JUDGMENT 1. - The appellant A.G. Eppan alias Thummi alias Babu Kutti alias Rehman, son of A.G. Vergese, resident of Kiwaipur, district Allahpani (Kerala), has been convicted by the learned Additional Sessions Judge, Jaipur City, under section 2; read with section 9 of the Indian Official Secrets Act, 1923, hereinafter called that Act, and sentenced to rigorous imprisonment for a period of 10 years and a fine, of Rs. 500/-, or in default, to further rigorous imprisonment for 2 years. 2. The case against the appellant, which resulted in his conviction and sentence as aforementioned was instituted on a complaint filed by Shri Brij Gopal Kamthan, Deputy Superintendent of Police, Criminal Investigation Department, Special Branch, Rajasthan, Jaipur, who did so under the authority from the Central Government, which is the appropriate Government under the Act. The complaint was filed in the court of the District Magistrate, Jaipur, on September 16, 1972, On the allegations that the appellant joined the Indian Army as a Sepoy in 1963 that in August 1966, he was on duty as one of the guards at a forward army out post in Kashmir that on August 23, 1966, he was caught in an ambush laid by the soldiers of the Pakistani army and that he was abducted by them the same day to Pakistan. It was further alleged that the Pakistani Intelligence Agency persuaded him to act as a spy for them and that after giving him necessary training in espionage activities, they sent him to India in September, 1968 to collect information relating to military installations and stationing of the Indian Troops for being supplied to Pakistan Intelligence Agency. Captain Hamid and Subedar Mirza Choudhary of the Pakistan Intelligence Agency were the officers who trained the appellant in espionage activities. He crossed the Indo-Pak border near Khemkaran on September 15, 1968. Instead of collecting information as required by the Pakistan Intelligence Agency, the appellant went to Udaipur to see his sister and brother-in-law, Smt, Mariamma and Shri K. P. Nayar (P. Ws. 16 and 17), who were residing there at that time. He went back to Pakistan on September 30, 1968, without collecting any information for Pakistan Intelligence Agency. The said Agency sent him back to India on January 2, 1969. He went to Ambala Cantt. Where he collected some information regarding the formation signs and numbers of the Indian Regiments and their ornaments. He went back to Pakistan on September 30, 1968, without collecting any information for Pakistan Intelligence Agency. The said Agency sent him back to India on January 2, 1969. He went to Ambala Cantt. Where he collected some information regarding the formation signs and numbers of the Indian Regiments and their ornaments. He went back to Pakistan and supplied the said information to the Pakistan Intelligence Agency. 3. The case of the complainant further was that on January 8, 1969, the appellant, once again was sent to India along with a courier by the name of Dora. He crossed the border through a place near Karanpur. He was sent to Ambala with instructions that in case of need, he could communicate in Pakistan with outpost house No. 125, Firozpur Road, Lahore. The courier went back to Pakistan with instructions that he would meet the appellant on March 8, 1969, at Kanpur for escorting the appellant back to Pakistan. The appellant went to Jodhpur and stayed there with his younger sister Miss Tangamma Vargese for over two months. He sent a letter from there to Pakistan informing the Pakistan Intelligence Agency that he would meet the courier at Abohar on April 29, 1969. He went to Abohar on April 19 and spent the night there in Punjab Hotel near the bus-stand. He persuaded the proprietor of the Hotel, namely, Jagat Singh, to let him use his address through his care for his mail. He informed his elder sister to write him care of Jagat Singh, Punjab Hotel, Abohar. On April 20, 1969, the appellant met a soldier belonging to the 14th Punjab Unit, who was on his way to Himachal Pradesh to spend his holidays there. He collected some information from the said soldier regarding the 14th Punjab Regiment and its Commander. He met the Pakistani courier at the bus-stand, Abohar, the same day, and went with him to Karanpur, The courier somehow got separated from him at Karanpur. Apprehending that the courier might have been arrested by the Indian Police, the appellant went back to Pakistan alone and supplied the information which he had already collected in India to the Pakistan Intelligence Agency. He used a codeword "Guest No. 1" for securing his entry into Pakistan at the border check-post. 4. Apprehending that the courier might have been arrested by the Indian Police, the appellant went back to Pakistan alone and supplied the information which he had already collected in India to the Pakistan Intelligence Agency. He used a codeword "Guest No. 1" for securing his entry into Pakistan at the border check-post. 4. It is further alleged that the appellant was sent to India by the Pakistan Intelligence Agency thereafter in July 1969, September 1969, and December 1969. During the September visit to India, he visited Abohar and collected his mail from Jagat Singh of the Punjab Hotel. He went from Abohar to Ferozpur and stayed there in a Dharamshala using the false name of Rehman alias Baboo Kutti. He contact some soldiers of Ferozpur and noted down the numbers of the various units posted in that cantonment. He also noted down the various sign boards of the regiments and visited the Radar site there. He then contacted the courier on September 20, 1969 and went back to Pakistan crossing the border near Thunthawali post and supplied the aforesaid information to the Pakistan Intelligence Agency. He was given further training in espionage activities in Pakistan from October 15, 1969 to November 1969. He was sent back to India on December 29, 1969, with a list of duties which he noted down on a piece of paper. The duties assigned to him included collection of information regarding army training pamphlets issued by the Western Command, and the names of the Regiments which used 130 m. m. guns and 100 in. m. guns. After crossing the Indo Pak boarder on December 29, 1969, the appellant collected information regarding 9, 13 and 17 Grenadiers. He went to Bikaner, Ganganagar and Ferozpur and collected some information from these stations. He then went to Jodhpur and stayed there with his younger sister. At Jodhpur, he collected information regarding certain Regiments stationed there. The information thus collected was noted down by him on a piece of paper. 5. On February 24, 1970 the appellant was reported to be staying with his sister Mrs. A. G. Mariamma and her husband K. P. Nayar at Debari, Udaipur. On receipt of information, the police party consisting of Dy. The information thus collected was noted down by him on a piece of paper. 5. On February 24, 1970 the appellant was reported to be staying with his sister Mrs. A. G. Mariamma and her husband K. P. Nayar at Debari, Udaipur. On receipt of information, the police party consisting of Dy. S. P. Kesri Singh and S. I. Amar Singh and a few other persons, arrested the appellant at his sisters house that evening at about 8.45 p. m. As per the complaint, which is the basis of the present prosecutions, the following articles were recovered from the possession of the appellant at the time of his arrest:- (i) pistol along with the live cartridge of Pakistani make, (ii) two chits of papers, one containing directions for the collection of military secrets and the other having details of military secrets collected by the accused and noted by him in his mother tongue, namely, Malayalam, (iii) waste belt of K.K. Kurian, (iv) cap with badge, (v) military shirt and pants, and (vi) forged pay-book in the name of Baboo Kutti. A case under sections 3 and 6 of the Indian Passport Act, and another under section 25 of the Indian Arms Act were registered against the appellant on February 24, 1970. 6. On March 16, 1970, i.e., long after the arrest of the appellant on February 24,1970 the Deputy Superintendent of Police, C. I. D., Special Branch, Rajasthan, Jaipur, registered the third case against the appellant under section 3 read with section 9 of the Act, for, according to the police, it transpired during the investigation of the first two cases that the appellant had been carrying on espionage activities on behalf of the Pakistan Intelligence Agency, and supplying secret information to them regarding the Indian Army, the stationing of its troops and the army installations. The present complaint was filed by the Deputy Superintendent of Police, Criminal Investigation Department, Special Branch, Rajasthan, Jaipur, after obtaining the necessary authority from the Central Government. The present complaint was filed by the Deputy Superintendent of Police, Criminal Investigation Department, Special Branch, Rajasthan, Jaipur, after obtaining the necessary authority from the Central Government. The learned District Magistrate before whom the complaint was filed, held the inquiry and as a consequence, committed the appellant to the court of Sessions to stand trial on the following charge:- "That you, A. C. Eppan alias Thummi, during the period from 1968 to February 24, 1970, illegally entered India from Pakistan on different occasions for spying purposes, established contact with the Jawans of the Indian Army and collected secret information from them in relation to Indian Army for purposes prejudicial to the safety of India and the information, so collected by you, could prove disastrous to the security and safety of India and useful to its enemy, i. e., Pakistan, and that you actually supplied the aforesaid information to Pakistan and also attempted to supply such information, thus committing an offence punishable under section 3 read with section 9 of the Act". 7. During the trial, the prosecution examined as many as 32 witnesses and placed reliance on 77 documents. The witnesses examined on behalf of the prosecution included P. Ws., Unni Krishanan Pannicker, Mishrilal, Kesari Singh and Amar Singh. They have testified to the alleged recovery of incriminating articles and documents including Ex. P. 10 and P. 11 from the possession of the appellant. There is another set of witnesses, namely, P. Ws. Arjun Das. Govind, Makhan Singh, Kanhaiyalal, Kashmirilal, Takan Das, Mrs. A. G. Mariamma, K.P. Nayar and Annamma, who have given evidence relating to the appellant having been seen in India from time to time from September 1968 to 1970. 8. In his statement under section 313 Cr. P. C., the appellant denied the allegations against him and complained that his brother-in-law K. P. Nayar harboured ill-will against him and therefore been instrumental in getting him arrested in a false case. He denied that any incriminating document or article had been recovered from him on February 24, 1970. He denied having made any confessional statement to the Magistrate. He pleaded that the Magistrate had prepared the statement on the basis of a draft-statement supplied to him by the police and had obtained his signature on it. He pleased the incriminating letters Ex. P. 10 and 11 were got written from him by the police after his arrest. He denied having made any confessional statement to the Magistrate. He pleaded that the Magistrate had prepared the statement on the basis of a draft-statement supplied to him by the police and had obtained his signature on it. He pleased the incriminating letters Ex. P. 10 and 11 were got written from him by the police after his arrest. He further stated that he had been given merciless beating by the police. 9. The appellant produced four witnesses in defence including Jogendar Singh who had been cited as a witness for the prosecution, but not produced by it. 10. The trial court has held that the appellant visited India from Pakistan from time to time in 1968 and 1969 and that such visits could not possibly be for a purpose other than spying for Pakistan Intelligence Agency. He further held that the documents Ex. P. 10 and P. 11 were recovered from the possession of the appellant at the time of his arrest on February 24, 1970 and that these documents contained information which was calculated to be useful to Pakistan and which could thus be prejudicial to the safety of India. The learned Judge also relied on the confession Ex. P. 70, said to have been made by the appellant before the S. D. M., on March 31, 1970. As a cumulative effect of these findings, the learned trial court came to the conclusion that the appellant visited India for Pakistan from time to time from 1968 to February 1970, established contact with the Jawans of the Indian Army for espionage purpose and collected information regarding the stationing of the Indian troops, regimental formations and armaments, supplied and attempted to supply the said information to Pakistan. Consequently, he held that the charge framed against the appellant had been proved and convicted and sentenced him as aforementioned. 11. The appellant had submitted a petition of appeal through the Jail authorities. Shri A. K. Gupta, Advocate, was appointed as counsel amicus curiae to urge the pleas in defence on behalf of the appellant. 12. Consequently, he held that the charge framed against the appellant had been proved and convicted and sentenced him as aforementioned. 11. The appellant had submitted a petition of appeal through the Jail authorities. Shri A. K. Gupta, Advocate, was appointed as counsel amicus curiae to urge the pleas in defence on behalf of the appellant. 12. After going through the evidence on record, and bearing both sides at considerable length, I find that the learned trial Judge is correct in holding that the appellant, who had been serving as a Jawan in Indian Army, was abducted by the Pakistani soldiers and taken to Pakistan on August 23, 1966, and that subsequently, the appellant was seen in Indian towns like, Udaipur, Jodhpur, Bikaner, Ganganagar, Abohar and Ferozpur, from time to time from September 1968 to February 1970. There is, however, no evidence on record to prove that during the aforementioned period, the appellant had established any contact with any Jawan of the Indian Army and that he had collected secret information relating to the Indian Army for the purpose prejudicial to the safety and interest of the State. No such Jawan, who was allegedly contacted by the appellant for purposes prejudicial to the interest of the State, was cited or produced as a witness. In the absence of evidence to the contrary nothing sinister need be read into the presence of the appellant, an Indian citizen, in different towns of the country during a particular period. 13. The learned Public Prosecutor has taken me through the statements of P. Ws. U. K. Pannicker, Mishrilal, Kesarisingh and Amar Singh, in an attempt to prove that at the time of his arrest on February 24, 1970, the incriminating documents. Ex. P. 10 and Ex. P.11, had been recovered by the police from the possession of the appellant. I must straight away say that the evidence of these witnesses is highly discrepant and untrustworthy. One cannot possibly hold on the basis of their evidence that the documents, Ex. P. 10 and P. 11 had been recovered from the possession of the appellant in the manner alleged. It will be recalled that the appellant complained in his statement under section 313 Cr. P. C. that these documents were got written by the Investigating Officer from him after his arrest on February 24, 1970. A perusal of the statements of P. Ws. It will be recalled that the appellant complained in his statement under section 313 Cr. P. C. that these documents were got written by the Investigating Officer from him after his arrest on February 24, 1970. A perusal of the statements of P. Ws. U. K. Pannicker, Mishrilal, Kesharisingh and Amar Singh would indicate that the appellants complaint in that behalf is not without substance. U. K. Pannicker, for example, has stated that the documents, Ex. P. 10 and Ex. P 11, were recovered by the police from the attache-case belonging to the appellant and lying in Pannickers house at the time of the arrest of the appellant. S. I. Amar Singh, who was a member of the police party, who raided Pannickers house on February 24,1970, evening, and arrested the appellant from there, would, on the other hand, have us believe that both the documents Ex. P. 10 and Ex. P. 11 were recovered from a purse found in possession of the appellant at the time of his arrest that evening. 14. P. W. Mishrilal, the third witness, relating to the recovery of Ex. P. 10 and Ex. P. 11, has given entirely a different version as to their recovery. He does not agree with Pannicker that these two documents were recovered from the attach case. He does not agree with Amar Singh either that these two documents were recovered from the purse found in possession of the appellant at the time of his arrest According to him, Ex. P. 10 was recovered from the purse at the time of the arrest of the appellant. The other document viz., Ex. P. 11, was recovered, according to him, from the attach case of the appellant next morning i. e., on February 25, 1970. 15. P. W. Kesharisingh, Deputy Superintendent of Police, who headed the police party which effected the arrest of the appellant on February 24, 1970 in the evening, has, I am constrained to note, given highly unsatisfactory evidence. He had throughout been vague in the course of his deposition in the trial. He testified, for example, that he could not recall as to what was recovered from the possession of the accused in his personal search and what was recovered from the attachecase, which is said to have been discovered as a consequence of the disclosure made by the accused. He testified, for example, that he could not recall as to what was recovered from the possession of the accused in his personal search and what was recovered from the attachecase, which is said to have been discovered as a consequence of the disclosure made by the accused. He further stated that at the time of the arrest of the accused on February 24, 1970 evening all that he had recovered from the attache-case was a pistol and nothing else. He further stated that the attache-case was searched by him again on February 25, 1970, and that it was then that he recovered the remaining articles from it. He was not prepared to say if Ex. P. 10 and Ex. P. 11 were recovered from the purse or from the attache-case or from where. 16. One of the witnesses of the prosecution, namely, Jogendar Singh, who was withheld by it and who had therefore to be examined as a defence witness, stated that by the time he reached Pannickers house, the appellant had already been secured by the police under the custody. He further stated that the documents Ex. P. 10 and Ex. P. 11 were contained in a purse recovered in the Jamatalaashi of the appellant. 17. This being the statement evidence, I am not prepared to believe that the documents Ex. P. 10 and Ex. P. 11 were recovered by the police from the possession of the appellant at the time of his arrest. I may also mention here that the prosecution has tried to set-up a case during the trial wholly at variance with its case as disclosed in the complaint. It will be recalled that, according to the complaint, all the incriminating articles including the documents Ex. P. 10 and Ex. P. 11 had been recovered from the possession of the appellant at the time of his arrest on February 24,1970. An attempt was, however, made in the trial to show that one of these documents had been recovered at the time of the arrest of the appellant on February 24, 1970 and the other on the following day in the morning in the course of the search of the attaches case. This would show that the prosecution were not sure from the very beginning as to how the Investigating Officer had come by these documents in the course of the investigation. This would show that the prosecution were not sure from the very beginning as to how the Investigating Officer had come by these documents in the course of the investigation. It would not, therefore, be safe to hold that these documents were recovered from the possession of the appellant. 18. This brings me to the so-called confession said to have been made by the appellant before the learned S. D. M., on March 31, 1970. The appellant took the first available opportunity to retract this confession. In the course of his plea in reply to the charge, he categorically denied that he had committed any offence. Subsequently, in his statement under section 313 Cr. P. C. he complained that he had been in police custody for a long time before he was produced before the learned Sub Divisional Magistrate and that during the period be remained in the custody of the police, he was subjected to torture and physical beating many a time. It will be seen that the appellant admittedly remained in police custody from February 24 to March 25, 1970. The so called confessional statement was recorded by the Sub-Divisional Magistrate on March 31, 1910. This and the other circumstances disclosed in the evidence, though they do not amount to proof in the legal sense of the alleged atrocities committed by the police should, in my opinion, be sufficient to exclude the confession because it would be unreasonable to expect the accused to give positive proof of the alleged atrocities committed, for, such proof is obviously difficult, if not impossible, to procure. 19. Even otherwise, the statement alleged to have been made by the police before the learned Sub-Divisional Magistrate, does not, in my opinion, amount to confession. There is no express acknowledgement of the alleged guilt of spying for Pakistan in that statement. The appellant did not admit substantially all the facts which constitute the offence of spying charge against him. He did not admit that he had collected the alleged information for supply to the Pakistan Intelligence Agency. On the other hand, he pleaded that he had, on one occasion, noted down the numbers of certain regiments on a piece of paper for he wanted to contact the authorities of the regiments for getting a job under the said authorities. 20. On the other hand, he pleaded that he had, on one occasion, noted down the numbers of certain regiments on a piece of paper for he wanted to contact the authorities of the regiments for getting a job under the said authorities. 20. Assuming for a moment that the statement made by the appellant before the Magistrate does contain certain admissions which are relevant for this case, I am of the opinion that these admissions, of themselves, would not be enough to substantiate the charge framed against the appellant. There is nothing in any of those admission which would connect the appellant with the charge of spying framed against him. At best, those admissions would only raise a suspicion that the appellant was engaged in activities which were objectionable from the stand-point of the safety and security of this country. Suspicion, however, cannot take the place of proof. 21. For all these reasons, I find the charge framed against the appellant has not been proved beyond reasonable doubt. I would, accordingly, allow this appeal set aside the judgment and order of conviction and sentence and instead acquit the appellant. He shall be released forthwith if not required to be detained in any other case.Appeal allowed. *******