JUDGMENT : 1. Heard Sri Imran Mabood Khan and Sri Rajrshi Gupta, learned counsels for the appellant and Sri Satish Pandey, learned A.G.A. for the State. 2. This criminal appeal has been preferred against the judgement and order dated 18.11.2017 passed by Additional Sessions Judge, Court No. 3, Rampur, in S.T. No. 293 of 2003 (State Vs. Shakeel Ahmad) convicting the appellant u/s 3(B)(C) of Official Secrets Act, Section 420 I.P.C. and Section 12 of Passports Act and sentencing him to undergo rigorous imprisonment for 10 years u/s 3(B)(C) of Official Secrets Act; 5 years rigorous imprisonment u/s 420 I.P.C. along with fine of Rs. 5,000/-, in default of payment of fine to further undergo two months imprisonment; 2 years rigorous imprisonment and a fine of Rs. 500/-u/s 12 of the Passports Act, in default of payment of fine, further 15 days imprisonment. 3. The prosecution case is that the informant Sunil Tyagi, S.I., S.T.F., Lucknow, Uttar Pradesh lodged an F.I.R at P.S.-Ganj, District-Rampur stating that Special Task Force, Lucknow, was receiving information from various agencies that some people are sending inputs to the I.S.I. and field intelligence units of Pakistan through different sources with intent to harm the country and in the situation of war, help Pakistan. On the basis of this information, S.S.P., S.T.F. Sri Rajeev Ranjan Verma, constituted a team for the purpose of collecting information and Additional Superintendent of Police, Sri H.N. Singh was appointed for this purpose. After investigation and collection of information from various sources, it was found that the appellant, Qari Shakeel, son of Mohd. Rashid, resident of Mohalla Chaah Khazaan Khan, Pahari Gate, P.S.-Ganj, District-Rampur, had gone to Pakistan many times. He is working for Pakistan Intelligence Agency and talks to Pakistani Intelligence Officer from the P.C.O. booth of Iqbal near his house and sends confidential information to Pakistan. 4. On 01.02.2003, on the basis of information received from the informer that in the night, Shakeel Ahmad will pass on the information from the aforesaid P.C.O. to Pakistani agent, the police team nabbed him while he was going to the P.C.O. of Iqbal. On being nabbed, he informed his name as Hafiz Qari Shakeel, son of Mohd. Rashid, resident of Mohalla Chaah Khazaan Khan, Pahari Gate, P.S.-Ganj, District-Rampur. From the search of his person, a passport no. L-165640 issued from Bareilly Passport Office on 26.05.1992 was recovered from his jacket pocket. On being nabbed, he informed his name as Hafiz Qari Shakeel, son of Mohd. Rashid, resident of Mohalla Chaah Khazaan Khan, Pahari Gate, P.S.-Ganj, District-Rampur. From the search of his person, a passport no. L-165640 issued from Bareilly Passport Office on 26.05.1992 was recovered from his jacket pocket. In the passport, name of passport holder was mentioned as Hafiz Shakeel Usmani, son of Rashid Sulemani, resident of Mohalla Chaah Khazaan Khan, Pahari Gate, Rampur, and it was valid upto 25.05.2002. The date of birth of passport holder was mentioned in the passport was 20.10.1969. The 2nd recovery was of a photocopy of passport no. A385003 dated 28.01.1991 valid upto 27.01.2001 in the name of Md. Shakeel Sultani, son of Rashid Ahmad Usmani, resident of Mohalla Chaah Khazaan Khan, Pahari Gate, Rampur having date of birth 10.05.1960. On the original passport and photocopy, photograph of Qari Shakeel was affixed. The 3rd recovery was a blue-coloured old pocket diary wherein telephone numbers and addresses of Pakistan were written in Urdu. The 4th recovery was a computerized card of Pakistani Hospital. The 5th recovery was of an identity card whereon name mentioned was Md. Shakeel Sultani and it bore seal of S.M. Hussain, Manager, Furqania Darul Ulam with a photograph. The 6th recovery was a foreign diary of 1999 wherein on the place of name and address, name of Hafiz Qari Mohd. Shakeel Usmani, son of Mr. Rashid Ahmad Usmani, resident of Mohalla Chaah Khazaan Khan, Pahari Gate, P.S.-Ganj, District-Rampur, was mentioned in English and Urdu. The address of Pakistan and other places were mentioned in the diary. The 7th recovery was of a telephone bill in the name of Jamil Ahmad Kadri, resident of 49/50, No. 5-F North Karachi of January 2000 of Pakistan Telecommunications Company Ltd. The 8th recovery was a photocopy of a visa application in the name of Hafiz Shakeel Usmani, High Commission for Pakistan, New Delhi, whereon passport no. L-165640 was mentioned. The 9th recovery was of three identity cards whereon no. AQ-074010 was mentioned and something was written in Urdu. The 10th recovery was of passbook of Union Bank of India of Account No. 9792 wherein entries of transaction of thousands of rupees was mentioned. The last entry was dated 13.12.1997 of Rs. 4,60,500/-. L-165640 was mentioned. The 9th recovery was of three identity cards whereon no. AQ-074010 was mentioned and something was written in Urdu. The 10th recovery was of passbook of Union Bank of India of Account No. 9792 wherein entries of transaction of thousands of rupees was mentioned. The last entry was dated 13.12.1997 of Rs. 4,60,500/-. The 11th recovery was a letter of Institute of Islamic Studies, 379 Brickton Hightown R.D.H. 3 Kenvery, New Jersey, 08512, U.S.A. whereon name of Shakeel was mentioned in Urdu and English. The 12th recovery was of a letter in English of Islamic Educational Service in the name of Mohd. Hafiz Shakeel Usmani wherein an application of visa sponsorship was found. The 13th recovery was a visa application dated 28.01.1991 of Pakistan High Commission and passport no. A385003 was mentioned. The 14th recovery was a receipt no. 001241 dated 26.07.2002 of Hafiz Shakeel of depositing Rs. 1,000/-at Bareilly Passport Office. One map of Bareilly Cantonment Area made on a paper with details of other army camps was recovered from his shirt pocket along with Rs. 140/- and a comb. 5. The Inspector Incharge questioned the nabbed person and he stated his name as Shakeel, resident of Rampur. He further stated that he has done the course of Hafiz and Qari and from the year 19892001, he had gone to Pakistan in the month of Ramzan number of times and stayed there after extension of visa. For going to Pakistan, he has got three passports prepared and has given fourth application. He admitted his photographs on the passport. Regarding the amounts found in his passbook, he stated that since he had applied for visa for America, the agent asked him to show substantial amount in his account and therefore, number of entries in the account are there but they are fake. 6. In 2001, when he was staying at Karachi, one Pakistani Intelligence Officer, Asad, introduced him to his Senior Officer, Haider. He met Haider five times and he offered him money and in the name of Islam, asked him to provide him secret information from India to Pakistan. For doing this work, he was given training and taught codes for informing about the movement of Indian Army. The codes are mentioned in diary. Haider gave him Rs. 2,500/-for getting a telephone and its number is 2329079. For doing this work, he was given training and taught codes for informing about the movement of Indian Army. The codes are mentioned in diary. Haider gave him Rs. 2,500/-for getting a telephone and its number is 2329079. Haider used to make call on the aforesaid phone and sometimes, he used to send information to him from Iqbal’s P.C.O. to Karachi. Haider used to talk to him in code words for seeking information regarding movement of Army. He transferred Rs. 5,000/-in his Union Bank of India account in 2002. Haider used to ask him to find an employee in the army for getting information. He admitted that he had collected information regarding Bareilly Army camp that day and was going to inform Haider at Iqbal’s P.C.O. when he was caught. 7. Since Hafiz Qari Shakeel was found involved in anti-national activities which was detrimental to the unity, integrity and security of the country on account of transfer of secret informations regarding security and movement of army, hence, the applicant was implicated in this case. He was arrested and the goods recovered from him were sealed. The relatives of the accused and other people gathered on the spot but no one came forward to be a witness. The memorandum of arrest and recovery was made in the street-light. 8. On the basis of the aforesaid F.I.R, Case Crime No. 57 of 2003 u/s 121, 121-A, 123, 420 I.P.C. and Section 12 of Passports Act and Section 3(1)(B) of Official Secrets Act was registered. The matter was investigated and charge-sheet was submitted before the Court. 9. The trial court framed charges against the applicant u/s 3(B)(C) of Official Secrets Act. Section 12 of Passports Act and Sections 121, 121-A, 123, 420 I.P.C. The accused denied the charges and sought trial. 10. The prosecution first of all examined P.W.1 informant Sunil Kumar Tyagi, who proved that on 01.02.2003, he was employed as S.I. in S.T.F., Uttar Pradesh. He was part of the team constituted to nab the accused which was constituted for that purpose. He named the members of the team and the manner of the nabbing of the accused on 01.02.2003 when he was going to Iqbal P.C.O. at about 11-12 p.m. in the night. He proved the documents recovered from the person of the accused as stated in the F.I.R and the documents were exhibited from Ext. 1 to Ext. 10. He named the members of the team and the manner of the nabbing of the accused on 01.02.2003 when he was going to Iqbal P.C.O. at about 11-12 p.m. in the night. He proved the documents recovered from the person of the accused as stated in the F.I.R and the documents were exhibited from Ext. 1 to Ext. 10. 11. P.W.2 S.I. Vikram Pal Sharma, proved that he was part of S.T.F. team and proved the names of other members of the team. He further proved the manner of arrest and the material recovered from the accused as per the version of the F.I.R. 12. P.W.3 Inspector Mukesh Kumar Saxena, stated that he went on 01.02.2003 with the S.T.F. team on being informed that a person who is sending information detrimental to the interest of the country, has to be caught. He proved the manner of arrest of the accused and the recovery made from him as per the allegations in the F.I.R. He also proved that the memorandum of recovery was prepared before him. 13. P.W.4 Ranjit Kumar Das, Passport Officer, proved the passport application of Hafiz Shakeel Usmani which he brought before the Court. As per the record, passport no. A-385003 dated 28.01.1991 was issued wherein the date of birth of Mohd. Shakeel Usmani was mentioned as 10.05.1960. His place of birth was shown as Rampur and father’s name was mentioned as Rafiq Ahmad Usmani. Mohd. Shakeel Usmani got another passport no. L-165640 dated 26.05.1992 from Passport Officer, Bareilly, showing his name as Hafiz Shakeel Usmani, son of Rashid Sulemani, place of birth, Rampur and date of birth-20.10.1969. Therefore, the appellant got two passports issued in two names showing two dates of birth and two names of father. Another application was made but passport was not issued. Apart from these passports, the appellant got a passport no. Q-659729 dated 25.07.1981 issued. The passport no. L-165640 and A-385003 were verified and their verification report was proved as Ext. A-4. Hafiz Shakeel Usmani made another application dated 25.07.2002 for issuance of another passport and since the police had come to know about earlier two passports in different names, dates of birth, father’s names issued to Hafiz Shakeel Usmani, no further passport was issued to him. The last application was proved before the Court and was exhibited as Ext. A-5. 14. Hafiz Shakeel Usmani made another application dated 25.07.2002 for issuance of another passport and since the police had come to know about earlier two passports in different names, dates of birth, father’s names issued to Hafiz Shakeel Usmani, no further passport was issued to him. The last application was proved before the Court and was exhibited as Ext. A-5. 14. P.W.5 S.I. Sant Sharan Mishra, proved that he recorded the F.I.R, statement of Sunil Kumar Tyagi, statement of the scribe of the F.I.R., Sher Singh, statement of accused Shakeel Ahmad on 04.02.2003, statement of V.P. Sharma, S.O.G. Incharge and on his pointing out, inspected the scene of the incident and prepared the site plan. He proved the site plan as Ext. A-6. He proved the memo of recovery as Ext. A-7. He proved the goods recovered from the accused as Ext. A-11 and 12 and other documents which was exhibited upto Ext. A-24. He proved the permission letter of the Government of India for investigation dated 27.07.2003 as Ext. A15 and charge-sheet as Ext. A-16. The chik F.I.R was exhibited as Ext. A-17 and G.D. as Ext. A-18. The other signatures in the G.D. were proved and exhibitted as Ext. A-19. 15. P.W.6 Abrar Hussain, stated that he was employed as urdu translator in the office of Superintendent of Police, Rampur and he made the hindi version of two documents with the permission of the Court which are exhibited as Ext. 11 and 12. 16. No evidence was led by the defence side. 17. The trial court after considering the documentary material and oral evidence on record, found that the offences u/s 420 I.P.C., Section 3(B)(C) of Official Secrets Act and Section 12 of the Passports Act are proved against the appellant beyond doubt and he was accordingly punished. 18. Sri Rajrshi Gupta, learned counsel for the appellant has submitted that no independent person was interrogated nor any corroborative evidence was produced before the Court to substantiate the allegations made in the F.I.R. but the charge-sheet was submitted and trial was conducted. During the trial, the prosecution examined only the members of the team who intercepted the appellant. The recovered articles/documents were produced before the Court, but the same were completely destroyed. The prosecution claimed that on account of being bitten by termites, they have been destroyed and have become completely illegible and useless for the purpose of evidence. During the trial, the prosecution examined only the members of the team who intercepted the appellant. The recovered articles/documents were produced before the Court, but the same were completely destroyed. The prosecution claimed that on account of being bitten by termites, they have been destroyed and have become completely illegible and useless for the purpose of evidence. The prosecution witnesses have only proved the recovery memo of the said articles without the articles being proved before the Court. No call details of calls allegedly made to Pakistan were collected by the Investigating Officer during investigation nor produced before the trial court in evidence. No investigation was done to find out whether any such Pakistani Secret Officer exists with whom the appellant was in touch and communicating. Only on the basis of extra-judicial confession made by the accused at the time of arrest, he has been implicated. The court below has given a finding to the effect that in his statement recorded u/s 313 Cr.P.C., the accused has not denied any recovery from him, and in the absence of his denial, it shall be taken to be an admission on his part. This finding of the trial court is absolutely illegal since in the specific query regarding recovery, the accused has denied the recovery and it was sufficient and adverse inference regarding nonspecific denial cannot be drawn against him. The burden of proving the case was on the prosecution which they have failed to prove. The documents and goods in possession of the prosecution were destroyed and therefore, the of the appellant cannot be justified. 19. Further P.W.1 informant Sunil Kumar Tyagi, P.W.2 S.I. Vikram Pal Sharma and P.W.3 Inspector Mukesh Kumar Saxena have stated in their testimonies that the recovered articles/documents were not brought before the trial court in their presence which shows that the entire prosecution case is false. The basis of conviction of the appellant was never produced before this Court. The appellant has stated in his statement that he had enmity with one Constable Pramod and he conspired to falsely implicate him in the present case. Initially, charge-sheet was filed u/s 121, 121-A, 123, 420 I.P.C. and another charge-sheet with regard to the same offence was filed u/s 3(1)(B) of Official Secrets Act. It is settled law that two charge-sheets cannot be filed when there is only one case. Initially, charge-sheet was filed u/s 121, 121-A, 123, 420 I.P.C. and another charge-sheet with regard to the same offence was filed u/s 3(1)(B) of Official Secrets Act. It is settled law that two charge-sheets cannot be filed when there is only one case. Under Official Secrets Act, only complaint can be filed by Superintendent of Police and no first information report can be lodged as in the present case in view of Section 13(3) of the Official Secrets Act. 20. The appellant is in jail since 18.11.2017 i.e. from the date of conviction and was in jail for about 1 year during trial and has undergone more than 4 years of imprisonment and even if it is assumed that he has multiple passports, he had undergone imprisonment of about 4 years when he can be convicted for only two years under the Passports Act. 21. Learned counsel for the appellant has finally submitted that the appellant deserves to be acquitted honourably. 22. Learned A.G.A. appearing for the State has vehemently opposed the arguments advanced on behalf of the appellant. He has submitted that the appellant has been implicated in this case on the basis of intelligence reports received by the S.T.F. that he was involved in activities detrimental to the unity, integrity and security of the country. The appellant was caught by the S.T.F. team and number of incriminating materials were recovered from him. Only because P.W.1 informant Sunil Kumar Tyagi, P.W.2 S.I. Vikram Pal Sharma and P.W.3 Inspector Mukesh Kumar Saxena stated that the goods recovered from the appellant were not sent to the Court before them would not vitiate the prosecution case. 23. The submission of the learned counsel for the appellant that the punishment of the appellant for offences u/s 3(B)(C) of the Official Secrets Act is barred by Section 13(3) of the Act aforesaid deserves consideration. 24. Section 13 of the Official Secrets Act, 1923 is reproduced hereinbelow : Section 13 in The Official Secrets Act, 1923 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 27 [Appropriate Government]) which is inferior to that of a District or Presidency Magistrate, shall try any offence under this Act. 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 27 [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 Sessions, 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 28 [Appropriate Government]29[***] or some officer empowered by the 27 [Appropriate Government] in this behalf: 30[***] (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 31 [India] in which the offender may be found. 32[(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.] 25. A perusal of the aforesaid sections show that there is restriction on trial of offences under the Act save by filing of complaint. Section 13(3) of the Act provides that 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. Section 13(5) of the Act defines the appropriate Government as the State Government with regard to the offence u/s 5 not connected with a prohibited place or with a foreign power and in relation to any other offence, the central government. 26. Section 13(5) of the Act defines the appropriate Government as the State Government with regard to the offence u/s 5 not connected with a prohibited place or with a foreign power and in relation to any other offence, the central government. 26. In this case, the cognizance of the offence u/s 3(B)(C) of the Official Secrets Act has been taken on the basis of the allegations made in the F.I.R. The trial court has brushed aside the objection to the cognizance taken by the Court on the ground that cognizance on the charge-sheet was taken u/s 420, 121, 121-A, 123 I.P.C. and offences u/s 121, 121-A & 123 I.P.C. were not proved beyond doubt and it found that the offences u/s 3(B)(C) of Official Secrets Act, 420 I.P.C. and Section 12 of the Passports Act, are made out. 27. It is settled law that when an accused is implicated for offence under the Indian Penal Code and also under special act, wherein the cognizance of offence can be taken only on the basis of complaint, the Court which has taken the cognizance of the offence, cognizable on the basis of complaint in proceedings initiated on the basis of F.I.R, it can only punish the accused regarding the offences, cognizance whereof was permissible on the basis of F.I.R. It cannot try and convict the accused for the offence committed under the special act, cognizance whereof could only have been taken on complaint case. Police could have filed a complaint regarding offences under the Official Secrets Act along with charge-sheet regarding sections of I.P.C. 28. In view of the above discussion, the conviction of the appellant u/s 420 I.P.C. and Section 12 of the Passports Act is upheld. However, the conviction u/s 3(B)(C) of the Official Secrets Act is set-aside. Offences u/s 420 I.P.C. and Section 12 of the Passports Act stand fully proved against the applicant since he was found to have got multiple passports issued on the basis of different particulars. Therefore his conviction and sentence under the aforesaid sections is confirmed. 29. Hence, the appellant will complete his conviction and sentence awarded by the court below u/s 420 I.P.C. and Section 12 of the Passports Act. Both the sentences will run concurrently. 30. The order of the trial court stands modified to the aforesaid extent. Therefore his conviction and sentence under the aforesaid sections is confirmed. 29. Hence, the appellant will complete his conviction and sentence awarded by the court below u/s 420 I.P.C. and Section 12 of the Passports Act. Both the sentences will run concurrently. 30. The order of the trial court stands modified to the aforesaid extent. Office is directed to remit the record of the court below along with copy of this judgement within three weeks. 31. The criminal appeal is partly allowed.