JUDGMENT 1. - The facts giving rise to this jail appeal are that on the intervening night of 17th and 18th October, 1973, PW 33 Asu Singh in the company of Ranjeet Singh, Hari Singh, Joru Singh and Manphool Singh was patrolling in Suratgarh at nearly 11-30 p.m. They saw a person clandestinely going in a lane. On interrogation he gave his name as Mohammed Irshad and also admitted that he was a Pak national. He was arrested vide Ex. P/54. On his personal search a number of articles were recovered, out of which the following three documents are relevant for the purpose of this case:- (i) two receipts on the back portions of which formation signs of Indian Army were found noted; and (ii) the third document is a 'Times of India' paper dated October 16, 1973. On page 6 of this paper certain secret information regarding the location of Jat, Sikh and Maratha Regiments as well as formation sign of different regiments of Indian Army were found noted. During the course of the investigation accused Mohammed Irshad voluntarily made a confessional statement Ex. P/57 before the First Class Magistrate, Suratgarh, wherein he candidly admitted lhac he was a Pak spy, who was sent into the Indian territory to collect information regarding aerodromes, bridges, roads, railways, formation sign of various units of Indian Army, marks of army vehicles. He further stated that he collected information regarding B. S. F., Sikh and Maratha regiments and sent it at Bahawalpur to a Major of Pak Army. Thereafter he was again instructed to collect information at Ganganagar and other places. In the same confessional statement he disclosed the names of the persons who used to help him in his mission. Out of the persons named, co-accused Kamaluddin was also shown to, have been working as a Pak spy under his instructions. On the search of the house of Kamaluddin in pursuance of a warrant obtained by PW 25 Brij Gopal Kamthan, Deputy Superintendent of Police (C. I. D.) a number of suspected articles were found and their seizure memo is Ex. P/7. Out of the articles and documents seized from, the house of Kamaluddin the following noteworthy and relevant documents and articles were recovered:- (i) Formation signs of Indian Army which are alleged to have been noted, in the hand of accused Mohammed Irshad, in Urdu script. P/7. Out of the articles and documents seized from, the house of Kamaluddin the following noteworthy and relevant documents and articles were recovered:- (i) Formation signs of Indian Army which are alleged to have been noted, in the hand of accused Mohammed Irshad, in Urdu script. (ii) Alive cartridge of 32 bore pistol. (iii) A diary containing addresses of different persons as well as certain secret signs regarding army. (iv) An application dated November 17, 1971 showing the visit of accused Kamaluddin at the Central Jail, Jaipur to meet Ramjan. (v) 14 Pakistani coins. Besides the house of Kamaluddin, the houses of two other accused Nasiruddin and Laddan were also searched. After usual investigation and after obtaining sanction of the Central Government a challan against the two appellants along with two other accused Nasiruddin and Laddan (acquitted by the trial court) was filed in the Magistrate's Court, who after committal proceedings, were tried by the Sessions Judge, Jaipur City. The accused pleaded not guilty to the charge and the prosecution examined 41 witnesses in support of their case. The accused persons denied their complicity in the crime, but did not examine any witness in their defence. 2. The learned Sessions Judge found the prosecution evidence against accused Mohammed Irshad and Kamaluddin reliable and trustworthy. The learned Judge placing reliance on the ocular statements, documents seized from the possession of the accused and the confessional statement of accused Mohammed Irshad held both the accused-appellants guilty under Section 39 of the Official Secrets Act and Section 120-B I.P.C. and sentenced them to three years' rigorous imprisonment under each count. The sentences awarded to the appellants under both the counts were ordered to run consecutively. 3. Being aggrieved with the conviction and sentence, the accused-appellants have come up in appeal. 4. The controversy in this case has been reduced to a narrow compass, as the learned counsel appearing on behalf of the accused-appellants, keeping in view the over whelming evidence on record including the confessional statement made by the accused appellant Mohammed irshad and the presumption of guilt arising under Section 3 (2) as well as Section 4 of the Indian Official Secrets Act, 1923, has frankly conceded that there are no sufficient grounds to challenge the conviction of the accused-appellants on merits. He further stated that there is sufficient evidence on record to upheld that accused Mohammed Irshad was in direct touch with Pakistan Intelligence Officers and he passed secret information regarding Indian Army to them and the other accused Kamaluddin was in direct touch with the Pak spy helping the former in his nafarious activities. However, I have also looked into the relevant portion of the record and have come to the conclusion that the prosecution has successfully brought home the guilt to the accused-appellants beyond any manner of reasonable doubt. 5. The only point very seriously urged by the learned counsel for the appellants is regarding the quantum of sentence. Placing reliance on State of Bihar v. Kailash Prasad Sinha and others, AIR 1961 Patna 451 learned counsel urged that the sentences awarded to the two accused-appellants under different counts ought to have been ordered to run concurrently and not consecutively. It has been held by a Division Bench of the Patna High Court in Kailash Prasad's case (supra) that "As a result of my findings I am of opinion that the charges under Section 471/467 and 420 of the Indian Penal Code have been proved against respondents Ragho and Adya. So far as the charge under Section 120-B against these two respondents is concerned it is clear that the matter has gone beyond the stage of mere conspiracy and offences have actually been committed in pursuance thereof. In the circumstances, their conviction also under Section 120-B of the Indian Penal Code is unnecessary. The charges against the other respondents have not been brought home to them and they were rightly acquitted by the learned Judge." 6. The perusal of Ex. P/57, confessional 'statement made by accused Mohammed Irshad shows that he is a Pak national, who clandestinely entered into Indian territory for the purpose of spying. He has further admitted that he had collected secret information and transmitted the same to Pakistan. No doubt at the relevant time India was not at war with Pakistan, but the word 'enemy' in Section 3 of the Official Secrets Act includes any unfriendly State. He has further admitted that he had collected secret information and transmitted the same to Pakistan. No doubt at the relevant time India was not at war with Pakistan, but the word 'enemy' in Section 3 of the Official Secrets Act includes any unfriendly State. Under the Official Secrets Act, 1911 of Great Britain on the pattern of which our Act of 1923 has been apparently drafted, the word 'enemy' came to be interpreted in the case of George Charles Parrot (8 Criminal Appeal Reports 1913 p. 186) by Phillimore J. The learned Judge observed as follows:- "When the statute uses' the word "enemy" it does not mean necessarily some one with/whom this country is at war, but potential enemy with whom we might some day be at war." This case was read with approval by this Court in two cases namely, Kutubuddin v. State of Rajasthan, 1967 RLW 99 and Lal Chand v. The State, 1972 RLW 675 . Thus the nafarious activities of the accused-appellants are covered and punishable under Section 3 of the official Secrets Act. The gravity of such an offence was assessed by their Lordships of the Supreme Court in the case of the State v. Captain Jagjit Singh, AIR 1969 SC 253 , wherein their Lordships of the Supreme Court were pleased to observe that Section 3 of the Official Secrets Act erects an offence which is prejudicial to the safety or interests of the state and relates to obtaining, collecting, recording or publishing or communicating to any other person any secret official code or pass word or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy. Obviously the offence is of a very serious kind and the learned Sessions Judge while convicting the accused-appellant Mohammed Irshad has already erred on the side of leniency and I find no reason to make the sentences awarded to accused-appellant Mohammed Irshad to run concurrently. it would suffice to say that taking a conspectus of the circumstances of the case it would meet the interest of justice if the sentence awarded to accused appellant Kamaluddin for conspiracy under Section 120-B I.P.C. is reduced from three years' rigorous imprisonment to two years' rigorous imprisonment. 7. it would suffice to say that taking a conspectus of the circumstances of the case it would meet the interest of justice if the sentence awarded to accused appellant Kamaluddin for conspiracy under Section 120-B I.P.C. is reduced from three years' rigorous imprisonment to two years' rigorous imprisonment. 7. The net result of the above discussion is that the conviction and sentence awarded to accused-appellant Mohammed Irshad are upheld under both the counts and the sentences awarded to him shall run consecutively as ordered by the trial Court. 8. The conviction of accused-appellant Kamaluddin alias Fateh Mohammed under Section 2/9 of the Official Secrets Act as well as under Section 120-B I.P.C. are maintained. The sentence of three years' rigorous imprisonment awarded to him under Section 3/9 of the Official Secrets Act is maintained. However, the sentence awarded to him under Section 120-B I.P.C. is reduced from three years rigorous imprisonment to two years rigorous imprisonment. His sentences under both the counts shall also run consecutively.It is however, made clear that the accused-appellants shall be entitled to the benefit of Section 428 Cr. P.C. and the period of detention undergone by them during investigation, inquiry or trial shall be set off against the term of imprisonment awarded by this court. *******