C.B.I.New Delhi Vs.
Abhishek Verma  INSC 949 (6 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL Nos. 935-936 OF 2009
(arising out of SLP (Crl.) Nos. 3393-3394 /2009 @ Crl. MP Nos.
20054-20055/2008) C.B.I., New Delhi. .....Appellant Versus Abhishek Verma
Mukundakam Sharma, J.
counsel for the parties on the delay application. For the reasons stated in the
application, delay stands condoned.
appeals arise out of the judgment and order dated 30.05.2008 passed by the High
Court of Delhi by which the learned Single Judge granted bail to the respondent
in brief as per prosecution are as follows:
In May, 2005 a court
of inquiry conducted by the Air Force Headquarters had established that one
Wing Commander S.L. Surve had obtained a pen drive containing information
pertaining to the Directorate of Naval Operation (DNO) from Kulbhushan
Parashar, a former officer of the Indian Navy. A Board of Enquiry was held by
the Naval Headquarters and three Naval Officers namely Kashyap Kumar, Vijender
Rana and Vinod Kumar Jha were indicted for causing classified naval information
to be leaked to unauthorized persons thus jeopardizing the security of the
State. In the said Court of Enquiry it came to light that Kulbhushan Parashar
was associated with a company named Atlas.
On the basis of the
information received from the Ministry of Defence under two letters dated
18.02.2006 and 01.03.2006, the Central Bureau of Investigation (in short `the
CBI') registered an FIR on 20.3.2006 under Section 120-B of the Indian Penal
Code (in short `the IPC') read with Section 3(1)(c) and Section 5 of the
Official Secrets Act, 1923 (in short `the OSA') against Kulbhushan Parashar,
Ex. Cdr. Ravi Shankaran, S.K. Kohli, Mukesh Bajaj, Ms. Rajrani Jaiswal,
Sambhajee L. Surve, Virender Rana, Kashyap Kumar and Vijender Kumar Jha. The
Chief Metropolitan Magistrate, Delhi passed an order dated 10th July, 2006
taking cognizance of the above-mentioned offences.
After completion of
investigation, charge sheets were filed against Kulbhushan Parashar, Ex. Cdr.
Vijender Rana, Ex. Cdr., V.K. Jha, Ex. Wg. Cdr., S.L. Surve and Ravi Shankaran
(Proclaimed Offender). The investigation revealed that all these accused can be
grouped in 3 categories as follows:
GROUP I It consists
of the accused who were serving in Indian Navy and Indian Air Force. Accused
Vijender Rana, V.K. Jha and S.L. Surve fall in this group.
GROUP II It consists
of the accused who have been retired from Indian Navy. Kulbhushan Parashar and
Ravi Shankaran (Proclaimed Offender) fall in this group.
GROUP III It consists
of the accused who were private persons and have never served Indian Navy or
Air Force. The respondent herein (Abhishek Verma) falls in this group.
allegation in the charge sheet was that Kulbhushan Parashar who was earlier
working with Ravi Shankaran at Mumbai, started working with the respondent
after he moved to Delhi. Kulbhushan Parashar was the Vice President of Atlas
Defence System (ADS) and was interacting with the Ministry of Defence for
various products including 2 MB PCM MUC multiplexing equipment for simultaneous
transmission of subject, telegraph messages and data over point to point
communication, Subscriber End Secrecy Device (SESD) and Terrestrial Trunk Radio
(TETRA) and Aerostat. It has been stated that the respondent was closely
associated with Atlas Group of Companies and also those which existed in India
in the name and style of Atlas Interactive (India) Pvt. Ltd. and M/s. One World
Interactive India Pvt. Ltd. which had close links with foreign registered
sister concerns M/s. Atlas Defence Systerms, Atlas Telecom Pvt. Ltd. U.K. The
respondent was on the board of two other companies, viz., Atlas Interactive
India Pvt. Ltd. (AIIPL) and One World Interactive India Pvt. Ltd. (OWIPL).
Although the bids were made by M/s. Atlas Telecom Network (ATN) and ADS, the
respondent was also stated to be associated with these companies and was
monitoring the bids. The address of both these companies was also used by ADS
and ATN. According to the CBI, ADS was a division of the Atlas Group which
provided turnkey high speed aeronautical satellite communications solutions
from highly secure military application.
has been further stated in the charge sheet that there was a close association
between the respondent herein and Kashyap Kumar and Ravi Shankaran. Ravi
Shankaran has received such critical information on national security from the
compromised defence officers namely Vijender Rana, through the Jet Flash Pen
Drive and e-mails and that he was also in touch with foreign companies. It has
been further stated that a file bearing No. IDS/Ops/C412/32037, which is a file
classified as secret and deals with matters related to Andaman and Nicobar
Command of Indian Army which is of high strategic importance from the point of
view of national security and the fact that this document has been sent to the
respondent herein and has been recovered from this Jet Flash Pen Drive clearly
proves that the respondent was having access to such official records of
Defence Ministry having a bearing on the safety and security of the nation,
through some compromised officers who were paid/gratified for providing
information illegally to him directly and also to Kulbhushan Parashar and Ravi
Shankaran. A jet flash pen drive recovered from Vijender Rana, an officer
posted in the Naval War Room, indicated the commission paid to the respondent
by Kulbhushan Parashar and Ravi Shankaran in Mumbai and Delhi as between 0.5%
to 1.5% for procurement of equipments. Documents seized from the residential
premises of Kulbhushan Parashar contained official correspondence between the
Atlas Group of Companies with the armed forces and the Ministry of Defence
relating to the supply of equipment for the Indian Army for which ATN was one
of the bidders. Kulbhushan Parashar is stated to have purchased pen drives and
distributed it to the other officers including Vijender Rana and S.L. Survey.
Therefore, it was stated that Kulbhushan Parashar and Ravi Shankaran had an
active role in collecting and passing on of 6867 pages of classified defence
information from the computers of the Naval War Room of Indian Air Force which
is stated to be evident from the pen drives recovered from Vijender Rana and
S.L. Page 5 of 15 Surve.
respondent was summoned by the CBI to join investigation. As the respondent
couldn't reply satisfactorily, he was arrested on 21st July, 2006. On 22nd
July, 2006 the CMM, Delhi remanded him to police custody. Aggrieved by the said
order of the CMM, Delhi, the respondent filed a petition bearing Crl. M.C. No.
4231 of 2006 under Section 482 Cr.P.C. before the High Court of Delhi
challenging the aforesaid order of the CMM, Delhi and prayed for his release
forthwith. On a subsequent application, the High Court on 17th August, 2006
permitted the respondent to amend the prayer clause seeking quashing of the
order dated 22nd July, 2006 and "all orders/proceedings consequent thereto
in view of the subsequent developments".
18th October, 2006 a complaint under Section 13 of the OSA was filed and on the
next date i.e. 19th October 2006 a supplementary charge sheet were filed
against the respondent. The CMM took cognizance of the offences under Sections
3 and 9 of the OSA and under Section 409/109 read with Section 120-B IPC. On
13th April, 2007, an application of bail by respondent was rejected by the CMM.
The respondent's subsequent application for bail was dismissed by the ADJ,
Delhi on 29th May, 2007.
The respondent then
preferred a bail application bearing Bail Application No. 2546 of 2007 under
Section 439 Cr.P.C. before the High Court of Delhi praying for the grant of
High Court in its common judgment and order dated 30th May 2008 disposed both
the matters pending before it (i.e. Cr.M.C. No. 4231 of 2006 and Bail
Application No. 2546 of 2007) by granting bail to the respondent on furnishing
a personal bond in the sum of Rs. 10 lakh with two sureties in the like amount
to the satisfaction of the trial court.
Pursuant to the order
of the High Court, the trial court enlarged the respondent on bail on
03.06.2008. The respondent, therefore, is presently on bail and there is no
allegation that at any point of time subsequent thereto he has misused or
mis-utilised the liberty granted to him.
by the said decision of the High Court, the appellant has preferred the present
appeal. It was contended that the instant case is related to leakage of
sensitive classified information relating to defence matter of India by use of
advanced communication technologies like Pen Drives, Scanners, Fax Machines and
E-mails etc. and that over six thousand pages of sensitive information were
taken out from the Directorate of Naval Operation (DNO) and Air Force
Headquarters, for a purpose prejudicial to safety and interest of India. It is
evident that the crime is of grave nature. The national security was
jeopardized and no offence is graver than the offence where national interest
was put on stake. In view of the same, it was urged that the High Court erred
in granting bail to the respondent.
the other hand, it was forcefully argued on the behalf of the respondent that
the High Court rightly granted the bail to the respondent as there was no
material on record to show that the respondent was a director/principal officer
of Atlas Interactive India Ltd or that he was heading the Atlas Group of
Companies in India of which ADS formed a part. It was also contended that the
only evidence available against the respondent is that he is an authorised
signatory of the bank accounts of the ATN and there was no evidence to show
that the pen drives which were recovered from Vijendra Rana were in the
possession of the respondent at any time. Further, there was no evidence of
transmission of the material by the co-accused to the respondent. The pen drives
were in an unsealed condition and multiple copies were made by the authorities
nine months prior to the pen drives being taken in possession by the CBI.
respondent has made any disclosure statement leading to any recovery nor have
any incriminatory documents been seized from the respondent. Further, no link
has been established between the pen drives Page 8 of 15 and any computer
belonging to the respondent either at his residence or in his office. The
aforesaid submissions were carefully considered by us.
further dwelling into the matter we would like to clarify here that nothing
discussed herein or observation made herein while disposing the instant appeal
be treated as any comment on the merit and also the trial and the same must not
influence the opinion of the trial court in any manner.
attention has been drawn to the decision of the Supreme Court in State v.
Jaspal Singh Gill, (1984) 3 SCC 555 @ 559, wherein this Court has observed as
offence punishable under Section 3 of the Official Secrets Act, 1923 with which
the respondent is charged relates to military affairs and it is punishable with
imprisonment which may extend to fourteen years. This Court in State v. Captain
Jagjit Singh1 has indicated that the Court should exercise a greater degree of
care in enlarging on bail an accused who is charged with the offence punishable
under Section 3 of the Official Secrets Act when it relates to military
affairs. I have also gone through the decisions of this Court in Gurcharan
Singh v. State (Delhi Administration) 2 and Gudikanti Narasimhulu v. Public
Prosecutor, High Court of Andhra Pradesh3 which deal with the principles
governing the grant of bail. It may be mentioned here that in the last of the
above cases, the accused had been acquitted by the trial court but convicted by
the High Court on appeal. On a consideration of the above three decisions, I am
of the view that the Court before granting bail in cases involving non-bailable
offences particularly where the trial has not yet commenced should take Page 9
of 15 into consideration various matters such as the nature and seriousness of
the offence, the character of the evidence, circumstances which are peculiar to
the accused, a reasonable possibility of the presence of the accused not being
secured at the trial, reasonable apprehension of witnesses being tampered with,
the larger interests of the public or the State and similar other
14.So, before granting bail in cases involving non-bailable offences
particularly where the trial has not yet commenced, the first aspect which must
be examined is with regard to the nature and seriousness of the offence.
Inter-alia, one of the charges against the respondent is Section 3 of the OSA.
A perusal of Section 3 shows that it contemplates two kinds of offences, one
which attracts a greater punishment of 14 years and the other with a lesser
punishment of 3 years. The appellant has relied on several decisions of this
Court to establish that when it is unclear which punishment to be applied under
Section 3 of OSA, the Court must proceed on the assumption that it is the more
severe i.e. 14 years which is to be applied. However, the cases cited by the
appellant are distinguishable. In none of the cases cited by the appellant, the
accused had already undergone pre-trial detention of twenty two months without
even a prima facie determination of the seriousness of the offence.
with regard to nature and character of the evidence, the prosecution case is
essentially based on circumstantial evidence. It would Page 10 of 15 neither
be appropriate nor desirable to discuss the entire evidence as the same is the
subject matter of the trial. However, for the limited purpose of the disposal of
the present appeal we deem it appropriate to consider the character of the
evidence. It is the case of the appellant that a copy of document in PDF form
found in the pen drive recovered from Vijender Rana which is a letter dated 5th
January, 2005 from an official of Indian High Commission, London to the
Ministry of External Affairs, New Delhi. The right hand top corner of the copy
of the documents contains the word: `Kind Attention A. Verma'. According to the
respondent no such document is available in the records of the MEA and `A.
Verma' could well refer to an Anupam Verma. The veracity of such rival claims
can only be decided during the trial.
was argued by the appellant that the pen drives recovered from the co- accused
Vijendra Rana and the documents seized from the premises of Kulbhushan Parashar
contain sensitive information. However, there is no denial of the fact that
there was neither any recovery from the respondent nor at the instance of the
respondent. Further, no satisfactory answer has been provided by the appellants
to counter the submission of the respondent that the pen drives were not temper
proof when handed over to the CBI and before handing it to the CBI, several
copies of their contents was made by the authorities.
appellant has drawn our attention to a decision of this Court in Govt. of NCT,
Delhi v. Jaspal Singh 2003 (10) SCC 586 @ 593, wherein this Court observed:
"8. 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
be 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 v. Dr B.K. Subbarao1. We are unable to agree
with this extreme submission on behalf of the respondent.
Court in Sama Alana Abdulla v. State of Gujarat2 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 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
Page 12 of 15 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 B.K. Subbarao1 cannot be said to lay down the
correct position of law on the scope of Section 3(1) (c) of the Act."
18.The above-mentioned case succinctly explains the ambit of Section 3(2) of
the OSA by stating that once the accused is found in conscious possession of
the material then it would be presumed that such possession was for a purpose
prejudicial to the interests of the State.
Clearly, the said
presumption under Section 3(2) of the OSA is a rebuttable presumption and the
respondent will have an opportunity to rebut the same during the trial.
Further, the case relied hereinabove by the appellant is clearly
distinguishable as in the above-mentioned case the stage was that of
post-conviction and has little bearing on the present one since in the present case;
the evidence is yet to be adduced in the trial.
there is no denial of the fact that the respondent is an approver in another
case involving one Ashok Agarwal, a former Deputy Director of Enforcement. The
said order of making approver is under challenge before this Court. The
respondent has been provided security by the Delhi Police due to the death
threats faced by him in that case.
already been imposed on the respondent on his traveling abroad in earlier
matters (viz. under the FERA and the Passport Act). So, we find that the
prosecution would have no difficulty in securing the presence of the respondent
during the trial. Despite the fact that he is on bail for last about ten months
there is no allegation about any misuse or abuse of the liberty or violation of
any of the conditions.
view of the aforesaid discussion, we find no infirmity in the judgment and
order passed by the High Court. We make it clear that whatever views and
conclusion we have expressed in this order of ours are purely prima facie and
for the limited purpose of finding out whether the impugned order of the High
Court is sustainable or not. The trial court shall not in any manner be
influenced by these observations of ours or that of the High Court made in the course
of the order granting bail as all such observations are tentative in nature.
The trial court would necessarily examine the evidence after it is led on their
own merit and without being in any manner influenced by this order and also the
order passed by the High Court granting bail. We, however, make it clear that
if at any point of time there is any adverse allegation against the respondent
regarding any misuse or abuse of the liberty granted to him and as and when an
application is filed with such allegation seeking for cancellation of bail, the
trial court shall deal with such contention and prayer in accordance with law
and pass such order as deem fit and proper.
the present appeals are hereby dismissed with the aforesaid observations.
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