JUDGMENT 1. - S. B. Cr. Appeal No. 157/88 has been preferred against the judgment dated 26/4/88 passed by the Sessions Judge. Jaipur City. Jaipur, by which, he found guilty both the petitioners under section 120 B IPC and Section 3 read with Section 9 of the Official Secret Act. The appellant were sentenced for the offence under section 120 B IPC for two years R. I. and for the offence under section 3 read with Section 9 of the Official Secret Act to 5 years R. I. Each has also been fined Rs. 500/- for each offence and in default of payment of fine, to further undergo 6 months R.I. Both the sentences were ordered to run concurrently. 2. On 8-1-82, Shri Richpalsingh, S.H.O., P.S. Hanumangarh received an information from a source that one Pakistani spy Jahangeer was coming to Hanumangarh Bus-stand. The S.H.O. along with his party-men i.e. Charan Singh, Bhoop Singh and Ramniwas reached Hanuman Garh bus star.d at 5.30 p m. and arrested Jahangeer, On search they recovered from his possession an Urdu written chit. That chit is Ex.P.3. During his interrogation he revealed that he first met with Amin Mandal Pakistani spy in 1978, who introduced him with one Subedar Iqbal of Pakistani intelligence. Since then he has been coming to India for gathering important and strategic military and other information and site photos which can be dangerous to the security of Indian Government. He further disclosed that closed associates who have been collecting in-formations for him were accused Balvinder Singh, Gurdeep Singh and Bachan Singh. On this information the Police arrested Balvinder Singh, Gurdeep Singh and Bachan Singh and recorded their information under section 27 of the Evidence Act. On the basis of these in-formations a letter Ex.P.8 was recovered by the Police from the possession of Balvinder Singh. This letter was scribed by Bachan Singh. The Police also recovered photos from the possession of Gurdeep Singh on his information. All these in-formations and the documents were sent by the S.P. Ganganagar with his report to S.P. Special Police, Jaipur for registering the case. F.I.R. No. Ex P.6 was prepared and the matter was investigated. This letter was scribed by Bachan Singh. The Police also recovered photos from the possession of Gurdeep Singh on his information. All these in-formations and the documents were sent by the S.P. Ganganagar with his report to S.P. Special Police, Jaipur for registering the case. F.I.R. No. Ex P.6 was prepared and the matter was investigated. After completing the usual investigation a charge-sheet was submitted before C.J.M. Jaipur City, who committed all the accused-persons to the Court of the Sessions Judge, Jaipur City for trial under section 120-B IPC and under section 3 read with Section 9 of the Official Secret Act on 2-1-86. As the accused Gurdeep Singh had absconded he was not committed. Thus, the learned Sessions Judge conducted the trial against the appellants and Jahangeer. 3. The trial Judge framed charge against the accused-persons under section 120-B IPC and Section 3 read with Section 9 of the Official Secret Act. The accused pleaded not guilty and claimed trial. 4. In order to establish the case the prosecution has examined 15 witnesses and after concluding the trial the learned Sessions Judge did not find any case established against accused Jahangeer and he acquitted him. However, he found the case established against the appellants under section 120-B IPC and Section 3 read with Section 9 of the Official Secret Act and he sentenced them as mentioned above. 5. During argument it was brought to the notice of this Court that Jahangeer and the present appellants were charge-sheeted for the offence under Foreigners Act. The appellants were discharged in that case while Jahangeer confessed the guilt and accordingly he was sentenced to one years R.I. and a fine of Rs. 200/-. in default of payment of fine, to further undergo two months R.I. During investigation of that case under Foreigners Act the statements of the appellants were recorded under section 27 of the Evidence Act and on the basis of that information and at the instance of accused Balvinder Singh a paper was recovered which is Ex.P.8. The information given by Balvinder Singh is dated 11-3-82 which is Ex.P.7 and the recovery memo of letter is Ex P.7 A dated 12-3-82. These documents were filed with the charge-sheet in the case of Foreigners Act in which the appellants were discharged. The information given by Balvinder Singh is dated 11-3-82 which is Ex.P.7 and the recovery memo of letter is Ex P.7 A dated 12-3-82. These documents were filed with the charge-sheet in the case of Foreigners Act in which the appellants were discharged. It is stated by the learned Public Prosecutor that when Jahangeer was convicted on 10-6-82 under Foreigners Act, he was detained in jail for the imprisonment awarded to him and after his release he was again arrested by the Police under Official Secret Act and for which the present challan was submitted. It was also stated during argument that S.P. Ganganagar with his report forwarded all the documents which were recovered during the investigation of the case under Foreigners Act to S.P. (Special Branch) Jaipur. 6. It may be the off shoot of Act, but a case under Official Secret Act is quite distinguishable with the case of Foreigners Act. Foreigner Act is against a person who is not of Indian national, who is a foreigner and who stay in Indian Territory without valid passport, in that case that person is prosecuted under Foreigners Act. An offence under Official Secret Act can be against a foreigner as well as an Indian national who passes official secrets hampering Indian Government to foreigners or any country which may use that information against Indian Government, then that person can also be challenged and punished under Official Secrets Act. So offences under these two Acts are different-different offences. It cannot be said that offence of Official Secret Act is an oft'-shoot offence of Foreigners Act. Therefore, it cannot be said that the person involved in the Foreigners Act is also involved in the Official Secret Act. So the documents taken during investigation in a particular case cannot be used in another offence under another Act unless those documents are taken on record and they are proved by adducing evidence. So without taking on record the documents which were taken in the Foreigners Act they cannot be used in the case of Official Secret Act. This is the greatest lacuna which has been left in this case by the prosecution. The appellants were arrested by the Police after their discharge in the case of Foreigners Act, but their arrest memos were not filed with the challan papers of this case under Official Secret Act and as such their arrest was not proved. This is the greatest lacuna which has been left in this case by the prosecution. The appellants were arrested by the Police after their discharge in the case of Foreigners Act, but their arrest memos were not filed with the challan papers of this case under Official Secret Act and as such their arrest was not proved. 7. The learned Public Prosecutor argued that Balvinder Singh was arrested on 17-4-85 and Bachan Singh was arrested on 30-8-85. This information might be with the P.P. The arrest-raemo might be in the file of the Court but the Court cannot look into those papers unless they are exibited. Unless the papers are proved by the prosecution and they are taken on record by the Court they cannot be used while deciding the case against the appellants. So this is most unfortunate that the arrest-memos were not produced and taken on in this case and I can only say that this is the greates lacuna in the prosecution case. Once a person is arrested and he gives some information under section 27 of the Evidence Act, that statement or information is a very relevant statement, very relevant information and on the basis of that information the recovery is made with regard to either article or some document pertaining to the case in question. So as stated by the learned Public Prosecutor that on the information of accused Balvinder Singh which is Ex.P.7B, the letter Ex.P.8 was recovered vide memo Ex.P.7A on 11-3.82. The information Ex.P.7B, the recovery memo Ex.P.7A and the letter Ex.P.8 are on the file of this case but the arrest memos are not on the file. So it cannot be said during their arrest the accused-appellants gave information under section 27 of the Evidence Act. The information Ex P.7B dated 11-3-82 cannot be used in this case because Balvinder Singh was arrested as stated by the learned Public Prosecutor on 17-4-85. The learned Public Prosecutor could not satisfy how this information dated 11-3-82 can be used in this case. So after his arrest in the case of Official Secret Act he gave no information under section 27 Evidence Act. No paper was recovered on his information after his arrest. Therefore, the information memo Ex.P.7B and the recovery memo Ex.P.7A of no help to the prosecution. 8. Regarding recovery of the paper Ex. P. 8, the evidence has been read over. No paper was recovered on his information after his arrest. Therefore, the information memo Ex.P.7B and the recovery memo Ex.P.7A of no help to the prosecution. 8. Regarding recovery of the paper Ex. P. 8, the evidence has been read over. The recovery witness Banwari Lal has not been examined by the prosecution. So there remains the solitary statement of Ramswaroop I.O. who has stated that this paper was recovered by him. Charan Singh (PW 3) who was A. S. I. at that time has stated that Ramswaroop S. I. has recovered the paper Ex. P. 8 from the house of Balvinder Singh. So the evidence regarding recovery of this paper is of two Police Officers. The recovery memo Ex. P. 7 A shows that this paper was lying near the southern wall of the room of Balvinder Singh. It means that it was not hidden at a particular place. So it cannot be believed that the paper Ex. P. 8 which according to prosecution is a very important paper which discloses the secrecy of India to an enemy, will be kept by the person in the room just lying on the floor near the southern wall. This paper Ex. P. 8 was sent by the S. P. Ganganagar to the S. P. (Special Branch) Jaipur with some photos. The photos have also been produced in this case which are Ex. P. 10 to Ex. P. 21 but there is no photo of this paper Ex. P. 8. It means that no photo was taken of his paper Ex. P. 8. The photos Ex. P. 10 and P. 21 are with regard to the canal and bridge. These photos were sent by the S. P. (Special Branch) to Headquarter Western Command Shimla for giving opinion about the fact whether the information through these photographs would be adverse in the interest of the Indian Government and the report received is that if these photographs if come in the enemies hands they would be of great value to them for planning sabotage in case of hostility breaking out in that area but no opinion has been given by the Headquarters Western Command with regard to the paper Ex. P. 8. 9. Another aspect is that Shri K. C. Katoch (PW 9) has been examined as prosecution witness. P. 8. 9. Another aspect is that Shri K. C. Katoch (PW 9) has been examined as prosecution witness. He gave his evidence with regard to photos Ex.P. 10 to Ex.P.21 only but no question was put about the paper Ex. P 8 to him. This paper was not even shown to K.C. Katoch while he was in the witness-box. He is a Senior Military Officer who gave his Expert opinion about the photos, about the secrecy of these photos and certainly he was very competent person to give his opinion about the paper Ex. P 8. He should have been asked whether the writing or the matter in Ex. P 8 is also of that value that if it passes in the hands of the enemy it may be used for planning sabotage against India Government. There are some writing which are marked as Q 3 and Q 4. What is the meaning of these two writings in Ex. P 8. There is nothing on the record whether by reading these writings it can be inferred that this was a secret information given to an enemy. Writing Ex. Q 3 is as follows What this line means, it should have been proved by the prosecution. What sense could be had by the reading this line. Shri K. C. Katoch, a Senior Military Officer after reading this line could give his opinion but no question was asked to him. The writing marked as Q 4 is nothing but certain figures. What these figures indicate should have been proved by the prosecution. If these figures pertain to Military Code, it should have been asked by Shri K. C. Katock (PW 9), who could have certainly opined that these figures pertain to such and such military secrecy. 10. It was also argued that this Ex. P 8 was recovered in the case of Foreigners Act but at the time of its recovery it was not kept in an envelop and was not sealed in presence of the motbirs. Shri Ramswaroop (PW 11) who has recovered this paper Ex. P 8 and Charan Singh (FW ?) ASI in whose presence this paper was recovered have not stated that at the time of the recovery of the paper Ex. P 8, it was kept in an envelop and the envelop was sealed in presence of the motbirs. Shri Ramswaroop (PW 11) who has recovered this paper Ex. P 8 and Charan Singh (FW ?) ASI in whose presence this paper was recovered have not stated that at the time of the recovery of the paper Ex. P 8, it was kept in an envelop and the envelop was sealed in presence of the motbirs. Unless the paper was properly sealed in presence of the witnesses there is all possibilities to temper with this paper and to create another paper at any time. This is no investigation that an important paper was recovered by the S.H.O. Ramswaroop on the basis of which the entire case depends, but that paper was not sealed at the time of its recovery. 11. The learned Public Prosecutor argued that the report of the Forensic Science Laboratory (F. S. L.) Ex. P 22 has a mention that the envelop received by them was intact in sealed condition. So this shows that this paper was sealed at the time of recovery. This is no argument because after the recovery of the photo papers. Ramswaroop I. O. has not sealed it but he can while sending it to F. S. L. kept in an envelop and sealed that envelop and sent that sealed envelop to FSL. for examination The Director, FSL received the sealed envelop no doubt but does not give the presumption that whether this envelop was sealed at the time of recovery of the paper Ex. P 8. It does not give any presumption that the paper was properly sealed when it was recovered and it was not tempered with and in the same sealed condition it was sent to FSL. 12. Another reason to discard the contention of the learned Public Prosecutor is the fact that the envelop which contain the dispute letter Ex. P 8 also contain the specimen S. 1 to S. 18 The report of the FSL. is Ex. P 22 and this report is on a printed paper in which it has been already written that the cover which was properly sealed bearing impressions which tallied with the specimen impression forwarded. In that form it has been specifically mentioned that packet "One in number". The description of article indicates that the packet one in number was sent containing the disputed Q 1 to Q 4 and Specimen S 1 to S 48. So if the paper Ex. In that form it has been specifically mentioned that packet "One in number". The description of article indicates that the packet one in number was sent containing the disputed Q 1 to Q 4 and Specimen S 1 to S 48. So if the paper Ex. P 8 was sealed by the S.H O. at the time of recovery and that sealed packet was sent to F.S.L. how the specimen writings S 1 to S 18 were kept in that very envelop which contained Ex. P 8 and which was sealed at the time of its seizing. So the argument of the learned counsel for the appellant has great force that this packet was not sealed when it was recovered and there are all chances of tempering with this document and this creates great doubt in the entire case of the prosecution. 13. The appellants have been convicted under section 120 B IPC for conspiracy with Jahangeer. Jahangeer was also charge-sheeted under section 120 B IPC for creating conspiracy with other accused-persons Jahangeer has been acquitted of this offence. One of the accused Gurdeep Singh is absconding so it can be said that Jahangeer and the appellants might have conspired with Gurdeep Singh. If we look into the evidence we find that there is no evidence about the conspiracy and the learned Sessions Judge has rightly acquitted Jahangeer from the charge under section 120 B IPC. When Jahangeer has been acquitted I do not find any reason for convicting these appellants under section 120 B IPC. The case against Jahangeer and against these two appellants under section 120 B IPC is the same. On the other hand it can be said that this Jahangeer is the main culprit who has been found guilty in Foreigners Act and who has been sentenced. So Jahangeer had conspired with these persons i.e. the appellants. When Jahangeer himself has been acquitted from the offence under section 120 B IPC, how these appellants can be convicted under section 120 B IPC. So absolutely the learned Sessions Judge did not understand the circumstances when an offence under section 120 B IPC is made out. Absolutely, there is no case made out against these appellants under section 120 B IPC. 14. The appellants have been convicted under section 3 read with Section 9 of the Official Secret Act. So absolutely the learned Sessions Judge did not understand the circumstances when an offence under section 120 B IPC is made out. Absolutely, there is no case made out against these appellants under section 120 B IPC. 14. The appellants have been convicted under section 3 read with Section 9 of the Official Secret Act. According to this Sec. if any person for the purpose of prejudicial to the safety or interests of the state collects any document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an 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. In these circumstances a person can be punished for spying. In the present case the only evidence against the appellants is the letter Ex. P.8 alleged to have been recovered from the house of Balvinder Singh. Regarding this letter Ex. P 8, I have held above that the contents of this letter are not of this value to be used for planning sabotage in case of hostilities breaking out in that area to which that paper relates. The prosecution has utterly failed to understand the value of this paper Ex. P 8 as I have discussed above. Therefore, the learned Sessions Judge has committed error is convicting the appellants under section 120 B IPC and under section 3 read with Section 9 of the Official Secrets Act. 15. The State has also filed an appeal No. 353/88 against the acquittal of Jahangeer. In view of my above discussion and after going through the entire record I find that there is no substance in this appeal and this appeal also deserves .to be dismissed. 16. Asa result, the appeal No. 157/88 preferred by Balvinder Singh and Bachan Singh, is accepted. They are not found guilty of the offence under section 120 B IPC and under section 3 read with Section 9 of the Official Secrets Act and both are acquitted from these charges. Both the appellants are in jail. They be released forthwith if not required in any other case.The State appeal No. 355/88 is dismissed.Acquitted. *******