Delhi District Court
State vs Kafait Ullah Khan Etc on 20 May, 2026
IN THE COURT OF MS. SHEFALI BARNALA TANDON,
ADDITIONAL SESSIONS JUDGE-06, NEW DELHI DISTRICT,
PATIALA HOUSE COURT, NEW DELHI
Session Case No. 109/2018
FIR No. 166/2015
PS Crime Branch
CNR No. DLND01-004022/2018
State
Vs
1. Kafait Ullah Khan
S/o Late Qudrat Ullah Khan
R/o H. No. 27, Village Kalali,
PO&PS Manjhekote, Jammu & Kashmir.
2. Abdul Rashid Khan
S/o Fajal Hussain
R/o Village Kalali, PO & PS Manjhekote,
District - Rajouri, Jammu & Kashmir.
3. Manawer Ahmed Mir
S/o Nasir Ahmed Mir
R/o Village Khablan, District-Rajouri,
Jammu & kashmir.
4. Mohammad Saber
S/o Mohammad Hafiz
Village Kakora, District-Rajouri,
Jammu & Kashmir.
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5. Farid Ahmed @ Surgeon
S/o Basheer Ahmed
R/o Village Khablan, District-Rajouri,
Jammu & kashmir.
Date of Institution 24.02.2016
Date of Committal 03.04.2017
Date of Charge 19.03.2018
Charge framed under section Under Section 3 & 9 of Official
Secret Act
Date of reserving Judgment 04.05.2026
Date of Judgment 20.05.2026
Final Judgment All accused persons are acquitted
of the charges punishable under
Sections 3 and 9 of the Official
Secrets Act, 1923.
JUDGMENT
Brief facts of the case:
1. All the accused persons have been facing trial for the charge
punishable under Section 3 & 9 of Official Secret Act that prior to
16.11.2015 on the strength of the secret information to the effect that Anti-
National activities supported by Pakistan based intelligence operatives are
being carried out in which the information regarding development of the
Army and BSF in Jammu & Kashmir and also across the border are being
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passed on to the Pakistan Intelligence Operatives, which can be highly
detrimental for national security, the concerned mobile phones were taken
on interception pursuant to which names of accused persons i.e. Kafaitullah
Khan and Abdul Rashid surfaced.
Registration of FIR and investigation conducted:
2. As per the case of the prosecution, a rukka was received from
Inspector P. C. Yadav stating that a secret informer met him and gave
information regarding anti national activities supported by Pakistan based
Intelligence Operatives (hereinafter referred to as ‘PIO’). As per the said
information, the PIO is having an Indian handler, who is collecting
information regarding the deployment of Army and BSF in Jammu &
Kashmir and passing the same across the border which can be hugely
detrimental for national security. The handler is believed to have a pan-
India network of informers who comprise of security personnels and
private persons. Being a matter of national security, the concerned mobile
numbers were taken on interception and names of Kafaitullah Khan and
Abdul Rasheed had surfaced. As per the intercepts, Kafaitullah Khan was
based in Rajouri District of Jammu & Kashmir and Abdul Rasheed was
serving in Border Security Force. It was revealed that Kafaitullah Khan
was working as per the instructions of PIO and Abdul Rasheed was passing
on secret information to Kafaitullah Khan in lieu of money and Kafaitullah
Khan is forwarding the same to PIO. The information contained could be
directly or indirectly used by the enemy country. On the basis of aforesaid
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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rukka, the present FIR under Section 3 & 9 of Official Secret Act was
registered.
2.1 During investigation, local addresses of both the alleged persons
were verified through their available mobile numbers and it was found that
alleged Kafait Ullah was resident of Manjhakot, Distt- Rajouri, J&K and
alleged Mohd. Rashid was a serving BSF official and was staying in a
rented accommodation outside the BSF Campus. Permission for search
warrants of houses of the alleged persons were obtained. However,
information was received that Kaifaitullah was planning to travel
somewhere out of Manjakote. It was further revealed that on 25/11/15, he
would be going from Jammu to Bhopal by Malwa Express Train via Delhi.
On the basis of said information, on 25.11.15, a team apprehended him
from New Delhi Railway Station. During his search some
important/sensitive documents related to the Army were recovered from his
possession. Kafaitullah Khan was taken to the office of ISC, Crime Branch
and he was put to interrogation wherein he admitted his involvement in
spying for Pakistan and also the involvement of some security personnel.
A mobile phone used by him for communicating with his associates was
recovered. His further interrogation revealed that he had traveled to
Pakistan and he was again planning to visit Pakistan. His passport having
details of his Pakistan visit was recovered. One recommendation letter from
one so-called Jammu Kashmir Freedom Movement organization,
requesting the Pakistan High Commission to issue a Visa to him was also
recovered. His interrogation further revealed that he was doing all this at
the instance of one Faizal Ur Rehman, an agent of ISI in Pakistan and he
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was getting money for the same. Thereafter, the accused was arrested in
the instant case on 26.11.2015 and his disclosure statement was recorded.
2.2 The accused Kafaitullah Khan was taken to Jammu and Rajouri for
further investigation. During investigation, search was conducted at the
premises of Kafaitullah Khan and from the house search of accused
Kafaitullah one CD containing conversation of accused persons regarding
passing of secret information across the border was recovered. A copy of
the CD was prepared by using own laptop and the original recovered CD
was kept in a brown envelope and sealed with the seal of SKY and was
seized as a piece of evidence.
2.3 Further, search was also conducted at the residence of Abdul Rashid,
who is serving as Head Constable in the Intelligence Wing of BSF posted
at the office of DIG, Sector-HQ, Rajouri, J&K, which had led to recovery
of important documents related to the Indian Army. Thereafter, on
29.11.2015, accused Abdul Rashid Khan was arrested in the present case.
The accused Abdul Rashid Khan also admitted his involvement in spying
for PIO and he was in contact with PIO Faisal Ur Rehman through
Whatsapp, viber and skype. On checking of the mobile phone, having
number as 9697668716 belonging to and registered in the name of Abdul
Rashid Khan, some WhatsApp messages between Kafaitullah and Abdul
Rashid Khan were found, which are as “Iss k barey mein koi khabar milti
hai tu batain k border area k gaon ke kuch logon ko train ker rahay hain k
who check kerein k agar koi fauji nazar aye tu usey check kerein k who
asal mein fouji hai ya militant cross ker k a raha hai”, “Check kerein k army
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walay LOC k villages main kitney logon ko training dey rahay hain…
villages ka naam pata hain tu batain, Bhai jan border area pay army walay
kuch villagers ko training dey rahay hain”, “Laser light security system
lagaya hai border pay iss k barey main pata ker k batao”. The mobile
phone of Abdul Rashid Khan containing the above said messages was
seized.
2.4 During interrogation, accused Kafaitullah Khan & Abdul Rashid
disclosed the names of three persons namely (1) Mohd. Saber Khan, as the
mastermind a Cyber expert who is a teacher in Distt. Rajouri and posted in
Election Cell in Distt. Rajouri, J&K, (2) Manawar Ahmed Mir, an Ex.
Army official and (3) Fareed Ahmed, a serving army official who provides
information related to deployment of Indian Army. The information
collected by different agents was being passed across the border by Mohd.
Saber Khan through E-Mail, Whats app & Viber. The accused Abdul
Rashid Khan was also taken into police custody.
2.5 On 01.12.2015, IO along with Inspector P.C.Yadav, HC Dinesh
Singh, HC Ajay, Ct. Rakesh and Ct. Mohit moved to Distt. Rajouri, J&K to
trace the hideouts of spy Manawar Ahmed Mir & Mohd. Saber above said.
On the basis of disclosure statement made by accused persons Kafaitullah
Khan and Abdul Rashid, on 05.12.2015 accused Mohammad Saber, a
school teacher, was arrested from his house in Fatehpur Aity, Distt. Rajouri
and found indulging in anti-national activities.
2.6 Accused Manawer Ahmed Mir and Mohammad Saber Khan were
taken to Delhi on transit remand. On the basis of disclosure statement made
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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by accused persons namely Kafaitullah Khan and Abdul Rashid, on
06.12.2015, accused Farid Ahmad @ Fareed Khan @ Surgeon, an army
official, was arrested from 17 JAK LI Unit, Sukna, Siliguri, West Bengal
and found indulging in anti-national activities. During PC remand, all
accused persons were confronted and their disclosure statements were
recorded.
2.7 During the course of investigation and arrest of accused persons one
mobile phone Micromax containing two SIM cards of mobile Numbers
9086312425 & 9697048899 was recovered from the possession of accused
Kafaitullah, one mobile phone make Samsung containing two SIM cards of
numbers 9697668716 & 9086318625 was recovered from the possession of
accused Abdul Rashid, one mobile phone Nokia containing two SIM cards
of numbers 9796642812 & 8803856573 was recovered from the possession
of accused Manawer, one mobile phone Samsung containing two SIM
cards of numbers 8803223123 & 9018516106 was recovered from the
possession of accused Saber and two mobile phones (one Mobile phone
Samsung without SIM and one mobile phone XOLO containing SIM of
number 8991171014) of accused Farid Ahmed were produced by Sh.
Satnam Singh of his battalion. All were seized in the case accordingly.
2.8. During further investigation, Call Details of the recovered numbers
and other numbers of accused persons and ISI agent Faizal Ur Rehman for
the period of last one year were obtained from the concerned mobile
operators and scrutiny revealed that accused Kaifatullah Khan
(8493850853) was in contact with Faizal Ur Rehman (9858772953 &
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8860912547), Kafaitullah Khan (9697048899) was in contact with accused
Abdul Rashid (9697668716), Kafaitullah Khan (8493850853 &
9086312425) was in contact with accused Saber (8803223123), accused
Farid Ahmed (9622314136 & 9086107860) was in contact with Saber
(8803223123) & Manawer (9796642812) respectively, Accused Manawer
(9796642812) was in touch with accused persons Kaifatullah
(9697048899) & Farid Ahmed (9086107860) & Saber (8803223123 &
9018516106), Abdul Rashid (9697668716) was in contact with accused
Kaifatullah (9697048899), and accused Saber (8803223123 &
9018516106) was in contact with accused Kaifatullah (8493850853 &
9086312425), Farid Ahmed (9622314136) and Manaawer (9796642812)
which goes to show that all the accused persons were in contact with each
other either directly or indirectly. During investigation, it is revealed that
Mobile No. 8860912547 of PIO Faizal Ur Rehman was issued on the fake
ID.
2.9 Bank Account details of all accused persons were obtained from the
concerned Banks to prove that they received the amount from PIO Faisal
Ur Rehman for providing him information regarding Indian Forces. On
scrutiny of bank statements, it is found that Rs.40,000/- were deposited in
Account No. 50100044094259 of accused Kafaitullah, Rs.10,000/- were
deposited in Account No. 20038937712 of Joginder Singh for accused
Farid Ahmed, Rs.20,000/- were deposited in Account No. 11397771810 of
accused Abdul Rashhid, Rs.10,000/- were deposited in Account No.
32301596571 of accused Md. Saber Khan and Rs.20,000/- were deposited
in Account No.20042996761 of accused Manawer Ahmed.
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2.10 Record regarding travel of accused Kafaitullah Khan from Jammu to
Bhopal via Delhi by train No. 12920-Malwa Express on dated 25.11.2015
was obtained from Chief Ticket Inspector, Indore to prove his journey from
Jammu to Delhi as he was apprehended from NDLS on 25.11.2015.
2.11 Indian Army related documents recovered from the accused persons
were sent to concerned authorities for providing report about the nature of
documents and a report regarding the nature of documents was received
from Military Intelligence. As per report, the recovered document from
accused Kafaitullah i.e. ” Organisation Structure of Various Formations”
are classified in nature. As regard as documents recovered from accused
Abdul Rashid MI opined that “The information in the documents recovered
from head Constable Abdul Rashid of BSF Sector HQ, Rajouri, though not
classified in nature, gives out the process of making a fire plan, which may
have been copied from some training material of Indian Army. This
document is a replication of the one (Fire Plan) recovered from Kafaitullah
Khan. Laptop and mobile recovered from the accused persons were
deposited with FSL, Rohini for the retrieval of data. Voice samples of the
all five accused persons were taken by FSL, Rohini for the match with the
voice in the CD recovered from the residence of accused Kafaitullah.
Charge:
3. On 19.03.2018, charge for the offences punishable under
Sections 3 & 9 of Official Secret Act was framed against all accused
persons by the Ld. Predecessor Court, to which they pleaded not guilty and
claimed trial.
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The Trial
Prosecution evidence:
4. To prove its case against the accused persons, the prosecution had
examined 29 witnesses, that is, PW-1 ASI Rakesh Kumar (prepared
transcript of conversation); PW-2 Inspector P. C. Yadav (Complainant),
PW-3 ASI Ajay Kumar (prepared transcript of conversation/Arrest of
accused Kafait Ullah), PW-4 Ct. Mohit Kumar (Witness of Investigation),
PW-5 Lt. Col. Vivek Sheel (To prove opinion on nature of documents);
PW-6 HC Vijender Singh (Witness of Investigation), PW-7 Sh. Pawan
Singh (Nodal Officer, Idea Cellular Ltd.), PW-8 Sh. Kuldeep Singh (To
prove bank statements of accused persons), PW-9 Col. Rohit Sambyal (To
prove opinion on nature of documents), PW-10 SI Data Ram (Witness of
Investigation), PW-11 Sh. Amit Kumar Sharma (Nodal Officer, Reliance
Communication Ltd.), PW-12 ASI Deep Chand (Witness of Investigation),
PW-13 Sh. Amit Kumar (To prove bank account of accused Kafait Ullah),
PW-14 Inspector Surender Sandhu (Witness of Investigation), PW-15 ASI
Raj Kumar (Duty Officer), PW-16 Inspector Neeraj Kumar (Witness of
Investigation), PW-17 Vivek Kumar (Forensic Officer examined mobile
phones of accused persons), PW-18 Major Rajnikant Rai (Witness of
Investigation), PW-19 Sh. Niraj Singh (Witness of Investigation), PW-20
Subedar Major (Retd.) Sh. Satnam Singh (Witness of Investigation),
PW-21 Sh. Mansoor Ali Haideri (Witness of Investigation), PW-22 Sh.
Sanjay Singh (Nodal Officer, Aircel Ltd.), PW-23 Sh. Surender Kumar
(Nodal Officer, Bharti Airtel Ltd), PW-24 Sh. Sunil Kumar Retd. Principal
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Staff Officer, MHA ((Witness of Investigation), PW-25 Sh. M. A. Rizvi
(Witness of Investigation), PW-26 Dr. Bharti Bhardwaj (Examined five
audio cassettes and one Compact Disc), PW-27 Inspector Satvinder Singh
(Witness of Investigation), PW-28 Sh. Alok Kumar (Witness of
Investigation) and PW-29 HC Sikander (Witness of Investigation). The
relevant portion of their testimonies are discussed under the succeeding
paragraphs.
5. PW-1 HC Rakesh Kumar deposed that in the year 2015 he was
posted as Constable in Inter State Cell, Crime Branch, Chanakyapuri. He
stated that Inspector P.C. Yadav had deputed him to hear the conversations
of intercepted calls pertaining to certain mobile numbers. He used to hear
the intercepted conversations and brief Inspector P.C. Yadav from time to
time regarding the contents thereof. According to the witness, Inspector
P.C. Yadav also personally heard the intercepted conversations. He further
deposed that on 17.11.2015 Inspector P.C. Yadav instructed him to prepare
transcripts of the intercepted conversations and accordingly, with the
assistance of HC Ajay, he prepared transcripts on computer of the
intercepted conversations pertaining to mobile phone No. 9697048899
belonging to accused Kafaitullah and handed over the same to Inspector
P.C. Yadav. He further stated that accused Kafaitullah used to converse
with accused Manawer on mobile number 9796642817 and with accused
Abdul Rashid on mobile numbers 9697668716 and 9086318625. He also
stated that photocopies of CAFs pertaining to the mobile numbers of
Kafaitullah, Manawer and Abdul Rashid were supplied to Inspector P.C.
Yadav.
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5.1 PW-1 further deposed that on 25.11.2015 Inspector P.C. Yadav
informed him that accused Kafaitullah would be travelling to Bhopal by
Malwa Express through New Delhi and that he was seated in Coach No.
A-1. Accordingly, Inspector P.C. Yadav along with the witness, HC Ajay
and other staff members reached New Delhi Railway Station at about 6:45
PM. At about 7:30 PM, Malwa Express arrived and accused Kafaitullah
was apprehended from Coach No. A-1. The IO requested 4-5 public
persons to join the proceedings but none agreed. Search of the bag carried
by accused Kafaitullah resulted in recovery of certain documents including
secret Government documents. The accused failed to furnish any
satisfactory explanation regarding possession of the said documents and the
IO seized the recovered documents vide seizure memo Ex. PW1/A bearing
signatures of the witness at point A.
5.2 He further deposed that accused Kafaitullah was thereafter brought
to the office of Inter State Cell, Crime Branch where he was interrogated.
During interrogation, accused Kafaitullah produced one letter of Jammu
Kashmir Federation requesting issuance of Pakistan visa in his favour. The
said letter was seized vide memo Ex. PW1/B bearing signatures of the
witness at point A and the said letter was Mark-X. The IO also seized the
passport of accused Kafaitullah and one Micromax mobile phone having
dual SIMs vide seizure memos Ex. PW1/C and Ex. PW1/D respectively,
both bearing his signatures at point A. The passport was exhibited as Ex.
PW1/E. The witness further deposed that the IO arrested accused
Kafaitullah vide arrest memo Ex. PW1/F and conducted his personal search
vide personal search memo Ex. PW1/G, both bearing his signatures at point
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A. During interrogation, accused Kafaitullah made disclosure statement Ex.
PW1/H bearing signatures of the witness at point A. The IO also seized the
bag of accused Kafaitullah vide seizure memo Ex. PW1/I bearing his
signatures at point A. Thereafter, accused Kafaitullah was medically
examined and seven days’ police custody remand was obtained from the
concerned Court.
5.3 PW-1 further deposed that on 28.11.2015 he again joined
investigation along with other staff members. On that day, accused
Kafaitullah Khan was taken to PS Manjakot, Rajouri, Jammu & Kashmir
where certain proceedings were conducted by Inspector Sanjeev Yadav.
Thereafter, they along with local police and accused Kafaitullah proceeded
towards his house. The IO requested 3-4 neighbours to join investigation
but none agreed. During search of the house of accused Kafaitullah, one
CD kept in an iron almirah in one room was recovered. According to the
witness, accused Kafaitullah disclosed that the said CD contained
conversations between him, Abdul Rashid and other associates which could
have been used by him whenever required. The IO prepared a copy of the
said CD onto another CD through his laptop. The original CD was kept in a
brown envelope, sealed with the seal of SKY and the seal after use was
handed over to the witness. The envelope containing the CD was seized
vide seizure memo Ex. PW3/A bearing signatures of the witness at point B.
5.4 He further deposed that thereafter they reached BSF Camp, Rajouri
where inquiries were made regarding accused Abdul Rashid, however he
could not be traced. Thereafter, they proceeded to the rented
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accommodation of accused Abdul Rashid at Rajouri where he was not
found present. His wife and father, however, were present there. The IO
requested 3-4 neighbours to join the proceedings but none agreed. Search
of the house was conducted in the presence of wife and father of accused
Abdul Rashid and during such search eight documents were recovered
from an iron box kept in one room. The IO seized the said documents vide
seizure memo Ex. PW3/B bearing signatures of the witness at point B. The
witness identified the said documents as Ex. PW3/C-1 to Ex. PW3/C-8,
bearing his signatures at point B on the reverse side. Thereafter, the police
party returned to Jammu and stayed there for the night.
5.5 PW-1 further deposed that on 29.11.2015 accused Abdul Rashid was
interrogated at BSF Camp, Jammu and his mobile phone was checked.
During checking of the mobile phone, certain messages were found
revealing that accused Abdul Rashid had forwarded secrets relating to BSF
and Army to accused Kafaitullah Khan. The IO reduced the said messages
into writing and the document so prepared was exhibited as Ex. PW3/D
bearing signatures of the witness at point B. Thereafter, accused Abdul
Rashid was interrogated and arrested vide arrest memo Ex. PW3/E and his
personal search was conducted vide memo Ex. PW3/F, both bearing
signatures of the witness at point B. His disclosure statement was exhibited
as Ex. PW3/G. The IO also seized the mobile phone of accused Abdul
Rashid vide seizure memo already Ex. PW1/D bearing signatures of the
witness at point B. Information regarding his arrest was given to his wife
and superior officers and thereafter he was medically examined. The
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witness stated that on the same day they returned to Delhi along with both
accused persons and other staff members.
5.6 PW-1 further deposed that on 01.12.2015 the IO again interrogated
accused Kafaitullah Khan and Abdul Rashid at Delhi and recorded their
further disclosure statements Ex. PW3/H and Ex. PW3/I respectively, both
bearing signatures of the witness at point B. Thereafter, the IO played the
copy of the CD recovered from the house of accused Kafaitullah and the
recordings were heard by both accused persons. After hearing the
recordings, both accused persons disclosed that apart from themselves,
their associates namely Munnawar, Saber, Fareed Ahmed and Faizal-ur-
Rehman were also having conversations in the said CD.
5.7 He further deposed that on 01.12.2015 he again joined investigation
with Inspector Sanjeev Yadav, Inspector P.C. Yadav, HC Dinesh, HC Ajay
and Ct. Mohit and left for Jammu, where they reached on 02.12.2015.
Efforts were made to locate accused Munnawar and Saber who had
allegedly left their respective addresses. On 04.12.2015 accused Munnawar
was apprehended from Thanamandi, Rajouri, Jammu & Kashmir. The IO
interrogated him and arrested him vide arrest memo Ex. PW3/J and
conducted his personal search vide memo Ex. PW3/K, both bearing
signatures of the witness at point B. The disclosure statement of accused
Munnawar was exhibited as Ex. PW3/L bearing signatures of the witness at
point B. His mobile phone was seized vide seizure memo Ex. PW3/M
bearing signatures of the witness at point B. Information regarding his
arrest was given to his family members and after medical examination he
was lodged in lock-up at PS Rajouri.
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5.8 PW-1 further deposed that accused Saber was apprehended on the
next morning i.e. 05.12.2015 from his house at Atti Village, Rajouri.
During apprehension he attempted to escape from police custody and
sustained injuries on his leg. The IO got him medically examined though
complete medical examination could not be conducted due to gathering of
crowd at the spot. The IO interrogated and arrested him vide arrest memo
Ex. PW3/N and conducted his personal search vide memo Ex. PW3/O,
both bearing signatures of the witness at point B. His disclosure statement
was exhibited as Ex. PW3/P bearing signatures of the witness at point B.
The IO also seized one Samsung Duos mobile phone of white colour vide
seizure memo Ex. PW3/Q and seized one Compaq laptop after sealing the
same vide seizure memo Ex. PW3/R, both bearing signatures of the witness
at point B. Since the atmosphere at Rajouri was not conducive, both
accused persons were brought to Pathankot where they were produced
before the concerned Judicial Magistrate and transit remand was obtained.
Thereafter, they were brought to Delhi and medically examined.
5.9 PW-1 further stated that on 09.12.2015 the IO interrogated accused
Abdul Rashid, Kafaitullah Khan, Munnawar, Saber and Fareed and
recorded disclosure statements of accused Fareed Ahmed, Munnawar and
Saber vide Ex. PW3/U, Ex. PW3/S and Ex. PW3/T respectively, all bearing
signatures of the witness at point B. He further deposed that on 18.01.2016,
on the instructions of the IO, he with the assistance of HC Ajay prepared
transcripts from the copy of the CD recovered from the house of accused
Kafaitullah Khan. The transcripts running into 56 pages were exhibited as
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Ex. PW3/V-1 to Ex. PW3/V-56 bearing his signatures at point B and were
handed over to the IO through HC Ajay.
5.10 The witness correctly identified accused Kafaitullah Khan, Saber and
Fareed present before the Court and also identified accused Abdul Rashid
and Munnawar through video conferencing from Mandoli Jail.
5.11 In his cross-examination on behalf of accused Munnawar, PW-1
stated that on 01.12.2015 they had gone from Delhi to Jammu in three
private cars hired by the IO, though he does not remember the make and
registration numbers thereof. He admitted that accused Munnawar was
interrogated in Jammu but his disclosure statement was recorded in Delhi.
He stated that accused Munnawar was apprehended from Police
Compound, Thanamandi in the presence of local police. He does not
remember whether signatures of local police officials were obtained on any
document or whether local police had formally joined investigation. He
denied the suggestion that accused Munnawar had been called to
Thanamandi Police Compound by local police after telephonic
communication. He admitted that accused Munnawar was apprehended
pursuant to disclosure statement of accused Kafaitullah, though intercepted
conversations between Kafaitullah and Munnawar had already been heard
by them. He denied the suggestion that no incriminating material had
surfaced during intercepted conversations between accused Kafaitullah and
Munnawar. He further stated that one keypad mobile phone, approximately
Rs.1120/-, two ATM cards and one ID card were recovered from accused
Munnawar and apart from these articles nothing else was recovered. He
admitted that accused Munnawar did not attempt to escape from custody.
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He denied the suggestion that the transcripts dictated by him were
incorrect. He further admitted that no videography of proceedings was
conducted in his presence. He stated that from a keypad mobile phone no
WhatsApp, video or text chats could be exchanged or transmitted. He
denied the suggestion that no CD was recovered at the instance of accused
Kafaitullah or that the same had been prepared by the IO after making
accused persons read out pre-prepared transcripts. He admitted that the CD
did not contain any date, time or phone number. He denied the suggestion
that accused Munnawar had been falsely implicated merely on the basis of
call details of accused Kafaitullah.
5.12 In his cross-examination on behalf of accused Saber, PW-1 stated
that he does not remember the Court before which accused Kafaitullah was
produced after his arrest or the exact date on which police remand had been
obtained. He stated that he could not say whether recovery of the CD on
28.11.2015 had been informed to the concerned Magistrate as the same
pertained to investigation by the IO. He further stated that he did not
remember the dates on which he prepared transcripts from the recovered
CD though the same were submitted to the IO on 18.01.2016. He stated
that the source for identification of voices in the CD was that the speakers
themselves used names during conversation and some voices were
identifiable as he had heard them earlier. He stated that he could identify
the voice of accused Mohd. Saber. He further stated that Rajouri was at a
distance of approximately 200-250 kilometres from Pathankot and that the
accused persons were produced at Pathankot as there was sufficient time to
produce them before the concerned Magistrate. He denied the suggestion
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that disclosure statement Ex. PW3/T of accused Saber was involuntary. He
further denied the suggestion that no CD had been recovered from the
house of accused Kafaitullah or that transcripts Ex. PW3/V-1 to Ex.
PW3/V-56 had first been prepared from imagination and thereafter accused
persons were made to read out the same while giving voice samples. He
also denied the suggestion that accused Saber had not been arrested on
05.12.2015.
5.13 In his cross-examination on behalf of accused Fareed Ahmed, PW-1
stated that on 09.12.2015 the IO interrogated accused Fareed along with co-
accused persons at ISC, Chanakyapuri, Crime Branch, Delhi though he did
not remember the exact time thereof. He stated that the recovered CD had
been played once in his presence before accused Kafaitullah and Abdul
Rashid. He did not remember whether the same CD was played in presence
of accused Fareed. He stated that the conversation recorded in the CD was
in Dongri (Pahari) language and that he knew the said language. He further
stated that the IO had not supplied him a copy of the original CD but had
supplied only a copy thereof for the purpose of transcription. He did not
remember whether any memo had been prepared regarding handing over of
copy of the CD. He further stated that he had not personally compared the
copy supplied to him with the original CD since the original CD had
already been sealed by the IO. He admitted that he had never heard the
conversations recorded in the original CD. He stated that the transcripts Ex.
PW3/V-1 to Ex. PW3/V-56 had been prepared by HC Ajay on his
dictation. He further stated that when he heard the copied CD played before
accused Kafaitullah and Abdul Rashid, accused Fareed had not yet been
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arrested. According to him, persons named “Fareed” and “Surgeon” in the
CD were the same persons whose voices were that of accused Fareed
Ahmed. He denied the suggestion that the recovered CD had been planted
or fabricated by the IO during investigation.
5.14 In his cross-examination on behalf of accused Kafaitullah Khan and
Abdul Rashid, PW-1 stated that the intercepted calls referred to in his
examination-in-chief had actually been intercepted by other officers who
were in-charge of interception and he only used to hear the conversations in
the interception room on interception equipment. He stated that no copies
of the conversations in the form of CD or any other media were handed
over to him. He used to orally brief Inspector P.C. Yadav regarding the
conversations heard by him over a period of about 45-60 days and had
briefed him on about 8-10 occasions whenever anything significant
emerged. During one such briefing, Inspector P.C. Yadav directed him to
prepare transcripts of the intercepted conversations. He further stated that
the conversations were heard by him and dictated to ASI Ajay who typed
the same and presented them to the IO. He stated that the dictation work
was completed in two days and the transcripts were completed on
18.11.2015 and submitted to the IO on the same day after checking the
typed matter. He denied the suggestion that he had not heard the
intercepted conversations or that the transcripts had been prepared by him
on his own.
5.15 He further stated that Coach No. A-1 had approximately 30-40
passengers and accused Kafaitullah himself identified his luggage. He
denied the suggestion that no bag had been identified by accused
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Kafaitullah or that the bag did not belong to him. He stated that the police
team which conducted search at the house of accused Kafaitullah was
accompanied by local police. He did not know whether any notice had been
issued to neighbours who had refused to join investigation. He stated that
there were 2-3 rooms in the house of accused Kafaitullah and only one iron
almirah therein. He denied the suggestion that nothing had been recovered
from the almirah or that the CD and other articles had been planted. He
further denied the suggestion that the CD had been prepared by the
investigating team while accused persons were in custody by forcing them
to read a script. He further stated that the house of Abdul Rashid consisted
of two rooms though he did not remember the number of almirahs or
storage places apart from one iron box. He denied the suggestion that no
search had actually been conducted and that documents and articles had
been planted. He stated that accused Abdul Rashid was found in BSF Camp
when they had gone there in search of him. He denied the suggestion that
no messages as reflected in Ex. PW3/D had been seen by him on the
mobile phone of accused Abdul Rashid or that the same had been
fabricated. He further denied the suggestion that he was deposing falsely at
the instance of the investigating agency.
5.16 In his further cross-examination on behalf of accused Fareed Ahmed,
PW-1 stated that after 18.01.2016 he had done no work with the recovered
CD. Prior to the present case, he had heard recorded conversations in other
cases but had never prepared any transcription. He stated that he had
undergone training regarding voice recording and transcription as part of
his duty though he could not specify the course and possessed no certificate
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in that regard. He further stated that at the time of his deposition he did not
remember any distinctive feature of the voices heard in the CD. He stated
that deceased IO Inspector Sanjeev Kumar did not know or understand
Dongri language. He admitted that seizure memo Ex. PW3/A did not
mention that the voices of associates of accused Kafaitullah and Abdul
Rashid were also contained in the CD. He did not know why the CD had
been sent to FSL on 15.02.2016. He denied the suggestion that the CD had
not been seized from accused Kafaitullah or that transcription had not been
prepared after hearing the CD. He further denied the suggestion that the CD
had been sent belatedly to FSL because it had been created after obtaining
voice samples of the accused persons.
6. PW-2 Inspector P.C. Yadav deposed that on 07.09.2015 he was
posted as Inspector at Inter State Cell, Crime Branch, Chanakyapuri, Delhi.
He stated that on that day a secret informer came to his office and informed
him regarding anti-national activities allegedly supported by Pakistan-
based Intelligence Operatives. The informer disclosed that certain Indian
nationals were involved in anti-national activities and were procuring
information regarding deployment of Army, BSF and Para Military Forces
at the border and were passing the same to Pakistan-based Intelligence
Operatives. The informer also provided certain mobile numbers allegedly
being used by the persons involved in such anti-national activities.
6.1 PW-2 further deposed that he conveyed the said information to
senior officers who directed him to further develop the information as such
activities could be detrimental to the security of the nation. He recorded the
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said information vide DD No. 22 dated 07.09.2015, exhibited as Ex.
PW2/A. Thereafter, he obtained lawful orders for interception of the
concerned mobile numbers and deputed Ct. Rakesh Kumar to listen to the
intercepted conversations. According to the witness, upon listening to the
intercepted conversations, the names of Kafait Ullah and Abdul Rashid
surfaced. It was revealed that Kafait Ullah was based in Rajouri area of
Jammu & Kashmir and Abdul Rashid was serving in Border Security
Force. He further stated that the intercepted conversations revealed that
Kafait Ullah was acting under the instructions of Pakistan-based
Intelligence Operatives and that Abdul Rashid used to supply information
regarding deployment of BSF and other forces at the borders to Kafait
Ullah in lieu of money, which information was allegedly further passed on
by Kafait Ullah to Pakistan-based Intelligence Operatives.
6.2 PW-2 further deposed that as the acts of Kafait Ullah and Abdul
Rashid were against the interest and security of the nation, on 16.11.2015
he prepared rukka Ex. PW2/B bearing his signatures at point A and sent the
same through SI Data Ram for registration of the present case. He further
stated that investigation of the case was thereafter marked to Inspector
Sanjeev Kumar.
6.3 In his cross-examination on behalf of accused Saber, PW-2 stated
that he could not inform the exact period for which the calls were
intercepted, though voluntarily stated that interception had commenced
after receipt of secret information and prior to sending of rukka. He further
stated that as per the transcripts available on record, interception was
carried out during the period from 16.09.2015 to 06.11.2015. On being
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asked to identify the portions of the transcripts on the basis of which he
concluded that information was being passed to ISI in lieu of money, he
referred to pages 70 to 78 of the transcript annexed with the charge-sheet.
He stated that the transcripts had been typed by another person and that Ct.
Rakesh had been deputed to listen to the intercepted calls. According to
him, whenever Ct. Rakesh informed him about important intercepted
conversations, he himself heard the relevant portions thereof. He admitted
that he had not personally heard the conversations between accused Kafait
Ullah and accused Saber.
6.4 He further stated that interception of calls had commenced even prior
to the order appearing at page 320 of the charge-sheet. He clarified that the
order dated 17.09.2015 was a regular order for interception for a period of
60 days from 12.09.2015, whereas prior thereto interception had been
authorized by senior officers under Section 419 of the Indian Telegraph Act
for a period of seven days. He, however, stated that he did not remember
the exact date from which interception had commenced though according
to the record it must have begun from 12.09.2015. He denied the
suggestion that no authority had sanctioned interception of calls or that no
authority had been consulted before preparation of rukka Ex. PW2/B.
6.5 In his cross-examination on behalf of accused Kafait Ullah Khan and
Abdul Rashid Khan, PW-2 stated that he had received the secret
information at about 6:00-6:30 PM and that the informer had provided only
the mobile numbers of suspects. On the basis of those numbers, he obtained
subscriber details from the service providers through official e-mail. He
admitted that copies of such e-mails were not part of the charge-sheet. He
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Pages 24 of 124
stated that he did not remember all the mobile numbers provided by the
informer but on seeing the record stated that the numbers were
9858601622, 9697668716, 8803223123, 9697048899, 8493850853,
9622314136, 9086107860, 910334136 and 9766642812. He admitted that
the said mobile numbers had not been mentioned in DD entry Ex. PW2/A
but denied the suggestion that no such numbers had been supplied by the
informer.
6.6 PW-2 further stated that as per the record mobile number
9697048899 was being used by accused Kafait Ullah though the subscriber
thereof was one Mohd. Zaheer s/o Mohd. Sarwar, resident of Mankajot,
Rajouri, Jammu & Kashmir. He further deposed that before moving an
application seeking permission for interception through ACP, he had
obtained subscriber details and analyzed the call detail records. He
admitted that he had not obtained any information regarding the names or
identities of any Pakistan-based Intelligence Operatives. According to him,
the intercepted conversations only revealed that the accused persons were
in contact with some Pakistan-based Intelligence Operatives. He reiterated
that intercepted conversations were primarily heard by Ct. Rakesh and he
himself heard only such relevant portions as were pointed out by Ct.
Rakesh. He denied the suggestion that interceptions had been obtained
illegally or without sufficient material.
7. PW-3 ASI Ajay Kumar deposed that in the year 2015 he was posted
as Head Constable in Inter State Cell, Crime Branch, Chanakyapuri. He
stated that prior to 17.11.2015, Inspector P.C. Yadav had instructed Ct.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Rakesh to hear the intercepted and recorded conversations of certain
mobile phone numbers. On 17.11.2015, on the instructions of the IO and at
the instance of Ct. Rakesh, he prepared transcripts on computer of the
intercepted conversations pertaining to mobile number 9697048899
belonging to accused Kafait Ullah and handed over the same to the IO. He
further stated that accused Kafait Ullah used to converse with accused
Manawar on mobile number 9796642812 and with accused Abdul Rashid
on mobile numbers 9697668716 and 9086318625.
7.1 He further deposed that on 25.11.2015 the IO informed him that
accused Kafait Ullah had boarded Malwa Express Train No. 12920 from
Jammu and would reach New Delhi Railway Station in the evening.
Accordingly, he along with Inspector Sanjeev Kumar Yadav, Ct. Rakesh
and other staff members reached New Delhi Railway Station. At about 7:30
PM, Malwa Express arrived and accused Kafait Ullah was apprehended
from Coach No. A-1. The IO requested 4-5 co-passengers to join the
proceedings but none agreed. Search of the luggage of accused Kafait
Ullah led to recovery of important Government documents and other
documents. The accused failed to furnish any satisfactory explanation
regarding possession of the said documents and the IO seized the same vide
seizure memo Ex. PW1/A. He identified the recovered documents Ex.
PW3/A-1 to Ex. PW3/A-17. He further deposed that accused Kafait Ullah
was brought to the office of Inter State Cell, Crime Branch where one
recommendation letter issued by Jammu Kashmir Freedom Movement
Organization for issuance of Pakistan visa was recovered from his
possession and seized vide Ex. PW1/B. The witness identified the said
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Pages 26 of 124
recommendation letter Mark-X. He further stated that the passport and
Micromax mobile phone having dual SIMs of accused Kafait Ullah were
seized vide seizure memos Ex. PW1/C and Ex. PW1/D and the passport
was exhibited as Ex. PW1/E.
7.2 PW-3 further deposed that accused Kafait Ullah confessed during
interrogation that the recovered documents were meant for supply to
Pakistan. The IO arrested accused Kafait Ullah vide arrest memo Ex.
PW1/F and conducted his personal search vide Ex. PW1/G. His disclosure
statement Ex. PW1/H was recorded and the bag belonging to him was
seized vide Ex. PW1/I. On 26.11.2015, accused Kafait Ullah was medically
examined and produced before the concerned Court, from where seven
days’ police custody remand was obtained.
7.3 He further deposed that on 28.11.2015 he again joined investigation
and accompanied the IO along with accused Kafait Ullah to Manjakot
Police Station. Thereafter, they proceeded to the house of accused Kafait
Ullah where neighbours were requested to join investigation but none
agreed. During search of the house, one CD was recovered from an iron
almirah. According to the witness, accused Kafait Ullah disclosed that the
CD contained conversations between him, Abdul Rashid and other
associates. The IO copied the CD onto another CD through laptop and
sealed the original CD in a brown envelope with the seal of SKY. The same
was seized vide Ex. PW3/A.
7.4 He further deposed that thereafter the police party reached BSF
Camp, Rajouri in search of accused Abdul Rashid but he could not be
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Pages 27 of 124
found. Subsequently, they reached the rented accommodation of accused
Abdul Rashid where his wife and father were present. During search of the
premises, eight documents were recovered from an iron box kept in one
room. The said documents were seized vide memo Ex. PW3/B and
identified by the witness as Ex. PW3/C-1 to Ex. PW3/C-8.
7.5 PW-3 further stated that on 29.11.2015 the IO interrogated accused
Abdul Rashid at BSF Camp, Jammu and checked his mobile phone. The
messages contained therein allegedly revealed that accused Abdul Rashid
was forwarding secrets of BSF and Army to accused Kafait Ullah. The IO
reduced the said messages into writing, which was exhibited as Ex.
PW3/D. Accused Abdul Rashid was arrested vide arrest memo Ex. PW3/E
and his personal search was conducted vide Ex. PW3/F. His disclosure
statement Ex. PW3/G was recorded and his mobile phone was seized vide
Ex. PW1/D.
7.6 He further deposed that on 01.12.2015 the IO again interrogated
accused Kafait Ullah and Abdul Rashid and recorded their disclosure
statements Ex. PW3/H and Ex. PW3/I. Thereafter, the copy of the CD
recovered from the house of accused Kafait Ullah was played before both
accused persons and after hearing the same, they disclosed the names of
their associates namely Manawar, Saber, Fareed Ahmed and Faizal-ul-
Rehman.
7.7 PW-3 further deposed that on 01.12.2015 he again joined
investigation along with Inspector Sanjeev Yadav, Inspector P.C. Yadav,
HC Dinesh, Ct. Rakesh and Ct. Mohit and left for Jammu. On reaching
there, efforts were made to trace accused Manawwar and Sabir. Accused
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Manawwar was apprehended from Thanamandi and arrested vide arrest
memo Ex. PW3/J. His personal search was conducted vide Ex. PW3/K and
his disclosure statement Ex. PW3/L was recorded. His mobile phone was
seized vide Ex. PW3/M. The accused was medically examined and lodged
in lockup at PS Rajouri.
7.8 He further stated that accused Sabir was apprehended from his house
on the next morning. During apprehension he attempted to flee and
sustained injuries. The IO got him medically examined and thereafter
arrested him vide Ex. PW3/N. His personal search was conducted vide Ex.
PW3/O and his disclosure statement Ex. PW3/P was recorded. His mobile
phone was seized vide Ex. PW3/Q and his laptop was sealed with the seal
of SKY and seized vide Ex. PW3/R. Due to non-conducive atmosphere in
Rajouri, both accused persons were brought to Pathankot where they were
produced before the Judicial Magistrate and transit remand was obtained.
Thereafter, they were brought to Delhi and medically examined.
7.9 PW-3 further deposed that on 09.12.2015 the IO interrogated
accused Abdul Rashid, Kafait Ullah, Manawwar, Sabir and Farid and
recorded disclosure statements of accused Manawwar, Sabir and Farid vide
Ex. PW3/S, Ex. PW3/T and Ex. PW3/U respectively.
7.10 He further deposed that on 18.01.2016, on the instructions of the IO,
he along with Ct. Rakesh prepared transcripts from the CD recovered from
the house of accused Kafait Ullah. The transcript running into 56 pages was
exhibited as Ex. PW3/V-1 to Ex. PW3/V-56.
7.11 PW-3 further stated that on 19.01.2016 he along with Ct. Mohit and
Inspector Sanjeev Kumar visited FSL Rohini where voice samples of
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Pages 29 of 124
accused Kafait Ullah, Abdul Rashid, Manawwar, Sabir and Farid Ahmed
were recorded by FSL experts. Voice sample of accused Kafait Ullah was
taken into two audio cassettes while voice samples of other accused
persons were recorded in one cassette each. Copies of the original audio
cassettes were also prepared by the FSL experts. The IO sealed the
cassettes separately and seized them vide seizure memos Ex. PW4/A to Ex.
PW4/E.
7.12 The witness correctly identified all accused persons present before
the Court. He further identified the recovered CD Ex. PW3/P1, the voice
sample cassettes Ex. PW4/P-1 to Ex. PW4/P-6, various mobile phones Ex.
PW3/P2 to Ex. PW3/P5, digital handycam Ex. PW3/P6, digital camera Ex.
PW3/P7, laptop Ex. PW3/P8 and bag Ex. PW3/P9.
7.13 In his cross-examination on behalf of accused Farid Ahmed, PW-3
stated that he was not aware from where accused Farid Ahmed had been
brought and except recording of disclosure statement and voice sample, he
was not part of the investigation qua accused Farid Ahmed. He admitted
that he could not say whether the CDs provided by FSL were checked for
blankness before recording of voice samples. He further admitted that no
mobile phone was seized from accused Farid Ahmed in his presence. He
denied the suggestion that he was deposing falsely.
7.14 In his cross-examination on behalf of accused Manawwar Ahmed
Mir, PW-3 stated that he did not recollect the exact date when he reached
Jammu & Kashmir. He stated that they had travelled in private vehicles
along with Inspector Sanjeev Yadav, Inspector P.C. Yadav, HC Dinesh, Ct.
Rakesh and Ct. Mohit. He admitted that except disclosure statements and
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Pages 30 of 124
intercepted conversations, he could not state the evidence against accused
persons. He clarified that Ct. Rakesh heard the intercepted calls and he
prepared transcripts thereof. He stated that accused Manawwar was
arrested from the compound of PS Thanamandi and one Nokia mobile
phone was recovered from him. He admitted that the recovered phone was
not a smartphone and no videography of recovery proceedings was
conducted. He denied suggestions that accused Manawwar had not been
arrested in the manner alleged or that no incriminating material was
recovered from him. He further stated that voice sample of accused
Manawwar was recorded in his presence at FSL Rohini. He admitted that
he had not personally heard intercepted calls of accused Manawwar but had
prepared transcript of a few days’ conversations. He further denied
suggestions that no CD was recovered from the house of accused Kafait
Ullah or that the same had been prepared later at the instance of the IO.
7.15 In his cross-examination on behalf of accused Sabir, PW-3 admitted
that he himself had not heard the intercepted conversations and only typed
what Ct. Rakesh dictated to him after hearing the recordings. He admitted
that no conversation between accused Sabir and anyone else was directly
heard by him. He stated that the copy of the CD was prepared at Manjakot
and thereafter the original CD was sealed in a brown envelope with seal of
SKY. He admitted that local police accompanied the police party during
search proceedings at the house of accused Kafait Ullah. He denied
suggestions that a fabricated script was prepared first and thereafter
accused persons were made to utter the same while recording voice
samples. He admitted that multiple copies of audio cassettes containing
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Branch
Pages 31 of 124
voice samples were prepared by FSL experts but stated that he did not
remember what happened to those copies thereafter. He further denied
suggestions that the police team had manipulated or merged the audio
recordings after obtaining voice samples from FSL.
7.16 In his cross-examination on behalf of accused Kafait Ullah and
Abdul Rashid, PW-3 stated that he did not remember the exact date when
Inspector P.C. Yadav instructed Ct. Rakesh to hear the recorded
conversations, though the instructions were given in his presence. He stated
that Ct. Rakesh heard already recorded intercepts and dictated the
conversations to him for typing. He admitted that he was not aware of the
identities of accused persons before preparing the transcripts. He further
stated that accused Kafait Ullah himself identified his luggage at the
railway station. He denied suggestions that no documents were recovered
from the luggage of accused Kafait Ullah or that the recommendation letter
Mark-X was not recovered from him. He further stated that accused Kafait
Ullah had disclosed that the CD recovered from his house contained
conversations between him, Abdul Rashid and other associates. He also
stated that accused Kafait Ullah identified the documents recovered from
the house of Abdul Rashid as copies of documents earlier supplied by
Abdul Rashid to him. He admitted that he himself had not heard the
messages on the mobile phone of accused Abdul Rashid. He denied
suggestions that no CD was played before the accused persons or that
accused persons were made to read out contents of transcripts while
recording voice samples. He further denied suggestions that no CD had
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Pages 32 of 124
been recovered or that he was deposing falsely at the instance of the
investigating agency.
7.17 PW-3 was recalled to prove the documents prepared by the deceased
IO Inspector Sanjeev Kumar Yadav, who had expired during the Covid-19
pandemic. He stated that he was acquainted with the handwriting and
signatures of the deceased IO as he had worked with him during
investigation. He identified signatures and handwriting of Inspector
Sanjeev Kumar Yadav on various arrest memos, personal search memos,
disclosure statements, seizure memos, voice sample memos and other
exhibited documents including Ex.PW3/X, Ex. PW1/H, Ex. PW3/H, Ex.
PW3/U, Ex. PW3/L, Ex. PW3/S, Ex. PW3/P, Ex. PW3/T, Ex. PW3/G, Ex.
PW3/I, Ex. PW3/A, Ex. PW4/A to Ex. PW4/E, Ex. PW1/A, Ex. PW3/A-1
to Ex. PW3/A-17, Ex. PW3/B, Ex.PW3/C-1 to Ex. PW3/C-8, Ex. PW1/B,
Ex. PW3/D, Ex. PW1/C, Ex.PW1/D, Ex. PW3/M, Ex. PW3/Q, Ex. PW3/R,
Ex. PW20/A, Ex. PW3/Y, Ex. PW1/I, Ex. PW1/F, Ex. PW3/E, Ex. PW3/J,
Ex. PW3/N, Ex. PW1/G, Ex. PW3/F, Ex. PW3/K, Ex. PW3/O, Ex. PW3/Z
and Ex. PW3/Z1.
7.18 In his further cross-examination, PW-3 admitted that he was not a
handwriting expert and had never earlier testified regarding handwriting or
signatures of any person in any trial. He however maintained that he was
fully acquainted with the handwriting and signatures of deceased Inspector
Sanjeev Kumar Yadav. He denied suggestions that he was falsely
identifying the signatures or that he had signed documents at the instance
of the investigating agency.
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8. PW-4 Ct. Mohit Kumar has deposed that on 06.01.2016, he was
posted as Constable in Inter State Cell, PS Crime Branch. On that day,
IO/Insp. Sanjeev Kumar has handed over to him a forwarding letter with
directions to collect the exhibits from the MHC(M), PS Crime Branch and
deposit the same at FSL, Rohini. Pursuant thereto, he collected seven
exhibits, including one pullanda containing a laptop duly sealed with the
seal of “SKY”, from the MHC(M), PS Crime Branch vide RC No. 8/21 and
deposited the same at FSL, Rohini. After deposit, he returned the receipt to
the MHC(M), PS Crime Branch. He further stated that so long as the case
property remained in his custody, the same was not tampered with in any
manner.
8.1 The witness further deposed that on 19.01.2016, he along with HC
Ajay and Insp. Sanjeev Kumar went to FSL, Rohini, where accused
persons namely Kafait Ullah, Abdul Rasheed, Manawar, Mohd. Sabir and
Farid Ahmad were produced for recording of their voice samples. He stated
that the voice sample of accused Kafait Ullah was recorded in two audio
cassettes, whereas the voice samples of the remaining accused persons
were recorded in one audio cassette each. He further stated that one copy
each of the said six audio cassettes was also prepared by the FSL Expert,
making the total number of cassettes twelve.
8.2 PW-4 has further stated that the IO kept the two original audio
cassettes of accused Kafait Ullah in one pullanda and the remaining four
original audio cassettes of the co-accused persons in separate pullandas.
The IO marked the pullandas as Mark-1 to Mark-5 and took the same into
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Pages 34 of 124
possession vide separate seizure memos Ex.PW4/A to Ex.PW4/E, all
bearing his signatures at point A. He also stated that he had signed on all
the twelve audio cassettes and that his statement was recorded by the IO in
this regard.
8.3 The witness further deposed that on 15.02.2016, Insp. Sanjeev
Kumar handed over to him five white envelopes duly sealed with the seal
of “SKY” along with the Exhibit Examination Request Form and other
documents. As per the directions of the IO, he collected one brown
coloured pullanda duly sealed with the seal of “SKY” from the MHC(M),
PS Crime Branch vide RC No. 42/21 and deposited the same along with the
five envelopes at FSL, Rohini. Thereafter, he returned the receipt to the
MHC(M), PS Crime Branch. He categorically stated that the case property
remained untampered while in his custody.
8.4 PW-4 further stated that he could identify the audio cassettes if
shown to him. During his examination, five parcels duly sealed with the
seal of “FSL” and bearing particulars of the present case were produced
before the Court by the MHC(M). Parcel No. 2 was opened and two audio
cassettes bearing the name of accused “Kafait Ullah” marked O-1 and O-2
were shown to the witness, who correctly identified the same and stated
that the cassettes bore his signatures at point A. The said cassettes were
exhibited as Ex.PW4/P-1 and Ex.PW4/P-2. Similarly, from Parcel No. 3,
one audio cassette bearing the name of accused Abdul Rasheed Khan was
produced and identified by the witness as bearing his signatures at point A
and the same was exhibited as Ex.PW4/P-3. From Parcel No. 4, one audio
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cassette bearing the name of accused Manawar was produced and identified
by the witness and exhibited as Ex.PW4/P-4. From Parcel No. 5, one audio
cassette bearing the name of accused Mohd. Sabir was produced and
identified by the witness and exhibited as Ex.PW4/P-5. From Parcel No. 6,
one audio cassette bearing the name of accused Farid Ahmad was produced
and identified by the witness and exhibited as Ex.PW4/P-6.
8.5 During his cross-examination for accused Mohd. Sabir, the witness
stated that he was present in the room when the voice samples were
recorded. He stated that after the IO took possession of the cassettes vide
seizure memos Ex.PW4/A to Ex.PW4/E, he did not see the said cassettes
till they were shown to him in Court. He further stated that he did not
remember whether he had signed on the pullandas containing the cassettes.
8.6 In his cross-examination for accused Munawar Ahmad Mir, the
witness stated that he did not recollect the exact time when he along with
Insp. Sanjeev Kumar and HC Ajay left for FSL, Rohini on 19.01.2016. He
stated that he could not comment as to whether the voice samples were
recorded pursuant to permission of the Court. He further stated that apart
from them and the accused persons, 2-3 FSL Experts were present at the
time of recording of voice samples. He deposed that the samples were
taken separately by calling each individual into the room. He further stated
that he did not remember till what time they remained at FSL, Rohini. He
denied the suggestion that the voice samples were not recorded by the FSL
Experts or that the same had been fabricated using other voices.
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8.7 In his cross-examination for accused Farid Ahmad, the witness stated
that the cassettes used for recording the voice samples were unwrapped by
the IO in his presence. He admitted that the cassettes were not played in his
presence prior to recording of voice samples. He further stated that the
instruments available at FSL, Rohini were used for recording the samples.
He denied the suggestion that the cassettes used for recording the voice
samples were not empty or that they already contained previously recorded
voices. He voluntarily stated that had there been any previously recorded
voice, the FSL Experts would have cautioned them. The witness further
stated that he could not tell the sequence in which the voice samples of the
accused persons were recorded, though according to him the sample voice
of accused Kafait Ullah Khan was recorded first. He further stated that he
did not remember whether the FSL Experts had played the cassettes after
recording the voices to confirm proper recording. He also stated that he
could not tell the duration of the entire process. He further deposed that
after sealing the cassettes, the IO retained the same with him. He stated that
he could not say whether the IO had brought the pullandas of the cassettes
with him while returning, though he admitted that he had returned with the
IO. He denied the suggestion that the voice samples had been manipulated
or fabricated to suit the prosecution case.
8.8 During his cross-examination for accused Kafait Ullah Khan and
Abdul Rashid, the witness stated that the room in which the sample voices
were recorded was equipped with FSL recording instruments. He stated
that he could not tell the make of the equipment used for recording the
voice samples. He further stated that he did not recollect what exactly was
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spoken by the accused persons during recording of the voice samples. He
stated that no instrument was handed over to the accused persons during
recording. He further deposed that though he did not check whether the
machine was on or off, the lights on the machine were blinking. He stated
that the machine was not demonstrated before recording of the voice
samples and that the FSL Experts had confirmed the recording of the voice
samples. He denied the suggestion that the voice samples of the accused
persons were not recorded or that the cassettes had been fabricated. He
further denied the suggestion that he had deposed falsely.
9. PW-5 Lt. Col. Vivek Sheel has deposed that a letter bearing
reference no. 217-R-ACP/ISC/Crime Branch dated 12.01.2016, sent by the
ACP, Inter State Cell, Crime Branch, was received in the office of Director,
MI-9, Directorate of Military Intelligence, Army Headquarters, Sena
Bhawan, along with certain recovered documents regarding which the
investigating agency had sought opinion as to the nature of the documents.
He identified the said letter, which was exhibited as Ex.PW5/A.
9.1 The witness further deposed that the said documents were examined
by the concerned official in the Military Operations Directorate, who
submitted his opinion regarding the documents to his office. On the basis of
the opinion furnished by the examining officer, he prepared a forwarding
letter and conveyed the opinion to the ACP, Inter State Cell, Crime Branch.
He identified the forwarding letter Ex.PW5/B bearing his signatures and
official stamp at point A.
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9.2 PW-5 further stated that the complete record file containing the
opinion of the examining officer and other relevant documents was lying in
the office of MI-9, Directorate General of Military Intelligence, Army
Headquarters, Sena Bhawan, New Delhi. He further stated that the
documents in respect of which opinion had been sought and furnished were
already on record and had been exhibited as Ex.PW3/A/1 to Ex.PW3/A/17
and Ex.PW3/C1 to Ex.PW3/C8.
9.3 During his cross-examination for accused Mohd. Sabir, the witness
admitted that he had not personally given any opinion in the matter.
9.4 On being questioned whether the “comments” mentioned in
paragraph 2 of Ex.PW5/B were on record, the Court observed that the
question was not clear as paragraph 2 of Ex.PW5/B referred to comments
which, according to the witness, had not been given by him. The Court
accordingly sought clarification from the witness regarding the author of
the comments forming the basis of document Ex.PW5/B. In response, the
witness stated that the comments had been obtained from MO-3A i.e.
Military Operations 3-A and were given by GSO-1, MO3A, namely Lt.
Col. Rohit Sambyal, who was posted there at the relevant time.
9.5 Upon the question being reframed by learned defence counsel as to
whether the letter written by Lt. Col. Rohit Sambyal containing the so-
called comments was on the Court record, the witness initially stated that
he was not aware and that he would have to see the Court record. After
seeing the Court record, he stated that the said letter was not on record.
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9.6 The witness was further asked whether he was aware of the meaning
of the word “classified”. In response, he stated that the classification in the
present case had been given by GSO-1, MO3A and, therefore, he would not
be able to comment on the meaning of the word “classified”.
9.7 Accused Munawar Mir, Abdul Rasheed, Kafait Ullah Khan and
Farid Ahmad, adopted the cross-examination conducted by learned counsel
for accused Mohd. Sabir.
10. PW-6 HC Vijender Singh has deposed that on 01.12.2015, he was
posted at ISC, Crime Branch, Chanakya Puri, New Delhi. On that day, he
joined the investigation of the present case along with IO Insp. Surender
Singh Sandhu, HC Deep Chand, HC Resham, Ct. Vinod, Ct. Ranvir and Ct.
Rajender. He further stated that in connection with the investigation of the
present case, the police team proceeded to New Jalpaiguri, West Bengal
and reached there on 04.12.2015.
10.1 The witness further deposed that on 06.12.2015, IO Insp. Surender
Singh Sandhu approached Captain Rajnikant Rai at 17 JAKLI, Sukna,
West Bengal and interrogated accused Ct. Farid Ahmed, Rifleman, who
was correctly identified by the witness in Court. He stated that during
interrogation, accused Farid Ahmed confessed his involvement in the
present case. Thereafter, accused Farid Ahmed was arrested and his
personal search was conducted vide arrest memo Ex.PW6/A and personal
search memo Ex.PW6/B, both bearing his signatures at point A. He further
stated that the disclosure statement of accused Farid Ahmed was recorded
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vide Ex.PW6/C bearing his signatures at point A. Thereafter, they returned
to Delhi and on 07.12.2015, the IO recorded his statement in this regard.
10.2 During his cross-examination for accused Farid Ahmed, the witness
stated that they had travelled from Delhi to Jalpaiguri by Rajdhani Express,
though he did not remember its departure time. He admitted that if the
Rajdhani train departed from Delhi on a particular day, it would ordinarily
reach Jalpaiguri the following day. He stated that they did not visit the
office of 17 JAKLI on the same day they reached Jalpaiguri, though they
had visited there on 04.12.2015. He further stated that they had reached
Jalpaiguri on 02.12.2015 and that the IO had contacted 17 JAKLI
telephonically on 03.12.2015.
10.3 The witness further deposed that upon visiting the office of 17
JAKLI, they met Captain Rajnikant Rai in his office and two ICs along
with certain other staff members were also present there. He stated that the
IO had given a written request to Captain Rajnikant Rai seeking permission
for interrogation of accused Farid Ahmed and that the said request had
been prepared by the IO in his presence. He further stated that when they
visited the office of 17 JAKLI on 04.12.2015, only Captain Rajnikant Rai
and other officers met them and the accused was not produced for
interrogation. However, the accused was interrogated on 06.12.2015. He
further stated that they had again visited the office of 17 JAKLI on
05.12.2015. He stated that he could not say what communication took place
between Captain Rajnikant Rai, other officers and the IO during the visits
on 04.12.2015 and 05.12.2015. According to him, the IO had only
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informed him that accused Farid Ahmed had not been produced for
interrogation on those dates.
10.4 PW-6 further stated that on 06.12.2015, they reached the office of 17
JAKLI at about 10:00 a.m. and the accused was produced for interrogation
after their arrival. They remained there till about 02:00-02:30 p.m. He
further stated that accused Farid Ahmed was interrogated in the presence of
Captain Rajnikant Rai and other officers of 17 JAKLI and that the police
officials accompanying the IO were also present there. According to the
witness, accused Farid Ahmed disclosed his involvement in the present
case in his presence and the same was recorded by the IO. He further stated
that signatures of Captain Rajnikant Rai and HC Deep Chand were also
obtained on the disclosure statement of the accused.
10.5 The witness further deposed that after arresting accused Farid
Ahmed, the IO attempted to produce him before the local Court, but since
the concerned Magistrate was unavailable due to holiday, they brought the
accused to Delhi because there was shortage of time to catch the train. He
stated that they left Jalpaiguri for Delhi by Rajdhani Express, though he did
not remember the departure time. After reaching Delhi, they directly went
to the concerned Court and produced the accused there. He stated that he
did not remember the exact time when they reached Delhi or the Court, but
since the other accused persons were also being produced on the same day,
they hurriedly produced accused Farid Ahmed before the Court. He further
stated that the personal search of the accused was conducted at the office of
17 JAKLI.
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10.6 The witness denied the suggestion that he had not accompanied the
IO to Jalpaiguri. He further denied the suggestion that he had not joined the
investigation qua accused Farid Ahmed at 17 JAKLI. He also denied the
suggestion that the disclosure statement was prepared by the IO
independently and that his signatures were obtained subsequently. He
further denied the suggestion that no personal search was conducted in his
presence or that he was deposing falsely.
10.7 Despite opportunity being granted, no cross-examination was
conducted on behalf of accused Kafait Ullah, Abdul Rashid, Mohd. Sabir
and Munawwar Ahmed.
11. PW-7 Sh. Pawan Singh has deposed that in the year 2005, he
was working as a Nodal Officer in Idea Cellular Ltd. at A-26/5, Mohan
Cooperative Industrial Estate, Mathura Road, New Delhi. He further stated
that after the merger of Idea Cellular with Vodafone in September 2018, he
was working as Alternate Nodal Officer at Vodafone Idea Ltd. at the
aforesaid address.
11.1 The witness deposed that he had brought the original Customer
Application Form (CAF) and Call Detail Records (CDR) pertaining to
mobile number 9086312425 (Idea), issued in the name of Asif Ali, son of
Mohd. Latif, resident of Mangal Nar, PO Mangakote, District Rajouri,
J&K. He proved the CAF along with the supporting identity proof, namely
a student certificate issued by Government Higher Secondary School,
Manjakote, Rajouri, as Ex.PW7/A (colly.) comprising two pages (OSR),
bearing his attesting signatures and stamp at point A on each page. He
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further proved the CDR of the said mobile number running into 17 pages as
Ex.PW7/B, bearing his attesting signatures and stamp at point A on each
page.
11.2 PW-7 further deposed that he had also brought the original CAF and
CDR pertaining to mobile number 9086107860 (Idea), issued in the name
of accused Kafait Ullah Khan, son of Badar Hussain, resident of
Manjakote, PO Manjakote, District Rajouri, J&K. He proved the CAF
along with supporting identity proof in the form of a service certificate as
Ex.PW7/C (colly.) comprising two pages (OSR), bearing his attesting
signatures and stamp at point A on each page. He further proved the CDR
running into 15 pages as Ex.PW7/D, bearing his attesting signatures and
stamp at point A on each page thereof.
11.3 The witness further deposed that he had brought the original CAF
and CDR pertaining to mobile number 9086318625 (Idea), issued in the
name of Abdul Rashid Khan, son of Fazal Hussain, resident of HQ BSF,
District Rajouri, J&K, C/o 56 APO. He proved the CAF along with
supporting identity proof in the form of a service certificate as Ex.PW7/E
(colly.) comprising two pages (OSR), bearing his attesting signatures and
stamp at point A on each page. He further proved the CDR running into
four pages as Ex.PW7/F, bearing his attesting signatures and stamp at point
A on each page.
11.4 PW-7 further stated that he had also furnished a certificate under
Section 65B of the Indian Evidence Act in respect of the aforesaid records,
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which was proved as Ex.PW7/G bearing his signatures and stamp at point
A.
11.5 The witness further deposed that owing to the merger of Vodafone
with Idea, he had also brought the original CAF and CDR pertaining to
mobile number 9796642812 (Vodafone), issued in the name of Ms. Jabna
Akhter, wife of Munawar Hussain, resident of Khablam, PO Barakoti, PS
Mandi, Rajouri, J&K. He proved the CAF along with supporting identity
proof in the form of voter identity card as Ex.PW7/H (colly.) comprising
four pages (OSR), bearing his attesting signatures and stamp at point A on
each page. He further proved the CDR running into 38 pages (both sides)
as Ex.PW7/J (colly.), bearing his attesting signatures and stamp at point A
on each page.
11.6 The witness further deposed that he had also brought the original
CAF and CDR pertaining to mobile number 8860912547 (Vodafone),
issued in the name of Ms. Rohini Gomes, daughter of Francis, resident of
N-11, N Block, Narayan Nagar, Gali No.1, Laxmi Nagar, Delhi. He proved
the CAF along with supporting identity proof in the form of voter identity
card as Ex.PW7/K (colly.) comprising two pages (OSR), bearing his
attesting signatures and stamp at point A on each page. He further proved
the CDR as Ex.PW7/L, bearing his attesting signatures and stamp at point
A on each page.
11.7 PW-7 further proved the certificate under Section 65B of the Indian
Evidence Act in respect of the aforesaid Vodafone records as Ex.PW7/M
bearing his signatures and stamp at point A.
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11.8 Despite opportunity being granted, no cross-examination was
conducted on behalf of accused Mohd. Sabir, Munawar Ahmed Mir, Farid
Ahmed, Kafait Ullah Khan and Abdul Rashid.
12. PW-8 Sh. Kuldeep Singh has deposed that he had seen the attested
copy of the statement of account pertaining to Account No. 20042996761
in the name of Naik Manawar Ahmed Mir maintained at SBI, Thana Mandi
Branch, Code No. 17260, for the period from 01.01.2013 to 22.02.2016. He
proved the same as Ex.PW8/A running into four pages.
12.1 The witness further deposed that he had also seen the attested copy
of the statement of account pertaining to Account No. 20038937712 in the
name of Joginder Singh maintained at SBI, Sunderbani Branch, Code No.
02491, for the period from 24.10.2014 to 22.02.2016. He proved the same
as Ex.PW8/B running into ten pages.
12.2 PW-8 further deposed that he had seen the attested copy of the
statement of account pertaining to Account No. 32301596571 in the name
of Mohd. Saber Khan maintained at SBI, Rajouri Branch, Code No. 01575,
for the period from 25.04.2012 to 25.12.2015. He proved the same as
Ex.PW8/C running into three pages.
12.3 The witness further deposed that he had also seen the attested copy
of the statement of account pertaining to Account No. 11397771810 in the
joint names of Abdul Rashid and Tazim Akhter maintained at SBI, Rajouri,
J&K, Code No. 01575, for the period from 01.01.2013 to 22.02.2016. He
proved the same as Ex.PW8/D running into thirty-seven pages.
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12.4 PW-8 further deposed that in respect of the aforesaid accounts, he
had brought the certificate issued under Section 2(8) of the Bankers’ Books
Evidence Act, 1891 certifying the genuineness of the accounts as per bank
records. He proved the said certificate as Ex.PW8/E bearing his signatures
at point A and the official stamp encircled at point B.
12.5 During his cross-examination for accused Munawar Ahmed Mir, the
witness stated that he could not tell as to who had deposited the amount in
respect of the credit entry of Rs.20,000/- by cash dated 07.07.2014
reflected in Ex.PW8/A. He voluntarily stated that the same could be
ascertained upon perusal of the voucher from the concerned branch of SBI.
12.6 Despite opportunity being granted, no cross-examination was
conducted on behalf of accused Mohd. Sabir, Farid Ahmed, Kafait Ullah
Khan and Abdul Rashid.
13. PW-9 Col. Rohit Sambyal has deposed that that in the year 2016, he
was posted as General Staff Officer Grade-1 in the Military Operations
Branch. He deposed that on 21.01.2016, certain documents, as mentioned
in the letter Ex.PW5/A of Shri K.P.S. Malhotra, ACP, Inter Estate
Cell/Crime Branch, Chanakyapuri, New Delhi, were received in the office
of Directorate MI-9 and forwarded to the Military Operations Branch for
verification. The said documents were entrusted to him for examination.
13.1 He further deposed that he examined the documents carefully and
prepared para-wise detailed comments on the same in response to the
queries raised by the investigating agency in Ex.PW5/A. The comments
prepared by him were forwarded to the MI-9 Branch. On the basis of his
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examination and comments, a detailed report Ex.PW5/B was prepared. He
identified the documents Ex.PW3/A1 to A17 and Ex.PW3/C1 to C8 as the
very same documents he had examined and commented upon for
preparation of the report Ex.PW5/B.
13.2 During his cross-examination for accused Mohd. Sabir, the witness
admitted that the location of the RR Battalion as mentioned in para 2(a)(i)
of Ex.PW5/B is not a classified document; Precis books, used in Army
training institutes, exist, but no such document exists in the precis books
that provides the location as mentioned in para 2(a)(i) of Ex.PW5/B
(Ex.PW3/A1); The fire plan referred to in para 2(a)(v) of Ex.PW5/B is not
a classified document; the copy exhibited appears to be part of an exercise
during a course, though the actual fire plan is classified; Training institutes,
such as those at Mhow and Wellington, use precis books.
13.3 The witness stated that he could not comment on the involvement of
civilians in these institutes. He admitted that the document referred to in
para 2(a)(iii) of Ex.PW5/B is part of training material, but the structure of
the document (Ex.PW3/A4-A8) differs from the officers’ precis books of
his rank.
13.4 PW-9 could not confirm the actual existence of Ex.PW3/A4-A8 in
reality but opined that the details could not have been prepared by someone
unaware of the organizational structure. He explained that the term
“classified,” as used in Ex.PW5/B, refers to information not shared with the
public. He confirmed that sharing a document like Ex.PW3/A4-A8
presupposes its existence in military records. He further stated that he had
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not seen any such document before sending his comments leading to the
report Ex.PW5/B and could not ascertain whether he had ever come across
identical documents. Finally, he confirmed that “open source,” as used in
Ex.PW5/B, means information available openly to the public through the
internet or other media.
14. PW-10 SI Data Ram has deposed that on 16.11.2015, he was posted
as SI at ISC Crime Branch, Chanakyapuri, Delhi. On that day, at about 8
p.m., Inspector P.C. Yadav handed over a rukka to him with directions to
get an FIR registered at PS Crime Branch, Malviya Nagar.
14.1 PW-10 deposed that he proceeded to PS Crime Branch, Malviya
Nagar, and handed over the rukka to the Duty Officer. The Duty Officer
registered the FIR and handed over to him a computer copy of the FIR, the
rukka, and a certificate under Section 65B of the Indian Evidence Act.
PW-10 stated that he returned to the office of PS Crime Branch,
Chanakyapuri, at about 10:30 p.m., and handed over the documents to the
IO, Inspector Sanjeev Kumar Yadav.
14.2 During his cross-examination, he has denied the suggestions that
there was any tampering with the rukka; that he did not go to PS Malviya
Nagar and was deposing falsely at the instance of the IO; and that he was
deposing falsely as an official witness.
15. PW-11 Sh. Amit Kumar Sharma was examined as the representative
of Reliance Communication Ltd. on behalf of Sh. Yogesh Tripathi, the then
Nodal Officer, who had left the services of the company. He deposed that
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Pages 49 of 124
he had seen the record pertaining to mobile number 9018516106 and the
documents issued by Sh. Yogesh Tripathi to the police. As per the
company record, the said mobile number was issued in the name of one
Nureen. He proved the certified copy of the Customer Application Form
(CAF) as Ex. PW11/A and stated that the original CAF was not available
as, in terms of the guidelines of the Department of Telecommunications
(DOT), original CAFs are retained only for three years after permanent
termination of the mobile number. He further proved the certified copy of
the Election Identity Card submitted by the subscriber as Ex. PW11/B, the
certified copy of the Call Detail Records (CDR) as Ex. PW11/C (colly. 14
pages), and the certificate under Section 65B of the Indian Evidence Act as
Ex. PW11/D bearing the signatures of Sh. Yogesh Tripathi at point A. He
also proved the reply furnished to the police by Sh. Yogesh Tripathi as Ex.
PW11/E and identified the signatures of Sh. Yogesh Tripathi on the basis
that he had worked with him and had seen him signing during the ordinary
course of business. The copy of the DOT guidelines was marked as Mark
PW11/1.
15.1 During cross-examination for accused Fareed Ahmad and Munawer
Ahmed Mir, the witness stated that he could not comment whether the
Investigating Officer had made any request for preservation of the CAF. He
further stated that he had brought the complete available record and no
such request was found therein.
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15.2 No cross-examination was conducted on behalf of accused Kafait
Ullah Khan, Abdul Rashid Khan and Mohd. Saber despite opportunity
having been granted.
16. PW-12 ASI Deep Chand deposed that on 01.12.2015, while posted at
PS Crime Branch, Chanakyapuri, he along with Inspector Surender
Sandhu, HC Vijender, Ct. Vinod and other staff proceeded to Siliguri, West
Bengal in connection with investigation of the present case for the purpose
of tracing accused Fareed Ahmed, who was stated to be posted in the
JAKLI Unit of the Defence Force. He stated that after reaching Siliguri on
04.12.2015, efforts were made to trace the accused. On 06.12.2015, they
went to the office of the JAKLI Unit where the Station Officer was
informed about Fareed Ahmed, who was thereafter produced before them.
The witness stated that accused Fareed Ahmed was interrogated by
Inspector Surender Sandhu and subsequently arrested vide arrest memo Ex.
PW6/A bearing his signatures at point B. The personal search memo Ex.
PW6/B and disclosure statement Ex. PW6/C also bore his signatures at
point B. He further deposed that intimation of arrest was given to the
Commanding Officer and thereafter the accused was brought back to Delhi.
The witness correctly identified accused Fareed Ahmed before the Court.
16.1 During cross-examination for accused Fareed Ahmed and Munawer
Ahmed Mir, the witness stated that the police team had travelled to West
Bengal by Rajdhani Express from New Delhi Railway Station and that a
DD entry had been made prior to departure by the Investigating Officer. He
stated that they reached West Bengal on 04.12.2015 at about 2:00 PM and
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Pages 51 of 124
met accused Fareed Ahmed on 06.12.2015 at about 9:00-9:30 AM. He
further deposed that initially they had gone to Darjeeling where the JAKLI
Unit was posted, but later learnt that the main office was situated at Siliguri
and permission from senior officers was required to meet the accused. He
stated that on 04.12.2015 they stayed at a hotel in Darjeeling and on
05.12.2015 in the Unit mess at Siliguri. He denied the suggestion that the
accused had been detained on 04.12.2015 in a detention room at Siliguri.
He further stated that no article was recovered during the personal search of
the accused and that they returned to Delhi by Rajdhani Express, reaching
at about 12 noon to 1 PM. He admitted that family members of the accused
were not informed about the arrest, though the senior officials of the
accused were informed. He further stated that the accused was not
produced before any Judicial Magistrate in West Bengal and that
interrogation was conducted in the office of the Station Officer and lasted
approximately two hours. He denied the suggestions that the arrest and
interrogation proceedings were false or concocted and that he was deposing
falsely. No cross-examination was conducted on behalf of accused Kafait
Ullah Khan, Abdul Rashid Khan and Mohd. Saber.
17. PW-13 Sh. Amit Kumar has deposed that he had brought the original
bank record pertaining to Account No. 50100044094259 standing in the
name of accused Kafait Ullah Khan. He stated that the account had been
opened at Rajouri, Jammu & Kashmir Branch. He proved the certified copy
of the account opening form and related account documents as Ex.
PW13/A (OSR) (colly. 12 pages). He further proved the certified copy of
the pay-in slip dated 04.02.2015 reflecting deposit of Rs.40,000/- in the
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account at Daryaganj Branch as Ex. PW13/B and also proved the certified
statement of account for the period 01.06.2014 to 30.11.2015 as Ex.
PW13/C. He stated that he was deposing in his official capacity.
17.1 During cross-examination for accused Kafait Ullah Khan and Abdul
Rashid Khan, the witness stated that from the pay-in slip Ex. PW13/B he
could not ascertain who had deposited the amount of Rs.40,000/- as only
initials appeared at the place meant for depositor’s signature. He further
stated that no separate record regarding the identity of the depositor was
maintained by the bank.
17.2 No cross-examination was conducted on behalf of accused Mohd.
Saber, Fareed Ahmed and Munawer Ahmed Mir.
18. PW-14 Inspector Surender Sandhu deposed that on 01.12.2015,
while posted at Interstate Cell, Chanakyapuri, he along with HC Deep
Chand, Ct. Vijender and Ct. Vinod had proceeded to Siliguri, West Bengal
on the instructions of Inspector Sanjeev in connection with investigation of
the present case and in search of accused Fareed Ahmed. He stated that
after reaching Siliguri on 04.12.2015, they contacted the Commanding
Officer of the JAKLI Unit and informed him about the purpose of their
visit. Thereafter, accused Fareed Ahmed was produced before them and
interrogated in the presence of one Army official namely Rajnikant Rai.
The witness deposed that he arrested the accused vide arrest memo Ex.
PW6/A bearing his signatures at point C, conducted his personal search
vide memo Ex. PW6/B and recorded his disclosure statement Ex. PW6/C,
both bearing his signatures at point C. He further proved the intimation of
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 53 of 124
arrest given to the Commanding Officer as Ex. PW14/A. Thereafter, the
accused was brought to Delhi and handed over to the Investigating Officer
Inspector Sanjeev Kumar Yadav. The witness correctly identified accused
Fareed Ahmed before the Court.
18.1 In cross-examination for accused Fareed Ahmed and Munawer
Ahmed Mir, the witness stated that the police party had travelled by
Rajdhani Express from Hazrat Nizamuddin Railway Station and reached
Siliguri on 04.12.2015 at about 6:00-6:15 AM. He stated that they stayed at
a hotel in Siliguri, though he did not remember its name. He further stated
that he verbally informed the Commanding Officer on 05.12.2015
regarding the purpose of visit and that a DD entry had been made prior to
departure from Delhi, though he did not remember its number. He admitted
that instructions received from Inspector Sanjeev Yadav were oral and not
in writing. He denied the suggestion that no instructions had been received
for interrogation or arrest of the accused or that there was insufficient
evidence for his arrest. He admitted that no family member or friend of the
accused was informed about the arrest, though the Commanding Officer
was informed. He further stated that no article was recovered in the
personal search and that the disclosure statement was recorded by him in
English in his own handwriting. He also deposed that the accused was
medically examined at a Government Hospital in Siliguri. He denied the
suggestions that no disclosure statement had been recorded or that the
accused had not been medically examined. He further stated that they
reached Delhi on 08.12.2015 at about 1:00-2:00 PM and handed over
custody of the accused to the Investigating Officer the same afternoon. He
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Branch
Pages 54 of 124
admitted that the accused was produced before a Magistrate at Siliguri. He
denied the suggestion that signatures of the accused had been obtained on
blank papers while returning to Delhi. He further admitted that local police
of the place of arrest were not informed. He denied the suggestion that he
was deposing falsely.
18.2 No cross-examination was conducted on behalf of accused Kafait
Ullah Khan, Abdul Rashid Khan and Mohd. Saber.
19. PW-15 ASI Raj Kumar deposed that on 16.11.2015, while posted as
Duty Officer, he received rukka from SI Datta Ram sent by SI P.C. Yadav
and, on its basis, got FIR No.166/2015 under Sections 3/9 of the Official
Secrets Act registered through the computer operator. He proved the FIR as
Ex. PW15/A bearing his signatures at point A, the endorsement on rukka as
Ex. PW15/B and the certificate under Section 65B of the Indian Evidence
Act in respect of computer-generated FIR as Ex. PW15/C.
19.2 No material cross-examination was conducted on behalf of any of
the accused persons.
20. PW-16 Inspector Neeraj Kumar deposed that on 23.12.2016, while
posted as SI in ISC Crime Branch, Chanakyapuri, he filed FSL Result
No.2016/CFU-103 dated 29.07.2016 through supplementary chargesheet,
which was exhibited as Ex. PW9/A, and subsequently filed another FSL
result bearing No.2016/P-1229, PHY-49/16 dated 23.01.2017, exhibited as
Ex. PW9/B.
20.1 In cross-examination on behalf of accused Fareed Ahmed, the
witness stated that all exhibits had been sent to FSL by the previous
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 55 of 124
Investigating Officer and he could not comment upon the delay in sending
the CD to FSL. No further material cross-examination was conducted.
21. PW-17 Sh. Vivek Kumar has deposed regarding examination of
seven sealed parcels received in the laboratory on 06.01.2016 bearing seal
“SKY”. He detailed the contents of each parcel, including various mobile
phones, SIM cards, memory cards and one laptop with hard disk. He stated
that after examination, data was retrieved from exhibit HDD1, MP1, MP2,
MP4, MP5, SC1 to SC9, MC2 and MC3 and copied into a hard disk
marked “copy of data”. He further stated that no data could be retrieved
from MC1, MP3 and MP6. He proved his detailed FSL report dated
29.07.2016 as Ex. PW9/A. The witness also identified the case property
produced before the Court and the same was exhibited accordingly.
21.1 Despite opportunity, no cross-examination was conducted on behalf
of any of the accused persons.
22. PW-18 Major Rajnikant Rai deposed that on 04.12.2015, while
posted as Captain in 17 JAKLI at Sukhna, Siliguri, West Bengal and
functioning as Adjutant, Inspector Surender Sandhu of Interstate Cell,
Crime Branch, New Delhi arrived in the Unit with copy of FIR
No.166/2015 under Sections 3/9 of the Official Secrets Act and requested
permission to interrogate Rifleman Fareed Ahmed. He stated that Fareed
Ahmed was interrogated in the presence of Army Intelligence officials and
thereafter, upon receipt of request from Inspector Surender Sandhu and
after clearance from Army authorities, accused Fareed Ahmed was handed
over to the Crime Branch on 06.12.2015. He proved his signatures on arrest
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 56 of 124
memo Ex. PW6/A, personal search memo Ex. PW6/B and disclosure
statement Ex. PW6/C at point C. He correctly identified accused Fareed
Ahmed before the Court.
22.1 During cross-examination for accused Fareed Ahmed, the witness
stated that he was not personally present during interrogation, though Army
Intelligence officers were present and he himself remained in the Unit
office situated about ten metres away from the interrogation room. He
admitted that the disclosure statement Ex. PW6/C was not recorded in his
presence and that Inspector Surender Sandhu obtained his signatures
thereon after producing the document before him. He further stated that he
did not recollect the sequence in which he signed the arrest memo, personal
search memo and disclosure statement, though all were signed on the same
day. He also stated that he could not comment upon movement details of
the Unit. He admitted that no written request for interrogation had been
personally given to him, though the same may have been given to higher
authorities. He further stated that as per protocol, accused Fareed Ahmed
was not required to report daily to him and therefore he had no occasion to
know his leave or duty status.
22.2 No material cross-examination was conducted on behalf of the
remaining accused persons.
23. PW-19 Sh. Niraj Singh has deposed that on 17.03.2016, while
functioning as Under Secretary (Internal Security-I), the Ministry received
a proposal from the Government of NCT of Delhi seeking authorization
under Section 13(3) of the Official Secrets Act, 1923 for prosecution of the
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 57 of 124
accused persons. He stated that after examination of the proposal and
documents received from the State Government, authorization order dated
22.04.2016 was issued authorizing Sh. M.A. Rizvi, DCP Crime Branch, to
file complaint before the competent court. He proved the authorization
order as Ex. PW19/A and forwarding letter as Ex. PW19/B.
23.1 In cross-examination, the witness explained the procedure followed
upon receipt of the proposal and stated that the file, along with relevant
documents and notes, was examined and placed before the competent
authority. He admitted that some physical items mentioned in Ex. PW19/A
had not been physically received by the Ministry and that statements under
Section 161 Cr.P.C. and seizure memos were not specifically referred to in
the authorization order. He, however, stated that such documents were
considered while examining the case. He further stated that a prima facie
case appeared to be made out against the accused persons on the basis of
documents received from the State Government, including Military
Intelligence reports. He admitted that he had not seen the original
documents or mobile phones. He denied the suggestions that the
authorization order had been issued mechanically or without proper
application of mind.
23.2 PW-20 Subedar Major (Retd.) Satnam Singh deposed that on
10.12.2015, while posted as Naib Subedar at 17 JAKLI Battalion, Sukhna,
West Bengal, he had brought two mobile phones belonging to accused
Fareed Ahmed, namely Samsung Duos and Xolo, to the Interstate Cell,
Crime Branch, Chanakyapuri, New Delhi and handed over the same to
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 58 of 124
Inspector Sanjeev Kumar Yadav, who seized them vide seizure memo Ex.
PW20/A bearing his signatures at point A. He stated that the said mobile
phones had already been exhibited during examination of PW-3 and
PW-17.
23.3 In cross-examination for accused Fareed Ahmed, the witness stated
that he did not remember the name of the officer who had handed over the
mobile phones to him for carrying them to Delhi. He further stated that the
phones were received from 17 JAKLI Unit in sealed condition, possibly in
one or two envelopes, and that he had signed an acknowledgment at the
time of receipt. He admitted that no other documents were handed over by
him to the Investigating Officer along with the phones and stated that he
was unaware about the truth or falsity of allegations mentioned in Ex.
PW20/A. No further material cross-examination was conducted.
24. PW-21 Sh. Mansoor Ali Haideri, Retired Chief Ticket Inspector,
Western Railway, Ratlam Division has deposed that on 19.02.2016 he was
posted as Chief Ticket Inspector in Indore Western Railway, Ratlam
Division. He further deposed that pursuant to a notice under Section 91
Cr.P.C. issued by Inspector Sanjeev Kumar Yadav of ISC, Crime Branch,
Chanakyapuri, seeking the working chart of Train No.12920 Malwa
Express dated 25.11.2015 and details regarding passenger K.U. Khan
(Kafait-Ullah Khan), he had supplied the reservation/working chart along
with an official forwarding letter to the Investigating Officer. He proved
the reservation/working chart running into three pages as Ex.PW-21/A
(collectively) and the forwarding letter as Ex.PW21/B. He further deposed
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 59 of 124
that as per the record, passenger K.U. Khan had travelled on 25.11.2015
and the same was reflected in the chart Ex. PW21/A at berth No.18.
24.1 During cross-examination for accused Kafaitullah Khan and Mohd.
Sabir, the witness admitted that he had not physically seen the said
passenger travelling in the train on 25.11.2015 and that the full name of
passenger K.U. Khan was not mentioned in the record produced by him. He
also stated that the endorsement appearing at point ‘X’ on Ex.PW20/A did
not bear signatures of any railway official. He denied the suggestion that
there was no confirmation regarding the existence of passenger K.U. Khan
in the record produced by him and there was no confirmation regarding
handing over of the said passenger to Crime Branch officials by Railway
Police officials, or that he was deposing falsely.
25. PW-22 Sh. Sanjay Singh, Nodal Officer, Aircel Ltd. has deposed that
he had been working as Nodal Officer with Aircel Ltd. since the year 2014
and as per record, vide letter dated 17.02.2016, their office had furnished to
Delhi Police the ownership details, CAFs, CDRs and location charts
pertaining to mobile numbers 9858772953, 9697048899, 9697668716,
9697022785 and 8803223123. He proved the said letter as Ex.PW-22/A
bearing signatures of the then Nodal Officer Sh. Shishir Malhotra at points
‘A’ and ‘B’, whose signatures he identified having seen him signing and
writing during official duties. He further deposed that Sh. Shishir Malhotra
had left the company in the year 2018. He proved the CAFs of mobile
number 9858772953 in the name of Sarwar Begum as Ex. PW-22/B,
mobile number 9697048899 in the name of Mohd. Zahir as Ex. PW-22/C,
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 60 of 124
mobile number 9697668716 in the name of Rashid Khan as Ex.PW-22/D
and mobile number 8803223123 in the name of Sabir as Ex.PW-22/E, all
running into two pages each and duly attested by Sh. Shishir Malhotra. He
further deposed that certified CDRs were also supplied to the police and
were available on the judicial file, details whereof were mentioned in
Ex.PW-22/A. He identified the signatures of Sh. Shishir Malhotra on the
relevant pages referred to in paragraphs 4 and 5 of Ex.PW-22/A. He also
identified the signatures of Sh. Shishir Malhotra on the certificate under
Section 65-B of the Indian Evidence Act, proved as Ex.PW-22/F.
25.1 The witness further deposed that vide letter dated 19.02.2016, their
office had supplied ownership details, CAF, CDR and location chart
pertaining to mobile number 8803856573. He proved the said letter as
Ex.PW-22/G bearing signatures of Sh. Shishir Malhotra at point ‘A’. He
stated that as per the record, the said mobile number was registered in the
name of Munnawar Hussain. The CAF thereof was proved as Ex. PW-22/H
and the CDR running into 128 pages was also identified by him. He further
identified the signatures of Sh. Shishir Malhotra on the relevant pages
referred to in paragraphs 3, 4 and 5 of Ex.PW-22/G and on the certificate
under Section 65-B of the Indian Evidence Act proved as Ex. PW-22/J.
25.2 During cross-examination on behalf of accused Fareed Ahmed, the
witness stated that he did not know whether any other person had assisted
Sh. Shishir Malhotra in compilation and submission of the record. He
further stated that he was not present at the time of compilation of the
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 61 of 124
record and therefore had no personal knowledge regarding the procedure
adopted for compilation and submission thereof.
25.3 Learned counsels for accused Munawar Ahmed Mir and accused
Mohd. Sabir and Kafaitullah Khan adopted the cross-examination
conducted on behalf of accused Fareed Ahmed.
25.4 During cross-examination on behalf of accused Abdul Rashid, the
witness stated that he had not seen the CAF of mobile number 8803856573
in the judicial file though as per their covering letter the said number was
registered in the name of Abdul Rashid Khan. He further stated that the
record pertaining to the said number could neither be produced nor
retrieved as the same had been dumped by the company.
26. PW-23 Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd.,
deposed that he had been working as Nodal Officer with Bharti Airtel Ltd.
since 03.08.2015. He stated that as per record, mobile numbers
9622314136 and 8493850853 were activated by Airtel and stood in the
names of Mohd. Islam and Maqbool Hussain respectively. He proved the
CAFs thereof as Ex. PW23/A and Ex. PW-23/B and CDRs of both mobile
numbers as Ex.PW-23/C. The certificate under Section 65-B of the Indian
Evidence Act regarding correctness and genuineness of the data preserved
in the system without manipulation was proved as Ex.PW-23/D. He further
deposed that with regard to mobile number 8170065025, as per their record
the said number had not been activated during the relevant period and
therefore no data pertaining thereto was available.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 62 of 124
26.1 Opportunity to cross-examine the witness on behalf of accused
Abdul Rashid and Munawar Ahmed Mir was given, however, no questions
were put.
26.2 During cross-examination on behalf of accused Fareed Ahmed, the
witness stated that another Nodal Officer namely Sh. Chander Shekhar
Tiwari was also posted at that time, though he had not worked on the
present case. He stated that besides the documents already exhibited, no
other CDR related documents had been submitted by him in the present
case. He further stated that the record had been physically handed over to
the police after obtaining acknowledgment, though he did not remember
the name of the official to whom the same had been handed over. He stated
that he had not brought the receipt thereof to Court but could produce the
same if required. He further stated that as a Nodal Officer his
responsibilities were confined to providing the requisite data and attending
Court proceedings. He stated that he had generated the data from a DELL
computer system and could not provide details of any other data stored in
the system apart from CAF and CDR. He further stated that no register was
maintained regarding data entered into the computer system and no person
other than him had worked on his system. He stated that there was a
dedicated IT department for rectification of system errors, though no record
regarding complaints made to the IT department was maintained. He
further stated that while preparing the certificate under Section 65-B of the
Indian Evidence Act, he had relied upon the data stored in the system and
not upon any other office record or register. He denied the suggestion that
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 63 of 124
the certificate under Section 65-B had been prepared mechanically and not
in accordance with law.
26.3 The cross-examination conducted on behalf of accused Fareed
Ahmed was adopted by learned counsel appearing for accused Mohd. Sabir
and Kafaitullah Khan.
27. PW-24 Sh. Sunil Kumar deposed that during the year 2014-2015 he
was serving as Principal Staff Officer in the Ministry of Home Affairs and
retired from the said post on 28.02.2017. He stated that the section of MHA
dealing with interception of telephones of the concerned mobile numbers
was under his supervision and interception orders were issued upon receipt
of requests from law enforcement agencies. He further stated that order
No.15/14/3/97/T dated 15.09.2015 had been issued from their office,
though he could identify the contents thereof even after perusing the same.
Thereafter, in compliance with order dated 20.04.2023, replies Ex. P-22/1
and Ex. P-22/2 were received for identification purposes. The witness
identified order No.15/14/3/97/T dated 15.09.2015 issued by their office
and stated that the said order had been destroyed / weeded out as per the
Indian Telegraph Amendment Rules and SOP after six months from
issuance.
27.2 During cross-examination on behalf of accused Farid Ahmad, the
witness stated that he had not maintained any independent record or noting
of communications and documents during his tenure as Principal Staff
Officer, though office records relating to transactions and communications
were maintained for the review committee. He admitted that he had not
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 64 of 124
personally reviewed the said records before deposing in Court since he had
already retired from service. He further stated that at the relevant time he
was posted as Principal Staff Officer equivalent to the post of Director and
not as Joint Secretary or Secretary. He admitted that under the Indian
Telegraph Act and Rules, interception orders are to be passed by an officer
of the rank of Secretary or Joint Secretary and further admitted that he
himself had not passed any interception order in the present case, the same
having been passed by the Union Home Secretary.
27.3 In response to a question regarding the basis for his statement that
order No.15/14/3/97/T dated 15.09.2015 had been issued for interception in
the present case, the witness stated that interception orders are normally
issued on the basis of requests made by the Commissioner of Police, Delhi.
He further stated that due to lapse of time of more than ten years, he did not
remember the date of the interception request received from Delhi Police,
any other interception request or order in the present case, the exact date of
weeding out of the order, or the contents of the interception order. He
denied the suggestions that he was deposing falsely at the instance of the
investigating agency or that he did not recollect whether order
No.15/14/3/97/T dated 15.09.2015 had actually been issued from their
office in relation to interception of the phone numbers relevant to the
present case.
27.4 The cross-examination conducted on behalf of accused Farid Ahmad
was adopted on behalf of accused Mohammad Sabir, Kafait Ullah Khan,
Munawar Ahmad Mir and Abdul Rashid Khan.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 65 of 124
28. PW-25 Sh. M. A. Rizvi has deposed that in April 2016, he was
posted as DCP, Crime Branch, Delhi Police. He stated that FIR No.
166/2015 was registered at PS Crime Branch under Sections 3/9 of the
Official Secrets Act. He further deposed that his office had received official
order No. 17017/4/2016-IS-I dated 22.04.2016, already exhibited as Ex.
PW-19/A, whereby he was authorized by the Ministry of Home Affairs,
Government of India, to make complaint against accused persons namely
Kafaitullah Khan, Abdul Rashid, Fareed Ahmed, Munnawar Ahmed and
Mohd. Sabir Khan. He further stated that on 12.05.2016 he filed a detailed
complaint under Section 13(3) of the Official Secrets Act, 1923 against the
aforesaid accused persons. The said complaint was exhibited as
Ex.PW-25/A (running into five pages), bearing his signatures at point A.
28.1 During his cross-examination on behalf of accused Fareed Ahmed,
the witness stated that Ex.PW-25/A was the only document signed by him
in the present case. He deposed that he had applied his own mind while
drafting and making the complaint on the basis of the material available
with them. He stated that he did not remember whether he had filed any
other complaint under the Official Secrets Act. He further stated that it was
not his task to identify the voices and that he was not technically competent
to compare voice samples of the accused persons with the recordings. He
denied the suggestions that there were no incriminating recoveries from
accused Fareed Ahmed, that there were no incriminating witness
statements against him, and that the complaint had been filed in a
mechanical manner resulting in false prosecution.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 66 of 124
28.2 The accused Munnawar Ahmed Mir and Abdul Rashid adopted the
cross-examination conducted on behalf of accused Fareed Ahmed.
28.3 During cross-examination on behalf of accused Mohd. Sabir Khan
and Kafaitullah Khan, the witness stated that he did not remember the
source or document regarding transaction of documents allegedly
forwarded by accused Kafaitullah Khan to Pakistan based Intelligence
Operatives, which he had perused at the time of filing the complaint. He
further stated that, as far as he remembered, accused Sabir was a teacher,
though he did not remember about accused Kafaitullah Khan. He admitted
that there was no mention of certificate under Section 65-B of the Indian
Evidence Act regarding the CD and volunteered that the same was not
required at that stage. He further stated that he himself had not double
checked the information/documents provided by higher agencies. He
denied the suggestions that the complaint was filed mechanically without
going through the documents and information, that he had not dictated or
drafted the complaint himself, that the complaint had simply been placed
before him by the IO for signatures, or that he was deposing falsely.
29. PW-26 Dr. Bharti Bhardwaj has deposed that she had been posted as
Senior Scientific Officer (Physics), FSL Rohini, Delhi since January 2000
and that she possessed a Ph.D. degree in Physics. She stated that on
15.02.2016, six duly sealed envelopes were received in their office and the
seals thereon were intact and tallied with the specimen seals as per the
forwarding letter/FSL form. She stated that she opened the parcels and
mentioned the description of the articles contained therein while preparing
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Branch
Pages 67 of 124
her report. She further deposed that she examined five audio cassettes and
one compact disc and, after analysing and examining the same, prepared
her report mentioning the result of examination and opinion therein. The
said report was already exhibited as Ex.PW-9/B bearing her signatures at
point A on each page and running into five pages.
29.2 During cross-examination on behalf of accused Fareed Ahmed, the
witness stated that she had received training in forensic voice analysis from
Dr.C.P. Singh, who introduced Audio Video Analysis in India, and that her
training lasted for two months. She stated that during the said training
programme she had gone through both the literature and experimental
aspects by assisting the trainer in conducting forensic voice analysis. She
further stated that she had prepared forensic voice analysis reports in more
than 300 cases for court purposes.
29.3 The witness was asked regarding the number of cases in which she
had submitted negative forensic analysis reports. However, the said
question was disallowed by the Court with observations that it did not
concern the merits of the case or the competence of the witness as an
expert.
29.4 The witness further stated that, as far as she remembered, she had not
prepared any other report in the present case and that she was not involved
in the process of taking voice samples in the case. She stated that she did
not have any personal notes relating to the case and volunteered that the
examination had been conducted as per the laboratory manual. She further
stated that though she had not brought the worksheets, the same were
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 68 of 124
available in the file kept in the record room. She stated that she had perused
the forwarding letter and that every detail about the voice samples had been
mentioned therein. She further stated that she did not receive any voice
sample in the case from her own office as far as she could remember.
29.5 Regarding the reference of “Fareed Ahmed @ Surgen” mentioned at
Exhibit No. 5 at page 4 of her report, she stated that the same had been
taken from the forwarding letter. She stated that she had not brought the
forwarding letter on that day. She further stated that while preparing the
report she had considered the distinctive features of the accused persons as
mentioned in paragraph 5 at page 5 of her report. She denied the suggestion
that the said paragraph did not indicate any distinctive feature of Fareed
Ahmed’s voice and was merely a copy-paste of the preceding paragraphs.
She stated that she had not considered any foil speakers while preparing the
report and volunteered that the analysis had been done as per the laboratory
manual. She further stated that she did not remember whether she had
considered if the voice of the person was typical of the region from which
he came and volunteered that if there was any peculiar regional language
consideration, the same would be mentioned in the worksheets and not in
the report. She also stated that she could provide the worksheets if required.
29.6 The witness further deposed that she had not considered the age of
the questioned voice in the report and volunteered that the same had not
been asked. She stated that she had considered the speaking rate of the
tested voice though the same had not been mentioned in the report. She
further stated that she had not considered the quality of the electronic
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 69 of 124
devices, namely the CD and audio cassettes, as they were in working
condition. She deposed that she had considered background noise, if any,
though it was not necessary to mention the same in the report. She further
stated that fear in a person’s voice could affect the volume but did not
affect the analysis and that in the present case she could not say anything
about fear as she had only analysed the voices. She stated that she was not
much familiar with the Pahari language. She denied the suggestions that
her lack of familiarity with the Pahari language affected her analysis or that
she had conducted the analysis in a routine and mechanical manner.
29.7 During cross-examination on behalf of accused Kafaitullah Khan, the
witness stated that no date and time had been mentioned on the files of the
CD analysed by her while preparing the report and volunteered that the
same had not been asked. She further stated that the parcels had been
unsealed by her and her assistant, though she did not remember the name of
the assistant. She deposed that no videography of the unsealing process was
conducted though photographs had been clicked. She stated that the
software used to analyse the voices was mentioned in the report and that
she had checked the validity of the software including the anti-virus,
though she did not remember the make of the anti-virus. She further stated
that after completing the analysis she prepared her report on 23.01.2017
though the forwarding letter and sealed parcels had been received on
15.02.2016.
29.8 Accused Munnawar Ahmed Mir and Abdul Rashid adopted the
cross-examination conducted on behalf of accused Kafaitullah Khan. No
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 70 of 124
cross-examination was conducted on behalf of accused Mohd. Sabir Khan
despite opportunity.
30. PW-27 Inspector Satvinder Singh has deposed that he had perused
the photocopies of dispatch letters Nos. 4135-37, 4138, 4139, 4140 and
4142, all dated 17.09.2015, which had been sent to telephone service
providers for interception of phone numbers mentioned therein and which
bore the signatures of Sh. Alok Kumar, the then Additional Commissioner
of Police, Delhi. He further stated that no original record regarding the
aforesaid letters was available at the Interception Cell, Crime Branch as the
same had been destroyed/weeded out since no request for retention had
been received from the concerned section/IO. He further deposed that the
record had been destroyed as per Appendix-A of the SOP for interception
issued by the Ministry of Home Affairs, Government of India vide No.
14/7/2011-T dated 19.05.2011. The copy of the said SOP was exhibited as
Ex. PW-27/A.
30.1 During cross-examination on behalf of accused Mohd. Sabir, the
witness stated that they did not themselves intercept calls and only
processed requests and sent them to the competent authority for obtaining
orders. He further stated that he was not aware whether any call involving
Mohd. Sabir had been intercepted.
30.2 During cross-examination on behalf of accused Fareed Ahmed, the
witness stated that he was posted as In-charge, Interception Cell, Crime
Branch in September 2015. He further stated that there was no record of
destruction of records carried out in the year 2016 and that he was not
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 71 of 124
aware of any documents related to the present case in the absence of
original record.
30.3 During cross-examination on behalf of accused Kafaitullah Khan, the
witness stated that Sh. Alok Kumar, the then Addl. CP, Delhi had signed
the aforesaid reference letters in his presence. He admitted that no date had
been mentioned below the signatures indicating when the said letters were
signed and that his own signatures were also not present on the letters. He
denied the suggestion that the signatures of the Addl. Commissioner of
Police had not been made in his presence and volunteered that he himself
was not competent to sign the same. He further stated that, as per the SOP,
the record of phone interception was required to be destroyed every six
months. He admitted that under the SOP, letters/orders were destroyed with
the approval of the Head of the Security and Law Enforcement Agencies or
Designated Officers and further stated that no such approval record
presently existed as no previous record regarding destruction undertaken
earlier was maintained as per the SOP.
30.4 Accused Munnawar Ahmed Mir adopted the cross-examination
conducted on behalf of accused Fareed Ahmed and Kafaitullah Khan.
30.5 During cross-examination on behalf of accused Abdul Rashid, the
witness stated that he had been serving as Inspector, Interception Cell,
Crime Branch since 2011 and that he was not aware of the facts of the
present case. He further stated that after approval of the competent
authority for destruction of interception records, the records were destroyed
by him in the presence of the Nodal Officer/DCP Crime. He further stated
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 72 of 124
that he was not certain about the retention period of the aforesaid record.
He adopted the remaining cross-examination conducted on behalf of
accused Fareed Ahmed and Kafaitullah Khan.
31. PW-28 Sh. Alok Kumar has deposed that on 17.09.2015 he was
posted as Additional Commissioner of Police, Crime Branch, New Delhi.
He stated that upon receiving requests for interception of certain telephone
numbers, the same were sent, after due process, to the Union Home
Secretary, Government of India through proper channel for authorization.
He further stated that after receipt of authorization, authority letters under
his signatures were issued to various service providers for interception for a
limited period as per the Telegraph Act. The said authority letters were
exhibited as Ex.PW-28/A to Ex.PW-28/F bearing his signatures at point A
on each exhibit. He further deposed that the originals were retained in the
office and destroyed after the mandatory period prescribed under the
Telegraph Act.
31.1 During cross-examination on behalf of accused Farid Ahmed @
Surgeon, the witness stated that Order No. 15/14/3/97-T dated 15.09.2015
was the only interception order in the present case. He further stated that
contemporaneous records of communications/orders relating to interception
had been maintained in the Crime Branch but would have been destroyed
as per the Telegraph Act after expiry of the mandatory period. He stated
that he had not maintained any personal notes regarding the same. He
further stated that the actual order i.e. Order No. 15/14/3/97-T dated
15.09.2015 and communications regarding interception were not on record
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 73 of 124
as the same were kept in the Crime Branch office and only authority letters
under his signatures had been issued to the Investigating Officer. He further
stated that any interception conducted before receipt of the said order
would have been illegal and that no such interception was ever carried out.
31.2 The witness further stated that he did not find any request from the
Investigating Officer in the file for retention of records under Rule 419-
A(18) of the Indian Telegraph Rules, 1951 and therefore the records would
have been destroyed after the mandatory period. He further stated that had
there been any requirement, the records would have been retained upon
request by the Investigating Officer. He denied the suggestions that there
had been no interception order by the competent authority or that the Crime
Branch had intercepted calls without lawful authority.
31.3 During cross-examination on behalf of accused Kafaitullah Khan, the
witness stated that all requests to the Ministry of Home Affairs for
authorisation regarding interception of calls were sent in writing and that
the written requests and replies from the Ministry of Home Affairs were
entered in the records of the Crime Branch. He further stated that orders
issued by the Union Home Secretary for interception were retained in the
Crime Branch office for administrative purposes and that service providers
were only issued authority letters under his signatures containing reference
to the order of the Union Home Secretary. He further stated that he had not
supplied a copy of the interception order issued by the Union Home
Secretary to the IO as the same was retained in the Crime Branch office for
administrative reasons. He denied the suggestions that no interception order
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 74 of 124
had been issued by the Union Home Secretary, that no relevant entries
existed in the Crime Branch records, that interception of the accused
persons’ mobile numbers was illegal, or that he was deposing falsely. He
adopted the remaining cross-examination conducted on behalf of accused
Farid Ahmed @ Surgeon.
31.4 During cross-examination on behalf of accused Abdul Rashid Khan,
the witness stated that for retention of letters dated 17.09.2015 beyond the
prescribed period contained in Appendix ‘A’ of the SOP for interception
issued by the Ministry of Home Affairs, a request from the concerned
section/IO was required. He further stated that no such request had been
received from the IO as the same was not available in the file. He further
stated that the role of the Interception Cell, Crime Branch was limited to
processing requests and sending them to the competent authority for
obtaining interception orders. He also stated that the period and
continuation of interception were governed by the Telegraph Act.
Regarding the authorisation for destruction of records in the year 2016, he
stated that such records should be available in the office of the Crime
Branch. He adopted the remaining cross-examination conducted on behalf
of accused Farid Ahmed @ Surgeon and Kafaitullah Khan.
31.5 Accused Mohammad Saber adopted the cross-examinations
conducted on behalf of accused Farid Ahmed @ Surgeon, Kafaitullah Khan
and Abdul Rashid Khan. No cross-examination was conducted on behalf of
accused Manawer Ahmed Mir despite opportunity.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 75 of 124
32. PW-29 HC Sikandar has deposed that on 26.10.2018 he was posted
as Constable at ISC, Crime Branch, Chanakyapuri, New Delhi. He stated
that on that day he joined the investigation of the present case along with SI
Neeraj and ASI Jag Narayan. He further stated that in pursuance of court
order dated 11.10.2018, a compact disc was copied into a laptop for
preparation of duplicate copies for the accused persons and, after copying,
the CD along with both envelopes was placed in an envelope and sealed
with the seal of “NK”. He further deposed that IO SI Neeraj prepared the
panchnama regarding copying and sealing of the compact disc, which was
exhibited as Ex.PW-29/A bearing his signatures at point A.
32.1 No cross-examination was conducted on behalf of accused Abdul
Rashid Khan, Mohd. Saber Khan, Kafaitullah Khan, Farid Ahmed @
Surgeon or accused Manawer Ahmed Mir despite opportunity. Thereafter,
prosecution evidence was closed.
Statements of the accused persons under Section 351 BNSS:
33. In the statements under Section 351 of BNSS, all accused persons
had denied all the allegations put to them in their statements and stated that
they are innocent and have been falsely implicated in the present case.
Accused Kafait Ullah Khan examined himself as DW-1 in his defence.
Defence evidence
34. DW-1 accused Kafait Ullah Khan examined himself as a defence
witness pursuant to the order passed on his application under Section 315
Cr.P.C. He deposed that he had been working as a Government Teacher
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 76 of 124
since the year 1995. He stated that on 25.11.2015 he was travelling to
Bhopal by Malwa Express via New Delhi and was seated in coach A-1 of
the train. According to him, when the train reached New Delhi Railway
Station between 6:00 PM to 7:00 PM, about 7-8 persons in civil clothes
approached him, covered him with a cloth and thereafter an altercation took
place between them. He further deposed that he was forcibly taken out of
the train and thereafter taken to a police station in a vehicle. He stated that
the said persons disclosed their identities and made several inquiries from
him. He further stated that he informed them that he was going to Bhopal to
attend Tabliki Jamaat and was also questioned regarding the purpose of his
visit. According to him, he was forced to sign certain blank papers.
34.1 The witness further deposed that he had also informed the police
officials regarding his visit to Pakistan, stating that his elder brother, who
was residing in Pakistan, had expired. He stated that he had stayed in
Pakistan for 19 days after obtaining NOC from the Government of India.
He further deposed that he had been falsely implicated in the present case
and that nothing was recovered either at his instance or from his house. He
stated that he had been facing trial in the present case since the year 2015
and claimed himself to be innocent.
34.2 During cross-examination by learned Addl. PP for the State, the
witness denied the suggestion that prior to 16.11.2015, police officials or
Special Cell officials had intercepted his mobile calls as well as those of
co-accused Abdul Rashid Khan, revealing involvement in anti-national
activities supported by Pakistan-based Intelligence Operatives and sharing
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 77 of 124
information regarding deployment of the Army and BSF in Jammu &
Kashmir and across the border. He further denied the suggestion that on the
basis of such interception, he was apprehended on 25.11.2015 from coach
A-1 of Malwa Express Train No.12920 and that during search of his bag
certain secret Government documents were recovered for which he failed
to furnish any satisfactory explanation.
34.3 The witness further denied the suggestion that on 28.11.2015 he was
taken to his house at Manjakot, Rajouri, Jammu & Kashmir and that during
search of his house a CD containing conversations between him and co-
accused Abdul Rashid Khan was recovered from an iron almirah. He also
denied the suggestion that he had led the police officials to the house of co-
accused Abdul Rashid Khan where certain documents were recovered from
an iron box kept in a room. He further denied the suggestion that the CD
recovered from his house contained voice recordings of himself, Abdul
Rashid Khan and other co-accused persons. He also denied the suggestion
that during search the police had seized his passport and one dual SIM
Micromax mobile phone. He further denied the suggestion that he along
with his co-accused had acted against the interest and security of the nation.
Lastly, he denied the suggestion that he was deposing falsely being an
accused in the present case.
Arguments addressed on behalf of State
35. Learned Addl. PP for the State argued that the intercepted
conversations, transcripts, recoveries, electronic evidence and conduct of
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 78 of 124
accused persons clearly establish that they were acting in concert to pass
sensitive information concerning national security to Pakistan based
operatives. It was submitted that the testimonies of police witnesses are
trustworthy and corroborated by documentary and electronic evidence. It
was further argued that the recovery of Army related documents from
accused Kafait Ullah and Abdul Rashid coupled with financial transactions
and contact with Pakistani numbers establishes the offences beyond
reasonable doubt.
35.1 To substantiate his arguments, Ld. Addl. PP for the State has placed
reliance upon following judgments :
a. Hon’ble High Court of Delhi in Crl. Appeal No. 428/2017
titled as Asif Hussain Vs. State (Dated 07.11.2019), has observed
that :
41. During the course of arguments, Ex.PW-2/A1,
Ex.PW-2/A2 and Ex.PW-2/A3 were removed from the
sealed cover and perused. The said documents were also
shown to the counsel. Mr Hashmi is correct in pointing out
that the said documents do not bear the notation
‘restricted’. This, essentially, Court is unable to accept that
the said documents are unclassified. Lieutenant Col.
Chander Shekhar had submitted a report (Ex.Pw-14/C)
after examining the documents in question. In his opinion,
the documents in question were classified as restricted,
which essentially meant that the same were for official use
only and were not to be published or communicated to
anyone except for official purposes. He also expressed his
opinion that the information contained in the document, if
disclosed to unauthorised persons, could be prejudicial to
the safety, security and interest of the State. He
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 79 of 124
unequivocally stated that the information contained could
be directly or indirectly useful to an enemy country.
42. A plain reading of the documents indicate that
information contained therein relates to defence matters.
The documents relate to arms and ammunition and the
manner in which the ammunition stores are to be used.
Undeniably, the said information cannot be considered as
one which is required to be disseminated or published to
unauthorized persons. The information contained in these
documents is, indisputably, only for the use of officials.
43. xxxx
44. In the given circumstances, this Court has no doubt
that the documents in question are classified as restricted
documents.”
b. Hon’ble Supreme Court of India in case titled as The
Government of NCT of Delhi Vs. Jaspal Singh reported in 2003
(10) SCC 586, has held that:
“So far as the scope of Section 3(1) (c)of the Act is
concerned, it was urged for the respondent that unless the
articles enumerated are shown to be ‘secret’ document or
material and that besides their collection they were
published or communicated to any other person, the
charge under the said provision could not said to have
been made out. Apparently, the inspiration for such a
submission was the judgment of a learned Single Judge of
the Bombay High Court reported in State of Maharashtra
Vs. B. K. Subba Rao & Another (1993 Crl.L. J. 2984). We
are unable to agree with this extreme submission on behalf
of the respondent. This Court in Sama Alana Abdulla Vs.
State of Gujrat [(1996) 1 SCC 427] had held: (a) that the
word ‘secret’ in clause (c) of sub-section (1) of Section 3
qualified official code or password and not any sketch,
plan, model, article or note or other document orState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 80 of 124
information and (b) when the accused was found in
conscious possession of the material (map – in that case)
and no plausible explanation has been given for its
possession, it has to be presumed as required by Section
3(2) of the Act that the same was obtained or collected by
the appellant for a purpose prejudicial to the safety or
interests of the State. Further, each one of the several acts
enumerated in clause (c) of sub-section (1) of Section 3 of
the Act, by themselves will constitute, individually, an
offending act to attract the said provision and it is not
necessary that only one or more of them and particularly
publishing or communication of the same need be
conjointly proved for convicting one charged with the
offence of obtaining or collecting records or secret official
code or password or any sketch, plan, model, article or
note or other document or information. Any such
interpretation would not only amount to doing violence to
the language, scheme underlying and the very object of the
said provision besides rendering otiose or a dead letter the
specific provision engrafted in sub-section (2) of Section 3
of the Act. In view of this, the decision of the Single Judge
of the High Court in 1993 Crl. L. J. 2984 (supra) cannot be
said to lay down the correct position of law on the scope
of Section 3 (1) (c) of the Act.
xxxxxx
When so much of solid proof was available as to his
possession, a restricted document prohibited for the
general use of others and the information contained therein
is not to be communicated directly or indirectly to the
press or to any person not holding any official position in
the Government for the reason that it contained the names,
number of fields formation and units of each individual
officer they being also sensitive information from the
defence point of view of the country, no further proof is
required and his possession sufficiently substantiates that
he or somebody on his behalf obtained or collected it for
him. The mode of consideration and method of proof in aState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 81 of 124
case like this, cannot be on the lines of a crime under the
provisions of IPCinasmuch as sub-section (2) of Section 3
and Section 4 of the Act engrafts the statutory
presumptions to be drawn from the facts and that this
would make all the difference in the nature of
consideration required in respect of offences committed
under the Official Secrets Act, 1923 and the criminal
conspiracies relating to such offences, be it punishable
under Section 120-B, IPC. For all the reasons stated
above, we are satisfied that the Verdict of Acquittal
recorded by the High Court in favour of A-4, by way of
reversal, suffers patent error of law and perversity of
approach and consequently require to be set aside. We,
accordingly, set aside the judgment of the High Court, so
far as the acquittal of respondent A-4, by allowing Crl.
Appeal No.248 of 2003 and restore the judgment of
learned Additional Sessions Judge, New Delhi, convicting
him for offences under Section 3 (1)(c) of Official Secrets
Act, 1923 and Section 120-B, IPC. “
c. Hon’ble Supreme Court of India in case titled as Sana Alana
Abdulla Vs. The State of Gujrat reported in 1996 SCC (1) 427, has
held that:
In our opinion, the view taken by the Gujarat High Court
in this case and by the Calcutta High Court in the case of
Sunil Ranjan Das is correct. We find that the said
interpretation also receives support from sub-section (2) of
Section 3. While providing for a presumption to be raised
in prosecution for the offence punishable under that
section the phraseology used by the legislature is “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”. From the way the said sub-section is
worded it becomes apparent that the qualifying wordState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 82 of 124
‘secret’ has been used only with respect to or in relation to
official code or password and the legislature did not intend
that the sketch, plan, model, article, note, document or
information should also be secret. As we do not find any
substance in the second contention raised on behalf of the
appellant it is also rejected. In the result, the appeal fails
and is dismissed.
Arguments addressed on behalf of accused Kafait Ullah Khan and
Mohammad Sabeer (A-1 & A-4)
36. Ld. Counsel for accused persons submitted that they have been
falsely implicated in the present matter and they are not connected in the
alleged offence in any manner; that they have clean antecedents; that out of
the alleged documents recovered from possession of accused Kafait Ullah
Khan, only one document is stated to be ‘Classified’ and rest of the
documents does not fall within the ambit of Official Secret Act, 1923 being
readily available in public domain and cannot constitute ‘Secret’ and by no
stretch of imagination likely to affect the sovereignty and integrity of India,
security of the State or friendly relations with foreign States; that Right to
Information Act, 2005 has an overriding effect over Official Secrets Act,
2923 if public interest in disclosure outweighs the harm to the protected
interests; that the prosecution failed to prove the interception order dated
15.09.2015 under Section 5(2) of Telegraph Act, 1885 which amounts to
blatant misuse of process of law; that the arrest of accused Kafait Ullah
Khan was illegal as he was arrested while traveling in train to attend one
religious seminar and no Railway Police or local police was inducted into
said raid; that the recovery of alleged CD from the house of accused KafaitState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 83 of 124
Ullah Khan was fabricated and planted into his house; that no independent
witnesses were inducted while alleged recovery of CD was made; that
prosecution failed to induce the source of the alleged CD till date along
with certificate under Section 65B of the Indian Evidence Act; that the
voice samples of accused Kafait Ullah Khan was sent to FSL after about
delay of 03 months which points towards that the same were forged and
fabricated by IO in order to strengthen the case of the prosecution; that the
bank transaction of Rs.40,000/- does not show any huge amount of funding
from any illegal person rather the said amount was deposited from Central
Delhi by his friend for some personal requirement of funds; the CDR
connectivity among the accused persons does not prove any conspiracy as
they live in the same locality; that prosecution failed to bring on record any
piece of evidence to show that accused Kafait Ullah Khan visited Pakistan
illegally and even failed to examine any independent witness to prove the
alleged meeting with ISI Operatives;
36.1 To substantiate his arguments, Ld. Counsel for accused Kafait Ullah
Khan has placed reliance upon following judgments:
a. Hon’ble Supreme Court of India in case titled as Sama Alana
Abdulla (Supra), has held that:
“While providing for a presumption to be raised in
prosecution for the offence punishable under that section
the phraseology used by the legislature is “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”. From the way the said sub-section is
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 84 of 124
worded it becomes apparent that the qualifying word
‘secret’ has been used only with respect to or in relation to
official code or password and the legislature did not intend
that the sketch, plan, model, article, note, document or
information should also be secret.”
b. Hon’ble High Court of Bombay in case titled as State of
Maharashtra Vs. B. K. Subbarao reported in 1993 CriLJ 2984, has
observed that
“16. For purposes of appreciating the validity or otherwise
of the submissions that have been raised in the course of
the arguments before me, it is equally essential for me to
advert to certain provisions of the two statutes under
which the present prosecution has charged the Accused.
The first of these is the Official Secrets Act, 1923. This is
an Act that was placed on the statute book for purposes of
dealing with cases relating to official secrets. A perusal of
the provisions of the Act will indicate that it is essentially
concerned with security of the country and for this
purpose, therefore, lays down stringent provisions in
relation to all matters that come within the compass of the
definition of the Official Secrets Act. That the Act also
takes into account the possession of documents or material
that may be associated with matters of defence or other
secrets of the State is self-evident and the Act also makes
a very clear mention of the fact that if a person obtains
such material for a purpose prejudicial to safety or interest
of the State, or if a person discloses such material to
persons or agents in such manner as the safety, interest or
security of the State may be prejudiced, the law will deal
with him very stringently as provided for in this Act. A
general reference to the scheme of the Act has been
adverted to by me for the reason that the gravamen of the
charge against the Accused in this proceeding relates to
his having allegedly obtained and allegedly having been
found in possession of material that could and would
conform to the definition of official secrets. This alone is
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 85 of 124
insufficient for a charge under the Official Secrets Act
because the law requires that such acts must necessarily be
accompanied by attempts at disclosing or disseminating
such material to unauthorised persons who, in the Act,
have been referred to as “foreign agents”. In short, it is
very essential for the safety and security of any country
that stringent provision be made in respect of any act or
attempt that may endanger the safety or interest of the
country. What follows, therefore, is that the basic
ingredients for any charge under the Official Secrets Act is
that the investigation must disclose from very cogent fact
placed before the Court that the purpose for which the
secret material was obtained or retained or carried or
disposed of was directed or prompted by an objective that
was prejudicial to the safety and interest of the State. In
addition, where the charge is that such material was
intended to be misused, this last aspect has to be borne out
from material elicited in the course of investigation. Even
in a criminal proceeding of the present type where the
consequences to a person charged under the Official
Secrets Act are extremely grave, it is condition precedent
that a scrutiny of the totallity of the material placed before
the Court must justify all the aforesaid ingredients.
c. Judgment rendered by Hon’ble Supreme Court of India in case
titled as Jaspal Singh (Supra).
d. Hon’ble Supreme Court of India in case titled as Prem Chand
Vs. Union of India reported in (1981) 1 SCC 639, has held that:
“8. The petitioner’s reply affidavit makes startling
disclosures about the police methods of implicating
innocent people. However, the version of the petitioner
can hardly be swallowed since he is a self-confessed
perjurer. Nevertheless, it is not too much to ask
Government to take effective measures to prevent PoliceState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 86 of 124
methods straying into vice. We hopefully remind the State
about what Justice Brandieis once observed :
“Crime is contagious. If the government becomes a law
breaker, it breeds contempt for law.” .. “TO declare that in
the administration of the criminal law the end justifies the
means -to declare that the government may commit crimes
in order to secure the conviction of a private criminal-
would bring terrible retribution. Against that pernicious
doctrine this court must resolutely set its face.”
In the same American decision we have just mentioned
Justice Holmes observed; “We have to choose, and for my
part I think it a less evil that some criminals should escape
than that the Government should play an ignoble part.”
e. Hon’ble Supreme Court of India in case titled as Tarseem
Kumar Vs. Delhi Administration reported in 1994 Supp (3) SCC
367, has held that:
“The only remaining circumstance to be dealt with is the
alleged disclosure made by the appellant and recovery of
blood stained clothes belonging to the appellant at his
instance. In view of Section 27 of the Evidence Act, there
was no difficulty in accepting this evidence and to
consider the same along with other circumstances if
proved beyond all reasonable doubt. But the unfortunate
feature of the present case, which has also been noticed by
the Trial Court, is that many witnesses who can be said to
be the stock witnesses to the police, have been produced
on behalf of the prosecution to prove important
circumstances. In this back-ground the Court has to be
very cautions about the investigation done by the police in
this case. The circumstance regarding the recovery of the
blood stained clothes belonging to the appellant, on the
disclosure made by him, has to be examined in the
background of the witnesses like PW9, PW8 and 30,
PWs2 and 3, on whom it is difficult to place any relianceState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 87 of 124
for the reasons mentioned above. It is not possible to hold
that the vital links of the prosecution case which are
necessary to be proved before a finding can be recorded,
that the chain of evidence is complete, have been proved
beyond reasonable doubt. If the evidence of PWs2 and 3
are rejected, then the main circumstantial evidence that the
appellant was in exclusive possession of the room in
question and he had got the pit dug by PWs2 and 3 in
which the dead body of the victim was found in the night
of 18.10.1974, shall be deemed to have not been proved.”
f. Hon’ble Supreme Court of India in case titled as Rajesh
Jagdamba Awasthi Vs. State of Goa reported in (2005) 9 SCC 773,
has held that:
“16. There is one other aspect of the matter. PW-2, the
panch witness associated in this case appears to be a stock
witness. The other panch witness has not been examined.
PW-2 admitted in very clear terms that he was earlier
associated in two other cases under N.D.P.S. Act as panch
witness. In both those cases, PSI Thorat was the
investigating officer. On 14 th December, 1994, he had
been summoned by PSI Thorat and acted as a panch
witness in the case against P.C. Kulbi, who as noticed
earlier disclosed the complicity of the appellant.
Thereafter, in the instant case, he was requested by PW-4
to act as a panch witness. It appears that PSI Thorat was
also associated with this case as he was present with PW-4
when P.C. Kulbi was apprehended and thereafter when the
appellant herein was apprehended and searched at the
instance of the aforesaid Kulbi.”
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 88 of 124
g. Hon’ble Supreme Court of India in case titled as Renuka
Prasad Vs. State reported in 2025 SCC OnLine SC 1074, has held
that:
“48. Though Chandrappa1 was specifically noticed by the
High Court, the principles were not rightly appreciated,
while setting aside the order of acquittal. It has been
emphasized that when there are two reasonable views
possible from the evidence led, the one favouring the
accused should be adopted, especially since the
presumption of innocence of the accused until proved
guilty, a fundamental tenet of criminal jurisprudence,
stands further strengthened by the order of acquittal. In the
present case, we are afraid that there are not even two
views coming forth from the evidence. The only view that
comes forth is that the prosecution completely failed to
prove the allegations raised and charged against each of
the accused, more by reason of all the witnesses paraded
before Court, at the trial, having turned hostile for reasons
unknown. Whatever be the reason behind such hostility, it
cannot result in a conviction, based on the testimony of the
Investigating Officers which is founded only on Section
161 statements and voluntary statements of accused; the
former Crl. A. Nos. 3189-90 of 2023 etc. violative of
Section 162 of the Cr.P.C and the latter in breach of
Section 25 & 26 of the Evidence Act.
h. Hon’ble Supreme Court of India in case titled as State of
Lokayukhta Police, Davangere Vs. C.B. Nagaraj reported in 2025
SCC OnLine SC 1175, has held that:
“26. Moreover, the testimony of the Complainant, as
discussed supra, does not inspire confidence, inasmuch as,
for reasons best known to him alone, he completely denied
the visit of the Respondent for spot inspection, that too,
just two days prior to the date of the trap and immediatelyState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 89 of 124
changed such stance by accepting such visit and admitting
the spot report as also identifying his own, his father’s and
the witness’s signatures. In the considered opinion of this
Court, such conduct is sufficient to render his testimony
unreliable.”
i. Hon’ble Supreme Court of India in SLP (Crl.) No. 14087/2025
titled as Anwar Hussain Vs. State of Madhya Pradesh, has held that:
“2. Carrying forward from where this Court left last time,
we find that the issue of stock witnesses and the casual
manner in which the witnesses are shown initially in the
FIR, as also later made chargesheet witnesses has raised
serious issues of concern. The reason is that the witnesses
are basically included in the FIR and the chargesheet by
way of a formality and in majority of cases, the witnesses
resile from supporting the prosecution case for the reason
that they may actually not have been at the spot and have
been shown as a witness to complete a formality and/or
under duress.
3. Be that as it may, we are not going into the said aspect.
However, to ensure that there is confidence at the very
time when the FIR is instituted and also in the
investigation process and most importantly during trial, in
the considered opinion of the Court, a standard procedure
has to be laid down with regard to how witnesses are
introduced, either in the FIR, or ultimately reflected in the
chargesheet, more so, to ensure that they are authentic and
genuine witnesses to the incident, as may be alleged.
Some suggestions have come from the DGP, Madhya
Pradesh as has been pointed out by the learned ASG on
the previous occasion. However, to make the exercise
reliable and fruitful, as basically the same law is applied
all over India, this Court would like the exercise to be
more spread-out so as to include the suggestions/opinions
from the States and Union Territories of India, including
the Union Government.”
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 90 of 124
j. Hon’ble Supreme Court of India in case titled as Sharif
Ahmed & Ors. Vs. State of Uttar Pradesh & Ors. reported in (2024)
14 Supreme Court Cases 122, has held that:
“25. In support of our reasoning, we would refer to the
very next paragraph in the judgment of Shetty, J. in K.
Veeraswami (Supra) which reads as under:
“76. The charge-sheet is nothing but a final report of
police officer under Section 173(2) of the CrPC. The
Section 173(2) provides that on completion of the
investigation the police officer investigating into a
cognizable offence shall submit a report. The report
must be in the form prescribed by the State
Government and stating therein (a) the names of the
parties; (b) the nature of the information; (c) the
names of the persons who appear to be acquainted
with the circumstances of the case; (d) whether any
offence appears to have been committed and, if so,
by whom (e) whether the accused has been arrested;
(f) whether he had been released on his bond and, if
so, whether with or without sureties; and (g) whether
he has been forwarded in custody under Section 170.
As observed by this Court in Satya Narain Musadi V.
State of Bihar that the statutory requirement of the
report under Section 173 (2) would be complied with
if the various details prescribed therein are included
in the report. This report is an intimation to the
magistrate that upon investigation into a cognizable
offence the Investigating Officer has been able to
procure sufficient evidence for the court to inquire
into the offence and the necessary information is
being sent to the court. In fact, the report under
Section 173 (2) purports to be an opinion of the
Investigating Officer that as far as he is concerned he
has been able to procure sufficient material for the
trial of the accused by the court. The report is
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 91 of 124
complete if it is accompanied with all the documents
and statements of witnesses as required by Section
175(5). Nothing more need be stated in the report of
the Investigating Officer. It is also not necessary that
all the details of the offence must be stated. The
details of the offence are required to be proved to
bring home the guilt to the accused at a later stage
i.e. in the course of the trial of the case by adducing
acceptable evidence.
This paragraph examines the contents of the chargesheet
and on elaboration of the same holds that it is in
accordance with the terms of Section 173(2) of the Code
as well as the provisions of the penal enactment. In
furtherance of this, reference is made to Satya Narain
Musadi and Others v. State of Bihar20, in stating that the
chargesheet should comply with the statutory
requirements, and the various details prescribed therein
should be included in the report.
xxxxxxxxxx
31. Therefore, the investigating officer must make clear
and complete entries of all columns in the chargesheet so
that the court can clearly understand which crime has been
committed by which accused and what is the material
evidence available on the file. Statements under Section
161 of the Code and related documents have to be
enclosed with the list of witnesses. The role played by the
accused in the crime should be separately and clearly
mentioned in the chargesheet, for each of the accused
persons.”
k. Hon’ble Supreme Court of India in case titled as People’s
Union of Civil Liberties (PUCL) Vs. Union of India (UOI) & Ors.
reported in AIR 1997 SC 568, has held that:
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 92 of 124
“28. Section 5(2) of the Act permits the interception of
messages in accordance with the provisions of the said
Section. “Occurrence of any public emergency” or “in the
interest of public safety” are the sine qua non. for the
application of the provisions of Section 5(2) of the Apt.
Unless a public emergency has occurred or the interest of
public safety demands, the authorities have no jurisdiction
to exercise the powers under the said Section. Public
emergency would mean the prevailing of a sudden
condition or state of affairs affecting the people at large
calling for immediate action. The expression “public
safety” means the state or condition of freedom from
danger or risk for the people at large. When either of these
two conditions are not in existence, the Central
Government or a State Government or the authorised
officer cannot resort to telephone tapping even though
there is satisfaction that it is necessary or expedient so to
do in the interests of sovereignty and integrity of India etc.
In other words, even if the Central Government is satisfied
that it is necessary or expedient so to do in the interest of
the sovereignty and integrity of India or the security of the
State or friendly relations with sovereign States or public
order or for preventing incitement to the commission of an
offence, it cannot intercept the messages or resort to
telephone tapping unless a public emergency has occurred
or the interest of public safety or the existence of the
interest of public safety requires. Neither the occurrence of
public emergency nor the interest of public safety are
secretive conditions or situations. Either of the situations
would be apparent to a reasonable person.
29. The first step under Section 5(2) of the Act,
therefore, is the occurrence of any public emergency of the
existence of a public-safety interest. Thereafter the
competent authority under Section 5(2) of the Act is
empowered to pass an order of interception after recording
its satisfaction that it is necessary or expedient so to do in
the interest of (i) sovereignty and integrity of India, (ii) the
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 93 of 124
security of the State, (iii) friendly relations with foreign
States, (iv) public order or (v) for preventing incitement to
the commission of an offence. When any of the five
situations mentioned above to the satisfaction of the
competent authority require then the said authority may
pass the order for interception of messages by recording
reasons in writing for doing so.
30. The above analysis of Section 5(2) of the Act
shows that so far the power to intercept
messages/conversations is concerned the Section clearly
lays-down the situations/conditions under which it can be
exercised. But the substantive law as laid down in Section
5(2) of the Act must have procedural backing so that the
exercise of power is fair and reasonable. The said
procedure itself must be just, fair and reasonable. It has
been settled by this Court in Maneka Gandhi Vs. Union of
India, that “procedure which deals with the modalities of
regulating, restricting or even rejecting a fundamental
right falling within Article 21 has to be fair, not foolish,
carefully designed to effectuate, not to subvert, the
substantive right itself”. Thus, understood, “procedure”
must rule out anything arbitrary, freakish or bizarre. A
valuable constitutional right can be canalised only by
civilised processes”.
l. Hon’ble Supreme Court of India in case titled as Hukam
Chand Shyam Lal Vs. Union of India & Ors. reported in AIR 1976
SC 789, has held that:
“Section 5(1), if properly construed, does not confer
unguided and unbridled power on the Central
Government/State Government/Specially Authorised
Officer to take possession of any telegraph. Firstly, the
occurrence of a ‘public emergency’ is the sine qua non for
the exercise of power under this section. As a preliminary
step to the exercise of further jurisdiction under this
section the Government or the authority concerned must
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 94 of 124
record its satisfaction as to the existence of such an
emergency. Further, the existence of the emergency which
is a pre-requisite for the exercise of power under this
section, must be a ‘public emergency’ and not any other
kind of emergency. The expression ‘public emergency’ has
not been defined in the statute, but contours broadly
delineating its scope and features are discernible from the
section which has to read as a whole. In sub- section (1)
the phrase ‘occurrence of any public emergency’ is
connected with and is immediately followed by the phrase
“or in the interests of the public safety”. These two phrases
appear to take colour from each other. In the first part of
sub-s. (2) these two phrases again occur in association
with each other, and the context further clarifies, with
amplification, that a ‘public emergency’ within the
contemplation of this section is one which raises problems
concerning the interest of the public safety, the
sovereignty and integrity of India, the security of the State,
friendly relations with foreign States or public order or the
prevention of incitement to the commission of an offence.
It is in the context of these matters that the appropriate
authority has to form an opinion with regard to the
occurrence of a ‘public emergency’ with a view to taking
further action under this section. Economic emergency is
not one of those matters expressly mentioned in the
statute. Mere ‘economic emergency’-as the High Court
calls it-may not necessarily amount to a ‘public
emergency’ and justify action under this section unless it
raises problems relating to the matters indicated in the
section.
m. Hon’ble High Court of Madras in case titled as P. Kishore Vs.
Secretary of Govt. of India & Ors. reported in 2025 SCC OnLine
Mad 3053, has held that:
“40. From a reading of the decisions of the Hon’ble Apex
Court in Hukam Chand Shyam Lal and People’s Union forState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 95 of 124
Civil Liberties, it is clear that to invoke Section 5(2) of the
Act, the following conditions must be cumulatively
satisfied:
• The first step under Section 5(2) is the occurrence of a
public emergency or where interest of public safety so
demands. Public emergency would mean the prevailing of
a sudden condition or state of affairs affecting the people
at large calling for immediate action. The expression
“public safety” means the state or condition of freedom
from danger or risk for the people at large. Neither the
occurrence of public emergency nor the interest of public
safety is a secretive condition or situation. Either of the
situations would be apparent to a reasonable person.
• It is only when the above two situations exist that the
Authority may then pass an order directing interception of
messages after recording its satisfaction that it is necessary
or expedient so to do in the interest of (i) the sovereignty
and integrity of India, (ii) the security of the State, (iii)
friendly relations with foreign States, (iv) public order or
(v) for preventing incitement to the commission of an
offence.
• In other words, unless and until there is a public
emergency or it is necessary in the interests of public
safety, the Central Government or a State Government or
the Authorised Officer cannot resort to telephone- tapping
even though there is satisfaction that it is necessary or
expedient so to do in the interests of sovereignty and
integrity of India etc.
41. xxxxxx
42. A reading of the impugned order shows that the
Secretary to Government has mechanically repeated the
wordings of Section 5(2) of the Act without adverting to
any factual basis. When an Authority is required to set out
its satisfaction while passing an order, the order must
disclose that there has been application of mind to the
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 96 of 124
facts of the case. This is all the more important since the
order passed under Section 5(2) of the Act by the
Secretary is subject to a review under Rule 419-A(17) of
the Rules before the Review Committee.
43. There appears to be no serious application of mind
by the first respondent since the order recites that it is
passed for “reasons of public safety”, which the Court is
required to presume is “in the interests of public safety” as
provided under Section 5 (2) of the Act. But, the
invocation of this ground in this case is clearly
unsustainable since the Hon’ble Supreme Court in the case
of People’s Union for Civil Liberties clearly held as
follows:
“The expression “public safety” means the state or
condition of freedom from danger or risk for the people at
large. Neither the occurrence of public emergency nor the
interest of public safety are secretive conditions or
situations. Either of the situations would be apparent to a
reasonable person.”
44. Admittedly, the entire operation in this case
involves covert surveillance of the mobile phone of the
petitioner and consequent interception of conversations
between the accused persons. This was clearly a covert
operation. The term ‘interests of public safety’ as
explained in the decision of the Hon’ble Supreme Court in
People’s Union for Civil Liberties contemplates a
situation, which is not secretive and is apparent to a
reasonable person. By no stretch of imagination, can the
facts of this case be characterised to meet the aforesaid
requirements so as to bring it within the rubric of ‘interests
of public safety’ as explained by the Supreme Court.
xxxxxx
47. He would further submit that the terms ‘public
emergency’ and ‘public safety’ have been interpreted by
the Hon’ble Supreme Court to mean problems concerning
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 97 of 124
the interests of the public safety, the sovereignty and
integrity of India, the security of the State, friendly
relations with Foreign States or public Order or for
preventing the incitement to the commission of an offence
and hence, the allegation questioning the validity of the
order passed by the first respondent is irrational.
xxxxxxxx
57. The aforesaid Press Note is self-explanatory and
correctly sums up the Government’s own understanding of
the position of law laid down in the decision of the
Hon’ble Supreme Court in People’s Union for Civil
Liberties, which states that no phone tapping can be
authorized in the absence of a public emergency or in the
interests of public safety even though there is satisfaction
that it is necessary or expedient to do so in the interests of
the sovereignty and integrity of India, the security of the
State, friendly relations with sovereign States, public order
or for preventing incitement to the commission of an
offence. It has also understood the legal position that
neither of the above conditions viz., ‘public emergency’ or
in the ‘interests of public safety’ is a secretive condition or
situation. Though a press note is not a legal instrument, it
is well settled that such documents reflect the
understanding of the legal provisions by the Executive.
xxxxxxxx
67. In view of the above discussions and having regard to
the meaning ascribed to the expressions ‘public
emergency’ and ‘interests of public safety’ in paragraph
28 of the decision of the Hon’ble Supreme Court in
People’s Union for Civil Liberties as affirmed by the
Constitution Bench of the Hon’ble Supreme Court in
K.S.Puttaswamy (Aadhaar-5J) Vs. Union of India
[reported in 2019 (1) SCC 1], it is clear that in the facts on
hand, the impugned order does not pass muster under any
of the two condition precedents i.e., ‘public emergency’
and ‘interests of public safety’ required for exercise of
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 98 of 124
jurisdiction under Section 5(2) of the Act. Consequently,
the impugned order is, on the face of it, without
jurisdiction and is liable to be quashed on this short
ground.
xxxxxxxx
87. Mr.AR.L.Sundaresan, learned Additional Solicitor
General of India appearing on behalf of the respondents
would submit that even assuming that the order under
Section 5 (2) of the Act was without jurisdiction, the
evidence so collected is admissible since it is a well settled
proposition of law that even illegally collected evidence is
admissible provided it is relevant. He placed strong
reliance on the decision of the Hon’ble Supreme Court in
R.M.Malkani.
97. The result of the above discussions can be summed up
as follows:
“i. The right to privacy is now an integral part of the right
to life and personal liberty guaranteed under Article 21 of
The Constitution of India.
ii. Telephone tapping constitutes a violation of the right to
privacy unless justified by a procedure established by law.
Section of the Act authorizes interception of telephones on
the occurrence of a public emergency or in the interests of
public safety. Both these contingencies are not secretive
conditions or situations. Either of the situations would be
apparent to a reasonable person. As laid down in
paragraph 28 of the decision of the Hon’ble Apex Court in
People’s Union for Civil Liberties, it is only when the
above two situations exist that the Authority may pass an
order directing interception of messages after recording its
satisfaction that it is necessary or expedient so to do in the
interest of (1) the sovereignty and integrity of India, (2)
the security of the State, (3) friendly relations with foreign
States, (4) public order or (5) for preventing incitement to
the commission of an offence.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 99 of 124
iii. In the instant case, the impugned order dated 12.8.2011
does not fall either within the rubric of “public
emergency” or “in the interests of public safety” as
explained by the Hon’ble Supreme Court in the case of
People’s Union for Civil Liberties.
The facts disclose that it was a covert operation/secretive
situation for detection of crime, which would not be
apparent to any reasonable person. As the law presently
stands, a situation of this nature does not fallwithin the
four corners of Section 5(2) of the Act as expounded by
the Hon’ble Supreme Court in the case of People’s Union
for Civil Liberties, which has been approved by the
Constitution Bench of the Hon’ble Supreme Court in
K.S.Puttaswamy (Aadhaar-5J) Vs. Union of India
[reported in 2019 (1) SCC 1].
iv. The respondents have also contravened Rule 419-A(17)
of the Rules by failing to place the intercepted material
before the Review Committee within the stipulated time to
examine as to whether the interception was made in
compliance with Section 5(2) of the Act.
v. As a consequence of (iii) and (iv) above, the impugned
order dated 12.8.2011 must necessarily be set aside as
unconstitutional and one without jurisdiction. Besides
violating Article 21, it is also ultravires Section 5(2) of the
Act besides being in violation of the mandatory provisions
of Rule 419-A of the Rules.
vi. It follows that the intercepted
conversations collected pursuant to the
impugned order dated 12.8.2011 in violation of Section
5(2) of the Act and Rule 419-A(17) of the Rules shall not
be used for any purposes whatsoever.
vii. It is, however, made clear that the above direction
shall have no bearing on the other material that have been
collected by the CBI subsequent to and independent of the
intercepted call records, which shall be considered by theState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 100 of 124
Trial Court on its own merits without being influenced by
any of the observations made in this order.”
n. Hon’ble High Court of Gujrat at Ahmedabad in case titled as
Akhil Dineshbhai Parmar & Ors. Vs. State of Gujrat & Ors ,
reported in 2017: GUJHC:4886 , has held that:
“49. I am not impressed by the submission canvassed
on behalf of the applicants that nothing “secret” was
recovered from the possession of the applicants so as to
meet the requirements of section 3(1)(c) of the Act is
concerned. The qualifying word “secret” in section 3(1)(c)
has been used only with respect to the official code or
password and, therefore, other documents or information
need not be secret for establishing the offence under
section 3(1)(c) of the Act.”
o. Hon’ble High Court of Bombay in case titled as State of
Maharashtra Vs. B. K. Subbarao & Ors. , reported in 1993 CriLJ
2984, has held that:
“16. For purposes of appreciating the validity or otherwise
of the submissions that have been raised in the course of
the arguments before me, it is equally essential for me to
advert to certain provisions of the two statutes under
which the present prosecution has charged the Accused.
The first of these is the Official Secrets Act, 1923. This is
an Act that was placed on the statute book for purposes of
dealing with cases relating to official secrets. A perusal of
the provisions of the Act will indicate that it is essentially
concerned with security of the country and for this
purpose, therefore, lays down stringent provisions in
relation to all matters that come within the compass of the
definition of the Official Secrets Act. Tha the Act also
takes into account the possession of documents or material
that may be associated with matters of defence or otherState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 101 of 124
secrets of the State is self-evident and the Act also makes
a very clear mention of the fact that if a person obtains
such material for a purpose prejudicial to safety or interest
of the State, or if a person discloses such material to
persons or agents in such manner as the safety, interest or
security of the State may be prejudiced, the law will deal
with him very stringently as provided for in this Act. A
general reference to the scheme of the Act has been
adverted to by me for the reason that the gravamen of the
charge against the Accused in this proceeding relates to
his having allegedly obtained and allegedly having been
found in possession of material that could and would
conform to the definition of official secrets. This alone is
insufficient for a charge under the Official Secrets Act
because the law requires that such acts must necessarily be
accompanied by attempts at disclosing or disseminating
such material to unauthorised persons who, in the Act,
have been referred to as “foreign agents”. In short, it is
very essential for the safety and security of any country
that stringent provision be made in respect of any act or
attempt that may endanger the safety or interest of the
country. What follows, therefore, is that the basic
ingredients for any charge under the Official Secrets Act is
that the investigation must disclose from very cogent fact
placed before the Court that the purpose for which the
secret material was obtained or retained or carried or
disposed of was directed or prompted by an objective that
was prejudicial to the safety and interest of the State. In
addition, where the charge is that such material was
intended to be misused, this last aspect has to be borne out
from material elicited in the course of investigation. Even
in a criminal proceeding of the present type where the
consequences to a person charged under the Official
Secrets Act are extremely grave, it is condition precedent
that a scrutiny of the totallity of the material placed before
the Court must justify all the aforesaid ingredients.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 102 of 124
Arguments addressed on behalf of accused Abdul Rashid (A-2)
37. Ld. Counsel for accused Abdul Rashid submitted that the alleged
transcript of the conversation allegedly intercepted by unknown officials
and dictated by PW-1 and typed by PW-3 and in the absence of the original
intercepted audio files forensic report of the original media and certificate
under Section 65B with respect to the recording equipment, the said
transcript is inadmissible; that the recovery of alleged CD from the house
of co-accused Kafait Ullah Khan is highly doubtful rather unreliable as per
the theory of prosecution stating that the accused persons used to record
their conversation;
37.1 To substantiate his arguments, Ld. Counsel for accused Abdul
Rashid has placed reliance upon following judgments.
a. Hon’ble Supreme Court of India in case titled as Yusufalli
Esmail Nagree Vs. State of Maharashtra reported in 1967 SCC
OnLIne SC 87, has held that :
“5. Shaikh was the only eye-witness to the offer of the
bribe on August 2, 1960. Mahajan the radio mechanic and
other per- sons who kept themselves concealed in the
inner room of Shaikh’s residence did not witness the offer
of the bribe, nor did they hear the conversation between
Shaikh and the appellant. The High Court was not inclined
to accept the evidence of Shaikh without corroboration.
But the High Court found that his evidence was
sufficiently corroborated by the tape recorder. The
appellant handed over Rs 100 to Shaikh on August 2,
1960. The contemporaneous dialogue between them
formed part of the res gestae and is relevant and
admissible under S. 8 of the Indian Evidence Act. The
dialogue is proved by Shaikh. The tape record of the
dialogue corroborates his testimony. The process of. tape,State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 103 of 124
recording offers an accurate method of storing and later
reproducing sounds. The imprint on the magnetic tape is
the direct effect of the relevant sounds. Like a photograph
of a relevant.incident, a contemporaneous tape record of a
relevant conversation is a relevant fact and is admissible
under S. 7 of the Indian Evidence Act.
6. The Rup Chand V. Mahavir Parshad and Another
[A.I.R. 1956 Punj. 173], a tape record of a former
statement of a witness was admitted in evidence to shake
the credit of the witness under S. 155(3) of the Indian
Evidence Act. The case was followed in Manindra Nath
V. Biswanath Kundu [67 C.W.N. 191.]. In S. Pratap Singh
Vs. The State of Punjab [1996 ILLJ 458 SC), the tape
record of a conversation was admitted in evidence, to
corroborate the evidence of witnesses who had stated that
such a conversation had taken place. In R. v. Maqsud
Ali(4) a tape record of a conversation was admitted in
evidence, though the only witness who overheard it was
not conversant with the language and could not make out
what was said. If a statement is relevant, an accurate tape
record of the statement is also relevant and admissible.
The time and place and accuracy of the recording must be
proved by a competent witness and the voices must be
properly identified. One. of the features of magnetic tape
recording is the ability to erase and re-use the recording
medium. ‘Because of this facility of erasure and re-use, the
evidence must be received with caution. The court must
be satisfied beyond reasonable doubt that the record has
not been tampered with.
7. The radio mechanic did not hear the conversation
but he proved that the tape recorded all the sounds
produced in the room where only Shaikh and the appellant
were present. The voices of the appellant and Shaikh were
properly identified. The tape was not sealed and was kept
in the custody of Mahajan. The absence ,of sealing
naturally gives rise to the argument that the recording
medium might have been tampered with before it was
replayed. However, it was not suggested either in the crossState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 104 of 124
examination of the prosecution witnesses or in the
answers under s. 342 Criminal Procedure Code, that any
tampering had taken place with the Recording. While
admitting the accuracy of material parts of the
conversation reproduced by the tape recorder, the
appellant in his examination under s. 342 attempted to
explain the conversation and the object of his visit and-
said that-tie had gone to Shaikh’s ‘residence for obtaining
repayment of a loan of Rs. 100 which he had advanced to
Shaikh on July 19, 1960. The High Court rejected the
appellant’s explanations. Mr. Mistry was right in saying
that the High Court could-not accept the inculpatory ,part
and reject the exculpatory part of the appellant’s answers
under S. 342. But there was other evidence showing that
the tape recording ‘was not tampered with. The fact that
the defence did not suggest any tampering lends assurance
to the credibility of the other evidence. The courts below
rightly held that the tape recorder faithfully recorded and
reproduced the actual conversation.”
b. Hon’ble Supreme Court of India in case titled R. M. Malkani
Vs. State of Maharashtra reported in (1973) 1 SCC 471, has held
that:
“15. Four questions were canvassed in this appeal. The
first contention was that the trial Court and the High Court
errect in admitting the evidence of the telephonic
conversation between Dr. Motwani and the appellant
which was recorded on the tape. The evidence was
illegally obtained in contravention of Section 25 of the
Indian Telegraph Act and therefore the evidence was
inadmissible. Secondly, the conversation between Dr.
Motwani and the appellant which was recorded on the
tape took place during investigation inasmuch as Mugwe
asked Dr. Motwani to talk and therefore the conversation
was not admissible under section 162 of the Code of
Criminal Procedure. The third contention was that theState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 105 of 124
appellant did not attempt to obtain gratification. Fourthly.
it was said that the sentence of six months imprisonment
Should be interfered with because the appellant has
already paid Rs. 10,000 as fine. The appellant suffered
heart attacks and therefore the sentence should be
modified.
16. The trial Court as well as the High Court found
that the evidence of Dr. Motwani and Dr. Adatia needed
corroboration. The High Court found that the conversation
recorded on the tape corroborated their evidence. The
evidence of Dr. Motwani is that on 7 October, 1964
Mugwe accompanied by Sawant and members of the
Police staff went to the residence of Dr. Motwani. Mugwe
directed Sawant to record Dr. Motwani’s statement.
Mugwe had instructed his staff to bring a tape recording
machine. After the statement of Dr. Motwani Mugwe
connected the tape recording machine to Dr. Motwani’s
phone and asked Dr. Motwani to talk to any one he liked
in order to test whether the tape recording machine was in
order. Motwani was then asked to talk to the appellant.
Motwani talked with the appellant. That conversation was
recorded on the tape. This tape recorded conversation is
challenged by counsel for the appellant to be inadmissible
because it infringes Articles 20(3) and 21 of the
Constitution and is an offence tinder section 25 of the
Indian Telegraph Act.”
c. Hon’ble Supreme Court of India in case titled as Ram Singh &
Ors. Vs. Ram Singh reported in 1985Supp SCC 611, has held that :
31. Thus, so far as this Court is concerned the
conditions for admissibility of a tape recorded statement
may be stated as follows:
(1) The voice of the speaker must be duly identified
by the maker of the record or by others who
recognise his voice. In other words, it manifestly
follows as a logical corollary that the first conditionState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 106 of 124
for the admissibility of such a statement is to
identify the voice of the speaker.Where the voice has
been denied by the maker it will require very strick
proof to determine whether or not it was really the
voice of the speaker.
(2) The accuracy of the tape recorded statement has
to be proved by the maker of the record by
satisfactory evidence – direct or circumstantial.
(3) Every possibility of tampering with or erasure of
a part of a tape recorded statement must be ruled out
otherwise it may render the said statement out of con
text and, therefore, inadmissible.
(4) The statement must be relevant according to the
rules of Evidence Act.
(5) The recorded cassette must be carefully sealed
and kept in safe or official custody.
(6) The voice of the speaker should be clearly
audible and not lost or distorted by other sounds or
disturbances.
32. The view taken by this Court on the question of
admissibility of tape recorded evidence finds full support
from both English and American authorities. In R. v.
Maqsud Ali, [1965] All. E.R. 464., Marshall, J., observed
thus:-
“We can see no difference in principle between a
tape recording and a photograph. In saying this we
must not be taken as saying that such recordings are
admissible whatever the circumstances, but it does
appear to this court wrong to deny to the law of
evidence advantages to be gained by new techniques
and new devices, provided the accuracy of the
recording can be proved and the voices recorded
properly identified; provided also that the evidence
is relevant and otherwise admissible, we are satisfied
that a tape recording is admissible in evidence. Such
evidence should always be regarded with some
caution and assessed in the light of all the
circumstances of each case. There can be noState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 107 of 124
question of laying down any exhaustive set of rules
by which the admissibility of such evidence should
be judged.
xxxxx
It Would thus appear that the two witnesses for the
respondent, who were government servants and
therefore official witnesses, clearly and categorically
d denied having made any such statement in The
cassette. P.W.. 7 HIMSELF has very fairly and
frankly stated that he was not in a Position to
identify the voices either of the respondent or of the
witnesses for the respondent (R.Ws. 1 and 3) at the
time of giving his evidence. This, therefore, throws a
considerable doubt on the truth of the statement
made by these witnesses in the cassette recorder.
The law which has been analysed and examined by
us is very clear that identification of the voices is
very essential. In this view of the matter, the tape
recorded statements lose their authenticity apart
from other infirmities which we shall give later
while appreciating the evidence of the respondent in
this court.”
Arguments addressed on behalf of accused Manawar Ahmed Mir (A-3)
38. Ld. Counsel for accused Manawar Ahmed Mir adopted the
arguments addressed on behalf of other accused persons and further argued
that the entire case is founded upon illegally intercepted conversations and
fabricated transcripts. It was argued that no independent public witness was
joined at any stage despite availability. Serious discrepancies were pointed
out regarding recovery proceedings, preparation of transcripts, handling of
CDs and electronic evidence. It was further argued that no material has
been produced to show actual transmission of any classified information to
any enemy agent or that the alleged documents were secret in nature within
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 108 of 124
the meaning of the Official Secrets Act. It was also argued that the
prosecution failed to prove the chain of custody and authenticity of
electronic evidence in accordance with law.
Arguments addressed on behalf of accused Fareed Ahmad (A-5)
39. Ld. Counsel for accused Fareed Ahmad also argued that accused has
been falsely implicated in the present matter as there is neither direct nor
circumstantial evidence has been brought on record by the prosecution to
connect him with the alleged offence; that nothing was recovered from the
possession of the accused Fareed Ahmad; that accused Fareed Ahmad was
not in contact with co-accused persons or documents seized; that the
alleged CD recovered from the house of accused Kafait Ullah Khan is
doubtful in the absence of any independent witness; that the alleged
interception was illegal and done as per the mandates of law; that
prosecution failed to bring on record any iota of evidence to connect
accused Fareed Ahmad with the alleged Pakistani agent Faisal; that even
prosecution failed to bring on record of procuring and sending of
information to alleged agent Faisal; that only one document indicated to be
as ‘Classified Document’, however prosecution failed to bring on record
that the documents seized falls under the definition of spying and placed
reliance upon Section 3 of Official Secrets Act; that as per the case of the
prosecution, accused Fareed Ahmad gave account number of Joginder
Singh to accused Kafait Ullah Khan, who deposited Rs.10,000/- in the said
account, however, no evidence of any transaction as relevant to his case has
been brought on record.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 109 of 124
39.1 To substantiate his arguments, Ld. Counsel for accused Fareed
Ahmad has placed reliance upon following judgments :
a. Hon’ble High Court of Delhi in case titled as Nishant Vs. Anti
Terrorist Sqad, through I.O. & Anr. reported in 2025 SCC OnLine
Bom 4836, has held that :
“116. As far as section 3(1) of Act of 1923 is concerned, as
observed, under Section 3(2) of the said Act, there is a
presumption that if a person, without lawful authority, makes,
obtains, collects, records, publishes or communicates any
secret or prohibited defence-related material, it is deemed to
have been done with a purpose prejudicial to the safety or
interests of the State. However, for this presumption to arise,
the prosecution must first establish the circumstances of the
case, the conduct of the accused, or his known character;
once these are proved, it is not necessary to show that the
accused committed any specific act demonstrating a
prejudicial purpose. ”
b. Hon’ble Supreme Court in case titled as Koppula Venkat Rao
Vs. State of A.P. reported in (2004) 3 Supreme Court Cases 602,
has held that :
“8. The plea relating to applicability of Section 376 read
with Section 511 IPC needs careful consideration. In every
crime, there is first, intention to commit, secondly preparation
to commit it, thirdly, attempt to commit it. If the third stage,
that is, attempt is successful, then the crime is complete. If
the attempt fails the crime is not complete, but law punishes
the person attempting the Act, Section 511 is a general
provision dealing with attempts to commit offences not made
punishable by other specific sections. It makes punishable all
attempts to commit offences punishable with imprisonmentState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 110 of 124
and not only those punishable with death. An attempt is made
punishable, because every attempt, although it falls short of
success, must create alarm, which by itself is an injury, and
the moral guilt of the offender is the same as if he had
succeeded. Moral guilt must be united to injury in order to
justify punishment. As the injury is not as great as if the act
had been committed, only half the punishment is awarded.
9. A culprit first intends to commit the offence, then
makes preparation for committing it and thereafter attempts
to commit the offence. If the attempt succeeds, he has
committed the offence, if it fails due to reasons beyond his
control, he is said to have attempted to commit the offence.
Attempt to commit an offence can be said to begin when the
preparations are complete and the culprit commences to do
something with the intention of committing the offence and
which is a step towards the commission of the offence. The
moment he commences to do an act with the necessary
intention, he commences his attempt to commit the offence.
The word “attempt” is not itself defined, and must, therefore,
be taken in its ordinary meaning. This is exactly what the
provisions of Section 511 require. An attempt to commit a
crime is to be distinguished from an intention to commit it,
and from preparation made for its commission. Mere
intention to commit an offence, not followed by any act,
cannot constitute an offence. The will is not to be taken for
the deed unless there be some external act which shows that
progress has been made in the direction of it, or towards
maturing and effecting it. Intention is the direction of conduct
towards the object chosen upon considering the motives
which suggest the choice. Preparation consists in devising or
arranging the means or measures necessary for the
commission of the offence. It differs widely from attempt
which is the direct movement towards the commission after
preparations are made. Preparation to commit an offence is
punishable only when the preparation is to commit offences
under Section 122 (waging war against the Government of
India) and Section 399 (preparation to commit dacoity). The
dividing line between a mere preparation and an attempt is
sometimes thin and has to be decided on the facts of each
case. There is a greater degree of determination in attempt as
compared with preparation.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 111 of 124
c. Hon’ble Supreme Court of India in case titled as State of
Maharashtra Vs. Mohd. Yakub & Ors. reported in AIR 1980 SC
1111, has held that :
“13. Well then, what is an “attempt” ? Kenny in his
‘Outlines of Criminal Law’ defined “attempt” to commit a
crime as the “last proximate act which a person does towards
the commission of an offence, the consummation of the
offence being hindered by circumstances beyond his control.”
This definition is too narrow. What constitutes an “attempt”
is a mixed question of law and fact, depending largely on the
circumstances of the particular case. “Attempt” defies a
precise and exact definition. Broadly speaking, all crimes
which consist of the commission of affirmative acts are
preceded by some covert or overt conduct which may be
divided into three stages. The first stage exists when the
culprit first entertains the idea or intention to commit an
offence. In the second stage, he makes preparations to
commit it. The third stage is reached when the culprit takes
deliberate overt steps to commit the offence. Such overt act
or step in order to be ‘criminal’ need not be the penultimate
act towards the commission of the offence. It is sufficient if
such act or acts were deliberately done, and manifest a clear
intention to commit the offence aimed, being reasonably
proximate to the consummation of the offence. As pointed
out in Abhayanand Mishra Vs. State of Bihar [1961 CriLJ
822] there is a distinction between ‘preparation’ and ‘attempt’.
Attempt begins where preparation ends. In sum, a person
commits the offence of ‘attempt to commit a particular
offence’ when (i) he intends to commit that particular
offence; and (ii) he, having made preparations and with the
intention to commit the offence, does an act towards its
commission; such an act need not be the penultimate act
towards the commission of that offence but must be an act
during the course of committing that offence..”
d. Hon’ble Supreme Court of India in case titled as State of
Madhya Pradesh Vs. Mukesh & Ors. reported in 2006 (10) SCALE
346, has held that:
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 112 of 124
“9. The term ‘abetment’ has not been defined in the
Railways Act. What would constitute abetment is contained
in Section 107 of the Indian Penal Code, which reads, thus:
‘107. Abetment of a thing – A person abets the doing of a
thing, who First.- Instigates any person to do that thing; or
Secondly. Engages with one or more other person or persons
in any conspiracy for the doing of that thing, if an act or
illegal omission lakes place in pursuance of that conspiracy,
and in order to the doing of that thing; or
Thirdly.– Intentionally aids, by any act or illegal omission,
the doing of that thing.’
10. A person, it is trite, abets by aiding, when by any act
done either prior to, or at the time of, the commission of an
act, he intends to facilitate and does in fact facilitate, the
commission thereof would attract the third clause of Section
107 of the Indian Penal Code. Doing something for the
offender is not abetment. Doing something with knowledge
so as to facilitate him to commit the crime or otherwise
would constitute abetment. ` Admittedly, the first and second
part of the said provision has no application. No illegal
omission on the part of Respondents has been established.
Admittedly in issuing the tickets, Respondents have not
violated any rules. Ex facie, they have also not violated any
direction contained in any circular issued by an appropriate
authority in that behalf.
The entire prosecution is based on the purported
confession of Suresh Shah. A statement of an accused would
be admissible against a co-accused only in terms of Section
30of the Indian Evidence Act. Such a statement of co-
accused was required to be corroborated by adduction of
independent evidence. The prosecution has not adduced any
independent evidence to show that Respondents had
intentionally aided the said Suresh Shah and thereby abetted
him in commission of an offence under Section 143(1) of the
Indian Railways Act.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 113 of 124
Analysis and Findings
40. The Court has heard the arguments advanced by the learned Public
Prosecutor for the State as well as the learned counsels appearing on behalf
of all the accused persons. The Court has also carefully perused the entire
material available on record, including the testimonies of prosecution
witnesses, documentary evidence, electronic evidence, forensic reports and
the statements of accused persons recorded under Section 313 Cr.P.C. as
well as written submissions filed.
41. At the outset, it is pertinent to note that the gravamen of the
allegations against the accused persons pertains to offences punishable
under Sections 3 and 9 of the Official Secrets Act, 1923. Section 3 of the
Act criminalizes obtaining, collecting, recording, publishing or
communicating any secret official code, password, sketch, plan, model,
article, note, document or information which may be directly or indirectly
useful to an enemy or prejudicial to the safety or interests of the State,
whereas Section 9 deals with attempts, abetment and acts facilitating the
commission of offences under the Act.
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
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 114 of 124
(c) obtains, collects, records or publishes or
communicates to any other person any secret
official code or pass word, 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 pass word is made, obtained,
collected, recorded, published or communicated
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 115 of 124
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,
3[information, code or pass word 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.
9. Attempts, incitements, etc.–Any person who
attempts to commit or abets the commission of an
offence under this Act shall be punishable with
the same punishment, and be liable to be
proceeded against in the same manner as if he had
committed such offence.
42. The prosecution case, in essence, is founded upon the following
circumstances:
(i) interception of telephonic conversations of accused persons
pursuant to secret information regarding anti-national activities;
(ii) recovery of allegedly sensitive and classified Army related
documents from accused Kafait Ullah and accused Abdul Rashid;
(iii) recovery of a Compact Disc allegedly containing incriminating
conversations amongst accused persons;
(iv) WhatsApp conversations allegedly retrieved from the mobile
phone of accused Abdul Rashid;
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 116 of 124
(v) Call Detail Records reflecting inter se connectivity amongst
accused persons and alleged Pakistan based Intelligence Operatives;
(vi) alleged monetary transactions in the accounts of accused
persons; and
(vii) forensic examination of electronic devices and voice samples.
43. The settled principle of criminal jurisprudence is that the prosecution
is required to establish its case beyond reasonable doubt and the burden
never shifts upon the accused. Suspicion, however grave, cannot substitute
legal proof. More particularly, in cases involving allegations under the
Official Secrets Act carrying serious ramifications upon personal liberty
and national security, the evidence brought on record must inspire
confidence and satisfy the strict standards of admissibility and reliability.
44. The first circumstance relied upon by the prosecution is the
interception of telephonic conversations. PW-2 Inspector P.C. Yadav
deposed that on the basis of secret information, interception of certain
mobile numbers was undertaken after obtaining permission from competent
authorities. However, during cross-examination, the witness admitted that
interception had commenced even prior to the formal order dated
17.09.2015 and according to him, earlier authorization had allegedly been
granted under Section 5(2) of the Indian Telegraph Act for seven days.
Significantly, neither the original interception orders nor the foundational
satisfaction note authorizing such interception have been duly proved in
accordance with law. The prosecution has also failed to place on record the
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 117 of 124
complete chain demonstrating compliance with mandatory procedural
safeguards governing interception of telephonic communications.
45. The evidence of PW-1 and PW-3 further reveals that neither of them
had themselves intercepted the calls. PW-1 merely stated that he used to
hear conversations in the interception room and orally brief PW-2 from
time to time. PW-3 admittedly only typed transcripts at the dictation of
PW-1. Neither witness possessed any technical expertise in voice
identification or forensic transcription. The intercepted conversations
themselves were never produced before the Court in their original form.
What has been brought on record are merely typed transcripts prepared
internally by police officials. The evidentiary value of such transcripts, in
absence of proper certification and foundational electronic record, becomes
highly doubtful.
46. The Hon’ble Supreme Court of India in Anvar P.V. v. P.K. Basheer
reported in (2014) 10 SCC 473 and thereafter in Arjun Panditrao Khotkar
v. Kailash Kushanrao Gorantyal reported in (2020) 7 SCC 1 has
categorically held that electronic evidence is admissible only upon strict
compliance with Section 65B of the Indian Evidence Act. In the present
matter, the prosecution has failed to establish the foundational requirements
regarding the intercepted conversations. No original recording device,
server extraction process, mirror image, hash value or proper Section 65B
certification pertaining to the intercepted audio recordings has been proved.
47. The prosecution has next relied upon recovery of documents
allegedly containing sensitive military information from accused Kafait
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 118 of 124
Ullah and Abdul Rashid. The alleged recovery from accused Kafait Ullah
at New Delhi Railway Station is stated to have been affected in the
presence of police officials alone. Though the railway coach admittedly
contained several passengers, no independent public witness was joined.
Similar is the position with respect to the alleged recoveries from the
houses of accused Kafait Ullah and Abdul Rashid at Rajouri. Both PW-1
and PW-3 admitted that neighbours were requested to join proceedings but
none agreed and no notice was served upon such persons. While non-
joining of public witnesses may not by itself be fatal, in a case of such
grave nature where recoveries form the backbone of prosecution case,
absence of any independent corroboration assumes significance.
48. More importantly, the prosecution was under an obligation to
conclusively establish that the recovered documents were in fact “secret”,
“classified” or of such nature as could be useful to the enemy or prejudicial
to the safety and interests of the State. For this purpose, reliance has been
placed upon testimony of PW-5 Lt. Col. Vivek Sheel and the opinion Ex.
PW5/B.
49. However, PW-5 candidly admitted during cross-examination that he
had not himself examined the documents nor rendered any opinion. He
merely forwarded the comments allegedly received from another officer
namely Lt. Col. Rohit Sambyal. PW-5 further expressed inability even to
explain the meaning of the expression “classified”. Such testimony
substantially weakens the prosecution case regarding the sensitive nature of
documents.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 119 of 124
50. It is also noteworthy that the opinion itself, insofar as documents
recovered from Abdul Rashid are concerned, specifically states that such
documents were “not classified in nature”. The prosecution has therefore
failed to conclusively establish that the documents allegedly recovered
were secret official records within the meaning and ambit of Section 3 of
the Official Secrets Act.
51. Another vital circumstance relied upon by the prosecution is the
alleged recovery of a Compact Disc from the residence of accused Kafait
Ullah. According to prosecution witnesses, the said CD contained
incriminating conversations amongst accused persons. However, the
manner in which the CD was recovered, copied, sealed, preserved and sent
to FSL creates substantial doubt regarding its sanctity and integrity.
52. PW-1 admitted that the original CD did not contain any date, time or
phone number. He further admitted that the IO had supplied him only a
copied CD for preparation of transcripts and that he had never personally
heard the original CD. He also admitted that the deceased IO did not
understand Dongri language, which was allegedly used in the
conversations.
53 The prosecution has also failed to establish an unbroken chain of
custody of the CD. Though the CD was allegedly recovered on 28.11.2015,
it was sent to FSL only on 15.02.2016. No satisfactory explanation for such
delay has emerged on record. The defence suggestion that the CD may
have been prepared subsequently after obtaining voice samples therefore
cannot be brushed aside lightly.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 120 of 124
54. The voice identification process also suffers from serious infirmities.
PW-1 admitted that identification of voices was based largely on the fact
that speakers allegedly addressed each other by names during conversation.
No expert witness has conclusively identified the voices of accused persons
in the CD. Though voice samples were taken, the prosecution has failed to
place on record any categorical forensic opinion conclusively matching the
questioned voices with specimen voices of accused persons.
55. The prosecution has further relied upon WhatsApp messages
allegedly found in the mobile phone of accused Abdul Rashid. However,
no proper extraction certificate, mirror imaging report or independent
forensic validation has been proved. The witness who allegedly saw the
messages merely reduced them into writing. Such manually reproduced
electronic conversations, unsupported by statutory certification and
technical proof, cannot be accorded conclusive evidentiary value.
56. The Call Detail Records produced by prosecution merely establish
that certain mobile numbers were in contact with each other. Mere
telephonic connectivity between accused persons, absent proof regarding
contents of conversations or unlawful intent, cannot by itself establish
commission of offences under the Official Secrets Act. Human interactions
and communications, without more, cannot constitute incriminating
evidence.
57. Similarly, the alleged bank deposits relied upon by prosecution are
relatively small amounts and no cogent evidence has been produced to
establish that the said amounts were proceeds received for espionage
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 121 of 124
activities. No witness from concerned banks or remitting entities has linked
such deposits with any Pakistan based Intelligence Operative. The
prosecution has also failed to establish the source of such deposits beyond
reasonable doubt.
58. The disclosure statements allegedly made by accused persons while
in police custody are inadmissible except to the limited extent permissible
under Section 27 of the Indian Evidence Act. No substantial recovery
directly attributable to such disclosure statements has been proved in a
manner free from doubt. Confessional portions of disclosure statements
cannot be read in evidence.
59. It is equally important to note that much of the investigation was
conducted by deceased IO Inspector Sanjeev Kumar, whose signatures and
handwriting have been identified by PW-3. However, PW-3 admittedly was
not a handwriting expert. Several crucial steps in investigation therefore
remain unsupported by direct testimony of the investigating officer himself.
60. Upon cumulative appreciation of the entire evidence, this Court is of
the considered view that the prosecution has succeeded in creating
suspicion regarding the conduct and associations of accused persons,
however, suspicion howsoever strong cannot take the place of proof. The
evidence led by the prosecution suffers from material infirmities relating to
admissibility of electronic evidence, authenticity of transcripts, proof
regarding classified nature of documents, chain of custody of electronic
material, independent corroboration and forensic conclusiveness.
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 122 of 124
61. The prosecution was required to establish beyond reasonable doubt
that the accused persons had consciously collected, transmitted or
communicated information prejudicial to the safety and interests of the
State and useful to an enemy nation. The evidence brought on record falls
short of the rigorous standard required in criminal law.
62 It is a settled principle of criminal jurisprudence that suspicion,
however grave, cannot take the place of proof. The burden lies entirely
upon the prosecution to establish its case beyond reasonable doubt.
63. In the present case, the prosecution has failed to establish:
(i) authenticity and admissibility of intercepted conversations
and transcripts;
(ii) integrity and chain of custody of the alleged CD recordings;
(iii) that the recovered documents were “secret” or “classified”
within the meaning of the Official Secrets Act;
(iv) actual communication of protected information to enemy
agents;
(v) reliable forensic linkage between accused persons and alleged
recordings.
64. The cumulative effect of the aforesaid deficiencies creates
substantial doubt regarding the prosecution version. Such doubt necessarily
ensures to the benefit of the accused persons.
65. Accordingly, all accused persons namely (i) Kafait Ullah Khan, (ii)
Abdul Rashid Khan, (iii) Manawer Ahmed Mir, (iv) Mohammad Saber,
State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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Pages 123 of 124
and(v) Farid Ahmed @ Surgeon are acquitted of the charges punishable
under Sections 3 and 9 of the Official Secrets Act, 1923 by giving them
benefit of doubt.
66. Bail bonds and surety bonds of the accused persons are cancelled.
However, they shall furnish fresh bonds under Section 437A Cr.P.C., if not
already furnished.
67. Case property be dealt with as per rules after expiry of period of
appeal/revision.
68. File be consigned to Record Room after due compliance.
SHEFALI Digitally signed by
SHEFALI BARNALA
BARNALA TANDON
Date: 2026.05.20
TANDON 17:08:08 +0530
ANNOUNCED IN THE OPEN (SHEFALI BARNALA TANDON)
COURT ON: 20.05.2026 ASJ-06, New Delhi District
Patiala House Court, New Delhi
It is certified that this Judgment contains 124 pages and each
Digitally signed
page bears my signatures. by SHEFALI
SHEFALI BARNALA
BARNALA TANDON
TANDON Date:
2026.05.20
17:08:12 +0530(SHEFALI BARNALA TANDON)
ASJ-06, New Delhi District
Patiala House Court, New DelhiState Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
Branch
Pages 124 of 124
