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2014 DIGILAW 283 (MP)

Abbas Ali Khan v. State of M. P.

2014-03-10

G.D.SAXENA, S.K.GANGELE

body2014
JUDGMENT Saxena, J. -- 1. This appeal under section 374(2) of the Code of Criminal Procedure 1973 preferred by the appellant/accused is directed against a judgment dated 28th May 2008 rendered in Sessions Trial No.145/06 by the Sixth Additional Sessions Judge, Gwalior, convicting and sentencing the accused for commission of offences punishable under section 419 of IPC for three year’s RI, under ection 420 read with 120B of IPC for five year’s RI, under section 467 read with 120B of IPC for 10 year’s RI, under section 471 read with 120B of CPC for 2 year’s RI, as well as under sections 3(1)(a) (b)(c) and 9 of the Official Secrets Act 1923 for 14 year’s RI, and lastly under section 14 of the Foreigners Act for five year’s RI. 2. The prosecution version, in short, for deciding this appeal is that the appellant-accused was a resident of Satellite Town Colony, Police Station City, District Rahim-yar-khan, Punjab (Pakistan) having valid Passport No.K224602 dated 22nd May 2001 issued by Pakistan entered in India under valid Visa No.P391103 dated 26th April 2005 till dated 26th August 2005 through Wagha Out Post India. After entering India, Residential Permit (Under Para 7 of the Foreigners Order 1948) was issued. He had to deport India on or before 26th August 2005. It is alleged that after expiry of said period of valid stay, the accused-appellant did not return back to Pakistan through same way and by hiding himself he visited various places in India. Lastly, he resided in Gwalior using fake name as Madho Singh, son of Ved Prakash and by making forged mark-sheet of examination with regard to Educational Institute, he obtained the driving licence in his above fake name. He also obtained the Rashan card. He resided using the aforesaid fake name in the house of Barkhoo Dhobi. Being the spy of country Pakisthan, he drew certain pictures of prohibited Defence Organizations of Gwalior and also transmitted them to Pakistan. On reliable information of informer and under direction and permission from higher officers, Town Inspector A.R. Sharma of Police Station Inderganj, Gwalior along with other superior officers and police force conducted raid in the house of Barkhoo Dhobi at Daliyawala Mohalla, Nai Sarak Gwalior and accused-appellant was arrested on the spot. Thereafter on enquiry, the Investigating Officer searched the part of the house where the accused Abbas Ali Khan was residing. Thereafter on enquiry, the Investigating Officer searched the part of the house where the accused Abbas Ali Khan was residing. The incriminating articles as per seizure memos were seized. After arrest and seizure, the FIR was lodged against accused Abbas Ali. The investigation was set into motion. During investigation, the search was done in presence of accused Abbas Ali Khan of the house of Mohammad Shahid at Nazeer Buland Sahar U.P. On search, the passport and visa papers were seized. A confidential map of Defence Organization and other papers were seized from residence of accused Abbas Ali Khan. Forged mark-sheet, driving licence and Rashan Card issued in the fake name of Madho Singh son of Ved Prakash which were used by the accused Abbas Ali Khan were also seized. After getting permission for prosecution of accused Abbas Ali Khan, the charge-sheet was filed before the competent Criminal Court. On sessions trial, after recording evidence of the prosecution evidence as well as defence, the learned trial Judge convicted and sentenced the accused-appellant for the alleged offences as mentioned above, hence, this appeal. 3. The contentions put forth on behalf of the accused-appellant are that the appellant who is Pakistani national entered in the month of July 2005 in India by railway through Bagha International Post under valid permission to travel in India on passport and visa which was for a prescribed period. It is submitted by the learned counsel that the allegation against the appellant is only that much that after expiry of his valid period of stay, he continued his living in India and did not return back to his country. It is contended that he is an honest person without any criminal past against him. He was not involved in any spy activities in India. It is submitted that during trial, no proper opportunity to defend the appellant was provided and therefore, the impugned judgment of conviction and sentence which was recorded in the absence of proper opportunity of hearing to the accused is liable to be set aside. He was not involved in any spy activities in India. It is submitted that during trial, no proper opportunity to defend the appellant was provided and therefore, the impugned judgment of conviction and sentence which was recorded in the absence of proper opportunity of hearing to the accused is liable to be set aside. It is thus, prayed that by allowing the appeal, the sentence as imposed against the appellant by the trial Judge may be set aside or in alternative, some leniency may be adopted in awarding sentence to the appellant after considering the circumstances and in view of the fact that he is national of Pakistan who had spent a considerable period in Indian prison and now wishes to leave India and to go to his country for spending rest period with his family. 4. Per contra, the learned Public Prosecutor opposed the prayer of the appellant and submitted that after expiry of the period, he did not follow the procedure for extension of his stay in India, nor wished for his return to his country back. Instead, he visited various places in India. Being a spy he hided himself and resided in India using fictitious name. On the basis of fake and fabricated documents, he obtained the driving licence and ration card to prove the residence of locality of the area. He was also involved in drawing the pictures and securing other relevant informations for being sent to Pakistan relating to safety of India. In such facts and circumstances, after affording the proper opportunity of defence, the trial Judge convicted and passed the adequate sentence. Therefore, it is prayed that by dismissing the appeal of the appellant, the conviction and sentence awarded by the trial Judge may be made absolute. It is also prayed that after execution of the awarded sentences, the appellant be expelled from country under custody. 5. Heard the learned counsel appearing for accused-appellant and learned Public Prosecutor for the respondent-State. Also perused the record of the trial Court and the law applicable to the present case. 6. It is also prayed that after execution of the awarded sentences, the appellant be expelled from country under custody. 5. Heard the learned counsel appearing for accused-appellant and learned Public Prosecutor for the respondent-State. Also perused the record of the trial Court and the law applicable to the present case. 6. In view of the submissions made by the learned counsel on either side, we have to consider whether the trial Court is justified in holding conviction and sentence against the accused on the following grounds : (A) that being the national of Pakistan, the accused had entered under valid passport issued by the Government of Pakistan and under valid visa issued by Indian embassy but overstayed in various places in India including Gwalior with specific purpose of spying for country of Pakistan for which he was held guilty under section 14 of the Foreigner Act 1946 and rightly sentenced; (B) that being national of Pakistan, the accused was living at Gwalior using fictitious name and was involved in spying for Pakistan by taking pictures of defence originations such as Morar Cantonment Air Force Station Gwalior and like other places of national importance for which he was rightly convicted and sentenced under section 3 of the Official Secrets Act; (C) that, being Abbas Ali Khan alias Majid, a national of Pakistan the accused was allowed to travel in India on valid Passport and visa for a specific period but he overstayed illegally in Gwalior after preparing a Motor Vehicle Licence in the factitious name as Madho Singh son of Ved Praskash for which he was rightly convicted and sentenced for offence under section 419 of IPC; (D) that, during illegal stay in India, the accused possessed the counterfeit documents such as driving licence, Ration card issued in the fake name of Madho Singh, son of Vedprakash and prepared forged mark-sheet for cheating for which he was rightly convicted and sentenced for offence punishable under section 467 of IPC; (E) that, being Abbas Ali Khan, a national of Pakistan the accused overstayed in Gwalior after possessing the fake driving licence, ration card as well as mark-sheet in the fake name of Madho Singh son of Ved Prakash and used these fake documents as genuine for purpose of residing in India illegally and obtained service as driver at Gwalior for which he was rightly convicted and sentenced under section 471 of IPC. 7. The relevant provisions of the Foreigners Act, 1946 are as under : “3. Power to make orders. -- (1) The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into (India) or their departure therefrom or their presence or continued presence therein. presence or continued presence therein. (2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner -- (a) shall not enter (India), or shall enter (India) only at such times and by such route and at such port or place and subject to the observation of such conditions on arrival as may be prescribed; (b) shall not depart from (India), or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed; (c) shall not remain in (India) or in any prescribed area therein. 5. Change of name. -- (1) No foreigner who was in (India) on the date on which this Act came into force shall, while in (India) after that date, assume or use or purport to assume or use for any purpose any name other than that by which he was ordinarily known immediately before the said date. (2) Where, after the date on which this Act came into force, any foreigner carries on or purports to carry on (whether alone or in association with any other person) any trade or business under any name or style, other than that under which that trade or business was being carried on immediately before the said date, he shall, for the purposes of sub-section (1), be deemed to be using a name other than that by which he was ordinarily known immediately before the said date. (3) In relation to any foreigner who, not having been in (India) on the date on which this Act came into force, thereafter enters (India), sub-sections (1) and (2) shall have effect as if for any reference in those sub-sections to the date on which this Act came into force there were substituted a reference to the date on which he first enters (India) thereafter. (4) For the purposes of this section -- (a) the expression “name” includes a surname, and (b) a name shall be deemed to be changed if the spelling thereof is altered. (5) Nothing in this section shall apply to the assumption or use -- (a) of any name in pursuance of a [***] license or permission granted by the Central Government; or (b) by any married woman, of her husband’s name. Section 14. Penalty for contravention of provisions of the Act, etc. -- whoever -- (a) Remains in any area in India for a period exceeding the period for which the visa was issued to him; (b) does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder; (c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which no specific punishment is provided under this Act, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if he has entered into a bond in pursuance of clause (f) of sub-section (2) of section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting court why such penalty should not be paid by him. Explanation : For the purposes of this section, the expression “visa” shall have the same meaning as assigned to it under the Passport (Entry into India) Rules, 1950 made under the Passport (Entry into India) Act, 1920 (34 of 1920). 8. In the case of Habib Ibrahim v. State of Rajasthan [ (2008)6 SCC 772 , at page 775], the Hon’ble apex Court observed as follows : “8. Prosecution evidence clearly establishes that the appellant did not have passport to stay in India. This fact is not disputed by the appellant. The only plea to justify his presence was that he had come to visit his wife and children. As rightly noted by the Courts below, the appellant had been issued a transit visa that too for Nepal for a period of six months. There was no valid document in possession of the appellant to stay in India. The only plea to justify his presence was that he had come to visit his wife and children. As rightly noted by the Courts below, the appellant had been issued a transit visa that too for Nepal for a period of six months. There was no valid document in possession of the appellant to stay in India. The only plea to justify his presence was that he had come to visit his wife and children. That does not give any right to him to stay illegally in India. 9. As rightly noted by the Courts below, the appellant had been issued a transit visa that too for Nepal for a period of six months. There was no valid document in possession of the appellant to stay in India. Therefore, section 3 read with section 14 of the Act have been rightly applied. The conviction therefore cannot be faulted. So far as the sentence is concerned, considering the large number of infiltrators that come to India without valid documents, there is need for imposing stricter sentence. The reasons given by the appellant to justify his presence in India have hardly any substance. The appellant’s feeble plea that he did not know that he is required to be in possession of valid document is without substance. Otherwise, he would not have obtained any transit visa for Nepal.” 9. On considering the first ground compelling for recording conviction of the accused-appellant, the prosecution witness Atmaram Sharma (PW36) deposed that on 13th March, 2006 he was posted as Inspector-incharge at Police station Inderganj, Gwalior. On that day he entered the information at Serial No.807/13.3.2006 in daily register of Police Station Inderganj Gwalior to the effect that one Pakistani spy is residing in the house of Barkhu Dhobi in Daliyawala Mohalla Nai Sarak Gwalior who is transmitting the secret information of Defence Organization of Gwalior and is also making the plan to cause serious incident in Gwalior. Thereafter he, Shri K.D. Sonekiya and other police force of Police Station Inderganj and STF and in presence of one independent witness Rishikesh Paramar (PW1) proceeded to that place and conducted raid in the house of Barkhu Dhobi. On knocking the door of the house, the accused-appellant opened it. On inquiry he introduced himself as Madho Singh and as identity he produced the driving licence of Madho Singh issued by the Regional Transport Authority Gwalior. On knocking the door of the house, the accused-appellant opened it. On inquiry he introduced himself as Madho Singh and as identity he produced the driving licence of Madho Singh issued by the Regional Transport Authority Gwalior. On doubts he and other police officers conducting the raid when accused-appellant disclosed himself as Abbas Ali Khan, national of Pakistan. He did not produce valid Passport and visa for staying in India. He visited Delhi, Bombay, Bulandsahar (U.P.) and Gwalior. He also informed that he is spy for Pakistan and during stay in India, he collected the secret informations of Indian Army Organization and was transmitting the secrets of defence to Pakistan. On searching the room where he was residing, one forged driving licence was found in the name of Mazid, son of Mohammad Nasir, resident of Mohalla Mohmmad Khan Saray Muradabad U.P. on which photo of Abbas Ali Khan, the present accused was affixed. That apart, one photo of Military area of Morar Cantonment, one negative photograph one camera, mobile sim and other documents related to national security were seized through seizure memos. The seized articles were sealed on the spot. The spot map of room where the accused was residing was prepared vide Ex.P-2 and thereafter the accused was arrested vide arrest memo Ex.P-5. On arrival at the Police Station Inderganj Gwalior he lodged the FIR and registered the crime against the accused-appellant. After arrest on enquiry, the witness recorded the information regarding the recovery of the articles in memorandum Ex.P-23. On getting the confidential code and password, the web account of the accused was opened which revealed the documents vide Exs.P-24 to 49 relating to confidential informations about the security and safety of the Nation. These important documents and information were found to be sent by E-mail to Pakistan. On getting the confidential code and password, the web account of the accused was opened which revealed the documents vide Exs.P-24 to 49 relating to confidential informations about the security and safety of the Nation. These important documents and information were found to be sent by E-mail to Pakistan. The facts as stated by the witness Atmaram above are fully supported by Lalit Shakya (PW1) eye-witness of the search, seizure and arrest of the accused from the house of Barkhu Dhobi at Daliyawala Mohalla, Nai Sarak Gwalior, K.D. Sonakiya (PW9) Inspector DSP STF Gwalior, Sundarlal Shivhare (PW18) witness of memorandum Ex.P-23, dated 14th March, 2006 recorded at Police Station Inderganj on information of accused Abbas Ali Khan by Atmaram Sharma (PW36), Krishnapal Yadav, Constable No.1513 posted in the Office of C.S.P. Jhansi Road Gwalior who on directions of C.S.P. Jhansi Road, Gwalior opened the E-mail account of accused Abbas Ali Khan by giving E-mail address and password with attached document and copied the documents on paper. Those documents Ex.P-25 to 48 were seized by Inspector-in-charge of the Police Station by seizure memo Ex.P-49. 10. Muktak Mohammad (PW34), who at the relevant time was posted as Security Assistant General in Bureau of Immigration Railway Station Atari Boarder (Amritsar) deposed that as per computer record maintained in the office of Bureau of Immigration, the accused Abbas Ali Khan first visited India on 17th January, 2005 and returned back on 10th February 2005. He again visited India on 12th July, 2005 but then did not return back to Pakistan through same root. The Entry Residential Permit is Ex.P-119 and issued visa is Ex.P-120 and relevant computer entry is Ex.P-121. 11. He again visited India on 12th July, 2005 but then did not return back to Pakistan through same root. The Entry Residential Permit is Ex.P-119 and issued visa is Ex.P-120 and relevant computer entry is Ex.P-121. 11. The passport of accused-appellant, Residential Permit under para 7 of Foreigners order 1948, visa form issued by India High Commission Islamabad mentioning details in the column of last visit as P-3, 40273 dated 1st November, 2004 to 15th March 2005, were seized vide seizure memo Ex.P-12 from the house of Mohammad Shaid at Gulawati Police Station District Bulandshahar U.P. So, on perusal of the statements of the above witnesses and admission of the accused himself in his statement recorded under section 313 of CrPC, it is proved that accused-appellant Abbas Ali Khan, the national of Pakistan was residing unauthorizedly and illegally in the house of Barkhu Dhobi Daliyawala Mohalla, Nai Sadak Gwalior who after expiry of permit (visa) issued by the Indian Embassy Islamabad (Pakistan) was living in India with some ulterior object. It is also proved that the accused Abbas Ali Khan, a national of Pakistan was residing using fictitious name as “Madho Singh, son of Ved Prakash” with a view to conceal his unauthorized presence in India for specific purpose of spying for enemy country. 12. Vedraj Sareen (PW5) who was working in RTO Office Gwalior on commission basis, deposed that in December 2005, one person approached him for making the learning licence. Because he was leaving from Gwalior, so he suggested the name of another commission agent, namely, Ameen Hussain, resident of Gendewali Sadak Gwalior. One month after that said person having learning licence issued by RTO Gwalior in the name of Madho Singh, son of Ved Prakash at the behest of another commission agent Ameen Hussain came to this witness and requested him for issuance of permanent driving licence. After getting requisite information, he filled the prescribed form for permanent driving licence and deposited the same in the office of RTO Gwalior and after completing formalities permanent driving licence was issued in the name of Madho Singh, son of Ved Prakash which was handed over to that person. The witness clarified that the accused applied for permanent driving licence which was issued on the basis of learning licence issued previously by another commission agent Ameen Hussain. The witness clarified that the accused applied for permanent driving licence which was issued on the basis of learning licence issued previously by another commission agent Ameen Hussain. Subsequently, he came to know that the person to whom permanent driving licence was issued in the name of Madho Singh under his commission was Abbas Ali Khan, a national of Pakistan who has been involved in spy against India. 13. Anand Sharma (PW8), an employee of RTO Gwalior in his deposition approves the fact of issuance of learning licence by RTO Gwalior at the behest of Ameer Hussain, RTO commission agent on the basis of Mark-sheet, residential proof and ration card which were in the name of Madho Singh, son of Ved Prakash. He deposed that Ameen brought the form for learning licence which was duly affixed with the photograph of the applicant, namely Madho Singh along with containing other documents such as mark-sheet of class 6th issued by Middle School Bal Mandir Daulatganj Gwalior, as residential proof, a photocopy of ration card etc. etc. 14. O.P. Shukla (PW28) posted as RTO Gwalior at the relevant period, deposed that in the month of December, 2005, one Ameen brought one person namely, Madho Singh for issuing the learning driving licence. After asking some preliminary questions regarding traffic signs, he granted the learning licence to Madho Singh. 15. Anand Singh Kushwaha (PW10), a taxi driver deposed that his friend Sunder Singh introduced one person Madho Singh, resident of Nai Sadak Gwalior and requested him after trial of driving to employ him as driver on his taxi. He further deposed that after conducting trial, he found that the person named Madho Singh was not perfect in taxi driving so he did not keep him as a driver on his taxi. Madho Singh was accused Abbas Ali Khan who was present in trial. Sundar Singh (PW11) another taxi driver who introduced the accused Abbas Ali Khan to Anand Singh Kushwaha (PW10) also supported the statement of Anand Singh Kushwaha (PW10). Madho Singh was accused Abbas Ali Khan who was present in trial. Sundar Singh (PW11) another taxi driver who introduced the accused Abbas Ali Khan to Anand Singh Kushwaha (PW10) also supported the statement of Anand Singh Kushwaha (PW10). Thus, the above witnesses and documents successfully proved that the accused Abbas Ali Khan was after period of his valid stay in India did not return back to his country and was residing in the house of Bakhoo Dhobi at Daliyawala Mohalla, Nai Sadak Gwalior in the fictitious name of Madho Singh, son of Ved Prakash and for the purpose of proving him as Madho Singh son of Ved Prakash, as Indian Citizen he obtained fake learning and permanent driving licence from RTO Gwalior and thereafter he also tried to obtain job of driver on a taxi. 16. On perusal of the deposition of the above witnesses, and admission of the accused-appellant Abbas Ali khan it is proved that the accused after expiry of the period of stay in India, did not deport from India on the directed rail-route. Thereafter he visited various cities in India and lastly he decided to live in Gwalior city. He, in the fictitious name of Madho Singh, son of Ved Prakash was living in one hired room of Bakhoo Dhobi in Daliyawala Mohalla at Nai Sadak Gwalior and for confirmation of the fact that he is Indian citizen the accused managed and obtained learning and regular driving licence, ration card and secured other identity proofs. Hence, it is beyond doubts proved that the appellant-accused violated the provisions as mentioned in section 5 and section 3(1) and (2) of Foreigners Act, which is an offence punishable under section 14(a)(c) of the Act. The learned Sessions Judge hence on proper appreciation of the evidence on record, after considering the arguments advanced on behalf of the defence has arrived at the correct conclusion of conviction and properly sentenced him. 17. To answer the second ground whether the accused-appellant being national of Pakistan was living in Gwalior using fictitious name and was involved in spying for Pakistan by taking pictures of defence originations such as Morar cantonment, Air force Station Gwalior and like other places of national importance at Gwalior for which he has been rightly convicted under section 3 of the Official Secrets Act, the relevant provisions of the Act are as under : 3. Penalties for spying. 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 any 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 [***] 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 safety or interests of the State, such sketch, plan, model, article, note, document, [information, code or password shall be presumed to have been made], obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State. 13. Restriction on trial of offences. -- (1) No Court [other than that of a Magistrate of the first class specially empowered in this behalf by the (appropriate Government)] which is inferior to that of a District or Presidency Magistrate shall try any offence under this Act. (2) If any person under trial before a Magistrate for an offence under this Act at any time before a charge is framed claims to be tried by the Court of Session, the Magistrate shall, if he does not discharge the accused, commit the case for trial by that Court, notwithstanding that it is not a case exclusively triable by that Court. (3) No Court shall take cognizance of any offence under this Act unless upon complaint made by order of, or under authority from, the (appropriate Government) [***] or some officer empowered by the (appropriate Government) in this behalf: [***] (4) For the purposes of the trial of a person for an offence under this Act, the offence may be deemed to have been committed either at the place in which the same actually was committed or at any place in (India) in which the offender may be found. [(5) In this section, the appropriate Government means -- (a) in relation to any offences under section 5 not connected with a prohibited place or with a foreign power, the State Government; and (b) in relation to any other offence, the Central Government.] 18. In the case of Safi Mohammed v. State of Rajasthan [ (2013)8 SCC 601 , at page 612], the Hon’ble apex Court observed which is alike present as follows : “30. The learned Public Prosecutor has rightly placed reliance on the decision of this Court in Sama Alana Abdulla v. State of Gujarat. In the said decision this Court lays down the legal principle that merely because the police witnesses have spoken about the search and the seizure of documents 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 abovereferred case are applied to the facts of the case in hand to accept the proof of search and 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 the learned 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 evidence on record. The same cannot be interfered with by this Court in exercise of its jurisdiction. 31. The same cannot be interfered with by this Court in exercise of its jurisdiction. 31. 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 from the house of the appellant in view of the law laid down by this Court in the above case in Sama Alana Abdulla 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 the other accused and they have failed to give satisfactory explanation about the documents being in their possession. 34. In the impugned judgment the learned Sessions Judge has referred to the evidence of PW27 and PW32 and opined that the documents, particularly Ex.D-3 seized from the possession of the appellant be sent for their opinion as to whether the said document 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 the basis of the information available in the said document, if Pakistani officials want to destroy the country by air attack it would become easier. 35. The learned 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. 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 referred to supra, it has come to the right conclusion by accepting the evidence of police witnesses PW21 and PW22 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 its judgment. It had rightly come to the conclusion on the fact while recording the finding on the charge on the basis of evidence of PW27 and PW32 who have opined that if the said document and information contained therein is made available to the Pakistani officials it will be dangerous to the integrity and security of the nation. 36. The contentions urged by the learned counsel on behalf of the appellant that PW27 and PW32 are not expert witnesses in terms of section 45 of the Evidence Act by placing reliance upon the decisions of this Court referred to supra are misplaced 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 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 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 misplaced and do not support the case of the appellant. 37. 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 arguments advanced on behalf of the appellant and recorded its findings on the charge with reasons. 38. For the foregoing reasons, we are of the view that this is not a fit case for our interference with the impugned judgment 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 the other accused persons and rightly convicted and sentenced them for seven years’ rigorous imprisonment. 39. The appeal is devoid of merit and is liable to be dismissed and is accordingly dismissed.” 19. 39. The appeal is devoid of merit and is liable to be dismissed and is accordingly dismissed.” 19. On coming to the prosecution evidence, it is found that Colonel Anand Sharma (PW27) deposed that documents Ex.P-67 to 104 which were sent by S.P. Gwalior were examined by him and he opined that those were related to Morar Cantonment area and if they were transmitted to enemy, it may likely to affect the sovereignty and integrity including security of the State. On enquiry of the phone calls of the accused made during relevant time, it was found that most of the calls were related to ISI operation Pakistan. S.O. Sani Mishra (PW33) Wing Commander, Air Force deposed that he received a letter Ex.P-110 along with documents Ex.P-111 to P-112. He studied those letters and documents and opined that if the contents of the document were disclosed to enemy, then there is likely to affect security and interests of the Nation. According to him those documents were secret defence documents. His report is Ex.P-113. 20. Damodar (PW17) a taxi driver deposed that accused Abbas Ali Khan alias Madho Singh insisted him to purchase a sim of Idea in the name, address and identity (ration card and photograph) of the witness and his son and thereafter the accused got that sim for activation and operation in his mobile phone. Nandu (PW20) who is son of witness Damodar also supported the aforesaid and stated that accused Abbas Ali Khan alias Madho Singh insisted his father Damodar for purchasing a mobile sim in his name address and identity (ration card and photograph) and then on the prescribed form, the accused affixed his photograph and got back the sim from him and thereafter activated and operated the same for his activities. 21. Upendra Singh Parmar (PW30) Assistant Manager Idea Cellular Limited Company deposed that he issued and verified the call details (Ex.P-106) relating to mobile sim No.9826606391. He stated that most of the calls were sent abroad from using the said sim. Colonel Anand Sharma (PW27) in his deposition also supports that on verifying the list of details sent by the S.P., Gwalior from the concerning mobile companies, it was gathered that most of the mobile calls were sent and received in abroad and ISI Operator in Pakistan. After inquiry he submitted the said information in letter vide Ex.P-107 to S.P. Gwalior. 22. After inquiry he submitted the said information in letter vide Ex.P-107 to S.P. Gwalior. 22. Atmaram Sharma (PW36) in his deposition confirmed the seizure memo Ex.P-1 that one mobile phone of Nokia company with IMIE No.351466401574114 and Sim No.09893568223 was in operation which was received from possession of accused in his occupied room of house of Barkhoo Dhobi at Daliyawala Mohalla, Nai Sadak Gwalior. 23. On the basis of the deposition of the above witnesses and exhibited and proved documents mentioned above, the prosecution successfully proved that the accused-appellant Abbas Ali Khan a national of Pakistan after expiry of his valid stay in India on fictitious name and identity was living in the house of Barkhoo Dhobi at Daliawala Mohalla Nai Sadak and he was involved in illegal activities and as spy was working for ISI agency of enemy country which was certainly detrimental to the defence and safety of the Nation. 24. Beerendra Kumar (PW29) Under Secretary Home Union of India deposed that on request of M.P. State Government for permission under section 13(3) of the Official Secret Act, 1923 for prosecution of Abbas Ali Khan, his alleged alias names and associates, namely, Shabir Mohmmad, Shahid, Aameen Husain and Barkhoo Dhobi, the Indian Nationals, he granted the permission vide Ex. P-108 on and on behalf of His Excellency, the President of India. 25. Looking to the above all facts, we are of considered view that the learned trial Judge on proper appreciation of the evidence and the statements of above named witnesses, on exhibited and proved above documents on record, has arrived at the correct conclusion. Hence, the learned trial Judge properly convicted the accused-appellant for offence under section 3 of the Official Secrets Act. 26. Next ground for consideration is whether the accused-appellant Abbas Ali Khan being a national of Pakistan entered in India on valid Passport and visa for a specific period and thereafter overstayed illegally in Gwalior on fictitious name as Madho Singh, son of Ved Praskash and had obtained a Motor Vehicle Licence on fictitious name for specific purpose of spy for enemy country for which he has been rightly convicted for offence under section 419 of IPC and imposed appropriate sentence. 27. Relevant provisions of law are as follows : “416. Cheating by personation. 27. Relevant provisions of law are as follows : “416. Cheating by personation. -- A person is said to “cheat by personation” if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. Explanation : The offence is committed whether the individual personated is a real or imaginary person. 419. Punishment for cheating by personation. -- Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 28. Atma Ram Sharma (PW36) deposed before the trial Judge that on 13th March 2006 he was posted as Inspector-in-Charge of Police Station Indarganj Gwalior. On that day, he lodged the information at Serial No.807/13.3.2006 in daily register of Police Station Indarganj Gwalior with intent that one Pakistani spy is residing in the house of Barkhoo Dhobi Daliyawala Mohalla Nai Sadak Gwalior and he is transmitting the secret information of defence organization of Gwalior and also making plan to cause destructive acts in Gwalior. Thereafter he along with Shri K.D. Sonakiya and other police force of Police Station Indarganj and STF force proceeded to the place. Then in presence of one independent witness Rishikesh Paramar (PW1) and another witness of the area he conducted raid in the house of Barkhoo Dhobi. On knocking the accused-appellant opened the door of the house. On inquiry, he introduced himself as Madho Singh Rajput and as identity he produced the driving licence of Madho Singh issued by Regional Transport Authority Gwalior. On doubts and interrogation the accused-appellant disclosed to the police officers conducting the raid that he is Abbas Ali Khan resident of Pakistan. The accused stated that he visited India on issuance of valid passport and visa. The accused admitted that after permit to stay in India, he did not return back to Pakistan and visited Delhi, Bombay, Bulandsahar U.P. and Gwalior. The accused also informed that he was spy for Pakistan and during stay in India he collected the secret information of Indian Army Organization which he was transmitting to Pakistan. 29. The accused admitted that after permit to stay in India, he did not return back to Pakistan and visited Delhi, Bombay, Bulandsahar U.P. and Gwalior. The accused also informed that he was spy for Pakistan and during stay in India he collected the secret information of Indian Army Organization which he was transmitting to Pakistan. 29. On going through the record, we find that the evidence of witness Atmaram Sharma (PW37), the In charge Inspector of the Police Station Indarganj is well supported by other witnesses and the documents produced and proved. Even as per admission of the accused-appellant Abbas Ali Khan that he, after expiry of the period of stay in India, did not deport from India on the directed rail-route. Instead, he as Indian Citizen, visited various cities in India and lastly he decided to live in Gwalior city. He resided on fictitious name of Madho Singh, son of Ved Prakash in one hired room in the house of Bakhoo Dhobi in Daliyawala Mohalla at Nai Sadak Gwalior and on inquiry by the police officers for confirmation of the fact that he is a Indian Citizen, the accused produced the learning and regular driving licence obtained from RTO authorities on the strength of false and fabricated documents and showed other identity proofs. So, it is beyond doubts proved that the appellant-accused is guilty of the offence punishable under section 416 of IPC, which is an offence punishable under section 419 of IPC The learned Additional Sessions Judge on proper appreciation of the evidence on record and after hearing the parties has arrived at the correct conclusion of conviction for which the appellant is properly sentenced. 30. 30. The next grounds for consideration are (D) whether the accused-appellant, during illegal stay in India possessed the driving licence issued by the Regional Transport Authority Gwalior on the basis of counterfeit ration card and counterfeit mark-sheets of examinations of the relevant educational authorities issued in the name of other person but altered name of Madho Singh, son of Ved Prakash for the purpose of cheating for which he has been rightly convicted for offence punishable under section 467 of IPC or (E) whether the accused-appellant being Abbas Ali Khan, a national of Pakistan during overstay in Gwalior India used as genuine all those forged documents for illegal purpose of residing in India and obtained service as driver at Gwalior for which he has right been convicted and sentenced for offence under section 471 of IPC. 31. Dilshad Ahmad (PW21), son of Habib Ahmad deposed that he studied up to 8th Class in Bal Mandir Middle School Daulatganj Gwalior. He did not pass class 8th. He applied for and also obtained the driving licence. By the time of applying for driving licence he gave photocopy of his mark-sheet of class 6th to the commission agent working in RTO office Gwalior along with his passport size photograph with prescribed form and he received the learning licence from RTO Gwalior. That photocopy of the mark-sheet of class 6th was never returned back to the witness. Same was seized along with prescribed form for learning licence issued by RTO Gwalior in favour of Madho Singh son of Ved Prakash in which by erasing the name of Dilshad Ahmad (PW21), name of Madho Singh son of Ved Prakash was inserted and forged document was made for specific purpose of getting the learning licence from RTO Gwalior. 32. Smt. Priyamvada Kojlikar (PW12) and Sulbha Desai (PW13) working/worked in Bal Mandir Middle School Daulatganj Gwalior, in their depositions confirmed that Dilshad Ahmad son of Habbib Ahmad was a regular student of the school and mark-sheets of class 6th wasissued to the student Dilshad Ahmad. 33. Nandu (PW20) deposed that on request of Madho Singh alias Abbas Ali Khan accused filled the prescribed form for obtaining the sim of Airtel Company. 33. Nandu (PW20) deposed that on request of Madho Singh alias Abbas Ali Khan accused filled the prescribed form for obtaining the sim of Airtel Company. He on the request of the accused also provided to him two passport size of photos and copy of ration card on which the accused by erasing mentioned the name of Madho Singh, son of Ved Prakash, resident of Daliyawala Mohalla Gwalior. Atmaram Sharma (PW36), the Investigating officer deposed that he seized the receipt Ex.P-109 issued by Airtel Mobile Officer by which a sim of Airtel was issued to Nandu (PW20). He also seized the prescribed form for issuance of sim to Nandu. This sim No.989826606391 was used by accused Abbas Ali Khan for transmitting the relevant informations. It also appeared from statement of witness Atmaram Sharma (PW36) that in the photocopy of ration card recovered from possession of the accused Abbas Ali, the name of Madho Singh, a forged name of accused Abbas Ali was inserted and his photo was affixed and thereafter a photocopy of the forged copy of ration card of Nandu (PW20) was prepared by the accused for obtaining the learning licence, voter identity card so as to prove him Indian National by concealing his original identity for staying in India beyond prescribed period with specific purpose of spy for enemy country. 34. So, it is beyond doubts proved that the appellant-accused is guilty of the offence punishable under section 463 of IPC punishable under section 467 of IPC. The learned Additional Sessions Judge on proper appreciation of evidence on record has arrived at the correct conclusion of conviction and the accused-appellant is properly sentenced. 35. Now, we have to deal with another aspect of the matter as to whether section 471 of IPC applies only to a person other than a forger and in that case a forger cannot be convicted under section 471 of IPC. What makes the offence under section 471 of IPC is the fraudulent or dishonest use of a forged document as genuine document by a person who knows or reasons to believe to be forged. The act of using such a forged document is by itself an offence. Hence, if a forger uses that document, such uses would constitute an offence under section 471 of IPC. The act of using such a forged document is by itself an offence. Hence, if a forger uses that document, such uses would constitute an offence under section 471 of IPC. The act or acts which constitute the commission of the offence of forgery are quite different from the act of making use of a forged document. Therefore, section 471 of IPC covers not only some person other than a forger but also a forger who forges the document and then makes use of it. So the legal position boils down to this that if a person is found guilty of offence of forgery, if he makes use of such forged document, then he can equally be punished under section 471 of IPC. In this manner, the learned trial Court has not committed any illegality in convicting and sentencing the accused under section 471 of IPC. 36. In view of the aforesaid discussions on the legal as well as factual aspects of the case, the appeal preferred by the appellant fails and is hereby dismissed. It is directed that after execution of sentences as imposed by the learned trial Judge Gwalior, the accused Abbas Ali Khan who is national of Pakistan be deported under police custody from the country via Wagha International Border. On his deportation from India, the seized passport of the accused be returned to him. The trial Judge is directed to issue necessary directions to the RTO Gwalior for cancellation of learning as well as permanent driving licence issued in the fake name of Madho Singh, son of Ved Prakash @ Abbas Ali Khan vis-a-vis other like seized driving licence issued in the fictitious name of Shahin by RTO Bulandshar U.P. During such proceedings, requisite steps shall also be taken by the learned trial Court for cancellation of name of Madho Singh, son of Ved Prakash, forged name of accused Abbas Ali Khan from the electoral role of the concerned constituency and the seized original documents shall be returned back to the persons from whose custody they were seized. All forged documents seized during investigation,after entering into the Register of Malkhana Section, shall be destroyed in the presence of Officer-in-Charge of the District Malkhana of District Court Gwalior. The immigration order issued to the appellant-accused Abbas Ali Khan from the Immigration Office of India at Pakistan be sent to Indian Foreign Secretary for taking further necessary proceedings.