SAFI MOHD.versusSTATE OF RAJASTHAN

                     [2013] 6 S.C.R. 339

                        SAFI MOHD.                                 A
                               v.
                  STATE OF RAJASTHAN
            (Criminal Appeal No. 1954 of 2009)
                       APRIL 17, 2013
                                                                   B
          [CHANDRAMAULI KR. PRASAD AND
               V. GOPALA GOWDA, JJ.]

      Official Secrets Act, 1923 - s.3(1)(c) - Supply of secret
information pertaining to Indian Armed Forces to Pakistani         C
Intelligence - One blue colored diary and a trace map seized
on search of house of accused-appellant - Documents seized
could affect the integrity and security of India - Conviction of
appellant alongwith RI of seven years - Justification - Held:
Justified - Matters under the Official Secrets Act are very        D
sensitive which require immediate action - On facts, neither
the search conducted in the presence of the independent
witnesses nor the investigation made by the investigating
officer became defective for want of search warrant to conduct
search in the house of appellant - Merely because                  E
independent witnesses turned hostile, the other police
witnesses' evidence cannot be disbelieved - Trial judge came
to the right. conclusion by accepting the evidence of police
witnesses - Prosecution evidence made it clear that
documents of strategic importance to the Nation were               F
recovered from the possession of appellant and other
accused and they failed to give satisfactory explanation about
the documents being in their possession.

    The prosecution case was that the appellant used to
supply secret information pertaining to the Indian Armed G
Forces to the Pakistani Intelligence. On his house being
searched, a blue colored diary of the year 1982 and a
trace map Ex.D-3 were alleged to have been recovered.
There were in all 5 accused persons. The documents
                           339                           H
    340       SUPREME COURT REPORTS           [2013] 6 S.C.R.


A   recovered from the accused were sent to the Air Force
    Office'rs for their opinion, who informed that the said
    documents were useful to enemy country and affect the
    security of India. The appellant was convicted by the
    Sessions-<Judge under Section 3(1)(c) of the Official
B   Secrets Act, 1923 and sentenced to undergo seven years
    rigorous imprisonment. The conviction was confirmed by
    the High Court, and therefore the present appeal.
          Dismissing the appeal, the Court
c        HELD: 1.1. After referring to the evidence of the PW-
    22 and PW-24 the search of the house of the appellant
    and seizure of certain documents along with diary
    particularly Ex D-3, handwritten map prepared with
    certain markings, it has proved the prosecution case. No
0   doubt the. independent witnesses have turned hostile,
    but the sessions judge has rightly accepted the
    testimony of the police witnesses after proper
    appreciation of their evidence to prove the seizure of the
    documents from the house of the appellant. (Para 20]
E   (355-H; 356-A-C]
      1.2. The matters under the Official Secrets Act are
  very sensitive which required immediate action. The
  search and seizure of Army documents from the house
  of the appellant for the offences alleged against the
F appellant under the provisions of the Act are very
  sensitive and pertains to the integrity and security of the
  co1;mtry. In view of the above fact, neither the search
  conducted in the presence of the independent witnesses
  not the investigation made by the investigating officer
G becomes defective for want of search warrant to conduct
  the search in the house of the appellant. (Para 21] [356-
    D, E-G]
      1.3. The finding recorded by both the courts below
  regarding search and seizure of the documents which
H affect the integrity and security of the country is the
      SAFI MOHD. v. STATE OF RAJASTHAN              341


concurrent finding of fact rightly recorded by the High A
Court after proper appreciation and appraisal of the
evidence on record. The same cannot be interfered with
by this Court in exercise of its jurisdiction. Even if the
search is made by the Investigating Officer in illegal
manner, the same does not affect the legality of the B
search and investigation made by the Investigating
Officer with regard to the seizure of the documents from
the house of the appellant. From the evidence produced
by the prosecution in the case in hand, it is clear that the
documents of strategic importance to the Nation have c
been recovered from the possession of the appellant and
other accused and they have failed to give satisfactory
explanation about the documents being in their
possession. [Para 22] [357-C-F]
     1.4. Recovery of Ex. D-3 from the house of appellant D
is proved by the prosecution is the finding of fact which
is accepted by the High Court based on recovery memo
Ex.P-28. The independent witness to prove the memo is
PW-2, besides, the evidence of the said witness, PW-5
who has stated in his evidence that Ex. D-3 was E
recovered from the quarter of the appellant. PW-7 ASM
of Parihari Railway Station stated that the appellant was
allotted a railway quarter and he had moved to this house
with his family in 1989. In the said quarter the search was
conducted by the Investigating Officer and certain F
documents were seized including Ex.D-3 from
possession of the appellant is the finding of fact recorded
by the trial judge which is rightly concurred with by the
High Court after re-appreciation of evidence on record in
the appeal filed by the appellant. [Paras 23, 24] [357-H; G
358-E-F]
    1.5. The sessions judge being the trial judge is
competent to appreciate the evidence and had the
opportunity to observe demeanour of the witnesses who
have deposed before him to prove the prosecution case. H
    342     SUPREME COURT REPORTS              [2013] 6 S.C.R.


A Merely because the independent witnesses have turned
  hostile, the other police witnesses' evidence cannot be
  disbelieved. The trial judge has come to the right
  conclusion by accepting the evidence of police witnesses
  PW-21,, PW-22 with regard to the conduct of the search
B and seizure of documents from the house of the appellant
  and recorded the finding to this effect by assigning valid
  and cogent reasons in his judgment. He has rightly come
  to the conclusion on the fact while recording the finding
  on the charge on the basis of evidence of PW-27 and PW-
C 32 who have opined that if the said document and
  infor!Tlation contained therein is made available to the
  Pakistani officials it will be dangerous to the integrity and
  security of the Nation. [Para 26] [359-8-E]
         1.6. The contentions urged by the appellant that PW-
D   27 and PW-32 are not expert witnesses in terms of Section
    45 o,f the Evidence Act are mis-placed. The finding and
    reas,ons recorded by the sessions judge on the charge
    framed against the appellant has been re-examined by the
    High Court by applying its mind consciously and concurred
E   with the said finding of fact by assigning valid reasons.
    Therefore, the same cannot be termed erroneous in law.
    [Para 27] [359-F, G-H; 360-A]
        Sama Alana Abdulla Vs. State of Gujarat AIR 1996 SC
    569: 1995 (5) Suppl. SCR 279 - relied on.
F
       Pratap Singh Vs. State of M.P. 2005 (13) SCC 624: 2005
  (5) Suppl. SCR 439; Mukhtiar Ahmed Vs. State (NCT of
  De/hi) 2005 (5) SCC 258: 2005 (3) SCR 797; Raja Ram Vs.
  State of Rajasthan (2005) 5 SCC 272; State of Himachal
  Pradesh Vs. Jai Lal and Ors. (1999) 7 SCC 280: 1999 (2)
G Suppl. SCR 318; Ramesh Chandra Agarwal Vs. Regency
  Hospital Limited (2009) 9 SCC 709: 2009 (14) SCR 424;
  Padam Vs. State of U.P. 2000 (1) SCC 621: 1999 (5) Suppl.
  SCR 59 and Prasad @ Harl Prasad Acharya Vs. State of
  Kamataka 2009 (3) SCC 174: 2009 (1) SCR 1089 - referred
H ta.
       SAFI MOHD. v. STATE OF RAJASTHAN                  343


                    Case Law Reference:                         A
    2005 (5) Suppl. SCR 439       referred to      Para 4
    2005 (3) SCR 797              referred to      Para 6
    (2005) 5 sec 212              referred to      Para 6
                                                                s
    1999 (2) Suppl. SCR 318       referred to      Para 13
    2009 (14) SCR 424             referred to      Para 13
    1999 (5) Suppl. SCR 59        referred to      Para 14
                                                                c
    2009 (1) SCR 1089             referred to      Para 14
    1995 (5) Suppl. SCR 279       relied on        Para 22
    CRIMINAL APPELLATE JURISDICTION: Criminal Apeal
No. 1954 of 2009.                                               D
    From the Judgment and Order dated 29.05.2009 of the
High Court of Rajasthan at Jaipur in S.S. Criminal Appeal No.
314 of 2004.

   Sushil Kumar Jain, H.D. Thanvi, Rishi Matoliya, Sarad        E
Kumar Singhania for the Appellant.

    Shovan Mishra, Milind Kumar for the Respondent.

    The Judgment of the Court was delivered by
                                                                F
     V. GOPALA GOWDA, J. 1. This appeal is filed by the
appellant questioning the correctness of the judgment dated
29th May, 2009 passed by the High Court of Rajasthan at
Jaipur in S.S. Criminal Appeal No. 314 of 2004 in confirming
the judgment dated 9th March, 2004 of the sessions judge, G
Jaipur City, Jaipur in Sessions Case No. 196 of 1992 wherein
this appellant along with the others were convicted under
Section 3(1 )(c)of the Official Secrets Act, 1923 (hereinafter
referred to as 'the Act') and was sentenced to undergo seven
years rigorous imprisonment.                                   H
    344     SUPREME COURT REPORTS                  [2013] 6 S.C.R.


A       2. For the purpose of considering the rival legal contentions
    urged in this appeal and with a view to find out whether this
    Court is required to interfere with the impugned judgment of the
    High Court, the necessary facts are briefly stated hereunder:

        On 6th March, 1990, Bhoormal Jain, Superintendent of
8
  Police CID Zone, Jodhpur lodged an FIR for the offences
  punishable under Sections 3, 319 of the Act read with Section
  120•8 IPC with the Special Police Station Rajasthan, Jaipur
  numbered as FIR No.1/1990 against the accused Mohd. lshfaq
  who was found roaming in suspicious circumstances in the Air
C For:ce Area and was arrested on 07.03.1990. On interrogation,
  he stated that the appellant Safi Mohd. used to supply secret
  information to the Pakistani Intelligence and had handed over
  Rs.6500/- to him for working for Pak Intelligence Agency. On
  08.03.1990, the appellant was arrested from his Railway
D Quarters by the CID Police and on his house being searched,
  a blue colored diary of the year 1982 and a trace map Ex. D-3
  W!lre alleged to have been recovered. Later on, on further
  disclosure by the accused No.1, accused No. 3 - Chotu Khan
  and accused No. 4 - Chand Khan were arrested. On
E 1;1.04.1990, the other accused Mohd. Safi, Accused No.5, was
  also arrested. The documents recovered from the accused were
  sent to the Air Force Officers for their opinion, who informed
  that the said documents were useful to enemy country and affect
  the security of India. After completion of investigation of the
F case the charge-sheet was filed before the committal court by
  jhe Investigating Officer.

      3. On 26.07 .1994, charges were framed against the 5
  accused persons but all of them pleaded not guilty. The
G appellant was charged under Section 3 read with Section 9
  and 5 of the Act. The learned Sessions Judge after trial
  convicted the appellant u/s 3 (1) (c) of the Act by order dated
  09.03.2004.

       4. Learned counsel for the appellant Mr. Sushil Kumar Jain
H   submits that the conviction of the appellant based on the
         SAFI MOHD. v. STATE OF RAJASTHAN                     345
               [V. GOPALA GOWDA, J.]
recovery of Ex.D-3 from the house of appellant is doubtful.           A
Further, he submits that the conviction based on the experts
opinion of Col S.K. Sareen (PW-27) and Wing Commander
Alok Kumar (PW-32) on documents Ex. P-33 and P-34
respectively is not in favour of the prosecution. Therefore, the
conviction of the appellant based on their evidence rendered          B
the concurrent finding erroneous in law. Hence, the same is
liable to be set aside. Further, he contends that the conviction
of the appellant based on the recovery or possession of a trace
Map Ex.D-3, which is a rough sketch map under Section 3 (1)
(c) of the Act is not tenable in law. In so far as the recovery of    c
the document Ex.D-3 from the quarters of appellant is
concerned, it is contended by the learned counsel for the
appellant tharthe said document as per recovery memo. Ex.P-
22 said to have been recovered by Suresh Kumar (PW-22) is
attested by two witnesses Bhoop Singh and Urned Singh.                D
Bhoop Singh has been declared hostile and Urned Singh, the
other attesting witness has not been examined in the case.
Ex.P-22 was not put to the witness Shoop Singh in his cross-
examination by the prosecution. The prosecution has relied
upon the said document solely on the statement of evidence
                                                                      E
of the investigating officer Yad Ram Tiwari PW-24 and Suresh
Kumar PWc22. He submits that on account of non-examination
of Urned Singh in the case, the attesting witness to the memo
for recovery of the documents from the house of the appellant,
both the learned sessions judge as well as the High Court
should have drawn adverse inference against the prosecution           F
stating that search and seizure of Ex.D-3 as per recovery
memo was not from the house of the appellant. The learned
counsel in support of the above said submission has placed
reliance upon the decision of this Coi.rt in Pratap Singh Vs.
State of M.P. 1• In the said case it is observed by this Court that   G
non examination of witnesses by the Investigating Officer who
are material for the purpose of proving the prosecution case,
who are independent witnesses and whose statements have
 not been recorded though it is the duty of the investigating
1.   2oos (13) sec 624.                                               H
    346        SUPREME COURT REPORTS                [2013] 6 S.C.R.


A officer to produce such statements along with the charge sheet
  in the Court, if, the same lias not been done by the prosecution,
  the benefit of doubt must be given to the defence and not to
  the prosecution.

B        5. Further, he submits that in the above referred case this
    Court held that the High Court committed serious error in not
    drawirig adverse inference for non examination of the seizure
    witne$ses in the peculiar facts and circumstances of the case.

        6. Further learned counsel for the appellant submitted that
C the prosecution case with regard to the recovery of Ex.D-3 from
  the house of the appellant is falsified by the evidence of Om
  Prakash Rathi (PW-2) the only attesting witness examined with
  regard to the search of Rathi Guest House wherefrom Mohd.
  Safi was arrested with documents. This fact is established from
D the cross-examination of PW-2 who is the owner of the Rathi
  Guest House, who has admitted in his statement that "Map
  Ex.0-3 was recovered from the said accused along with other
  papers." The learned counsel for the appellant has further
  placed reliance upon the judgment of this Court in Mukhtiar
E Ahmed Vs. State (NCT of Delhi)2 that if the prosecution has
  examined its witness and declared him hostile as he did not
  support the prosecution case but on the other hand he had
  supported the defence then it can. rely on such evidence. Further,
  the learned counsel placed reliance on another judgment of this
F Court in the case of Raja Ram Vs. State of Rajasthan 3 in
  support of the case of the appellant that the sole testimony of
  the prosecution witness making the deceased believe that
  unless she puts the blame on the appellant and his parents she
  would have to face the consequences like prosecution
G proceedings. It did not occur to the public prosecutor in the trial
  court to seek permission from the court to declare PW-8 as a
  hostile witness, for the reasons known to him. Now, as it is, the
  evidence of PW-8 is binding on the prosecution.
    2.   2005 (5) sec 258 at paras 29-30.
H 3c (2005) 5 sec 272 at para 9.
       SAFI MOHD. v. STATE OF RAJASTHAN                      347
             [V. GOPALA GOWDA, J.]
     7. The learned counsel also submits that the observations A
made by this Court in the above cases are also applicable to
the fact situation of the case in hand wherein evidence of PW-
2 who is attesting witness to Ex. P-22 recovery Memo, it is
mentioned that Ex. 0-3 was recovered from the Rathi Guest
House. Therefore, he contends that the same is not recovered B
from the house of the appellant as alleged. Further, learned
counsel submits that it is a well settled principle of law that the
defence is not required to establish its case but is only required
to establish preponderance of probabilities of the case for
consideration of the Court. The defence of the appellant in this     c
case was that Ex.D-3 was recovered from Rathi Guest House
is probable. Further the statements of PW-22 and PW-24, the
police witnesses are interested witnesses who are interested
in showing success of the raid and to support the prosecution
case and therefore the courts below should not have placed D
reliance upon their testimony to convict the appellant.

     8. PW-22 is not the witness of recovery of Ex.D-3 the trace
Map as per recovery memo Ex.P-22. This fact is admitted by
him in his cross examination and also, he is not the signatory
to Ex.P-22. The conscious possession or knowledge of the E
document Ex. D-3 by this appellant is found in the diary of the
appellant, this fact as alleged by the prosecution is not
established and the prosecution has also not established that
the diary belonged to the appellant. The document could have ·
come to the house of the appellant by any unknown reason and F
unless specific knowledge of the appellant regarding
possession of the document Ex. D-3 is proved, its recovery
from the house of the appellant should not have been treated
sufficient by the courts below for holding that the appellant
consciously possessed the same.                                  G

    9. Another ground of submission made by the learned
counsel for the appellant is the experts' opinion of the witnesses
PW-27 and PW-32, who have rendered their opinion as per
Ex.P-34 and Ex.P-35, stating that document Ex. D-3 is just a
                                                                     H
    348       SUPREME COURT REPORTS                      [2013] 6 S.C.R.


A   sketch which could not be of any help to the enemy country as
    it dOElS not denote anything. The learned counsel for the
    appellant has further submitted that the prosecution has failed
    to establish that any site or road denoted in the sketch Map is
    in existence.
B
         10. The learned counsel for the appellant has placed
    strong reliance on the experts' opinion Ex.P-34 and Ex.P-35,
    relevant portion of which reads thus:

          Ex.P-34:
c
          "Rough sketch of area showing the location of Blind: This
          area is not part of the Air Force range. It is part of the Army
          rangto and falls under the jurisdiction of Stn. HQ Pokharan."

          Ex.P-35:
D
          "It has no significance from counter intelligence point of
          view."

         The opinion expressed by PW-27 in Ex.P-35 establishes
E   the fact that Ex.D-3 has no importance from the point of view
    of Army.

          11. Further, his opinion on Ex. P-4 and Ex.P-5 reads thus:

          "For example Ex.P-4 and Ex.P-5 parking place for
F         airplanes, Hangar, Air Traffic control, inform the Radars
          etc. on this basis if Pakistan wishes to finish them by Air
          attack, then it will be easier for it, it will get straight win in
          ground attack. In this way, the Chart of mountain division
          referred in Ex.P-32, from this the enemy will get clear
G         information of numbers of Brigade, numbers of vehicle and
          Arms and quality of Arms and their numbers. On this basis
          they will get help of defence in case India attacks and if
          they want to attack, then they will get great help in
          preparation."
H
         SAFI MOHD. v. STATE OF RAJASTHAN                      349
               [V. GOPALA GOWDA, J.]
     12. It is further contended by the learned counsel that since     A
n.either of the witnesses PW-27 and PW-32 are expert
witnesses within the meaning of Section 45 of the Evidence Act
to give their expert opinion on Ex.D-3 sketch Map, reliance
cannot be placed upon their opinion or evidence to convict the
appellant. Therefore, the learned counsel for the appellant            B
submits that their opinion being outside the sphere of the
alleged expertise, the same is of no significance. Hence, the
same could not have been relied upon by the court to convict
the appellant. PW-27 cannot be held to be a competent person
to give expert opinion on the seized document Ex-D3.                   c
    Further, it is urged that both the witnesses were never
posted and worked in that area. Therefore, they neither had the
knowledge of the area nor did they visit the area as is evident
from their statement of evidence on record.
                                                                       D
     . In this regard, he has placed reliance upon the evidence
 elicited in the cross-examination of PW-27 who has
\categorically admitted the same. So also PW-32 with reference
 to Ex.P-4 and Ex.P-5 has stated as above. Therefore the
 statement of evidence given by said witnesses in the case             E
 could not have been placed reliance upon by both the trial court
 and the High Court to record a finding that the appellant is guilty
 of the offence punishable under Section 3 (1) {c) of the Act and
 to convict and sentence him.

      13. The learned counsel has placed reliance upon the F
judgment of this court in the case of State of Himachal Pradesh
 Vs. Jai Lal and Ors.• and also another judgment of this court
in Ramesh Chandra Agarwal Vs. Regency Hospital Limited5
in support of the legal contention that the above said witnesses
viz. PW-27 a!ld PW-32 are not expert witnesses to render their G
expert opinion on Ex.-D3. The relevant paragraphs of the
judgment of State of Himachal Pradesh Vs. Jai Lal and Ors.

4.   (1999) 7 sec 2ao.
5.   (2009) 9 sec 709.                                                 H
    350       SUPREME COURT REPORTS                  [2013] 6 S.C.R.


A   case (supra) are extracted hereunder:

           "13. An expert witness is one who has made the subject
           upon which he speaks a matter of particular study,
           p~actice, or observation; and he must have a special
          knowledge of the subject. Shri P.C. Panwar in his
B
          evidence has stated that he passed B.Sc. (Agriculture)
           Honours from the University of Delhi in 1959; thereafter he
          did his M.Sc. (Horticulture) in 1967 from Punjab University.
          He joined the Agricultural Department in the year 1969 as
          a Research Assistant; he was promoted as Horticulture
c         Development Officer in the year 1973 and at the time of
          ~he assessment he was working as District Horticulture
          Officer, Shimla. He has also stated that in the year 1986
          he attended a 3 months' training course on apple
          technology in the University of Tasmania, Australia. The
D         assessment in the orchards in question were· made on
          different dates in November 1984. He has fairly accepted
          the suggestion that he had not received any training with
          respect to assessment of apple crop but that has been a
          part of his job. The witness could not state the number of
E         scab cases in which he had been called upon to make
          assessment. He has specifically stated in the case against
          Jai Lal and others that that was his first and last
          assignment till date as a commission for assessing
          productivity of an apple orchard.
F

          17. Section 45 of the Evidence Act which makes opinion
          of experts admissible lays down that when the court has
          to form an opinion upon a point of foreign law, or of
G         science, or art, or as to identity of handwriting or finger
          impressions, the opinions upon that point of persons
          specially skilled in such foreign law, science or art, or in
          questions as to identity of handwriting, or finger
          impressions are relevant facts. Therefore, in order to bring
H         the evidence of a witness as that of an expert it has to be
       SAFI MOHD. v. STATE OF RAJASTHAN                        351
             [V. GOPALA GOWDA, J.]
    shown that he has made a special study of the subject or A
    acquired a special experience therein or in other words
    that he is skilled and has adequate knowledge of the
    subject.

    18. An expert is not a witness of fact. His evidence is really
                                                                   8
    of an advisory character. The duty of an expert witness is
    to furnish the Judge with the necessary scientific criteria
    for testing the accuracy of the conclusions so as to enable
    the Judge to form his independent judgment by the
    application of this criterion to the facts proved by the
    evidence of the case. The scientific opinion evidence, if C
    intelligible, convincing and tested becomes a factor and
    often an important factor for consideration along with the
    other evidence of the case. The credibility of such a
    witness depends on the reasons stated in support of his
    conclusions and the data and material furnished which form D
    the basis of his conclusions."

    Further, on the subject, this Court, in Ramesh Chandra
Agrawal's case (supra) held as under:
                                                                       E
    "19. It is not the province of the expert to act as Judge or
    Jury. It is stated in Titli v. Alfred Robert Jones that the real
    function of the expert is to put before the court all the
    materials, together with reasons which induce him to come
    to the conclusion, so that the court, although not an expert,      F
    may form its own judgment by its own observation of those
    materials."

     In view of the decision in State of Himachal Pradesh Vs.
Jai Lal and Ors. (supra) both the witnesses PW-27 and PW-
32 do not fulfil three criteria held to be necessary for G
considering a person expert.

     14. Learned counsel further contends that the conviction
of the appellant and the concurrent finding of fact recorded by
the High Court is ex-facie bad in law as none of the above legal H
    352       SUPREME COURT REPORTS                 [2013] 6 S.C.R.


A   aspects have been carefully examined by it and answered
    while c0ncurring with the finding of the trial court on the charge
    against the appellant. Further he submits that after careful
    examination and analyzing the evidence of prosecution
    witnesses namely, PW-2, PW-27, PW-32 and also. placing
B   reliance upon the evidence of witnesses namely PW-22 and
    PW-24 who are the police witnesses and the conviction of the
    appellant for the offence under Section 3(1) (c) of the Act and
    sentencing him to undergo seven years imprisonment is an
    erroneous finding and therefore the same cannot be allowed
c   to sustain. The same is contrary to the judgment of this Court
    in the case of Padam Vs. State of U.P. 6 The learned counsel
    also placed reliance upon another judgment of this court in the
    case of Prasad @ Hari Prasad Acharya Vs. State of
    Karnataka 7 •

D        The learned counsel with reference to the legal position
    laid <jown by this Court in the above cases submits that the
    concurrent finding of fact recorded by the High Court on the
    char~e without proper appreciation of evidence on record has
    rendered the findings erroneous in law. Further, the High Court -
E   has erred in law in affirming the conviction and sentence of the
    appellant. The same is wholly unsustainable in law and is
    therefore, liable to be set aside by allowing this appeal and
    acquit the appellant from the charge levelled against him under
    Section 3(1)(c) of the Act.
F
         15. On the other hand, learned counsel for the respondent
    State has sought to justify that the concurrent findings of fact
    has been recorded by the High Court by consciously applying
    its mind to the prosecution case and the legal evidence on
G   record by the court particularly the evidence of PW-1, PW-11,
    PW-16, PW-19, PW-20, PW-22, PW-24, PW-27 and PW-32.
    He contends that after examining the correctness of the findings
    recorded by the learned sessions judge on the charge levelled
    6.   2000 c1> sec 621.
H   7.   2009 (3) sec 174.
         SAFI MOHD. v. STATE OF RAJASTHAN                     353
               [V. GOPALA GOWDA. J.]
  against the appellant, the High Court has rightly concurred with A
  the findings bf fact which are recorded in the impugned
  judgment and it was of the opinion that the conviction of the
  appellant under Section 3 read with Section 9 of the Act is 14
  years maximum sentence. The learned sessions judge after
  considering the fact that the alleged offence is of the year 1990 B
  sentenced the appellant for seven years rigorous imprisonment
  along with other accused persons. Correctness of the same is
  examined by the High Court and it has opined that in such type
  of heinous offences, imposition of sentence for seven years
  rigorous imprisonment upon the accused is held to be legal,        c
  valid, just and proper and therefore, it did not interfere with the
· same. The High Court has rightly concurred with the findings of
  fact of the trial court by assigning its reasons and therefore no
  remission should be given to them, particularly when they were
  caught spying and putting the country as a whole in danger. D
  Therefore, the dismissal of the appeal of the appellant along with
  other appellants by the High Court is perfectly justified in law.
  The same does not call for interference by this Court in exercise
  of this Court's jurisdiction. Hence, he has prayed for dismissal
  of the same.
                                                                      E
      16. With reference to the above referred rival legal
 contentions urged on behalf of the parties we have carefully
 examined the correctness of the findings recorded in the
 impugned judgment passed by the learned sessions judge in
 Case No. 196 of 1992 and the concurrent findings recorded by F
 the High Court in confirming the conviction and sentence of the
 appellant. With a view to find out as to whether the said
 concurrent findings are erroneous or error in law, we have
 carefully perused the evidence of PW-12, PW-13, PW-14, PW-
 15 and PW-17 who have deposed against the appellant to G
 answer the above point which arose for our consideration.

     17. The learned sessions judge has rightly placed reliance
 upon the evidence of Sher Singh, PW-18 who is a search
 witness who has witnessed the search of the house of the
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    354      SUPREME COURT REPORTS                 (2013] 6 S.C.R.


A   appellant and who has also turned hostile. PW-21, Dr. T.S.
    Kapur has stated that he has received the documents relating
    to this1 case from the CID Security and the original copy is Ex.
    P-36. The disputed documents along with letter are marked as
    Exbts. Q-1 to Q-9. Sample writings have been marked as A-1
    to A-52 which· have been exhibited as Ex.P-44 to P-82 which
8
    have been scientifically examined and thereafter a report Ex.
    P-83 was prepared stating that the disputed writings marked
    as Q.1 to Q-4 and Q-9 show very significant similarities with
    the specimen writings marked as A-1 to A-52.

C       Along with this, a written slip, article 2 - a map traced by
  hand was recovered from the house of Safi Mohd. in which
  railway tracks and roads are depicted, the signs of directions
  shown on a paper having lines, an advertisement of Air Force,
  Hindi Sainik Newspaper and Army Weekly, Prohibited Chart
D of Mountain organization division were recovered from Chotu
  Khan and were sent for opinion as to whether the said
  documents and the information contained therein are threat to
  the security of the country or not. He has further stated that a
  letter in English Ex P-33 relating to the above stated documents
E were sent to the headquarters of IAF Commandant Jodhpur.
  Ex;P-33 bears the signature, the reply of which is Ex.P-34.

       18. PW-24 Yad Ram Tiwari, who was posted as SHO,
  Special Police Station, Rajasthan, Jaipur, has spoken about
F the receipt of the report from SP CID Zone Jodhpur through
  Constable Navneet Kumar and on the basis of which he has
  recorded FIR No.1/90 under Sections 3,5 and 9 of the A.ct and
  Section 120-B of IPC. Along with the report, Ex.P-1 some other
  secret documents were recovered vide recovery memo. He has
  stated in his evidence that he took the search of the house of
G Safi Mohd. at Jetha Chanana Railway Quarter where one blue
  cploured diary was recovered from the almirah of the appellant
  marked as article 3. One traced map was also recovered from
  the diary in which Pokhran, Jaisalmer, Devra Village, roads and
  railway track details were given. The map is marked as Ex. D-
H 3. He has identified the appellant Safi Mohd. The search
       SAFI MOHD. v. STATE OF RAJASTHAN                      355
             [V. GOPALA GOWDA, J.]
recovery memo is marked as Ex.P-28. He has also spoken A
about the addresses of Pakistani officials mentioned in the
diary at pages 11, 13, and 21. The said witness has also
spoken about the search of the house of the appellant, which
was made in the presence of Khurshid and Sher Singh and the
articles were seized such as (a) passport of Safi Mohd. as s
article 4, (b) Passport of Nazima Sano as article 5, (c) marriage
card of Safi Mohd. as article 6, (d) passbook of Safi Mohd. as
article 7, and (e) Card Shadi Mubarak article 8, vide search
memo marked as Ex. P-28.

     19. In the deposition Colonel S.K. Saren PW-27 has stated       C
that along with Ex.P-3 original map, the letter referred in Ex.P-
35 and th.e photocopies of Ex.P-4, Ex.P-5, Ex.D-3, Ex. P-32,
P-31, P-27 were obtained and his opinion with reference to the
above said documents was sought as to whether the
information mentioned in the said documents if reaches the           D
Pakistani officials, would be useful to them and would adversely
affect the security of India. He has stated in his deposition in
the affirmative that if the above mentioned documents reach the
Pakistani officials the same may be useful to them as they can
work out the strategy to attack India. He further opined that on     E
the basis of information available in the said documents if
Pakistan wants to destroy the country by air attack it would
become easier. The witness PW-32 Wing commander Alok
Kumar has also stated in his evidence before the trial court that
he was posted as Intelligence Officer Headquarters South             F
Western Air Command, Indian Air Force, Jodhpur. He gave his
opinion that Ex.D-3 six digits sketch shows the accuracy to
pinpoint a target which is very important and accurate on the
basis of which the country's security can be destroyed. He has
spoken about the red arrow in Ex D-3 which is a grid reference       G
to the special point. According to him the said document is a
very important document from the point of view of Army.

     20. After referring to the evidence of the PW-22 and PW-
24 the search of the house of the appellant and seizure of certain
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    356       SUPREME COURT REPORTS                [2013] 6 S.C.R.


A   documents along with diary particularly Ex D-3, handwritten
    map· prepared with certain markings, it has proved the
    prosecution case. No doubt the independent witnesses have
    turned hostile, but the learned sessions judge has rightly
    accepted the testimony of the police witnesses after proper
B   appreciation of their evidence and he has rightly placed
    reliani;:e upon the police witnesses to prove the seizure of the
    documents from the house of the appellant and therefore the
    same cannot be held to be bad in law as contended by the
    learned counsel for the appellant.
c         ~1. Further, the learned sessions judge has rightly
  accepted the testimony of the witnesses to prove the recovery
  of documents by assigning reasons and therefore the same
  cannot be rejected merely on the ground that they are police -
  officials who are members of raiding party and that the matters
D under the Official Secrets Act are very sensitive which required
  immediate action. In these circumstances, the investigation
  does not become defective as contended by the learned
  counsel for the defence for the reason that the search warrant
  was not obtained and the recovery of documents and articles
E from the appellant's house could not be rejected. The search
  and seizure of Army documents from the house of the appellant .
  for the offences alleged against the appellant under the
  prowisions of the Act are very sensitive and pertains to the
  integrity and security of the country. In view of the above fact,
F neither the search conducted in the presence of the
  independent witnesses nor the investigation made by the
  investigating officer becomes defective for want of search
  warrant to conduct the search in the house of the appellant as
  urged by the appellant's counsel.
G
         22. The learned public prosecutor has rightly placed
    reliance on the decision of this Court in Sama Alana Abdulla
     Vs. State of Gujarat". In the said decision this court lays down
    the legal principle that merely because the police witnesses
H   8.   AIR 1996 SC 569.
        SAFI MOHD. v. STATE OF RAJASTHAN                      357
              [V. GOPALA GOWDA, J.]
 have spoken about the search and the seizure of documents            A
 from the custody of the appellant, their version cannot be
 disbelieved as the independent witnesses have not supported
 the search and the seizure of the documents. The observations
 made by this Court in the above referred case are applied to
 the facts of the case in hand to accept the proof of search and      B
  seizure of the documents from the house of the appellant which
  are very important and sensitive for the integrity and security
  of the Nation. The said conclusions arrived at by the learned
  sessions judge and concurrence of the same by the High Court
  cannot be termed as erroneous in law as contended by learned        c
  counsel on behalf of the appellant. Therefore, the finding
  recorded by both the courts below regarding search and seizure
  of the documents which affect the integrity and security of the
: country is the concurrent finding of fact rightly recorded by the
  High Court after proper appreciation and appraisal of the           0
  evidence on record. The same cannot be interfered with by this
  Court in exercise of its jurisdiction. Even if the search is made
  by the Investigating Officer in illegal manner, the same does not
  affect the legality of the search and investigation made by the
  Investigating Officer with regard to the seizure of the documents
                                                                      E
  from the house of the appellant in view of the law laid down by
  this Court in the above case. From the evidence produced by
  the prosecution in the case in hand, it is clear that the
  documents of strategic importance to the Nation have been
  recovered from the possession of the appellant and other
  accused and they have failed to. give satisfactory explanation      F
  about the documents being in their possession.

     23. The learned sessions judge has rightly disbelieved the
contentions urged on behalf of the appellant that Ex. D-3 was
recovered from the possession of the accused Mohd. lshfaq             G
as stated by the prosecution witness Om Prakash PW-2 the
owner of the Guest House. Recovery of the said document from
the house of Safi Mohd. is proved by the prosecution is the
finding of fact which is accepted by the High Court based on
recovery memo Ex.P-28. The independent witness to prove the           H
    358      SUPREME COURT REPORTS                   [2013] 6 S.C.R.


A   memo is one Om Prakash Rathi PW-2, besides, the evidence
    of the said witness, Ram Dass Rathi PW-5 who has stated in
    his e\lidence that Ex. D-3 was recovered from the Railway
    quarter of Safi Mohd. the appellant herein ..

          24. Om Prakash Rathi PW-2 has clearly stated in his
8
    statement that he had read the memo Ex.P-22 before putting
    his signature from A to 8. Non-mentioning of Ex. 0-3 belies his
    evidence that D-3 was recovered from Mohd lshfaq from the
    guest house. PW-5 and PW-6 the other recovery witnesses
C   have not stated in their evidence with certainty that Ex 0-3 was
    recovered from the possession of the Mohd. lshfaq from his
    bag. Further, he has spoken about recovery of the document
    mentioning Ex.0-3 recovery memo which was prepared in his
    presence and the police sealed the recovery documents. In view
    of the aforesaid statement of evidence of the above witnesses
D   the evidence of PW-2, the contention that Ex.0-3 map was
    recovered from the possession of Mohd. lshfaq was rightly
    rejected by the learned sessions judge and the High Court.
    Apart from the said findings, the prosecution witness PW-7
    ASM of Parihari Railway Station has stated that the house of
E   ASM Safi Mohd. is not at Jetha Chanana. He was allotted a
    railway quarter and ASM Safi Mohd. had moved to this house
    with his family in 1989. In the said quarter the search was
    conducted by the Investigating Officer and certain documents
    were seized including Ex.D-3 from possession of the appellant
F   is the finding of fact recorded by the trial judge which is rightly
    concurred with by the High Court after re-appreciation of
    evidence on record in the Appeal filed by the appellant.

       25. In the impugned judgment learned sessions judge has
G referred to the evidence of PW-27 and PW-32 and opined that
  the documents particularly Ex. 0-3 seized from the possession
  of the appellant be sent for their opinion as to whether the said
  Cilocument if reaches the Pakistani officials would be dangerous
  to the security and integrity of the Nation. After careful
  consideration of the document they have opined that on basis
H
         SAFI MOHD. v. STATE OF RAJASTHAN                         359
               [V. GOPALA GOWDA, J.]
 of information available in the said document that, if Pakistan          A
 officials want to destroy the country by air attack it would
 become easier.

        26. The learned sessions judge being the trial judge is
  competent to appreciate the evidence and had the opportunity            B
  to observe demeanour of the witnesses who have deposed
  before him to prove the prosecution case. Merely because the
  independent witnesses have turned hostile, the other police
  witnesses' evidence cannot be disbelieved by the courts below
  to record a finding on the charge as has been done by the trial
  court by rightly placing reliance upon the judgment of this court       C
· referred to supra, he has come to the right conclusion by
  accepting the evidence of police witnesses PW-21" PW-22
  with regard to the conduct of the search and seizure of
  documents from the house of the appellant and recorded the
  finding to this effect by assigning valid and cogent reasons in         D
  his judgment. He had rightly come to the conclusion on the fact
  while recording the finding on the charge on the basis of
  evidence of PW-27 and PW-32 who have opined that if the said
  document and information contained therein is made available
  to the Pakistani offit:ials it will be dangerous to the integrity and   E
  security of the Nation.

      27. The contentions urged by the learned counsel on behalf
 of the appellant that PW-27 and PW-32 are not expert
 witnesses in terms of Section 45 of the Evidence Act by placing          F
 reliance upon the decisions of this Court referred to supra are
 mis-placed and they do not support the case of defence for the
 reason that the learned sessions judge after careful scrutiny of
 the ocular evidence and the written submission has rightly come
 to the correct conclusion about the said document seized from            G
 the appellant. The said finding and reasons recorded by the
 learned sessions judge in his judgment on the charge framed
 against the appellant has been re-examined by the High Court
 by applying its mind consciously and concurred with the said
 finding of fact by assigning valid reasons. Therefore, the same
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    360      SUPREME COURT REPORTS                 (2013) 6 S.C.R.


A cannot be termed erroneous in law on the grounds urged by
  the learned counsel for the appellant and interfered with by this
  Court in exercise of its jurisdiction by placing reliance upon the
  decision of this Court referred to supra as they are mis-placed
  and do not support the case of the appellant.
B
        28. In our considered view both the learned sessions judge
  and the High Court, on proper appreciation and re-appreciation
  of evidence on record, after considering the arguments
  advanced on behalf of the defence have arrived at the correct
  conclusion. The High Court has carefully considered the
C arguments advanced on behalf of the appellant and recorded
  its findings on the charge with reasons.

        29. For the foregoing reasons, we are of the view that this
   is not a fit case for our interference with the impugned judgment
D having regard to the nature of charges made against the
   appellant under Sections 3, 9 and 5 of the Act as he is found
   to be guilty along with other accused persons and rightly
   convicted 'and sentenced them for seven years rigorous
 · imprisonment. The appeal is devoid of merit and is liable to
E be dismissed and is accordingly dismissed.

    B.~.B.                                     Appeal dismissed.