Harinarayansha Rudalsha Taily vs State of Gujrat

A.L. Dave, J.—This appeal arises out of a judgment and order rendered by Additional Sessions Judge, 3rd Fast Track Court, Deodar, District Banaskantha at Palanpur in Sessions Case No. 27 of 2004 on 8.3.2007. The Appellant came to be convicted for offence punishable u/s 3(1) of the Official Secrets Act, 1923 and sentenced to undergo R.I. for 12 years. He was also convicted u/s 9 of the Official Secrets Act and was ordered to undergo R.I. for 12 years. For the charge against him u/s 120B of IPC, he was acquitted. The sentences were ordered to run concurrently.

The facts of the case, in brief, are that the Appellant is a citizen of Nepal, who allegedly went to Pakistan and then came to India to act as a secret agent/spy of Pakistan. While acting as such, he was found to be in possession of the following documents supposed to be made over to Pakistan:

(1) Map of restricted/prohibited areas of Gujarat, Pakistan and Rajasthan;

(2) Map indicating borders of Gujarat, Pakistan, Kutch and Sindh area of Pakistan;

(3) A handmade map of Nani Air Force;

(4) A pocket diary containing names and addresses of relevant persons of the Indian Air Force, BSF, CRPF etc.;

(5) A slip containing telephone numbers, map of Agra, Jodhpur, Gandhinagar, Ahmedabad etc..

The case against the Appellant was that he went to Pakistan for taking education and then started acting as a Pakistan spy and came to India via Nepal. After coming to India, he acquired the above-referred documents which were very important for national security.

He came to be chargesheeted. Charge was framed by the Sessions Court and, ultimately, came to be convicted by judgment and order dated 8.3.2007.

Learned advocate Mr Lakhani for the Appellant, at the outset, indicated to us that he has instructions not to challenge the conviction. He, therefore, does not press this appeal on merits of conviction. His endeavour is to indicate that the Appellant was only a victim of circumstances and, therefore, he ought to have been sympathetically dealt with by the trial Court. The sentence imposed by the trial Court is unduly harsh. Mr Lakhani submitted that the Appellant was a young boy of 25 years when he was apprehended. Though he is married, he had hardly any time to consummate the marriage when he was required to leave for Pakistan for studies. In Pakistan, he came under pressure of I.S.I and was forced to work as a spy and collect information from India, which are suitable to Pakistan to serve the purpose of Pakistan agency. He is not a hardened criminal. He does not have any criminal antecedents. He has been sufficiently punished and, therefore, his appeal may be allowed by reducing the sentence with which he is awarded.

Learned APP Ms. Shah has opposed this appeal.

In view of the fact that the Appellant does not challenge his involvement, we do not propose to examine the correctness or otherwise of the conclusion of the trial Court so far as conviction is concerned. So far as quantum of punishment is concerned, the conduct of the Appellant before and after the incident would be of relevance. In the instant case, we noticed that admittedly after being pressurized by I.S.I Pakistan, he went back to Nepal and then came to India. After returning to his motherland, he could have very well disclosed his plight to the authority in his country and sought appropriate action for that matter for his own protection.Instead he comes to India, crosses the entire country right to the western end of the nation and comes to Gujarat where he is found to be possessing maps which are of great importance for the defence of the country. It is not the case of the Appellant that the documents were not seized from him. He does not tender any explanation for having collected these documents, which are not ordinarily available to a common man and, therefore, he has acted against the interest of the country and has collected documents.

Lack of previous antecedents, being a young medical student of 25 years of age, having recently married and having family and a young son to look after, are not relevant factors for deciding the quantum of punishment in such cases. What is relevant is what is the nature of crime that a person is found to be involved in.What would be the impact of such criminal activity on the security of the nation and what is the punishment prescribed by law for indulging in such activity. In this context, if we see the documents, they are very relevant for the defence of our country and punishment prescribed there for is 14 years of imprisonment of either description. The trial Court has awarded 12 years R.I., which, in our opinion, is not harsh at all. The trial Court has exercised its judicial discretion in a just and legal manner and it does not, therefore, call for any interference in exercise of appellate jurisdiction.

The appeal, therefore, must fail and stands dismissed.