- (1.) ON the night intervening the 1st and 2nd July. 1968, at about 1 or 1. 15 A. M. , P. W. 1 Rudsingh, P. W. 2 Phoolchand and P. W. 3 Khangarsingh members of B. S. F. party Who had laid in ambush sighted a man coming from the side of the Pakistan border. ON being challenged by Phoolchand P. W. 2, the man coming from the side of Pakistan border raised his hands and gave out his name as Ramchandra son of Nadarchand. Thereafter he was surrounded by the members of the B. S. F. including P. W. 1 Rudsingh, P. W. 2 Phoolchand and P. W. 3 Khangar Singh Ramchandra son of Nadarchand was taken by the members of the B. S. F. to the outpost Machiwada and on his search being taken before the Motbirs Hoturam P. W. 5, Darbara Singh P. W. 6 and Labhsingh, an index plan of Gang Canal Colony Ex 1, a letter in Urdu Ex, 2 and a few Pakistani coins were found in his possession along with other things in a plastic bag. The search memo Ex. P. 1 was prepared in pursuance of the search. The articles found from the bag were tied in the bundle. Thereafter Ramchandra son of Nadarchand was taken with the articles recovered from him to police station Karanpur which is at a distance of 14 miles from the police outpost Machiwada and first information report Ex. P-2 was filed by Phoolchand P. W. 2 at the police Station Karanpur on behalf of the Company Commander and Ramchandra son of Nadarchand was handed over to Jogendra Singh P. W. 30 incharge police station Karanpur along with the articles recovered from him on 2-7 68 at about 7. 30 P. M. ON arrest, Ramchandra gave out that he was merely a courier of Lalchand son of Bhagwansingh and in that capacity had brought the plan Ex, 1 and the letter in Urdu Ex. 2 for him. ON receipt of the first information report, P. W. 30 Jogendra Singh proceeded to the spot and prepared the site plan Ex. 5 on 3-7-68. Having come to know of the name of Lalchand from Ramchandra, P. W. 30 Jogendra Singh suspected Lalchand in the shady affair and therefore on 5-7-68 he took the search of the house of Lalchand situated at village Kohni and recovered a chit Ex. 3 containing the addresses of certain people whom he suspected to be Pakistanis. He prepared the search memo in respect of the search made at the house of Lalchand, which is Ex. P-22. Lal Chand was then arrested on 5-7-68. Jogendra Singh on his part challaned both Lalchand and Ramchandra son of Nadarchand under the Indian Passports Act and the Opium Act in the court of the Sub-Divisional Magistrate Karanpur.
(2.) FROM the investigation made by Jogendra Singh, some more facts came to light which aroused the suspicion of the authorities that Ramchandra son of Bhag-wan Singh, Lalchand son of Bhagwansingh, Gopalsingh son of Amarsingh and Ramchandra son of Nadarchand had entered into a conspiracy and engaged themselves in espionage activities by giving information to the enemy country namely Pakistan which information was directly or indirectly injurious to the safety and security of India. FROM the investigation, the Security Department came to the conclusion that the above named four persons had committed an offence under S. 120 B I. P. C. and also under S. 3 read with S. 9 of the Official Secrets Act (here-inafter referred to as the Act ). Sri U. N. Misra, the Superintendent Police, Security Department, Jaipur, therefore, filed a first information report Ex. P-35 before Mahi-manand P. W. 49 in-charge, Special Police Station, Ramganj at Jaipur on 19-7-68 for prosecuting the above named four persons udder S. 120-B LP G. and under S. 3 read with S. 9 of the Act. On the first information report made by Shri U. N. Misra, a case No. 2 of 1968 was registered against the above-named four persons. Investigation was then handed over by Mahimanand P. W. 49 to Sri Brij Gopal D. S. P. P. W. 47. Lalchand was formally arrested on 27th July, 1968, in case No. 2 of 1968 and Ramchandra son of Nadarchand was arrested on 3-8-68, in case No 2 of 1968. On 5 8-68, Lalchand's house at Bijaynagar was searched but nothing incriminating was found. The investigating agency took the search of Lalchand's house at Ganganagar on 7-8-68. At the search, Exs. P. 10, P. ll, P12 and P. 13 were recovered from the bag which was hanging on a wooden peg in the wall. The recovery memo is Ex. P. 9. Ex. P. 10 was a letter in Urdu addressed to an unnamed person by simply stating "pyare Dost". It transpired that Ex. 2 recovered from Ramchandra son of Nadarchand which was in Urdu was also in the hand of the same person who was the scribe of Ex. P-10. Ex. P. 10 contained the name of Gopalsingh accused. Taking clue from Ex P-10, the investigating agency arrested Gopalsingh at Jaipur on 12. 9. 68. On 22-9 68 Gopalsingh's house at Gajsinghpura was searched. Ex P-17 a small diary and Ex. P-55 a deportation order and a copy of the newspaper 'obdserve' Ex. P-56 were recovered from Gopalsingh's house. The search memo in this regard is Ex. P-17. During the course of investigation, the investigating agency got some clue of complicity of Ramchandra son of Bhagwansingh in the espionage activities and the conspiracy. Ramchandra son of Bhagwansingh was, therefore, arrested on 4-lt -68. After completion of investigation, the Security Department, Police, being satisfied that a case had been made out against all the four accused, obtained sanction of the Union Government for the prosecution of the above-named four persons. The sanction is dated 13-6-69 and is Ex. P-25. It related to the prosecution of all the accused under the Official Secrets Act and cognate offence namely S. 120-B I. P. C. Under the aforesaid sanction, Brij Gopal P. W. 47 was authorised to file complaint which was filed in the court of District Magistrate. The District Magistrate after inquiry committed all the four accused to the court of Sessions, Jaipur, on 22-12-69 under S. 120b IPC. and under S. 3 read with S. 9 of the Act. The prosecution examined in all 49 witnesses in support of its case. The accused in their statements under S. 342 Cr. P. C. denied their complicity in the offence. The accused Gopalsingh while denying the charges against him stated that he never visited Pakistan nor was he in communication with any person there. His plea was that he had been falsely implicated on account of enmity with one Harbans Singh Police Inspector. The accused Lalchand and Ramchandra sons of Bhagwan Singh also denied charges levelled against them and inter alia pleaded that Sri Manphool, the then Deputy Minister in the Government of Rajasthan was behind their prosecution. Lalchand stated that Manphoolsingh who was then the Deputy Minister in Rajasthan wanted some illegal acts to be done for his benefit but Lalchand had refused to oblige Manphoolsingh. The plea of accused Ram Chandra son of Nadarchand is that he was not arrested near the border as alleged by the prosecution. His explanation was that although he was in the village Machi-wada in the evening of 1-7-68, but his visit was in connection with selling cloth. He further stated that two officers of the B. S. F. namely Phoolchand P. W. 2 and Khangarsingh P. W. 3 owed money to him and he had pressed them for making payment of the same. On demand for money being made, a quarrel ensued between him and the two above-mentioned members of the B. S. F who had falsely implicated him in this case. The accused examined in all 8 witnesses in defence. The learned Sessions Judge after an elaborate inquiry found the accused Lalchand and Ramchandra son of Nadarchand guilty of an offence under S. 3 of the Act and the accused Gopalsingh and Ramchandra son of Bhagwansingh guilty of the offence punishable under S. 3 read with S. 9 of the Act. The learned Sessions Judge found all the accused guilty under the offence punishable under S. 120b l. P. C. holding that all the accused had entered into a conspiracy for a purpose which was prejudicial to the safety or security of the State, inasmuch as they either obtained, collected or communicated the persons in Pakistan the official secret and with that and in view the plan Ex. 1 was taken to Pakistan which was calculated to be or might be directly or indirectly useful to the enemy country of Pakistan or which related to a matter the disclosure of which was likely to affect the safety or integrity of the State. In the result, the learned Sessions Judge convicted the accused Lalchand and Ramchandra son of Nadarchand under S. 3 of the Act and also under S. 120b I. P. C. and sentenced each of them to rigorous imprisonment for 18 months under each of the sections. Likewise the learned Judge convicted Gopalsingh and Ramchandra son of Bhagwansingh under S. 3 read with S. 9 of the Act and also under S. 120b I P. C. and sentenced each of them to 18 months' rigorous imprisonment under each of the above-referred two sections. He, however, directed the sentences incases of all the four accused to run concurrently by his judgment dated 121-72. Being aggrieved by the order of conviction dated 12-1-72, all the four accused have preferred this joint appeal which is S. B. Criminal Appeal No. 86 of 1972. A revision has been preferred by the State for the enhancement of the sentences of all the four accused. A rule was issued by Mehta J. in the above criminal revision for enhancement of the sentences upon the four accused who have been convicted by the Sessions Judge. On account of the rule being issued for enhancement of the sentences both the criminal appeal No. 86 of 1972 and Criminal Revision No. 96 of 1972 have been laid before the Division Bench as per the High Court Rules. We propose to dispose of both the criminal appeal and the revision by a single judgment. The appeal and the revision have been exhaustively argued in this Court and the questions of law and fact which arise therein have been discussed from every conceivable point of view. We have minutely scrutinised the record and we now proceed to record our decision. We first of all propose to take up the appeal preferred by the accused persons challenging their convictions. Mr. Magraj Bhansali learned counsel for the appellants while dealing with the indictment of conspiracy in the first instance raised a grievance that the charge of conspiracy was absolutely vague as it did not contain sufficient particulars so as to enable the appellants to meet it. His grievance was that the agreement to do illegal act or to do legal act by illegal means being the gist of the offence of conspiracy u/. s 120b, in order to establish such agreement, it was very essential that the prosecution should have given the date and the place where the agreement constituting the conspiracy had taken place. It was contended that the learned Judge should have specified the point of time of commencement of the conspiracy and further the last point of time till the conspiracy subsisted as in the absence of such crucial data in the charge, the learned counsel submitted, serious prejudice was caused to the accused. We have carefully examined this argument but we regret that we cannot accept it. In considering the question of criminal conspiracy it is very difficult to specify the exact date of the formation of the criminal conspiracy and the last date till it subsisted. In fact it is not possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the conspiracy and so also the manner or object of conspiracy is to be carried out. Likewise it is also very difficult to specify the place of the agreement where the conspiracy was hatched. We are fortified in this view of ours by the authorities reported as State vs. Shankar (l) & Abdulkadar vs. State (2 ). We find from the charge that the approximate time of the commencement of the conspiracy and the time of the subsistence of the conspiracy have been already specified. No grievance was raised on behalf of the accused persons during the lengthy trial about the vagueness of the charge. Even the learned counsel has not been able to satisfy us as to what prejudice the accused appellants had suffered on account of the alleged vagueness of the charge. Looking to the very nature of privacy and secrecy inherent in the offence of conspiracy, we are not at all convinced with the argument of the learned counsel that the accused have suffered in any manner on account of the alleged vagueness of the charge. On the other hand, from the perusal of the charge, we are satisfied that it cannot be termed as vague so as to prejudice the accused in any manner. The evidence brought on the record has clearly brought to the notice of the accused appellants and approximate time of the commencement of the conspiracy and so also the time till it lasted. The accused have been put necessary question as to the activities of various persons alleged to be involved in conspiracy with reference to the approximate time which gives a cule to the commencement of the period of conspiracy and also approximate time till the activities lasted with reference to furtherance of the conspiracy In this view of the matter, we over-rule the objection of the learned counsel to the effect that the charge of conspiracy is vague. The next important question of fact which requires determination is whether the prosecution has proved the existence of conspiracy the purpose of which was prejudicial to the safety or interests of the State by obtaining collecting or communicating the persons in Pakistan the official secret which was calculated to be or might be directly or indirectly useful to the enemy country of Pakistan or which related to a matter the disclosure of which was likely to affect the safety and security of the State. Before we take up the factual aspect of the case, we deem it necessary to set out the relevant section relating to conspiracy under which the accused have been convicted. Sec. 120a of the Indian Penal Code runs in these terms: - "when two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act, which is not illegal, by illegal means, such an agreement is designated a criminal conspiracy; Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act, besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation: - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. " Sec. 120-B provides the punishment for criminal conspiracy. The first link in the transaction of conspiracy is sought to be traced to Gopalsingh accused appellant. Gopalsingh, according to the prosecution had contacts and connection with Pak intelligence officer and spies since 1967 or even prior to that. This Gopalsingh was an employee of the P. Deptt. Bhagwansingh P. W. 27 has deposed that in the year 1966 he had accompanied Gopalsingh to Pak. He has of course deposed that he had gone in connection with black-marketing business to Pak. He has further deposed that a month or so thereafter, Gopalsingh called him to his field and he saw one Gulam Rasul Ranjha with him Gulam Rasul Ranjha asked him to accompany to Pakistan. He has given the identity of Gulam Rusal Ranjha as the resident of 23 Chak Murad Pakistan. This Gulam Rasul Ranjha is not only a national of Pakistan but is also a spy of Pakistan for receiving the secret informations of India, which are injurious to the safety and security of India. Mahiman and P. W. 49 in-charge of special police station Jaipur has stated in categorical terms that the Government of India supplies the Security Department the names of Pakistani spies from time to time and in the names so supplied, there is the name of Gulam Rasul Ranjha, r/o 23 Murad, Pakistan. There is further corroboration of the associations and contacts of Gopalsingh with Pakistani Intellegence officers as brought out in the testimony of Pyarasingh P. W. 8, Isharsingh P. W. 10 and Makhansingh P. W. 26. P. W. 8 Pyarasingh has stated that he was sent by the Dy. Suprintendent of Police Ganganagar to Pakistan for spying for India during the period from 1964 66. He was however arrested in Pakistan on 17-8-66. In Pakistan he had falsely assumed the name of Ramsingh son of Jaisingh to conceal his real identity. After his arrest he was taken to Shahi Kila, Lahore, for interrogation. Lt. Dogar who happened to be the Security Officer of Pakistan had interrogated him several times to find out the truth. Ultimately he was taken to police station Haruna Bagh. Lt. Dogar accompanied by Gopalsingh came there and passed nearby him and sat in a room. A minute or two thereafter Gopalsingh came to him and after seeing him again returned to the room. Again Lt. Dogar along with Gopalsingh came to him and Mr. Dogar inquired of Gopalsingh as to whether the person giving out his name as Ramsingh was really Pyarasingh. Thereupon Gopal Singh answered in the affirmative. After receiving this information Lt. Dogar took the witness (Pyarasingh) in a car to Lahore. The witness further stated: "when I was made to sit in the car, Gopalsingh and Gulam Rasul Ranjha were standing side by side. " This witness has further deposed that Gulam Rasul Ranjha was a partner with Gopalsingh in a black-marketing business. This Pyarasingh after undergoing the sentence was repatriated to India which fact is duly proved by Amarnath P. W. 44. Amarnath P. W. 44 was in the office of the Dy Commissioner as an Asstt. He has stated that when Indian Nationals are repatriated from Pakistan, the Attache or the Secretary to the Indian High Commission comes to the Hussainiwala border to personally hand over the Indian Nationals to the Deputy Commissioner. He has stated that a letter was received from the Indian High Commission on 22-8-68 that a person in the name of Ramsingh son of Jaisingh, resident of Ganganagar, Rajasthan, is being repatriated along with 30 persons. The original letter is Ex. P-46 wherein the name of Ramsingh appears at serial No. 15. This witness has further deposed that on 27-6-69 another letter Ex. P47 was received repatriating some mote persons. The letter in this behalf is Ex. P-47 and the list of the persons forwarded along with this letter is Ex P-47/1. The names of Isharsingh (P. W. 10) and Makhansingh (PW 26) appear at the serial Nos. 21 and 27 respectively in that list, amongst the persons repatriated from Pakistan Isharsingh P. W. 10 has deposed to the association of Gopalsingh with Lt. Dogar, the Pakistani Intelligence Officer in Pakistan. This fact was witnessed by him when he was arrested for crossing the border of Pakistan. The next witness to establish the association of Gopalsingh with Pakistani Intelligence Officer is Makhansingh P. W. 27. He has deposed that be was arrested for going to Pakistan by Pakistani authorities. He saw Gopalsingh with Lt. Dogar, Intelligence Officer of Pakistan. Both Lt. Dogar & Gopalsingh accused had rebuked him for spying for India. Besides this, there is documentary evidence in the form of Ex. P-17 recovered from his house. Ex. P. 17 is a diary containing the names and addresses of Pakistani foreign agents, Intelligence Officers of Pakistan like Gulam Rasul Ranjha and Sardar Ali Dogar. The name of "aafjal Manzil Bhawal Nagar" is also mentioned in the said diary. P. W. 49 Mahimanand has deposed that the address "aafjal Manzil Bhawal Nagar" mentioned in the diary Ex. P-17 was an address of the office and residence of Pakistani Intelligence Officer. After about a month, accused Gopalsingh sent for the witness in his field where the witness saw the accused Gopalsingh and Gulam Rasul Ranjha. P. W. 9 Kartarsingh is another witness to prove Gopalsingh's connection and contacts with Pakistan. This witness has stated that he arranged crossing the border by the accused Gopalsingh at his request and once he too accompanied the accused Gopalsingh and went to Pakistan and stayed for one night at Gopalsingh's house. The younger brother of Gulam Rasul asked the witness to go inside the house. When he went inside the house, he saw the accused Gopalsingh, Gulam Rasul and one Harish were talking with Pakistani Police. Nothing has been brought out in the cross-examination of the above-referred to witnesses to discard their testimony.
(3.) FROM the above analysis of the oral as well as documentary evidence, it is established beyond reasonable doubt that Gopalsingh had not only had contacts and association with Pakistan but was in close touch with the Pakistani Intelligence Officers and spies. At present we are only concerned with the consideration of the question as to Gopalsingh's complicity in the offence of conspiracy. It will appear from the testimony of the above witnesses that his illegal connections and contacts with the Pakistani spies and Intelligence Officers related back to the period since 1967 and it is on that account that the period of commencement of conspiracy has been specified to be the year 1967 in the charges framed against the accused appellants. Learned Additional Advocate General submitted that once Gopalsingh's contacts with Pak nationals to do illegal act is established, he is liable to be convicted on the indictment of conspiracy. According to him conspiracy could be entered into between known or unknown person or even a foreigner. In this connection he relied upon Lennart vs. Director of Enforcement (3 ). We have carefully perused this authority. But it is distinguishable. In that case, a foreigner was found to have committed an illegal act in the territory of India. It is doubtful whether a foreigner residing in Pakistan and entering into conspiracy with an Indian national can be termed as doing illegal act, as doing acts for spying for his own country in our opinion cannot be held to be an illegal act in that country. We, therefore, are unable to hold that Gopalsingh was in conspiracy with unknown persons in Pakistan. We have now to see whether the other accused appellants were in conspiracy with Gopalsingh to commit illegal activities of espionage for Pakistan so as to directly or indirectly harm the safety or security of India. We may here observe that the gist of the offence of conspiracy lies not in doing the act or effecting the purpose for which the conspiracy is formed, nor in attempting to do them nor in inciting others to do them but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough. In an indictment of conspiracy; it is sufficient if the combination exists and is unlawful because it is the combination itself which is mischievous. Thus from the perusal of sec. 120-A I. P. C. , it will appear that there should be a consensus or a meeting of the minds and each person alleged to be a party to the conspiracy must be proved to have shared the criminal intention. In the very nature of conspiracy, privacy and secrecy are more characteristic of a conspiracy than a loud discussion in an open place. Thus the conspiracy can seldom be proved by means of direct evidence and has almost invariably to be inferred from circumstantial evidence consisting generally of evidence as to the conduct of the parties on certain occasions and in relation to certain matters. To put it in a nutshell, secrecy and privacy being the special character of conspiracy, it is very difficult to prove by direct evidence and is generally inferred by conduct and circumstances vide N. M. M Y. Momin vs. State of Maharashtra (4 ). We may however observe here that as regards the standard of proof required to establish a charge of conspiracy, there is no difference between the mode of proof of the offence of conspiracy and that of any other offence. The conspiracy may be established by direct evidence if any or by proof of circumstances from which a legitimate inference of the existence of an agreement between the parties to do an illegal act or to do a legal act by illegal means can be drawn. In a word, the conspiracy can be established by means of circumstantial evidence. Circumstantial evidence should however be of such a nature as must necessarily lead to a finding of guilt, (vide Sailendra Nath Mitra vs. State (5) ). In Bhagwan Sarup vs. State of Maharashtra (6) while dealing with the mode of proof of conspiracy, Subba Rao J. has observed as under : "the essence of conspiracy is, therefore, that there should be an agreement between persons to do one or other of the acts described in the section. The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence; it can be established by direct evidence or by circumstantial evidence. " It is in the light of the above propositions that we have to consider whether any of the accused appellants had entered into a conspiracy with. Gopalsingh as stated in the charge. Ramchandra son of Bhagwan Singh - First of all we take up the case of Ramchandra son of Bhagwan Singh for determining whether he had entered into conspiracy with the other accused appellants. The learned Sessions Judge while dealing with the case of Ramchandra son of Bhagwan Singh has observed as follows - "taking the case of Ramchandra s/o Bhagwan Singh, I find that the evidence against this accused is that he once asked for a plan of 4th Desert Division of the Rajasthan Canal from Madan Mohan Saini P. W. 12, and at that time, accused Ramchandra s/o Nadarchand was with him. The letter Ex. P10 then makes a reference to a plan of the Rajasthan Canal having been sent to, presumably, Pakistan and was returned by the receiver. This is enough ground to presume that the plan which Ramchandra s/o Bhagwan Singh received was that plan which was returned through Ex. P-10 " While discussing the charge of conspiracy the learned Judge has merely observed : "all the accused are further guilty of the offence punishable under sec. 120b of the Indian Penal Code, in that, conspiracy is inferred from the different parts played by them in connection with the main offence of having one purpose, which was prejudicial to the safety or interest of the State. " It will thus appear that the learned Judge has convicted Ramchandra son of Bhagwan Singh on the ground that he once along with Ramchandra son of Nadarchand approached P. W. 12 Madan Mohan Saini and asked for a plan of 4th Desert Division of the Rajasthan Canal from the witness. The further circumstance which has been pointed out by the learned Judge in this connection is that there is reference to the plan of the Rajasthan Canal in the letter Ex. P. 10 alleged to have been recovered from Lalchand's house in a plastic bag. The learned Judge has, therefore, raised a presumption that the reference to the plan of Rajasthan Canal in Ex. P-10 must be to the one which was obtained by Ramchandra son of Bhagwansingh from P. W. 12 Madan Mohan Saini and he has further drawn a presumption that the plan obtained by Ramchandra s/o Bhagwansingh must have been sent to Pakistan and was returned by the receiver. We are not at all satisfied with this logic of the learned Sessions Judge purely based on unwarranted presumption for seeking to establish the case of conspiracy. We may emphasize that conspiracy has to be provide by independent evidence and the presumption as applied the learned Judge is not at all permissible to bring home the charge of conspiracy to this accused appellant. As already observed, conspiracy can be proved by circumstantial evidence, but the circumstantial evidence must lead irresistibly to one and one conclusion that the accused was responsible for the act imputed to him. There is not an iota of evidence to show that the plan obtained by this accused from Madan Mohan Saini P. W. 12 was ever sent to Pakistan. Nor is there scintilla of evidence to prove that the reference in [ex. P-10 was to the very plan obtained by this accused appellant. In the absence of any cogent evidence even of circumstantial nature, it is very difficult for us to agree with the line of reasoning of the learned Judge The presumption under sec. 3 and 4 of the Official Secrets Act which prescribe special rules of evidence for the purposes of that Act cannot, in our opinion, be availed of to prove the charge of conspiracy which has to be proved by independent evidence may that be of circumstantial nature or of conduct of the accused. The circumstantial evidence does not come up to that requisite standard so as to bring home the charge of conspiracy to this accused appellant. There is not even a suggestion that this accused appellant could be said to be in agreement with the rest of the accused persons to commit the illegal act imputed in the charge of conspiracy against him. It has been stated by Madan Mohan Saini P. W. 12 that at the time of asking for the plan of 4th Desert Division of the Rajasthan Canal from him, Ramchandra son of Nadar Chand happened to accompany him. This witness has admitted that the plan was given to this accused appellant about 2i years prior to his date of deposition dated 26-8-70. He has admitted that no record is kept for giving such a plan in his office. He has further conceded that he does not remember the date of giving the plan to this accused appellant. He has also admitted that he did not know the name of Ramchandra son of Nadarchand at the time when he accompanied this accused appellant. He has also not referred to the name of Ramchandra son of Nadar Chand before the police. In this state of affairs, we are not prepared to believe this part of his statement that Ramchandra son of Nadarchand had accompanied Ramchandra son of Bhagwansingh to P. W. 12. There is not an iota of proof to prove Ramchandra son of Bhagwansingh's association of culpable nature warran-ting an agreement in the common design of doing an illegal act with Gopalsingh and the rest of the accused. This accused appellant of course happens to be the real brother of Lalchand son of Bhagwansingh, but nothing has been suggested by the prosecution to show his association being of a suspicious character either with Lal Chand or with Gopalsingh and Ramchandra son of Nadarchand in doing an illegal act as contemplated by sec. 120a I. P. C. The evidence of P. W. 12 Madan Mohan Saini is not at all sufficient to establish or provide a circumstance irresistibly giving rise to a conclusion of the complicity of this accused appellant in the crime of conspiracy. It is therefore very difficult for us to hold that Ramchandra son of Bhagwansingh was a party to the conspiracy set up by the prosecution. Ramchandra son of Nadarchand - We next take up the case of Ramchandra son of Nadarchand. He was apprehended by the party of Border Security Force namely Roodsingh P. W. 1, Phoolchand P. W. 2 and Khangarsingh P. W. 3 while he was coming from the side of Pakistan near the Pakistan border. This accused appellant was found to be possessed of site plan Ex. 1 of the Gang Canal along with Ex 2 a letter in Urdu On the night intervening the 1st & 2nd July, 1968, Ex. 2 a latter in Urdu was scribed by the same author who is the author of Ex. P-10 alleged to have been recovered from Lalchand's house. Both Ex. 2 and P-10 have not been signed by the scribe of those letters nor were they addressed to any person by them. They purport to be addressed to 'pyare Dost' The learned Additional Advocate General had urged that the scribe of Ex 2 and Ex P-10 being one and the same person and Ex P-10 having been recovered from the house of Lalchand, it should be held to be proved that this accused appellant was in conspiracy with Lalchand, son of Bhagwansingh, in espionage activities against India in favour of Pakistan. It has been further urged that as Ex P-10 makes a reference to Gopalsingh therefore, the liaison at least between these three persons namely this accused appellant, Lalchand and Gopalsingh is proved. On the other hand, Mr. Magraj on behalf of the appellants raised a serious controversy with regard to the use of Ex. P-10 against any of the appellants. In the first place, he submitted that it is not proved that Ex. P-10 was recovered from the exclusive possession of Lalchand; secondly he urged that unless the general prima facie reasonable proof of conspiracy is educed, the contents of Ex P. 10 cannot be looked into to spell out the proof of conspiracy therefrom; thirdly that there is no proof to trace Ex. P-10 to its author. We been it appropriate at this stage to determine the controversy raised at the bar. Having heard the arguments at the bar and after examining the evidence on the record, it cannot be said with certainty that Ex P. 10 was recovered from the exclusive possession of Lalchand The key of the house of Lalchand was with his father Bhagwan Singh who actually opened the lock at the time of the search of his house Bhagwan Singh had easy access to this house even though he was then residing in Abhor. He was brought from the Abhor by the police party and at that time he came with the key of the house therefrom Ex. P. 10 is alleged to have been recovered. The possibility of the letter Ex. P-10 being addressed to Bhagwansingh cannot be ruled out in the facts and circumstances of the case. The letter Ex. P-10 is alleged to have been recovered from a bag which was hanging on the wooden peg of the wall of the house along with other papers. What these other papers were has not been disclosed by the prosecution. Even while making the list of the documents recovered from the bag, the investigating agency had failed to make a list of all the documents found in the bag. Reference may here be made to Prithvi Singhji vs. State of Bombay (7 ). In that case 76 bottles of foreign liquor were recovered by the authorities under the Prohibition Act from the trunks admittedly belonging to the accused Prithvisingh. The keys of the trunks however were with the servant. At Abu Road where the Prohibition Act was in force then, the 76 bottles of foreign liquor were recovered from the trunk belonging to the accused. In this state of facts, their Lordships of the Supreme Court observed that: - "it has been proved beyond any question that although the ownership of these trunks is in the appellant, the entire handling of these trunks, their packing and unpacking, was in the hands of his servant Gangaram Makarji who had in his possession their keys. " In these circumstances their Lordships observed that: "the likelihood of Gangaram Makarji taking advantage of his control and possession of his master's luggage, to bring into Abu Road a large quantity of liquor for his own purpose and profit cannot altogether be excluded. " Their Lordships further observed that : "the circumstantial evidence in the case is not of that kind from which the only inference that could reasonably be drawn was that the appellant had knowledge of the contents of his luggage and that he had accordingly possessed an intoxicant, incontravention of the provisions of the Act. " Another case relevant to the point is Radha Kishan vs. State of U. P. (8 ). In that case the accused was|being prosecuted u/s. 52 of the Post Office Act 1898, for secreting certain registered postal articles. All that the prosecution had been able to prove was that those articles were found in an almirah of the house in which the accused lived jointly with his father and of which the key was furnished by the father. In this state of evidence it was observed by their Lordships that it would not be legitimate to infer that the almirah was even in the accused's joint, much less in his exclusive possession. It was also observed that the circumstance that the almirah contained, apart from the registered articles in question, certain other articles belonging to the accused could not sustain an inference that the almirah was in the accused's possession exclusively or even jointly with his father. On the other hand, if the almirah also contained a large number of articles belonging to the father, since he had the key with him, it must be he who must be deemed to be in possession of the almirah and consequently of its contents, including the registered articles in question. The fact that the accused had the opportunity to get at the articles was not sufficient to infer exclusive possession of the accused of those articles. Their Lordships therefore refused to draw any presumption against the accused that he had secreted the postal letters from the mere fact that they were found in the almirah which, at best might be regarded as being in the joint possession of himself and his father. " From the facts and circumstances brought on the record, it is very difficult for us to hold that Bhagwansingh had no access to the house specially when he was possessed of the key of the house which was only tendered by him at the time of the search for opening the lock of the house. Moreover, the prosecution has failed to throw light on the nature of papers which were laying along with Ex. P-10. The circumstance of recovery from the house belonging to Lalchand, in our opinion, cannot exclude the possibility of Bhagwansingh placing the same in the bag as it was he who was in possession of the key. We, therefore, do not feel inclined to accept the contention of the learned Additional Advocate General that the letter was recovered from the exclusive possession of Lalchand. Taking up the second contention of Mr. Magraj that the contents of Ex. P-10 could not be looked into, we have been referred to the provisions of sec. 10 of the Indian Evidence Act The learned Additional Advocate General urged that the contents of Ex P-10 could be looked into for proving the charge of conspiracy. Mr. Magraj on the other hand urged that sec. 10 could not be availed of unless the condition precedent that is the prima facie proof of conspiracy is adduced. In this connection numerous authorities were cited at the bar, but in view of the settled position of law laid down by Mirza Akbar vs. Emperor (9) and Sardul Singh vs. State of Bombay (lo), we need not analyse the various authorities cited at the bar. Mirza Akbar vs. Emperor (supra) had enacted the limits of admissibility of evidence in conspiracy cases. It has been held that S. !0 must be construed in accordance with the principle that thing done, written or spoken was something done in carrying out the conspiracy and was receivable as a step in the proof of the conspiracy. Their Lordships further observed that the evidence receivable must be "in reference to their common intention*' and the words "anything said, done or written by any of such persons" are not capable of being widely construed The same view has been taken in Sardul Singh vs. State of Bombay (supra ). It will, therefore, appear that the application of the rule of law embodied in sec. 10 is strictly conditional upon there being reasonable grounds to believe that two or more persons have engaged themselves in a joint enterprise, e. g. , criminal conspiracy. The requirements of the section should be always borne in mind. When the condition above is fulfilled, i. e. , once reasonable grounds are made out for belief that two or more persons have conspired to commit an offence, anything done or said by each conspirator in reference to the common design is admissible against each of the others. ;