichthepassportsweresealed.In hispresenceonesealedpacked,inwhichthepassportwereseized wasopened.13passportsweretakenoutfromthepacketandtwo passportswerepreviouslykeptwereagainkeptinanewenvelope. Thepacketwassealedandaccordinglypanchanamadtd.9.2.2011
waspreparedinhispresence,whichisatExhibit23. Itbearshis signature, signature of copanch and signature of police officer. Afterpreparingthepanchanama,itwasreadovertothem.Hehad seentotal15passportsonthatday. Particularsofpassportswere noteddowninpanchanama. 38. After going through the evidence of this witness, it
revealsthatsamepanchwitnessesarecalledbypoliceinconnection withpanchanamaatExhibit15. Thepanchawitnessisthepanch forSeizurepanchanamaandwheneveritrequiredtoopensaidseal, samepanchaswerecalled. 39. PW2hascategoricallystatedthattheirpersonalsearch
wastakenbypoliceandtheyalsotookthesearchofpolice. The procedurewasfollowedbypolicebeforeconductingraid. Hehas conductedthepanchanamaforsecondandthirdtimeonlybecause the documents were opened and xerox copies were taken and therefore,againatthattimesamepanchwitnesseswerecalledby police. It cannot be said that the panch witness were habitual witnessandonthatgroundonlytheseizurepanchanamacannotbe discarded. 40. The panchanama was prepared on laptop and
immediately after taking printouts, it was signed by panch witnesses,policeofficerandtheaccused. PanchanamaExhibit15 showsthateachpagebearssignatureofwitnesses,accusedandis countersignedbythepoliceofficer.Dateisalsomentionedinthis panchanama. Evidence of this witness corroborates with the
evidence of PW1. Only because he was called for 3 times to conductthepanchanama,hisevidencecannotbediscarded.Asitis verydifficulttogetpanchwitnessinsuchtypeofoffences,same witnessesarecalledandalso forthepurposeofmaintainingthe secrecy. The evidence of this witness is reliable. Seizure panchanamaatExhibit15isprovedthroughthiswitness. 41. It is argued by the counsel for the accused that the
panchanamawhichisbeforetheCourtatExhibit15isadmittedly computerized document. Bear perusal of the panchanama Exhibit15suggeststhatitstartedat9.30a.m.attheofficeofDCB CID,CIUandhelefttheofficeat10.15a.m.alongwiththesealing materialandreachedtothehouseoftheaccusedat10.50a.m.and thereafterthesearchandseizureconcludedat3.30p.m. Withthis evidence, what the prosecution is suggesting, is that the entire exerciseofdrawingthepanchanamaandconcludingthesamewas doneonthelaptop.Thelawdoesnotasktotheofficertodrawthe panchanama on the laptop. It was the discretion of PW1 upon dictateofhissocalledsuperiorofficer,whoneverturnedtodepose thisCourt.Thecounselfortheaccusedhasreliedonthejudgment of Hon'ble Bombay High Court in the matter of Laxman Baban WaghVs.StateofMaharashtra,2006,ALMR(Criminal),Page165, inwhichitisheldthatthepoliceofficerofgettingthepanchanama signedinthepolicestationaftereffectingtheseizureat3rdplace hasbeendeprecatedseverely. IftheSeniorofficerhasdecidedto drawthepanchanamaonlaptop,thenitwashisdutytoseethat printoutshavetakenoutattheplaceofseizureitself.
42.
The prosecution has not explained, as to why the
panchashavecarriedoutfromtheofficeofCIU,whenthepersons were available from their houses. The panch witnesses were repeatedlyusedforconductingpanchanamaandtheywerebrought from the office of CIU. The counsel for accused relied on the judgment in the matter of State of Maharashtra Vs. Pyarelal SridharKher,reportedatALLMR(Criminal)2005,page2321, in whichitwasobservedthatpanchaswerenottakenfromthelocality andweretakenfrompolicestation. Thiscreatesdoubtsaboutthe veracityofthecaseoftheprosecution. Theraidwasconducted. Thepanchanamastartsfromthepolicestationwhentheyproceed forconductingraidandtherefore,panchwitnesseswerebroughtby policewiththem. Therefore,thereisnoreasonforcreatingdoubt aboutpanchwitnesses. 43. Thoughthepanchanamawasconductedonthespotand
theprintoutsweretakenoutatthepolicestation,atthattimealso thepanchwitnesseswerepresent.Theprinterwasnottakenbythe policeatthetimeofrecordingthepanchanamaistheloopholeat the part of investigation. But benefit of non compliance of formalitiescannotbegiventotheaccused.TheLearnedSPPrightly reliedonthejudgmentofHon'bleApexCourtinthecaseof1954of 2009 in the matter of Safi Mohd. Vs. State of Rajasthan. It is observedbytheHon'bleApexCourtinthismatterevenifthesearch ismadebytheI.O.inillegalmanner,thesamedoesnotaffectthe legalityofthesearchandinvestigationmadebytheI.O.withregard totheseizureofthedocumentsfromthehouseoftheappellantin viewofthelawlaiddownbythisCourtintheabovecase.Though
theprintoutof panchanamaistakenoutinthepolicestation,the seizureofarticlesonthespotisprovedbythepanchwitness. 44. The counsel for accused has argued that the
panchanamahasnotdrawnonthespotandwitnessPW2isastock panchwitness.ThelaptopwasnotproducedbeforetheCourtand nosayisgivenbytheprosecutionforproducingthelaptopinthe Court,whichisatExhibit19. Aftergoingthroughtheapplication, whichisatExhibit19,itrevealsthatitisforproductionofseized laptopandnotthelaptop,inwhichpanchanamawasdrawnand therefore, no adverse inference can be drawn against the prosecution. 45. ItisarguedbythecounselforaccusedthattheEvidence
actdoes notinsist forquantity of evidencebutthecriteria is for quality.DW2,wifeoftheaccused,whowaspresentatthetimeof raid and her statement was recorded, the prosecution has not examinedsaidwitness. 46. TheprosecutionhasexaminedPW1andPW2,whohas
conducted raid. Their signatures are thereon each page. Only becausePW1isapolicewitness,hecannotbesaidtobeinterested witness. Thepanchanamaisproved,whichbearsdates. Itisthe choiceofprosecutionwhomtoexamine.Itisbutnaturalthatthe wife of accused will not suppose to support the prosecution and therefore, no adverse inference can be drawn against the prosecutionfornotexaminingthewifeofaccusedasprosecution witness.Thecontentsofstatementwerenottouchedduringcross
examination of his wife and therefore, there is no violation of Section162ofCr.P.C.Theaccusedhasalsostatedthatatthetimeof conductingraid,hiswifewaspresentthere.Theaccusedwasnotin exclusive possession of articles but she was not suspected and policehadnotinquiredaboutsaidarticlestoher.Insupportofhis argument,thecounselforaccusedreliedonjudgmentofHon'ble SupremeCourtreportedin(2006)1SCC549(Cri)549inthematter ofGayadin Vs. StateofM.P. Aftergoingthroughthejudgment,I foundthatthejudgmentisaboutpleaofalibiinmurdercaseand henceisnotapplicable. Theinformationwasaboutaccusedonly and he was doing the business of agent, therefore, there is no questionofsuspectinghiswife. 47. Thearticlesbearthesignaturesofpanchwitnesses,the
accusedandthepoliceofficers,inwhichthedateisalsomentioned, hence,itisprovedthatthearticlesareseizedon8.12.2010andnot on7.12.2010or9.12.2010. 48. It is the case of prosecution that the accused was in
contactwithPakistanHighCommissionatDelhi,ashewasworking asanagentforobtainingVisainPakistan.HewasworkingforHaj Committee and working for obtaining Visa. The prosecution has therefore,examinedPW4,5,6,7,8,9,13i.e.totalsixwitnesses,who approachedtheaccusedforobtainingVisaforPakistan.PW5,PW6, PW7andPW9turnedhostilebutfromtheirevidenceitisproved thathewasdoingbusinessforobtainingVisa,whichisnotdenied byaccused.Somepassports,Visaformswereseizedfromthehouse of accused. All witnesses were the relatives of accused and
therefore,theyhavenotsupportedtoprosecutioncase.Thecounsel foraccusedreliedontheevidenceofthesewitnessesandstatedthat the prosecution witnesses has not supported to their case. The witnesses are his relatives and they were examined for limited purposeofhisconnectionwithePakistanEmbassyandwasworking thereasagent. 49. PW13,AhmedHajiAbdulRehmanLakdawalawasalso
doingthejobofToursandTravelsandagentforobtainingVisaand helping persons having difficulty in obtaining Visa. From the evidence of this witness, it proves that the person from Pakistan Embassy,somebodywastheretohelphimtogetVisabygoingoutof procedure and therefore, he referred the persons to accused for obtaining Visa, who were having difficulty to obtain it in regular procedure. 50. PW15,KulsumAbdulGafoorMozawalaisthemotherof
accused. She went to Delhi with some passports and while returning, she has lost her bag alongwith passports of unknown persons and therefore, she has lodged the complaint. The complaintatExhibit63isprovedbythiswitness,whichprovesthat shewenttoDelhiandshewascarryingsomepassports.Thewitness turnedhostilebutherevidenceaboutlodgingcomplaintisrelevant toprosecutioncase. 51. The prosecution has examined PW22 Dnyanoba
Chaudhari, who has investigated the crime registered on the compliantofPW15.
52.
PW4,Mr.FakirMohammedMansooristhewitness,who
went to Pakistan Embassy on say of accused. The name of Mr. Bhattiwasknowntohim.Hisphonenumberwasalsogiventothis witnessandhetalkedwithsaidJamalBhattiontelephone. PW4 has deposed that he is teaching Kuran at Chunabhatti, Masjid at Mohd. Ali Road behind Suleman Bakery. He knows the accused JavedMozawalabecauseheusedtocometohimforlearningKuran. Heknowstheaccusedsince5to6years.HeisresidingatKambekar Street.Ononeoccasion,theaccusedaskedhimwhetherhecando workforhim,onwhichherepliedaffirmatively.Theaccusedasked himbysaying,hehastogotoPakistanEmbassyatDelhi.Heagreed for the same. As at that time he was not having good financial conditionandtherefore,heagreedfortheworkofaccused. This thingshappenedintheyear2008.Priorto3to4yearsforthefirst time,hewentthere.HehadgonetoPakistanEmbassyatDelhi.At thattime,hewenttherealongwithfivepassportsforobtainingVisa. He went there for obtaining the Visa of Pakistan. In Pakistan EmbassyatDelhi,hewenttocounterNo.6andinquiredaboutVisa. AccusedJavedMozawalahadgivensaidfivepassportstohimand hehadgivenrailwayticketstohimandalsogaveexpenses. The accused asked him to meet the officer namely Bhatti at Pakistan Embassy.AtDelhi,hestayedatZakariaGuestHouseandthenhe went to Pakistan Embassy. When he went to Counter No.6 of PakistanEmbassy, hemadeinquirywiththepersonsthereabout officernamelyBhatti. HegotreplythatMr.Bhattiwasnotthere. TheofficerwhowaspresentatCounterNo.6askedhimtodeposit thepassportatCounterNo.6.Thepersonfromtheembassyasked
him to come on next day for collecting the passports. He had handedoverthepassporttotheofficeratCounterNo.6forgetting Visaendorsement. HetoldtotheofficerthatJavedhadgiventhe saidpassporttohimforbeinggiventoBhatti.Onnextday,whenhe went to counter no.6, at that time, the officer who is sitting at adjoiningcountercalledhimbyannouncinghisname.Hedoesnot knowthenameofthesaidofficer,whocalledhim. Aftermaking Visaendorsement,theconcernedofficergavehimthesaidpassport. Thereafter, he returned to Mumbai and handed over the said passportstotheaccused. WhenhewenttoPakistanEmbassy,at that time he could not meet Mr. Bhatti. Thereafter after 2 to 3 months,againhewenttoDelhiforvisaendorsementattheinstance of accused Javed. At second time, theaccused handed overhim packedbrownenvelope.Theaccusedhadgivenrailwayticketsand the money for expenses. The accused asked him to take the envelope and deliver it at Counter in Pakistan Embassy. Accordingly,hewenttoDelhiandhedepositedthepackedenvelope at Counter no.6 of Pakistan Embassy. While handing over the packedenvelope,hetoldtotheofficertogivetheenvelopetoMr. Bhatti.Hewascalledbytheofficerateveningtimeofsamedayfor collectingthevisa.Hedoesnotknowthenameoftheofficer,who calledhimtocomeateveningtimeforcollectingthevisa.Whenhe was atDelhi,he informed theaccusedontelephonethathehad handedoverthepackettotheofficersofPakistanEmbassy. After theeveningprayer(Asar),againhewenttoPakistanEmbassyand sixpassportswerereturnedtohimwiththeendorsementofvisa. HecouldnotmeetMr.Bhatti. Theaccusedhadgivenhimphone
numberofMr.Bhatti. Beforethefirstvisit,thephonenumberof Bhattiwasgiventohimandsamenumberwasgiventohimatthe timeofhissecondvisit.WhenhewenttoDelhiatfirsttime,atthat timehehadtalkwithMr.Bhattibytelephoneandheaskedhimto depositthepassportatCounterNo.6.Inallthreeoccasion,hehad gonetoPakistanEmbassy,DelhiforgettingVisaendorsementatthe instance of accused. On third occasion after 15 to 20 days from secondvisit,hehadgonetoDelhiatPakistanEmbassy.Atthattime, accused had given five passports, railway tickets and money for expenses.WhenhereachedatDelhi,hemadetelephoniccalltoMr Bhatti. He asked him to come at Counter No.6. Accordingly, he went to Counter No.6 in Pakistan Embassy. When he reached at CounterNo.6,policeaccostedhim. Thereafter,policetookhimto onegarden. Theyhadtakenpassportsandmoneyfromhimand after1to 2hours,policereturnedthepassportstohimandasked himtheleavethatplaceandgoaway. Thereafter,hereturnedto Mumbai directly and returned the passports to accused and informedhimthathewasaccostedthepolice. Hecouldnotmeet Mr.Bhattiatanytime.Hehadnooccasiontoseehim.Thereafter, hewasneveraskedbyaccusedfordoingsuchwork. 53. On 10.12.2010, PW4 was called by police officer Shri
Sawant through his constable. The said constable came towards himatChunabhatti,Masjid. HetookhimtoCrimeBranchoffice andhisstatementwasrecordedbypolice. Exceptthemoneyfor expenses, the accused had not given any amount to him. The statementwasreadovertohimbypoliceofficerShriSawantandit wasrecordedasperhissay.Onseconddayagain,hewascalledby
policeforstatement. Onthirdday,hisstatementwasrecordedby theMetropolitanMagistrateatKillaCourt.Hehadvoluntarilygave statementbeforetheMagistrate. Statementwasreadovertohim andthereafterheputhissignatureonit. Magistraterecordedthe statementasperhissay. 54. During cross examination, PW4 has admitted the
suggestion given by the accused about showing photographs of Jamal Bhatti and deposing as per the say of Mr. Sawant. As the witnesshasstatedthatheisdeposingonsayofI.O.,accordingto counsel for accused, which renders his testimony valueless. In support of his arguments, the counsel for accused relied on judgmentofHon'bleMadhyaPradeshHighCourtreportedin1985 CRI.L.J.1773inthematterofRamvilasandOthers Vs. Stateof MadhyaPradesh.Thecounselforaccusedhasstatedthatheisthe star witness of prosecution. He has deposed against the prosecution, therefore, the prosecution would have declare him hostile.Buttheprosecutionreliedonthiswitness.Thecounselfor accusedreliedonthejudgmentofHob'bleSupremeCourtreported in2005SupremeCourtCases(Cri)1037inthematterofMukhtiar Ahmed Ansari Vs. State (NCT OF DELHI) in support of his argumentthatdefencecannotrelyonthiswitness. 55. After going through the evidence, I found that the
evidence of this witness during examinationinchief was consistent. Hehasadmittedsomefactsincrossexamination. It creates doubt that witness is tutored by accused but it is proved fromhisevidencethatonepersonnamelyJamalBhattiwasworking
atPakistanEmbassy,asthesuggestionofBhattiwasnotworkingin PakistanEmbassyisdenied andthepersonwasknowntohimis denied. 56. As the name of Jamal Bhatti was transpired during
investigation his information was called from Ministry of Home Affairs, which is at Exhibit108 by letter dated 7.11.2011 for providing the information about Mr. Abdul Latif and the informationaboutsaidpersonhasreceivedasperExhibit109dated 31.3.2011, which proves that he was working in Pakistan High Commission,NewDelhi.HewasworkingthereasAssistantandwas from Pakistan. His details were given as his date of birth is 30.10.1962. He came in India on 27.1.2005 and departed on 25.5.2010andoneothernamewasalsodisclosedi.e.JamalBhatti. They inquired about said person to Ministry of Home Affairs by letter dated 29.2.2011 at Exhibit110 and they received the information on 9.2.2011 at Exhibit111 that no such person with given name Mr. Jamal Bhatti was working in Pakistan High Commission, New Delhi and therefore, it was suspected that he must be worked there on fictitious name. The version of PW4 corroborates with the information received from external home affairs. 57. Duetosomeadmissionsduringcrossexamination,his
evidencecannotbediscarded.Hehasadmittedthatthestatement wasreadovertohim,refreshingofmemoryispermissible.Hence, evidenceofthiswitnessisreliable.
58.
Before receiving this information during the
investigation,theaccuseddisclosedthenamesofabovesaidpersons andthereforetheI.O.calledsketchdrawerandhedrewthepictures asperthedescriptiongivenbyaccused.PW12isthewitnesswho drew thesketches of wanted accused asperdescriptiongiven by accused. The witness identified the sketches at Exhibit54, the sketch of wanted accused Salim and at Exhibit55, the sketch of AbdulLatif.Thiswitnessisindependentwitness.Thereisnoreason forhimtodeposeagainsttheaccused.Suggestionwasgiventhatit wasdrawnafter8.2.2011,afterprovidingthephotographsisdenied bythewitness. 59. Thestrongobjectionwasraisedbytheaccusedthatthe
evidenceofthiswitnessisnotadmissibleasitwasrecordedduring theinvestigationinpresenceofpolice. 60. Thoughitisthepartofinvestigation,thestatementof
this witness was not recorded by police and the description was given as a part of investigation. There is no signature of police officer.Itisnotthestatementrecordedbypolice,therefore,thereis nobarofSection162(1)ofCr.P.C.Thewitnesshasstatedthathehas drawnthepictureaspersayofaccused.Exhibit55tallieswiththe photographatExhibit109. 61. The phone No.9654832784 was reflected in mobile
numberofaccused.Duringinvestigation,itwasfoundthatitwas thenumberofJamalBhatti. PW7hasinvestigatedaboutit. He found that it was in the name of one Mithilesh Kumar and the
addresswas54/B,HimaltonRoad,KashmiraGalli,Delhi. Thesaid addresswasnotinexistenceandthepersonwasalsonotfound. 62. TheCDRalsofollowedbythiswitnesstotraceoutthe
real owner. As he was one of the member of raiding party, the suggestionwasgiventhat,whenhewenttothehouseofaccusedon 7.12.2010 and he saw accused in Commissioner's office on 8.12.2010, which was denied. The witness has made the investigationaboutthemobilenumber. Itisprovedthatitwason thenameofperson,whowasnotinexistencebutwasusedbythe accused only to contact said person creates doubt about the activitiesofaccused. 63. PW18, Firoz Ahmed Izaz Ahmed was examined by
prosecutiontoprovethatheusedtostayinHotelPalaceatDelhi. The accused used to use visiting card of Mr. Hamid from Haj Committee.Theaccusedusedtousethiscardforstayingthere.It provestheconductoftheaccused.Toprovethesaidvisitingcard, theprosecutionhasexaminedPW16,AbdulHamidNoorDhiyan. He has stated that he knows the accused. He is in his distant relation. Hegavehisvisitingcardtoaccused,whenhewasinHaj Committeeinyear2002.Exhibit39,VisitingCardisprovedthrough thiswitness.TheaccusedwasworkingasSeasonalClerkisproved throughthiswitness. Itwasnotknowntohimthattheaccusedis usinghisvisitingcardforhisbenefit. 64. TheI.O.Mr.Sawantsentthearticlesseizedinraidfor
opinionofdifferentauthorities.Thephotographs,whichwereofthe
Defence Establishments, were sent for opinion that whether said photographsareofclassifiednatureordangeroustosovereigntyof nation.PW14,PW21andPW24arethewitnesses,whogavetheir opiniononthearticlesgiventothem. 65. PW14,MaheshDinkarParanjapeistheinchargeofTata
PowerHouseinRaigadareaandDamsinPuneDistrict. Heisin chargeofdamsandalsoPowerHouses.Hehasdeposedthatsince last 5 years, his designation is Deputy General Manager. He is ElectricalEngineer.HeiswellconversanttoTataPowerHouseand damsinPunedistrict.Hehasstatedthatelectricityisgeneratedby water pressure and hence all the dams are situated at higher ElevationinPunedistrictandpowerhousesaresituatedatlower ElevationinRaigaddistrict. 66. Hehasdeposedthatthewaterinthedamsisbrought
downtoPowerhousesthroughtunnelandpenstock.Thesedams store huge quantity of water, which they accumulate during the rainyseasonandthewaterisusedforpowergenerationthroughout the year. The power thus generated is supplied to Mumbai area whereTatapowerhaslicensetodistributethepower. Theyhave5 major dams namely Mulshi, Walvan, Shirota, Lonvala and Thokarwadi.MulshidamisnearPahudareainPune.Thesedams directlycomeunderhissupervision. 67. HehasfurtherdeposedthatinLonavalaareaofvicinity
theyhavethreemajordams Walvan,ShirotaandLonvala. These threedamsfeedKhopoliPowerhouse.Shirotadamempounds198
millioncubicmetersofwater.WalvanandShirotaempounds52& 11millioncubicmetersofwaterrespectively.Thesecurityofdams andpowerhousesisunderhimandTataPowercontrolsthesecurity aspect. AllthedamsandallrelatedstructuresundertheOfficial SecretsActareunderprohibitedarea.Oncethelocationisdeclared asprohibitedarea,theentriesarerestricted.Thephotographsare notallowedandtheykeeptherecordsofactivitieshappeningon dams. 68. The maintenance persons, government officials and
policeofficerswithpriorpermissionareallowedforentry. Outof Article8, two photographs are shown to him. The photographs showntohimareofLonavlaDamandtheyshowspillwaysectionof thedam.Hehasdeposedthatifthedamisfull,thisspillwaysection allowthewatertooverflow. Boththephotographsareofoneand thesamedam. ThephotographNo.18istheclosephotographof spillwaysection. Thephotographno.18isspecificallymarkedas Article8A.Thephotographno.10showsthespillwayalongwiththe dam.Thephotographno.10ismarkedasArticle8B.Thecapacity ofLonavaladamis11m.c.m. 69. InJanuary2011,hereceivedtheletterfromDCBCIDfor
the opinion on said photographs. He received two photographs alongwithsaidletterbypost.Theletterwasonthesecurityaspect ofthedamandhisopinionwasaskedonthepointofsecurityaspect onthephotographs. 70. QueryNo.1wasregardingthenameandaddressofthe
establishmentasseeninthephotographs. Thedetailsofsecurity aspectandparticularswereaskedfor.Hehadrepliedthatletteron 04/02/2011. The notification is issued by Government of Maharashtradated08/12/2008. ItmentionstheLonavladamand spillwayasprohibitedarea. Thereplyalongwithnotificationisat Exhibit61(colly.). Since he is the Incharge of security aspect of dams,theopinionisgivenonhisknowledgeandexperienceandas pertheguidelinesofthenotification. 71. PW14furtherdeposedthatforLonavladamtheyused
thewaterinmonsoonperioditselfandinotherareastheyusethe waterthroughouttheyear.Heobservedthephotographwhichisat Article8Bisthephotographofdamduringthemonsoonperiod andspillwaysectionisaverycrucialpartofthedamespeciallyfrom thesecuritypointofview. 72. Article8Aiscloserphotographofspillwayisalsoavery
crucial part from the security point of view. He cannot give the opinionabouttheintentionofthepersontakingthephotographbut from the observation of the photograph, he can say that if somethinggoeswrongatthelocationofdam,theentirelakewater willgetdrainedintoLonavlacity.Asthequantityishuge,therewill befloodinthecity.Itwillcausedamagestothelifeandproperty.It willcausehavocintheLonavalacity. 73. Thewitnesswasextensivelycrossexaminedbycounsel
for accused. The suggestion given to the witness that the said photographs are available on Internet and are not of restricted
natureandanybodycansnapsaidphotographsfrompublicway. The witness denied it. He has stated that the photography is prohibitedinsaidareaandifitissnapped,thenitisillegal. The photographs, which were shown to witness during cross examinationbyaccused,hehasstatedthatitisfromthetopview. Suggestionofgivingfalseevidenceonsayofpoliceisdeniedbythis witness.Thewitnessisanexpertwitnessandthereisnoreasonto disbelievehim. Hence,thephotographsatArticle8Aand8Bare saidtobeofclassifiednatureandaredangeroustothesecurityof nation,ifplacedinthehandsofenemyisproved. 74. PW19,AnilShantiswaroopBalihasdeposedaboutthe
photographsatArticle8C,whichbelongsto PirPauJetty. Hehas deposedthatsincelast17years,heisattachedto'CentralIndustrial SecurityForce'.HisheadquartersisinDelhi. Theyhavetheirwest sectorheadquartersatNaviMumbai.HeispostedatNaviMumbai since16/05/2012. Beforethathewaspostedasa'Commander'at Mazgaon Dock, CISF unit and also holding additional charge of CISFUnit,MumbaiPortTrust. 75. HisdutiesandfunctionsaredefinedbyCISFAct.Their
dutyistoprotecttheassetsandvitalinstallationsatMumbaiPort. CISFunithasnottakenovertheentireMumbaiPort.Theyaregiven vitalinstallationsnamelyPrincessDock,VictoriaDock,IndiraDock, Ballard Pier, Jawahar Dweep (Butcher Isand), and Pir Pau Jetty. TheseinstallationsareentrustedforsafeguardtoCISF.Forallthese installations,CISFguardsarepostedforsafetyandprotection. On 24/04/2010CISFwasinductedinthisportafterconsideringthreat
perceptioninthisarea. 76. OnephotographamongstArticle8isshowntohim.He
identifiedit.HehasstatedthatthatphotographbelongstoPirPau Jetty.ItisundertheprotectionofCISF.SinceApril2010,PirPauJetty installationcomesundertheCISF.However,thisareaisdeclaredas "prohibited"aspertheOfficialSecretsActsincetheyear1971.The copyofnotificationisbroughtbyhim. Asperthenotificationof year 1971, this area comes under the "prohibited" as per Official Secrets'Act. Thexeroxcopyofsaidnotificationistakenonrecord andmarkedasExhibit76.Copyofthenotificationisgiventothe accused. ThisphotographwhichisatSerialNo.21ismarkedas Article8C. 77. Hehadvisitedsaidplaceandhehadregularsupervisory
checkpostofthatplace.Heiswellconversantwiththeplace.The photograph is taken closely from the front side of the main gate fromtheroadside.ThelocationofPirPauJettyisatthebackwater ofMumbai.ThelandsideapproachisfromMahulVillageandthere isonlyoneapproachroadtothemaingatefromMahulVillage.This locationisthelastportionbeforethebackwaterstarts.Atoneside ofthis place,there is aTataPowerStationandontheotherside BharatPetrolChemicalLimitedandontwosides,itiscoveredwith backwatersea. 78. During his tenure, on 07/01/2011 he received the
confidentialcommunicationfromDCBC.I.D.,Mumbai.Therewas a copy of photograph along with letter. The letter includes the
information regarding the photograph and the location. He had respondedthisletteron11/01/2011byoutwardNo.112.Thereply ispreparedbyhimandsignedbyhim.Herepliedtheletteronthe basisofnotificationandonthebasisofhispersonalknowledge. 79. His opinion is that this photograph undoubtedly from
the front gate of Pir Pau Jetty. The entire area is declared as prohibitedbecausethisisasensitiveplace. Thisareaissensitive becausehazardouschemicals,petrochemicals,naturalgases,L.P.G. andotherindustrialimportantchemicalsaredownloadedfromthe shipsandtransferredtotheirclientsonanaveragethisjettycaters for 450 to 470 ships annually and the traffic of around 2.5 lacs tonnesofhazardouschemicalsannually.Hehadcorrectlygivenhis opinioninthereport. 80. The Board is displayed that the photography is
prohibitedasthisareaisprohibitedunderOfficialSecretsAct. If anybody is found taking photography, he will be arrested and handedovertothepolice. NobodyisallowedtoenterthePirPau Jettyasitisaprohibitedarea.Anybodyenteringwithauthorization insaidareaissubjecttosecuritycheckandisnotallowedtocarry cameraandmatchsticks,etc. Ifthephotographofsaidsensitive area is in the hands of enemy of nation, he can plan attack or sabotage of this place thereby causing economic distress and industrialdisasterofamassiveproportion. Thismayimmediately affectthefuelsupplytoMumbaiCity. 81. Again the counsel for accused gave suggestion that all
the photographs are available at Internet, which is denied by witness.Duringcrossexamination,Article44showntothewitness, asaphotographofPirPauJettyisdeniedbythewitness. Hehas statedthatArticles45and46downloadedfromInternetandshown tohimincrossexaminationarenotfromprohibitedarea. Hehas stated that Internet photographs can be manipulated. From the evidence of this witness, Photograph at Article8C is proved as a classifiedandisdangeroustosecurityofnation,iffallsinthehands ofenemynation. 82. ToprovethepagesofDirectoryseizedinraidandsome
photographs,theprosecutionhasexaminedPW24,Mr.VinitSingh JawlaSingh,whoistheChiefOperationOfficer.HewastheColonel GeneralstaffofAIGG.Hehasdeposedthatheisworkingasa'Chief OperationOfficer'in14CorpsAviationBasesince01/05/2011. It comesundertheIndianArmy.HewascommissionedintheIndian Armyon10/06/1989asa'SecondLieutenant'.Sincetheyear1989, heisawareabouttheassociation,organizationandfunctionsand also of its various establishments. They have a Head Quarter at Colaba, Mumbai for Maharashtra Gujrat and Goa area. It was situatedat28AssaeyBuilding,BhagatSinghMarg,Colaba. Before goingtoLeh,hewasatColabaofficefor1&1/2years. 83. In January 2011, he was Colonel General Staff of
Maharashtra, Gujrat and Goa area. His office was at Assaey Building,Colaba. ColonelGeneraldealswiththeoperationswith intelligence,securityandtraining. Theylaydownthepoliciesand ensuretheimplementationofvariousoperations.Hehadreceived
twolettersfromtheCrimeIntelligenceUnitofDCBCIDinJanuary 2011.Hehadbroughtthecopyofsaidbothlettersdated08/01/2011. Exhibit99(colly.) shown to him are the office copies which were received by him. The outward numbers of said letters are 20/AS/2011 and 21/AS/2011. With the letter outward No. 20/AS/2011therewasoneenclosureaboutthecopyoftelephone directory of Headquarters Southern Command, Pune. With the letterOutwardNo.21/AS/2011theenclosurewasthephotographof hisofficei.e.Headquarters.Hebroughtthecopiesoftheenclosures whichwerereceivedbyhim.Theenclosureoftelephonedirectory contains42pages.Article2showntohimisthesamecopyreceived byhim.ThephotographatserialNo.2atArticle8(colly.)shownto himisthephotographofhisofficeanditwasreceivedbyhim.The Crimebranchsentboththesedocumentsandtheyaskedhimabout the opinion of said documents as contained in the letters. Accordinglyhesubmittedhisopinion/reporton11/01/2011.Report dated11/01/2011containstheopinionaboutboththedocuments. The opinion given in said report is correct as per hisknowledge, experienceandhislongassociationwiththedepartment. 84. Hehasdeposedthatthephotographisofheadquarters
ofMaharashtra,GujratandGoawherehisofficeisalsosituated.Itis takenfromBhagatSinghMarg.Theareawherehisofficeissituated isprohibitedareaandphotographyisnotpermissible.Theboards are also displayed about prohibiting the photography and no trespassersasitisanimportantHeadquartersofdefencearea. It hasitsownsecurityimplications.Thisbuildingisnottouristkindor historicalbuilding.Thereforeanybodywhoistakingthephotograph
must have the different intention. If it connects with any other photographsofthedefenceestablishment,thenitmayhavesecurity concern. 85. ThedirectoryisoftheHeadquartersSouthernCommand
PunewhichisimportantcommandofIndianArmy.Thisdirectory containsallthetelephonenumbersofalltheappointmentsofthe command Headquarters. The directory also indicates the organizationoftheCommandHeadquarters. Thedirectoryisnot available in public. It is a restricted document. The copies are available with the restricted appointments of the army. This documentcannotbepubliclyavailable. Eachpagecontainsatthe topandatthebottomtheword"restricted"meansitisoneofthe securityclassification. FirstPageNos.1to4aretheSTDcodesof variousstationsofArmyanditalsogivestheCivilJunctions.Page Nos. 5 gives the access codes to the Army Exchange of that particulararmystation. PageNo.6to42arethearmytelephone numbers or various appointments of the Headquarters Southern Command and variousestablishmentsunder it. It isa restricted document. These numbers are not available in any civil public directory.Thereisnoanysourcetogetthiscopyofdirectorybythe civilians.Ifitgoesinthehandsofanycivilianswithawrongintent, then there is a possibility of misuse to draw out the secured informationanditcanalsogivetheorganizationalstructureofthe defence establishments. Fromsaid directory, one can obtain the detailed information about the establishment and functioning of the army. The Pakistan Intelligence Operatives have been giving callsatthearmynumbersandtryingtodrawtheinformationabout
theorganization,itsappointmentsandfunctions.Therefore,itisa matterofsecurityconcernanditisanimportanttoolforPakistan IntelligenceOperativestogatherintelligenceandinformationfrom variousestablishmentsandfinallyknowabouttheorganizationand functioningofIndianArmy. 86. Afterstudyingthedirectoryandthephotograph,hehad
given his opinion which is at Exhibit83. The army telephone directoryisprintedinternallybytheSignalBranchandallthecopies printedareaccountedforbydemarkingcopynumbersinorderto avoidmisuseandwrongcirculation. 87. Thetelephonedirectoryisprovedthroughthiswitness.
Counsel for accused has brought on record thatnumbersin said directoryareavailableinBSNLDirectoryandarenotofrestricted nature. During cross examination, the counsel for accused has pointedoutsomenumbers,whichareavailableinBSNLDirectory. 88. Itisarguedbythecounselforaccusedthatthoughthe
xeroxcopiesofpagesofDirectoryisexhibited,asitwasreferredin cross examination. The xerox copies of any document cannot be exhibited. In support of his argument, the counsel for accused relied on judgment of Hon'ble Bombay High Court reported in 2009(3)Bom.C.R.(Cri.)633inthematterofGeetaMarineServices Pvt.Ltd.&Anr.,Vs.State&Anr.Inthiscasetheaccusedreferred the numbers from said directory and therefore it is proved. The witnesshasstatedthatsaidnumbersareavailable,whicharerelated tociviliansdepartmentandareavailablefortheirconvenience.All
othernumbersareofrestrictednature.Theevidenceofallthethree expertwitnessesisconsistentandcogentandthereisnoreasonto disbelievetheexpertswitness. 89. Thedocuments,whichareseizedduringraidareproved
tobeclassifiedanddangeroustothesovereigntyofnation,ifplaced inthehandsofenemynation. 90. Thedefenceofaccusedisthatheisfalselyimplicatedin
thiscase.Hewasillegallydetainedinpolicecustodysince7.12.2010 andwasshownhiscustodyon8.12.2010.Thedocumentswerenot seizedfromhishouse. Hissignaturesweretakenonblankpaper andthereafterpanchanamawasprepared.Toprovethedefence,the accusedhasexaminedhimself,hiswifeandhisbrotherasdefence witness.Thoughhehasstatedthathewasnothavingenmitywith anyofthepoliceofficer,hehasmadeallegationsoffalseimplication bypoliceperson.Thoughtherewasnoenmitybetweenaccusedand policepersonandthoughtherewasnoreasontofalselyimplicate him,hewasfalselyimplicatedinthiscase.Thecounselforaccused reliedonjudgmentofHon'bleSupremeCourtreportedinAIR1981 SUPREME COURT 765 = 1981 Cri. L.J. 325 in the matter of ShankarlalGyarasilalDixitVs.StateofMaharashtra,inwhichit is held that different motives operate on the minds of different personsinthemakingofunfoundedaccusations. Besideshuman natureistoowilling,whenfacedwithbrutalcrimes,tospinstories outofstrongsuspicions. 91. It is also argued that presently in view of prevailing
circumstances, overwhelming the pressure upon police officials fromtheirsuperiorsaswellasfrompoliticalbosses,thepossibility offramingthepresentaccusedinpresentcasenotberuledout. 92. TheaccusedDW1hasdeposedthathewasdoingthe
jobinHajCommitteeandwasworkinginconsultationforobtaining Visa. On7.12.2010,thepoliceincivildresscametohishouseand tookthesearchofhishouseandtookhimincrimebranch.Hewas notallowedtoreceivephonecallsandhewastoldthattheywill relive himafter recording his statement. At about 1.00 a.m., he received one call from unknown number and therefore, police allowedtoreceivesaidcallandatthattimeheinformedhisbrother thatheisdetainedincustodyon8.12.2010.Hecalledhiswifeand hisbrotherSajidinthemorningincrimebranch,buthewasnot allowedtomeetthem.Whenthemotherandbrotheroftheaccused requested police to meet him, the police officer Shri Rodrigues askedhimtocomeatG.T.HospitalandatG.T.Hospitaltheaccused metwithhisfamilymembers.Thereafteron10.12.2010,thefamily membersofaccusedcametoknowthathewasarrestedforspying forPakistanandcrimeisregisteredagainsthim. Theaccusedwas produced before the Court on 9.12.2010. He was sent to police custodyon20.12.2010. Hewasagainproducedandagainsentfor police custody till 22.12.2010. On 22.12.2010, he has made the complaintto theMagistrate abouttheilltreatmentduring police custody. 93. Allthewitnessesi.e.DW2andDW3areexaminedon
same ground that he was taken on 7.12.2010 and was in illegal
detention till he was produced before the Court. His signatures wereobtainedonblankpaper.Thedefencetriedtoprovehiscase byfilingdocumentsviz.numberofRTIapplicationsandcomplaint filedbyaccusedandhisfamilymembers.DW2hasfiledcomplaints beforedifferentauthoritiesabouttortureincustodyon28.12.2010. 94. Thedefencereliedonthedocumentsfiledorecordand
exhibitedduringtheirevidence, 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Exhibit124(colly.),theextractofvisitorsbookproduced byprosecutionbeingcalledbydefence Exhibit134 (colly), Order of Appellate Court in RTI appeal Exhibit135(colly.),thecertificatefromHajCommittee, MumbaiandAndhraPradesh Exhibit136,CopyofenvelopefromArthurRoadJailto RTIoffice Exhibit137,LetterfromC.A.toaccused Exhibit140,REplytotheRTIapplicationofaccused Exhibit141,applicationunderRTIActbyaccused Exhibit142,theapplicationunderRTIActbyaccused Exhibit143,theletterfromRTI Exhibit144(colly.),CertificateofBombayShops&Est. ActofZavedAbdulMozawala,whichincludesFormNo. 16AofReturns,thereceiptsofHajCommittee,Income TaxReturns,LTCRenewalReceiptandoneundertaking 11. Exhibit147,applicationunderRTIActbyaccused
12. 13.
Exhibit159 (colly.), the complaint made by wife of accusedandcopiesgiventodifferentauthorities Exhibit160, application under RTI Act to Police Commissioner'sofficeforVisitorsBook
14. Exhibit161 (colly.), applications under RTI Actby the wifeofaccused. 15. 16. Exhibit162 (colly.), the letter from Judicial Clerk, MazgaonCourttoWifeofAccused(Fatima) Exhibit165,applicationtoMumbaiPolicebybrotherof accusedforC.C.T.V.footageon8.12.2010between10.30 and11.30a.m. 17. Exhibit166, Intimation of Rejection by Addl. Chief Metropolitan Magistrate to the application made by brotherofaccused 18. Exhibit167(colly.)differentprintoutsphotographsfrom Internet 95. Itisthesettledprinciplesoflawthattheprosecutionhas
toprovethecasebeyondthereasonabledoubtsthroughtheoral and documentary evidence. Though the burden is on the prosecutiontoprovethecase,sincetheaccusedenteredinwitness boxanddeposedonoath,theburdenshiftsonaccusedtoprovehis defence. Itisthedefenceofaccusedthathewastakenfromhis house on 7.12.2010 and was illegally detained in custody till 9.12.2010.Toproveit,hehasexaminedhiswifeandbrotherSajid. Itwashisdefencethatthewifeofaccusedaccordingtoprosecution, whowasonlythepersonpresentatthetimeofhousesearch,was
notpresentinthehouse.Shewasatcrimebranchat10.30a.m.on 8.12.2010.Accordingtoprosecutioncase,theraidwasconductedin the presence of wife of accused. On 8.12.2010, the defence has statedthatattherelevanttime,shewasatcommissioner'sofficer,as her husband was taken from her house on 7.12.2010 by Crime Branch. Shedeposedthat sheenteredtheCommissioner'soffice withSajid.Shemadeentryinvisitorsbookandherbrotherinlaw Sajidmadehisentryoncomputerandthephotopasswasissuedto him.AsshewasinNakab,shehasnotmadeentryonComputerand no photopass was issued to her. Under RTI Act, they made application to supply the said extract of register, but it was not suppliedonthegroundofsecuritypurpose.Theymadeapplications underRTI Acttoprovidedifferentinformation. Theapplications weremadeafterinitiationoftrial.Theaccusedhasnotprovedthat he was taken from his house on 7.12.2010. Accused asked the policetoproducealltheregistersfrom29thOctober2010to14th January2011.Theregisterswereproduced.Theentriesinregister for 8.12.2010 were already exhibited at Exhibit123. There is no entry of Fatima, therefore, the accused and his family members made allegation against the police that said register produced beforetheCourtisfakeanditwasnotthesame,inwhichshehas signed. Therefore, 10 registers were produced before the Court. Againsameallegationsoffakeregistersweremadebyaccused.The defenceofaccusedisnotprobable,asitisverydifficulttoprepare 10 fake registers. Moreover, on perusal of registers, I found that there is entry of number of persons mentioned in said register. ThereisentryofSajidattherelevanttime.Numberofpersonisnot
mentionedbeforetheentryofSajid.EntryofFatimadtd.14.12.2010 mentions the entry alongwith her daughter. Presence of Sajid at relevanttimeinCrimeBranchisnotdeniedbyprosecution.Asper panchanamaatExhibit15,itismentionedthatSajidcameonthe spotwhenpolicewerepresentthereandafterhecametoknowthat theyarepolicepersonsfromcrimebranch,hewenttheretoverifyit. Therefore,hisentryisthere,ashewenttheretoverifyaboutthe raidingparty. AsFatimawasathome,herentrywasnottherein register. 96. DW3,Sajidinhisevidencehasstatedthathismother
wenttothehouseofaccusedatnightandshecametoknowthathis mothertoldhimthatpolicepersonstooktheaccused,asshesaw policevehicle.Aspertheirstory,shereachedthereaftertheytook the accused and her daughterinlaw told him, which falsify the caseofaccusedtakinghimon7.12.2010. 97. The accused was produced before the Magistrate. He
hasnotdisclosedfactofwrongfuldetentiontotheMagistrateand after28.12.2010,theyconcoctedthestoryaboutwrongfuldetention. Theprosecutionhasbroughtonrecordfromthecrossexamination of PW15 and DW3 that both of them have faced the trial for seriousoffence.Therefore,theywereawareaboutlegalprocedure. Then also there is delay for disclosing the serious fact of illegal detentionandtortureduringpolicecustody.Theaccusedhasmade complaintagainstthepoliceaboutilltreatmentbuthewasnotsent for medical checkup, which shows that it was not found to the Magistratethataccusedwasilltreatedbythepolice.
98.
It is alleged that police took signatures of accused on
blankpapersanditisusedforspotpanchanamaatExhibit15and atlabels.ThespotpanchanamaisprovedbypanchwitnessPW2. The articles, which were seized by police bears the signatures of panchwitnessandthesignaturesofaccused. Thedatebelowthe signatureisdeniedbyaccusedbutitisofsameink,whichproves thatthearticleswereseizedon8.12.2010. 99. ItisclaimedbytheaccusedthattheevidenceofDW1
corroborates by the documentary evidence Exhibit131 and Exhibit133. EvidenceofDW2corroborateswithExhibit160and Exhibit161 and evidence of DW3 corroborates with Exhibit124 andExhibit165.EvidenceofDW1,DW2andDW3corroborates with each other on point of arrest of accused on 7.12.2010. Itis arguedthatthesuggestionsgivenbytheprosecutionconfirmsthe defenceofaccusedandtheprosecutioncannotrunawayfromthe thesuggestionsgivenbyitduringcrossexamination. 100. Thedocumentsprovedthroughthesewitnessesarethe
complaints filed by theaccused. DW1 and DW2 which are not filedimmediatelythoughtheAddl.ChiefMetropolitanMagistrate askedtheaccusedabouttorturebutnotdisclosedabouttortureand wrongfuldetention. Thecomplaintswereproved,asitwassigned bythewitnessesbutthegenuinenessisnotproved.Thephotopass isprovedthroughDW3,whichwasnotdeniedbytheprosecution. Hispresenceatrelevanttimewasnotdenied.Theaccusedfailedto prove that he was arrested on 7.12.2010 through oral or documentaryevidence. Thereisnopreponderanceofprobability.
Therefore,thejudgmentreportedin2005ALLMR(Cri)2322inthe matter of Dnyaneshwar S/o Laxmanrao Wankhede Vs. State of Maharashtra is not helpful to the prosecution, as it is held by Hon'ble Bombay High Court that when the accused sets up a defence and offers explanation it is well settled that he is not requiredtoprovehisdefencebeyondreasonabledoubt,butonlyby preponderanceofprobabilities.TheanotherjudgmentofHon'ble SupremeCourtreportedin(2010)2SCC(Cri)278inthematterof JoydeepNeogi@BubaiVs.StateofWestBengalisalsonothelpful totheprosecution. 101. Itisarguedbythecounselforaccusedthatthecasewas
notfiledintheCourt,whichwashavingjurisdictionasperOfficial Secret Act. The Addl. Chief Metropolitan Magistrate is having jurisdictiontoentertaintheoffence.Onlyiftheaccusedprayedto commit the session before the Sessions Court, then only on his requestthesessioniscommitted. 102. The offence under Section 3(1)(C), 4 and 9 of Official
SecretActispunishableformorethan7yearsandupto14years imprisonment, therefore, the Sessions Court have jurisdiction to entertainthetrial. Moreover,theapplicationforraisingobjection forjurisdictionisnotpressedbyaccusedandtheobjectionabout jurisdiction was not raised, when he was produced in remand, hence,thisgroundisnotavailabletotheaccusedatthisstage. 103. Theaccusedisfacingthetrialfortheoffencepunishable
underSection120BoftheIPCand3(1)(c),4and9ofOfficialSecrets
ACt.Itisarguedbythecounselforaccusedthatoffenceisregistered against only one accused and therefore, there is no question of conspiracy . The counsel for accused relied on the judgment of Hon'bleBombayHighCourtreportedin 2012ALLMR(Cri)98in thematterofAnilKotharis/oNarendrasingajiKothari Vs. C.B.I. EOW,BombayandAnr.inwhichitisheldthatsinglepersoncannot be convicted for the offence under Section 120B of IPC. The offenceisforconspiracy withoneAbdulLatif@BhattiandJamal Bhatti. Theyarewantedaccusedandhehadconspiracywithsaid wanted persons and therefore, offence under Section 120B is applicable. 104. Thearticleswhichwereseizedinpossessionofaccused
are Article2,telephonecodes(Exh.102 colly.), Article5 Literature about means of transport, Article8 Photographs, Article14 Visa Applications.Thedocumentsareprovedthroughexperts.Article2, whichistelephonedirectoryismarkedasExhibit102isofrestricted nature.Thenumbersinitarenotavailableforpublic.Thedirectory contains all the telephone numbers of all appointments of CommandHeadquarters.Ifitgoesinthehandsofanycivilianswith wrong intent, then there is possibility of misuse to draw out the securedinformationanditcanalsogivetheorganizationalstructure of Defence Establishment. From said directory, one can obtain detailed information about the establishment and functioning of the army. The Pakistan Intelligence Operatives have been giving callsattheArmynumbersandtryingtodrawtheinformationabout organization, its appointments and functions, therefore, it is the matterofsecurityconcernanditisanimportanttoolforPakistan
Intelligence Operatives to gather intelligence information from variousestablishments. 105. TheanotherdocumentisphotographatArticle8A,8B
and 8C. From the evidence of PW14, it is proved that the photographs are of classified nature and are harmful to the sovereigntyofnation,ifplaced inthehandsofenemy.Article8A Photograph of Spillway Section is marked as Exhibit120 and Article8B Photograph showing Spillway @ Dam is marked at Exhibit145 are the photographs of Lonavala Dam. If something goeswrongatthe locationofDam,theentirelakewaterwillget drainedintoLonavalaCity.TherewillbeFloodincityandwillcause damagestothelifeandproperty.ItwillcausehavocintheLonavala City.PirPauJetty,ifthephotographArticle8Cisthephotographof saidsensitiveareaisinthehandsofenemyofnation,hecanplan attackorsabotageofthisplacetherebycausingeconomicdistress and industrial disaster of a massive proportion and may immediatelyaffectthefuelsupplytoMumbaiCity. 106. Though the lapses are committed during the
investigation,theissueisconcerningwiththesecurityofnationand therefore,benefitcannotbegiventotheaccused. 107. It is proved from the record that the accused was in
contactwithPakistanEmbassyandwasgettingtheworkdoneofthe Visa from the person Jamal Bhatti, who was found working by fictitiousname. HewasincontactwithapersonAbdulLatif,who was from Pakistan and working at Pakistan Embassy. He was in
contact with accused on telephone number 9702556695 by telephone number 9654832784. The said telephone number was usedbyaccusedtocontactonlythisperson. Thephonenumber wasinthefictitiousnameofMithileshkumarandhewasalsonotin existence. DW2, wife of accused has admitted in her cross examinationthattherearefrequentcallsonhermobilefromsaid mobilenumber,butshewasnotknowingsaidnumberandperson andshehasstatedthatsaidmobilewasdeactivated,whichcreates doubt.Thesaidphonenumberwasdeactivatedafterthedeparture ofsaidpersonfromIndia. 108. As it is proved that accused was in possession of the
articles such as Photographs of Lonavala Dam, Pir Pau Jetty and telephone directory of Commands Headquarters, which are connected with the Defence Establishment, the offence under Section 3(1)(c) of the Officials Secrets Act is proved against the accusedandhence,IanswerPointNo.2inaffirmative. 109. The accused was in contact with person at Pakistan
Embassy by name Jamal Bhatti and Abdul Latif Bhatti who were fromPakistan,shallberelevantforthepurposeofprovingthathe has,forapurposeprejudicialtothesafetyorinterestoftheState obtained information, which is directly useful to an enemy and therefore,hehascommittedtheoffenceunderSection4ofOfficial SecretsAct. 110. Theaccusedhasattemptedtocommitthecommission
ofoffenceashewasinpossessionofthearticles,whichareuseful
forenemyandthereforehehascommittedanoffenceunderSection 9ofOfficialSecretsActandIanswerPointNo.3accordingly. 111. Though it is proved that he was in possession of
documents,which are prejudicial to thesafety of nation and has attemptedtocommittheoffenceundertheOfficialSecretsAct,itis not proved by the prosecution that the accused has hatched any conspiracywithwantedaccusedAbdulLatif@BhattiorJamalBhatti therefore,offenceunderSection120BofIPCisnotprovedagainst theaccused.Hence,IanswerPointNo.1innegative. 112. Inmyconsideredopinion,offenceunderSection3(1)(C),
4and9ofOfficial SecretsActisprovedagainsttheaccused.The offence under Section 120B of IPC is not proved against the accused.At this stage the dictation of judgment ispostponed for hearingofaccusedandadvocatesforboththesideonquantumof sentence. (V.V.Joshi) Addl.SessionsJudge, Gr.Bombay.
15/07/2013. 113.
Theaccusedismadeawareofthefactthattheoffence
under Sections 3(1)(C), 4 and 9 of Official Secrets Act is proved againsttheaccused.TheoffenceunderSection120BofIPCisnot provedagainsttheaccused.TheoffenceunderSections3(1)(C),4 and9ofOfficialSecretsActispunishablewiththesentenceupto14 yearsrigorousimprisonment.
114.
I heard the accused and his counsel on the point of
sentence.Thecounselfortheaccusedhasstatedthattheaccusedis ofyoungage. Heishavingsmallkids. Hisfamilyisattachedwith himandonechancemaybegiventohim.Asthisishisfirstcrime, the counsel for the accused has argued that the offence under Section3(1)(C)ofOfficialSecretsAct,twotypesofpunishmentsare provided.UndertheprovisionofSection3(1)(C)ofOfficialSecrets Act. IftheoffenceisconcernedwithDefenceEstablishmentthen upto 14 years and the offence is not concerned with Defence Establishmentisfor3years.Thecounselforaccusedhassubmitted thatthe photograph of LonavalaDamandPirPau Jettydoesnot comesundertheDefenceEstablishment.Thetelephonedirectoryis notproved.Therefore,theminimumpunishmentof3yearsmaybe imposedtotheaccused. 115. Learned SPP Shri Shetty has submitted that this is an
offenceagainstthenation. Theaccusedshouldbepunishedwith maximumpunishment,asnooneshoulddaretocommititagain, onlyforthesakeofmoney. 116. I heard both the counsels. As the offence is proved
against the accused, which is against the Defence Establishment. Consideringtheageofaccusedandattachmentofaccusedwithhis familyaswellasconsideringthenatureofoffenceandthefactsand circumstances and the manner, in which it has taken place, the following sentence would meet the ends of justice. Hence, the Order:
ORDER (1) Accused Javed Abdul Gafoor Mozawala ishereby
convictedunderSec.235(2)oftheCodeofCriminalProcedurefor theoffencepunishableunderSections3(1)(C)and4oftheOfficial Secrets Act, 1923 and he is sentenced to suffer rigorous imprisonmentfor7years. (2) TheaccusedisherebyconvictedunderSec.235(2) oftheCodeofCriminalProcedurefortheoffencepunishableunder Section 9of the Official Secrets Act, 1923 and heissentenced to sufferrigorousimprisonmentfor7years. (3) (4) Substantivesentencetorunconcurrently. The accused is hereby acquitted of the offence
punishableunderSection120BoftheIndianPenalCode,1860. (5) The accused has been under detention from
08.12.2010i.e.fortotalperiodof2years7months7daysduring investigation,inquiryandtrial.Therefore,setoffunderSec.428of theCodeofCriminalProceduretotheextentofperiodofdetention undergone by him as mentioned above against the term of imprisonmentimposedonisgrantedtotheaccused. (6) Muddemal property viz. Article1 Outer Cover,
Article3, Empty Envelope, Article4 (Colly.) Outer cover having marking Exh.2, Article5 (Colly.) xerox printed material having wording "Fifth Lesson" in all 8 pages, Article6 Empty Envelope (whereinArt5waskept),Article7OuterCoverhavingmarkingas
Exh.3,Article8(Colly.)PhotographsexcludingPhotographsatArt. 8A,8Band8C,Article9EmptyEnvelope(whereinArt8Colly.was kept), Article10 Outer Cover having marking as Exh.4, Article11 (Colly.)Twocertificatesissuedinthenameofaccusedforcourses, Article12 Empty Envelope (wherein Art11 Colly. was kept), Article13OuterCoverhavingmarkingasExh.5@Label,Exhibit14 (Colly.) 13 sets of Visa Applications, Article15 Empty Envelope (wherein Art.14 Colly. was kept) @ Label, Article16 Outer Cover havingmarkingExh.6,Article17(Colly.)TwoPassports,Article18 EmptyEnvelopeaffixedwithLabeldtd.8.12.2010,Article19,Empty EnvelopeaffixedwithLabledtd.15.12.2010,Article20OuterCover having marking Exh.7, Article21, Empty Envelope @ Label, Article23 Outer Cover having marking Exh8, Article24 Empty Envelope @ Label, Article28 Outer Cover having marking Exh.9, Article29EmptyEnvelope@Label,Article31OuterCoverhaving marking Exh.10, Article32 Empty Envelope @ Label, Article34 (Colly) Xerox copies of 6 passports (Page Nos.257 to 267 in Chargesheet),Article35XeroxCopiesof PassportatPageNo.255, Article36 Xerox Copies of Passport at Page No.269, Article38 (Colly.) Photographs of Lanavala Dam taken from Internet, Article50 Application at Page No.669 dtd. 20.12.2010, Article53 (Colly.) Xerox Copies of the Muster Roll, Article54Reply @ xerox copies of Muster Roll received from Haj Committee under RTI, Article55XeroxCopyofapplicationbyaccusedunderRTItoP.I.O.@ thereceiptofSpeedPost,Article57thedocumentwhichisreceived fromHajCommittee,Article58CertificateofCharteredAccountant, Article59 Xerox copy of application made by DW2 to
Commissioner of Police under RTI being worthless be destroyed afterappealperiodisover. (7) Article30 (Colly.) Four Compact Discs and
Article33OneFloppybepreservedtillappealperiodisover. (8) Article22 Pendrive, Article25 One LG Mobile
Handset,Article26OneMobileofBlackberryCo.andArticle27One MobileofNokiaCo.besentforauctionandsaleproceedthereofbe creditedtothetreasuryafterappealperiodisover. (9) Article2 (Colly.) Printed Material of 42 Pages is
markedasExh.102(Colly.),Article8APhotographNo.18ofSpillway SectionismarkedasExh.120,Article8BPhotographNo.10showing Spillway @ Dam is marked as Exh.145, Article8C Photograph at Sr.No.21 is marked as Exh.146, Article37 Letter dtd. 21.1.2011 is markedasExh.103,Article39XeroxCopyofPANCardofAccused and Visiting Card of PW16 (Mr. Abdul Hamid Noor Dhiyan) is marked at Exh.69, Article40 (Colly.) Xerox Copies of Call Detail ReportofMobileNo.9654832784inthenameofMithileshKumaris marked as Exh.94(Colly.),Article41 Printout of Naval Dockyard, Article41APhotographofLionGateArticle42PrintoutofDockyard and Naval Ships, Article43 Printout of INS Vajrabhau, Article44 PhotographofPirPauJetty,Article45PrintoutofPrivateTankFarm inMahulVillageneartoPirPauJetty,Article46Printoutshowing theareaofMumbaiPortTrust,Article51PhotographofLonavala Dam (Art.41 to Art.46 and Art.51 are marked as Exh.167 Colly.), Article47(Colly.)XeroxcopiesofCaseDiaryofCrimeNo.3/07of
BandraRly.P.Stn.ismarkedasExhibit90(Colly.),Article48(Colly.) ThreeletterscontaininginformationobtainedunderRTIregarding somephonenumbers,whicharerestrictedorclassifiedaremarked asExh.138andExh.139,Article49ApplicationatPageNo.639dtd. 8.3.2011 is marked as Exh.133, Article56 (Colly.) Extract (xerox copies) of Visitor's Register is marked as Exh.143. As all these articlesareexhibited,noordertothateffect. (10) Article52OneCameraofSonyCo.@MemoryCard depositedbyPW23InvestigatingOfficerShriAjayKhashabaSawant onsayofaccusedbereturnedtoPW23afterappealperiodisover. (11) CopyofJudgmentbegiventotheaccusedfreeof costs.
Date:15.07.2013 Judg.Dictatedon Transcribedon Signedon
:15/07/2013. :16/07/2013. :
(V.V.Joshi) Addl.SessionsJudge, Gr.Bombay.

Espionage Case Mumbai-Judgement

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1 OralJudgmentinS.C.No.

CORAM:HERHONOURTHEADDL.SESSIONSJUDGE, V.V.JOSHI (COURTROOMNO.29) DATED:15thJULY,2013. LearnedSPPShriShettyfortheState. LearnedAdvocateShriAbdulWahabKhanfortheaccused. ORALJUDGMENT 1. TheaccusedJavedAbdulGafoorMozawalaisfacingthe

Thebrieffactsoftheprosecutioncaseareasunder: The Police Sub Inspector Shri Rodrigues attached to

REASONS 7. To bring home the guilt against the accused, the

14. 15. 16. 17. 18. 19. 20. 21.

22. 23. 24.

The prosecution has also proved and relied on the

has received the information. He has categorically stated the procedureafterreceivingthesecretinformation.Ashereceivedthe

Byculla Police Station to register the FIR. Cognizance is already

accused brought on record that he made entry in respect of provisionsofIPCandnotunderOfficialSecretsActandtherefore,

aftercollectingtheopinionandaftergoingthroughtherecord,the UnionofIndiaauthorizedtheDCB(CID)tofilecomplaintagainst theaccusedonbehalfofGovernment. 22. PW21, DCPMr.NissarPirMohammedTamboliisthe

It is further argued that the FIR filed on record is

revealsthatsamepanchwitnessesarecalledbypoliceinconnection withpanchanamaatExhibit15. Thepanchawitnessisthepanch forSeizurepanchanamaandwheneveritrequiredtoopensaidseal, samepanchaswerecalled. 39. PW2hascategoricallystatedthattheirpersonalsearch

The prosecution has not explained, as to why the

Chaudhari, who has investigated the crime registered on the compliantofPW15.

evidencecannotbediscarded.Hehasadmittedthatthestatement wasreadovertohim,refreshingofmemoryispermissible.Hence, evidenceofthiswitnessisreliable.

Before receiving this information during the

evidenceofthiswitnessisnotadmissibleasitwasrecordedduring theinvestigationinpresenceofpolice. 60. Thoughitisthepartofinvestigation,thestatementof

addresswas54/B,HimaltonRoad,KashmiraGalli,Delhi. Thesaid addresswasnotinexistenceandthepersonwasalsonotfound. 62. TheCDRalsofollowedbythiswitnesstotraceoutthe

theyhavethreemajordams Walvan,ShirotaandLonvala. These threedamsfeedKhopoliPowerhouse.Shirotadamempounds198

thewaterinmonsoonperioditselfandinotherareastheyusethe waterthroughouttheyear.Heobservedthephotographwhichisat Article8Bisthephotographofdamduringthemonsoonperiod andspillwaysectionisaverycrucialpartofthedamespeciallyfrom thesecuritypointofview. 72. Article8Aiscloserphotographofspillwayisalsoavery

perceptioninthisarea. 76. OnephotographamongstArticle8isshowntohim.He

othernumbersareofrestrictednature.Theevidenceofallthethree expertwitnessesisconsistentandcogentandthereisnoreasonto disbelievetheexpertswitness. 89. Thedocuments,whichareseizedduringraidareproved

tobeclassifiedanddangeroustothesovereigntyofnation,ifplaced inthehandsofenemynation. 90. Thedefenceofaccusedisthatheisfalselyimplicatedin

same ground that he was taken on 7.12.2010 and was in illegal

It is alleged that police took signatures of accused on

Intelligence Operatives to gather intelligence information from variousestablishments. 105. TheanotherdocumentisphotographatArticle8A,8B

forenemyandthereforehehascommittedanoffenceunderSection 9ofOfficialSecretsActandIanswerPointNo.3accordingly. 111. Though it is proved that he was in possession of

I heard the accused and his counsel on the point of

ORDER (1) Accused Javed Abdul Gafoor Mozawala ishereby

punishableunderSection120BoftheIndianPenalCode,1860. (5) The accused has been under detention from

Article33OneFloppybepreservedtillappealperiodisover. (8) Article22 Pendrive, Article25 One LG Mobile

Handset,Article26OneMobileofBlackberryCo.andArticle27One MobileofNokiaCo.besentforauctionandsaleproceedthereofbe creditedtothetreasuryafterappealperiodisover. (9) Article2 (Colly.) Printed Material of 42 Pages is

Date:15.07.2013 Judg.Dictatedon Transcribedon Signedon

(V.V.Joshi) Addl.SessionsJudge, Gr.Bombay.

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