REPORTABLE

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 .….Respondent

JUDGMENT

Dr. Justice Mukundakam Sharma, J.

1.Heard counsel for the parties on the delay application. For the reasons

stated in the application, delay stands condoned.

2.Leave granted

3.These 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 herein.

4.Facts 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

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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 10

th

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:

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GROUP IIt 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 IIIt consists of the accused who have been retired from

Indian Navy. Kulbhushan Parashar and Ravi Shankaran (Proclaimed

Offender) fall in this group.

GROUP IIIIt 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.

5.The 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

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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.

6.It 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

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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.

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Surve.

7.The respondent was summoned by the CBI to join investigation. As the

respondent couldn’t reply satisfactorily, he was arrested on 21

st

July,

2006. On 22

nd

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 17

th

August, 2006 permitted the

respondent to amend the prayer clause seeking quashing of the order

dated 22

nd

July, 2006 and “all orders/proceedings consequent thereto in

view of the subsequent developments”.

8.On 18

th

October, 2006 a complaint under Section 13 of the OSA was filed

and on the next date i.e. 19

th

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 13

th

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 29

th

May, 2007.

The respondent then preferred a bail application bearing Bail Application

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No. 2546 of 2007 under Section 439 Cr.P.C. before the High Court of

Delhi praying for the grant of bail.

9.The High Court in its common judgment and order dated 30

th

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.

10.Aggrieved 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

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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.

11.On 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.

Neither the 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

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and any computer belonging to the respondent either at his residence or

in his office. The aforesaid submissions were carefully considered by us.

12.Before 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.

13.Our 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 follows:

“9. The 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

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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 considerations.”

(emphasis added)

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.

15.Further, with regard to nature and character of the evidence, the

prosecution case is essentially based on circumstantial evidence. It would

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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 5

th

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.

16.It 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

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to the CBI and before handing it to the CBI, several copies of their

contents was made by the authorities.

17.The 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.

This 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

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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.”

(emphasis added)

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.

19.Further, 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.

Restrictions have already been imposed on the respondent on his

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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.

20.In 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

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prayer in accordance with law and pass such order as deem fit and

proper.

21. Accordingly, the present appeals are hereby dismissed with the

aforesaid observations.

………………………..

J.

[S.B. Sinha]

...………………………J.

[Dr. Mukundakam Sharma]

New Delhi,

May 6, 2009

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