State vs Kafait Ullah Khan Etc on 20 May, 2026

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    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.
    
    
    
    
    State Vs. Kafait Ullah Khan & Ors.      FIR No. 166/2015          PS Crime
    Branch
                                                                  Pages 1 of 124
     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

    SPONSORED

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
    Branch
    Pages 2 of 124
    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
    Branch
    Pages 3 of 124
    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
    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
    Branch
    Pages 4 of 124
    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

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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    Pages 5 of 124
    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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    Pages 6 of 124
    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 &

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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    Pages 7 of 124
    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.
    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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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.

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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    Pages 9 of 124
    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

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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    Pages 10 of 124
    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.

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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    Pages 11 of 124
    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
    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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    Pages 12 of 124
    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

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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    Pages 13 of 124
    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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    Pages 14 of 124
    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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    Pages 15 of 124
    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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    Pages 16 of 124
    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.

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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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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    Pages 18 of 124
    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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    Pages 19 of 124
    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
    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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    Pages 20 of 124
    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
    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
    Branch
    Pages 21 of 124
    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

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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    Pages 22 of 124
    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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    Pages 23 of 124
    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

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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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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    Pages 25 of 124
    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
    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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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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    Pages 28 of 124
    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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    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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    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
    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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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.

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
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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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    Pages 41 of 124
    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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    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.

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
    Branch
    Pages 50 of 124
    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

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
    Branch
    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
    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
    Branch
    Pages 52 of 124
    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
    State Vs. Kafait Ullah Khan & Ors. FIR No.
    166/2015 PS Crime
    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

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
    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

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    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
    Branch
    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 or

    State 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 a

    State 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 word

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
    Branch
    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 Kafait

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
    Branch
    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
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    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

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    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 Police

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    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 reliance

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    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.”

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    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 immediately

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    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.”

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    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

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    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:

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    “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

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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 for

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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

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    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

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    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
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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 the

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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 other

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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
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    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 cross

    State 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 the

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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 condition

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    Branch
    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 no

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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
    Branch
    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.

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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 imprisonment

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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
    Branch
    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
    Branch
    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
    Branch
    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
    Branch
    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
    Branch
    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
    Branch
    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
    Branch
    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
    Branch
    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
    Branch
    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
    Branch
    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
    Branch
    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 Delhi

    State Vs. Kafait Ullah Khan & Ors. FIR No. 166/2015 PS Crime
    Branch
    Pages 124 of 124



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