1. By way of this appeal, the appellant– State has challenged the judgment and order of the learned Addl. Sessions Judge, Vadodara(for short, ‘the trial Court’), Dated : 31.07.1997, rendered in Sessions Case No. 212 of 1993, whereby, the learned trial Court acquitted the original accused– the Respondents Nos. 1 to 4, herein, of the charge under Sections 3 and 9 of the Official Secrets Act, 1923 (‘the Act’, for short).
2. The brief facts of the case of the prosecution, as set out before the trial Court, are that while the original complainant, who was discharging duties as Sub-Inspector in CISF, was present on his duty at P.T.D. Gate of the IPCL, Ranoli, on 24.01.1995, he found that the accused Nos. 1 to 4-respondents, herein, were taking photographs of the plant. Hence, the accused were arrested and a complaint came to be lodged. On registration of the complaint, police carried out investigation and on finding sufficient evidence, a charge-sheet was filed against all the accused. At the time of trial, since, the accused did not plead guilty, the trial was conducted.
3. Before the trial Court, the prosecution, in support of its case, examined about six witnesses.
4. Apart from that the prosecution also produced several documents to strengthen its case, viz. the complaint, panchnama of place of offence etc..
5. After recording the evidence of the witnesses and perusing the material on record, the trial Court passed the impugned order. Hence, the present appeal.
6. Heard learned APP for the appellant–State as well as the learned Advocate for the original accused and perused the material on record with their assistance.
7. Having heard the learned APP for the appellant State and the learned Counsel for the original accused-Respondents, herein, this appeal requires to be allowed only on the ground that no test-identification parade was carried out so as to establish the involvement of the accused Nos.
1 to 4 in the alleged offence. Further, even the witnesses examined by the prosecution also failed to identify the accused persons before the Court.
8. Section 2(8)(c) of the Act, reads as under;
“2. … (8)(c) any place belonging to or used for the purpose of Government, which is for the time being declared by the Central Government, by notification in the Official Gazette, to be a prohibited place for the purpose of this Act on the ground that information with respect thereto, or damage thereto, would be useful to an enemy, and to which a copy of the notification in respect thereof has been affixed in English and in the vernacular of the locality.”
9. Ms. Mehta, therefore, took this Court through the notifications at Exhibits- 32 and 33 to show that the authorities have declared the place in question as a secret place. However, one glaring fact is missing. For understanding the meaning of the word ‘prohibited’, this Court has to go to the statement of objects and reasons. This is a very important matter, pertaining to the safety of the IPCL, as it then was, a government undertaking. The constitutionality was also under challenge, which has been upheld by the Apex Court in the year 1987. It would be relevant that construction of a section is to be for the purpose of act. In this case, we are concerned with safety of India, and therefore, accused were arraigned for the offence under the provisions of the Act. As according to the authorities concerned and the IO, the accused were attempting or planning the damage, it would be relevant to refer to Sections 3 and 9 of the Act with which the accused were charged, reads as under;
“3. Penalties for spying.-(i) If any person for any purpose prejudicial to the safety or interest of the State,-
(a) approaches, inspects, passes over or is in the vicinity of, or enters any prohibited place; or
(b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or
(c) obtains, collects, records or publishes or communicates to any other person any secret official code or password or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to any enemy; [or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign states;] he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval military or air force affairs of Government, or in relation to any secret official code, to fourteen years and in other cases to three years.
(2) On a prosecution for an offence punishable under this section [****] it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State; and if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or password is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State such sketch, plan, model, article, note, document, [information, code or password shall be presumed to have been made,] obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State.
XXX XXX XXX 9. Attempts, incitements, etc.- Any person who attempts to commit or abets the commission of an offence under this Act shall be punishable with the same punishment, and be liable to be proceeded against in the same manner as if he had committed such offence.”
10. The evidence, which has come on record, is very clear and this Court does not deem it necessary to discuss the same in detail, as the Apex Court in a catena of decisions has held that an appellate court has all the powers of review, re-appreciation of evidence and coming to its own decision. In this Case, going through the factual scenario, Ms. Mehta has strongly relied on the two notifications, Exhibits- 32 and 33. Ms. Mehta has submitted that once it is declared by any authority an area, as a protected area, it would fall within the purview of Section 2 (8)(c) of the Act. She, further, submitted that Section 2(8)(c) of the Act, rather the word ‘prohibited’ has been clearly mentioned. Therefore, the construction put on by the learned Judge on the said notification being not under the Act is bad in law. She has submitted, relying on notifications Exhibits- 32 and 33, that the learned Judge committed a grave error in considering those two documents not covered under Section 2(8)(c) of the Act. According to her, Sections 3 and 9 would come into play the moment, the accused were found taking photographs without any pass or permit. The trial proceeded on the just appreciation that the offence would fall under the provisions of the Act. However, no photographs have been recovered. If, the further statements of the accused are looked into, i.e. driver of the jeep, is one of total denial and he has said nothing in his defence. However, the accused have given their further written statement, Exhibit-30, stating therein that they are coming in and going out of IPCL time and again. They have also produced license that they are doing business in Bombay and that they are Industries, which is belonging to one of the accused, is given a bill, and therefore, also it is shown and their defence has also been considered by the trial Court. Thus, on the touchstone of the decisions of Apex Court, can it be said that the judgment is perverse and unreasonable and the answer, of course, is in negative. In above view of the matter, the decision relied on by Ms. Mehta in “MEHTA PRINTING INDUSTRIES VS. LEELADEVI”, 1990 ACJ 542, will not bring home the case against the accused persons, as no muddamal, no photographs, were recovered from the accused persons.
11. So far as the aspect of compensation is concerned, same does not arise, as the accused are acquitted being given them benefit of doubt.
12. In the result, this appeal fails and is DISMISSED. The judgment and order of the trial doubt. Bail bonds of the accused, if any, on bail, stands discharged. R & P be sent back to the concerned trial Court, forthwith.
UMESH (K.J.THAKER, J)