V.K.JHANJI,J - (1.) THIS petition has been filed under Section 439, Code of Criminal Procedure, for grant of bail in F.I.R. No. 62. registered at P.S.Adampur, under Sections 3 and 4 of Indian Official Secrets Act read with Section 120-B, Indian Penal Code.
(2.) PETITIONER -Bakhtawar Singh @ Tari son of Amar Singh, is resident of 32, West Drive Hanshworth Birmingham, England (U.K.) and a British Citizen. His native village is Khandola Kalan, District Jalandhar. His father migrated to England about 40-50 years ago and is residing there since then. According to the petitioner, he along with his two friends namely Gurdish Singh and Jeffrey Edwards, visited India and was staying in International Hotel, Jalandhar, when they were arrested by the Police and were kept in illegal custody in Jalandhar for few days. Thereafter, the friends of the petitioner were released by the police and the petitioner was handed over to the police of P.S. Adamour, Jalandhar, to get him implicated in some false case as the petitioner had threatened that he will not only highlight his and his friends' detention by the police, but shall also raise this issue in International Forum. Further, according to the petitioner, he is in custody since 4th July, 1994, on the basis of F.I.R. No. 62, dated 6.7.1994. The true translation of the said F.I.R. is reproduced hereunder:- "Police Form No. 24.5(1); First Information Report No. 62- No. Thana Dist. Date time of occurrence. 2 Adampur Jalandhar 6.7.94 4-10 p.m. 6.7.94 4-10 p.m, Bakshish Singh, Police Station Adampur, Under section 3, 4 Indian Official Secrets Act read with 120-B, IPC, Adampur Air Force Base. I, SHO was present at the Thana when a secret informer came and told me that Bakhtawar Singh alias Tari S/o Amar Singh Jat R/o Khandola Thana Nur Mahal, Distt. Jalandhar., who resides outside the country is visiting Punjab these days, He has made plans of gathering information of the following places namely Air base Adampur. IOC Depot, Suchi Village, Radio and TV station at Jalandhar and is sending the information to Pakistan. He has secretly visited the Pakistan on a number of occasions and is involved with foreign agents. He has organized suicide squads from amongst terrorists with the objective of eliminating Sh. Beant Singh, Chief Minister, Punjab. He has come into this area for the above purpose. This information is reliable. Bakhtawar Singh alias Tari is accused of offences under section 3/4 of Indian Official Secrets Act read with section 120-B IPC. The offence is registered. I alongwith head constable Mohan Lal No. 589, Constable Charanjit Singh No. 1653, Constable Didar Singh No. 1570, Constable Diljit Singh No. 2053, have left for investigation in Gypsy whose driver is Nirmal Singh. Special Report Adampur Thana is sent through constable Manjit Singh No. 2407. Control Room has been informed. sd/-Bakshish Singh, SHO Police Station Adampur, 6.7.94." On a prayer made for bail, it was submitted by the prosecution before the Addl. Sessions Judge that the petitioner had been indulging in anti-national activities in connivance with ISI Agents of enemy country Pakistan and hatched criminal conspiracy to send information of places of strategic importance like Air Force, Adampur, Indian Oil Corporation, Radio Station and T.V. centre and aligned with suicidal squads to eliminate VIP persons, and he was apprehended near Air Port, Adampur, on 6.7.1994. Prosecution had also submitted that as a result of interrogation, petitioner disclosed that he took photographs and further made video cassettes. Pursuant to disclosure statement, road-map and camera along with reel were recovered on 8.7.1994 from his rented room in Rohini at Delhi. The camera which was taken into possession by the police was produced before the Addl. Sessions Judge. Prosecution was asked to take the reel to a laboratory in the presence of counsel for the petitioner for getting it developed. After developing, the photographs were produced in Court which were of Television Tower, Television Centre, Depot of Indian Oil Corporation. The learned Addl. Sessions Judge because of gravity of allegations supported by photographs and the camera recovered from possession of the accused, dismissed the bail application. The present petition has been filed by the petitioner for bail. When this petition came up for hearing before me on 30.8.1994, Mr. H.L. Sibal, Sr. Advocate, counsel for the petitioner, had submitted that the reel out of which photographs were got developed by the Addl. Sessions Judge was not taken out from the camera in question and if the camera and the photographs are ordered to be produced in Court, he would be able to demonstrate that case against the petitioner has been built up on the basis of totally fabricated evidence, and the whole purpose of the police being to extort money and the petitioner having refused to part with the same, he has been implicated in a false case. This submission being made by the counsel, camera as well as the photographs were ordered to be produced in Court on the adjourned date. On 13.9.1994, counsel for the State produced for the perusal of this Court the photographs as well as the camera which was alleged to have been recovered from the petitioner. On 13.9.1994, Mr. Boparai, counsel for the State, on instructions from the investigating officer present in Court, had stated that the reel out of which the photographs were got developed, was taken out of the camera recovered in pursuance of disclosure statement made by the petitioner, from a room in Rohini at Delhi, whereas Mr. Sibal had contended that the photographs produced by the counsel for the State for the perusal of this Court, in no case could be taken from the camera. In order to ascertain the correctness of contention of Mr. Sibal, Mr. Tejwant Singh Johar from M/s Tejee Studio, a photographer of repute, was called and asked to take photographs from the camera in question in the presence of Investigating Officer, and then place on record the negatives, contact-prints and the photographs. Mr. Johar has placed on record the negatives, contact-prints and the photographs, along with his report. The report is to the following effect:- "1. The Camera, with which I was directed by this Hon'ble Court, to take photographs is a Nishika 3-D camera with 4 multi-image lenses. I took photographs out side the High Court premises at random. After finishing the films, I processed the same and found that every frame in the film contains 4 negatives of the same exposure. I made a contact-sheet which is attached along with this report, as also the film. The film contains frame Nos. FA-1 to R-36. 2. I found each negative is numbered, for example, 2-A, 3, 4-A, 4 which means that four negatives put gether to make one master negative. From this master negative only one print can be prepared and this print gives a 3- dimensional effect. 3. In India and its adjoining countries such as Pakistan, Nepal, Bangladesh, Iran, Iraq, Afganistan etc., there is no laboratory to my knowledge which can process photographs taken on the camera mentioned above.
(3.) I was shown negatives and photographs by the Hon'ble Court and on examination of the same, I found that these could not be taken from the camera which I had examined, namely, Nishika 3-D. To the best of my knowledge and experience as a photographer who has been in the trade for the last 34 years. I am of the opinion that these photographs were taken with a regular 35 mm SLR (Single Lens Reflex) camera and in order to take these photographs, additional lenses had been used, such as telephoto, normal as well as wide angle lenses. There is no provision in the Nishika 3-D camera or in any other similar kind of Cameras in the world to inter-change the lenses. Nishika 3-D is not a S.L.R. Accordingly to my considered opinion, the photographs shown by the Hon'ble Court to me could not possibly have been taken with the Nishika 3-D camera. For ready reference by way of example, I am enclosing one negative along with one contact print of the same to highlight the fact that four frames constitute one negative which becomes the master negative from which one photograph is printed." Counsel for the State has fairly conceded that the photographs which were got developed on the asking of Addl. Sessions Judge, have not been taken from the camera recovered from the petitioner. However, he submitted that even if it is taken that the photographs were not taken from this camera, but still the petitioner is not entitled to the concession of bail because a map of Jalandhar City was also recovered on the basis of disclosure statement made on 8.7.1994.;