JUDGMENT 1. - Since both these appeals arise out of the impugned judgment dated 28.01.2008 passed by the Additional Sessions Judge (Fast Track) No. 2, Jaipur City, Jaipur, therefore they are being decided together.The learned Judge has convicted the appellants as under:- 2. Shahnawaj was convicted under Section 3(1) of the Official Secrets Act, 1923 (the Act, for short) and sentenced to fourteen years of simple imprisonment; he was imposed with a fine of Rs. 5,000/-, and was directed to further undergo one year of simple imprisonment in default thereof. He was also convicted for offences under Sections 3/14 of the Foreigners Act and sentenced to three years of simple imprisonment, and imposed with a fine of Rs. 1,000/-, and further directed to undergo three months of simple imprisonment in default thereof. 3. Hasim Ali was convicted for offences under Sections 3/9 of the Act and sentenced to three years of simple imprisonment, and imposed with a fine of Rs. 1,000/- and was directed to further undergo three months of simple imprisonment in default thereof. 4. Briefly the facts of the case are that Jagram Meena (P.W.3), Superintendent of Police, Special Police Station Jaipur, lodged a criminal complaint, wherein he claimed that on 03.08.2005, the police had received a secret information that there is a person standing in front of the Passport Office, situated on Tonk Road, Jaipur who is standing there under suspicious circumstances. Upon this information, the police reached the Passport Office; they discovered a person, who was similar to the description given by the secret informer. When the police intercepted the person, initially, he revealed his name as Sahnawaj and claimed to be a resident of Calcutta who was presently residing at Jaipur. However, after some time, he admitted that he is actually a resident of Lahore in Pakistan. He further informed them that he has been sent by the Pakistani Secret Services via Bangladesh. Upon his search, the police discovered a black colour wallet, which contained an ATM card of Punjab National Bank, a receipt of the Passport Office showing his passport application had been deposited therein, a small size Holy Koran, and Rs. 30/-of Indian currency. They also discovered one mobile phone of Samsung company, and a black pocket diary. Upon his search, the police discovered a black colour wallet, which contained an ATM card of Punjab National Bank, a receipt of the Passport Office showing his passport application had been deposited therein, a small size Holy Koran, and Rs. 30/-of Indian currency. They also discovered one mobile phone of Samsung company, and a black pocket diary. The black diary clearly contained telephone numbers of Delhi, Lahore and Dhaka as well as some information regarding official secrets.Shahanwaj was arrested and brought to the police station. A case was registered for offences under Sections 3, 3/9 of the Act and for offence under Section 3/4 of Foreigners Act. Subsequently, 03.08.2005, Shahanwaj Khans house was also searched; the police discovered a ration card in the name of Shahanwaj and his wife, a completed application for getting the bona fide residence certificate. The police also discovered a ration card belonging to Hasim Ali, and a photocopy of the identity card of Hasim Ali issued by the Election Commissioner of India. They further discovered a camera with a film roll inside it. Subsequently, a complaint was filed against both the appellants under Sections 3,3/9 and 10 of the Act, and for offences under Sections 3/14 of the Foreigners Act. However, against Hasim, the charge was framed only for offence under Section 3/9 of the Act; he was discharged for offence under Section 10 of the Act. 5. In order to prove its case, the prosecution examined forty witnesses, and submitted sixty documents. In defence, the accused-appellants neither examined any witness, nor submitted any documents. After going through the oral and documentary evidence, vide judgment dated 28.01.2008, the learned Judge convicted and sentenced the appellants as aforementioned. Hence, these two appeals before this court.S.B. Criminal Appeal No. 1084/2009 6. Mr.Padam Singh, the learned counsel for the appellant, Shahanwaj Khan, has strenuously contended that the learned Judge has not appreciated the evidence in proper perspective. According to him, Shahanwaj, was not arrested on 03.08.2005, but was arrested on 01.08.2005. Furthermore, Shahanwaj has been falsely implicated in this case. Thirdly none of the documents, recovered from him, make out a case under Section 3 of the Act. Therefore, his conviction for the offence under Section 3 of the Act is legally unsustainable. 7. On the other hand, Mr. Furthermore, Shahanwaj has been falsely implicated in this case. Thirdly none of the documents, recovered from him, make out a case under Section 3 of the Act. Therefore, his conviction for the offence under Section 3 of the Act is legally unsustainable. 7. On the other hand, Mr. Javed Chaudhary, the learned Public Prosecutor, has contended that except for the suggestion made to some of the witnesses a suggestion which was denied by them that the appellant Shahanwaj was arrested on 01.08.2005 the defence has not produced any evidence to show that he was, indeed, arrested on 01.08.2005. In fact, there is a consistent evidence to the effect that Shahanwaj was arrested on 03.08 2005. Sayed Nafasat Ali (P.W.2) has clearly stated in his testimony that he wont to the Passport Office on 03.08.2005. He was called by Shahnawaj who was being detained by the police in front of the office. Thus, it is obvious that the police had intercepted Shahanwaj on 03.08.2005 and had arrested him on the very day. Secondly, some of the documents recovered from the appellant Shahanwaj such as the small diary, and photographs clearly reveal that the diary contained not only telephone numbers of Delhi, Lahore, Jaipur and Dhaka, but most importantly, contained the numbers of army trucks, the tactical numbers (sign used by the army on the army trucks) and contained names and telephone numbers of army officials. Moreover, the prosecution has produced certain call details wherein calls were made to Lahore and to other places outside India. According to the learned Public Prosecutor, there is a presumption that can be drawn under Section 3 of the Act. Moreover, according to Shahanwaj, he was merely a businessman dealing in the business of handicrafts. However, he has not been able to explain either the possession of army truck numbers, and the tactical numbers (insignia used by the army on their trucks), or other information recorded by him in the diary. Considering the lack of explanation given by Shahanwaj, the learned Judge was certainly justified in drawing the presumption under Section 3 of the Act. Therefore, the learned Public Prosecutor has supported the impugned judgment.S.B. Criminal Appeal No. 178/2008 8. As far as the appellant, Hasim Ali is concerned, Mr. Considering the lack of explanation given by Shahanwaj, the learned Judge was certainly justified in drawing the presumption under Section 3 of the Act. Therefore, the learned Public Prosecutor has supported the impugned judgment.S.B. Criminal Appeal No. 178/2008 8. As far as the appellant, Hasim Ali is concerned, Mr. S.R. Surana, the learned senior counsel, has vehemently contended that except for a photocopy of the appellants ration card, and of the appellants identity card issued by the Election Commissioner, no other document was ever recovered by the Investing Agency either from the appellant himself, or from Shahanwaj. Thus, there is no incriminating evidence available on the record against the appellant. Secondly, the learned Judge has convicted the appellant on the basis of conjectures and surmises. Merely because, Hasim Ali had submitted an affidavit wherein he had stated that Shahanwaj had stayed in his house for ten to eleven years, the learned Judge has presumed that Hasim Ali has abetted Shahanwaj in his nefarious activities. However, such a presumption cannot be drawn either under Section 3 of the Act, or under any other law. Hence, his conviction is based on mere suspicion. The learned counsel has also pleaded that a conviction can not be based on suspicion. For, no matter how strong the suspicion may be, it can never take the place of proof. Lastly, before a presumption under Section 3 can be invoked against the appellant, the prosecution is duty bound to produce cogent evidence to prove the fact that Hasim Ali had helped Shahanwaj in committing the offence under Section 3 of the Act. However, in the present case, prima faice, there is no evidence to prove the fact the Hasim Ali had abetted Shahnawaj to commit the offence under Section 3 of the Act. Therefore, the learned Judge has erred in convicting him for offence under Section 3 read with Section 9 of the Act. 9. On the other hand, the learned Public Prosecutor has contended that since Hasim Ali had Known Shahanwaj for number of years, therefore he was well acquainted with his nefarious activities. However, he did not bother to inform the police about the nefarious activities. Thus, the learned Judge was certainly justified in concluding that by his omission, he had abetted Shahanwaj in his illegal acts. 10. Heard the learned counsel for the parties and perused the impugned judgment and examined the record. 11. However, he did not bother to inform the police about the nefarious activities. Thus, the learned Judge was certainly justified in concluding that by his omission, he had abetted Shahanwaj in his illegal acts. 10. Heard the learned counsel for the parties and perused the impugned judgment and examined the record. 11. The first contention raised by the learned counsel for Shahanwaj is unworthy of acceptance. For, Kishan Singh (P.W.1), Sayed Nafasat Ali (P.W.2), Jagram Meena (P.W.3), Hari Singh (P.W.5) and Chetan Prakash (P.W.7) have categorically testified that Shahanwaj was intercepted by the police on 03.08.2005, and was arrested by them on that very day. Sayed Nafasat Ali (PW.2), who happens to be an independent witness, has clearly stated so. His testimony has not been shattered in the cross-examination. Therefore, there is no reason for doubting the veracity of his testimony. According to him, Shahnawaj was arrested on 03.08.2005. Moreover, although Jagram Meena (PW.3) was given a suggestion by the defence that Sahnawaj was arrested on 01.08.2005, he has denied the said suggestion. Therefore, the learned counsel for the appellant is unjustified in claiming that, in fact, Shahanwaj was arrested on 01.08.2005 instead of 03.08.2005. 12. The learned counsel is equally unjustified in claiming that no incriminating evidence was recovered either from Shahnawajs personal search, or from the search of his house. The learned Judge has clearly noted the fact that both Exs. P/23 and P/24 pieces of papers which were discovered from Shahnawajs house contained scripts in Urdu language. Their Hindi translation clearly show the tactical numbers of the army vehicles were written down. These tactical numbers belong to vehicles of South-West command. Similarly, the Hindi translation of Ex.P/25 clearly shows that the document contained the names of high Army officials connected with the South-West command. This document also contained certain telephone numbers belonging to the army. The learned Judge has also noticed that Shahanwaj does not give any reasonable explaining for possessing these information's, although, it would be in his personal knowledge as to why he is in possession of this information.Section 3 of the Act is as under:- 3. This document also contained certain telephone numbers belonging to the army. The learned Judge has also noticed that Shahanwaj does not give any reasonable explaining for possessing these information's, although, it would be in his personal knowledge as to why he is in possession of this information.Section 3 of the Act is as under:- 3. Penalties for spying- (1) If any person for any purpose prejudicial to the safety or interests of the State- (a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or (b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; or (c) obtains, collects records or publishes or communicates to other person any secret official code or password, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to 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], he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code, to fourteen years and in other cases to three years. (2) On a prosecution for an offence punishable under this section 1 [***] it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State; and if any sketch, plan, model, article, note, document or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or password is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safely or interests of the State, such sketch, plan, model, article, note, document, ^information, code or pass word shall be presumed to have been made] obtained, collected, recorded, published or communicated for a purpose prejudicial to the safely or interests of the State. 13. A bare perusal of the provision makes it abundantly clear that sub-section (2) clearly lays down that it is not the duty of the prosecution to prove that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State. In fact, the Court shall presume that sketch, plan, model, article, note, document or information, code or password have been made, obtained, collected or communicated for a purpose prejudicial to the safety or interests of the State. 14. Thus, the prosecution is required to prove merely the recovery of such documents or articles, Once the prosecution has proved that such articles were recovered from the accused, the court shall draw the presumption against the accused. In the present case, Sayed Nafasat Ali (RW.2) and Mohd. Khalif (RW.4), both independent witnesses, have clearly proved the recovery made from Shahnawajs house. Therefore, the learned Judge was certainly justified in invoking the presumption under Section 3 of the Act. 15. As far as the appeal of Hasim Ali is concerned there is much merit in his appeal. In the present case, Sayed Nafasat Ali (RW.2) and Mohd. Khalif (RW.4), both independent witnesses, have clearly proved the recovery made from Shahnawajs house. Therefore, the learned Judge was certainly justified in invoking the presumption under Section 3 of the Act. 15. As far as the appeal of Hasim Ali is concerned there is much merit in his appeal. For, it is a settled principle of law that the distance between "may be true" and "must be true" is a long distance, which the prosecution needs to cover. It is also well settled principle of law that no matter howsoever strong the suspicion, it cannot take the place of proof. Furthermore, before a presumption can be drawn against an accused, the prosecution is required to lay down the foundational facts pointing to the guilt of the accused. But in the present case, the learned Judge has ignored these settled principles of law. 16. A bare perusal of the prosecution case and of the impugned judgment clearly reveals that the prosecution has been able to merely prove that photocopy of Hasim Alis ration card and photocopy of his identity card issued by the Election Commissioner were recovered from the house of Shahanwaj. However, those two documents cannot possibly link Hasim Ali to the commission of offence under Section 3/9 of the Act. A bare perusal of the impugned judgment also reveals that the learned Judge has presumed that Hasim Ali had abetted Shahanwaj to commit the crime ostensibly on the ground that they were known to each other for ten to eleven years. However, such a presumption is unwarranted by law. Merely because, a person knows the accused, it does not necessarily imply that the would be aware of the nefarious activities of the accused. Thus, the conviction of Hasim Ali for offence under Section 3/9 of the Act is legally unsustainable. 17. For the reasons the appeal of Shahanwaj is, hereby, dismissed. The appeal of Hasim Ali is, hereby allowed. The conviction and sentence of Hasim Ali is, hereby, quashed and set aside. Since Hasim Ali is on bail, his bail bonds stand discharged.Appeal allowed. *******