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 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:

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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.

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  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”.

8. On 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  

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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 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.  

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 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.

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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