1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3691 OF 2008 Shri Vishal Kumar Premshankar Upadhyay, Aged 24 years, resident of Sankat Mochan Marg, Gujrat Colony, Chass, Near Gujrathi Bhavan, Bokaro City, Jharkhand [Yerwada Central Prison] ..Applicant VERSUS State of Maharashtra, [At the instance of Deccan Police Station / Anti Extortion Cell, Pune] ..Non Applicant Shri Shirish Gupte, Senior Advocate with Shri Prakash Naik, Advocate for applicant. Shri H.D. Dedhia, A.P.P. for state CORAM: V.C. DAGA,J. DATED : 4th NOVEMBER, 2009 PC : 1] Heard learned Senior Counsel for the applicant and learned A.P.P. appearing for the state. 2] At the outset it is necessary to place it on record that this is a third bail application moved at the instance of the present applicant after having withdrawn the Special Leave Petition under the orders of the Hon. Supreme Court dated 25.8.2008. 2 FACTUAL MATRIX 3] The factual matrix of the case is that the applicant has been arrested in respect of Crime No.173/2007 registered with Deccan Police Station under section 3 and 9 of the Official Secrets Act 1923 read with section 120-B of the Indian Penal Code. 4] It appears from the record that the applicant is a science student studied upto XIIth standard in Bokaro. He, in the year 2004, took admission in Hadapsar Engineering College, Pune to prosecute studies in Mechanical Engineering. 5] According to the prosecution the police received information on 6.4.2007, that one person named Vishal Upadhyay residing at Ganga Lodge, Room No.3 at Deccan, Pune had visited Pakistan and that he was having in his possession the photographs and CDs of Defence & Religious places from Pune and that he was likely to forward them to Pakistan and that, he should be kept in surveillance. 6) The applicant, ultimately came to be arrested on 8.4.2007. At the time of his arrest the police found in his possession a passport with one envelope carrying the name of one Mr.Salauddin Shah, Rasid Minhas Road, Jawahar Mode, Sunny Pride Karachi, (Pakistan), whereas the name of the accused was written on the backside, containing two CDs. It is further alleged that one CD was containing 3 photographs of Defence Building, Pune, Temple of Dadadu Sheth Halwai Ganpati at Pune. CD contained in all 48 photographs including that of Ammunition Factory, Air Port Road Bombay Sappers, etc. He was also found in possession of cash of Rs.300/-, five Australian Dollar, Western Union Customer Money Receipt, Pages of Diary containing addresses of Pakistani citizens together with their phone numbers. A diary written in Urdu, one Identity Card of the College and Nokia Mobile Phone was also found with him. 7] A bag containing 10 CDs, two watches, Pens, Telephone Nos of Military Officers, Photographs of one Pakistani girl, pages of Kuran and a CD containing rituals of Islam were also seized by the police from the accused/applicant. 8] The police on the basis of the aforesaid material lodged a FIR being C.R. No.172/2007 registered with Deccan Police Station, Pune. The applicant -accused was arrested. The statements of various persons were recorded and on completing the investigation the charge sheet was filed in the court resulting in registration of case being R.C.C.No.2361 of 2007. 9] Applicant preferred two bail applications. One for bail prior to filing of the charge sheet and another after filing of the charge sheet. However, both these bail applications were rejected by the learned Sessions Court Pune. 10] The applicant, thereafter, preferred an application for bail before 4 this court being Criminal Application No.3626/2007. However after having heard the same for some time by learned Judge of this Court. [Karnik J] allowed it to be withdrawn vide order dated 18.12.2007. 11] The applicant, thereafter, preferred another Criminal Application No.1406/2008 to seek bail. The said bail application was heard by this court. It was rejected vide order dated 11.6.2008 for the reasons recorded therein, specifically, observing that in absence of any tangible change in the fact circumstance, the second bail application was not tenable especially,when earlier one was withdrawn unconditionally. 12] Aggrieved by the aforesaid order, the applicant had preferred Special Leave Petition bearing No.6064/008 before the Hon’ble Supreme Court. However, the same was withdrawn by the applicant to move fresh application for bail before this court with certain additional documents. The Hon’ble Supreme Court without expressing any opinion permitted withdrawal. That is how, the Special Leave Petition was dismissed as withdrawn. 13] In the aforesaid backdrop the present application being third bail application is required to be considered. SUBMISSIONS: 14] The applicant has raised number of grounds in the application for bail. However, solitary ground canvassed is that the photographs contained in the 5 CDs seized from the applicant, are available on the Internet on Google Site and can be down-loaded by anybody. There was no need for anyone including applicant to be in possession of the said alleged photographs. There was no need to prepare CD for supplying such information since photographs of the Religious Places, Railway stations, Airports, NDA site can be downloaded from various websites available on the Internet. Similarly, the names of the military personnel are very much available in Yellow Pages of the telephone directory as such it can hardly be said to be a confidential information. 15] It is also canvassed that the Digital Camera, which is important for manufacturing CD was not recovered. The sum and substance of the submissions is that the alleged photographs are available on Internet and same are not secret photographs or documents as alleged by the prosecution. The story of having sent the photographs to other country by preparing CD were sought to be denied as false and concocted story sought to be built up by the prosecution. In conclusion it was urged that the investigation is over and the custody of the present applicant is not necessary as such he is entitled for regular bail. 16] The aforesaid prayer for bail is strongly opposed by the learned A.P.P. contending that almost 9 custom transactions filtered from the record are included in the charge sheet. These transactions are between the applicant and Shri.Mohammad Salauddin and Fatima Salaudin from Karachi (Pakistan). The amount received by the applicant ranges from Rs. 2500/- to Rs.16000/- from time time. Total amount received by the applicant from Karachi (Pakistan) is in 6 the sum of Rs.51,243/-. The details thereof are placed on record and strong reliance is placed thereon by the prosecution in support of their submission. 17] The opinion of the Lieutenant Colonel General Staff Officer Grade I General Officer Command In-charge Headquarter South Command Pune -1 in the form of a confidential letter is also relied upon by the prosecution wherein opinion is given that the documents seized from applicant are classified in nature and that the disclosure of the information contained in the documents to unauthorized persons can cause danger to the national security. The information contained can be used by the enemies of the country and that the information contained in tele directory mainly relates to the defence forces. 18] Two affidavits were filed on record, one dated 29th November, 2008 duly affirmed by Bhanupratap Shankarrao Barge P.I. attached to Special Branch Pune reiterating the prosecution story and placing it on record that during the course of investigation it was revealed that applicant had applied for Visa for going to Pakistan and same was rejected and, thereafter, again he could successfully apply for Visa and visited Pakistan twice during period 9.10.2006 to 14.10.2006 and 23.1.2007 to 10.2.2007. It is also brought on record through this affidavit that during the course of investigation it is revealed that the present applicant was in constant contact with Mr. Salauddin resident of Karachi (Pakistan), Ms Fatima Salauddin residing at Karachi (Pakistan), Mr.Hafiz, Sayeed Shahid Husein Tirmaizy, an employee of Pakistan Embassy at New Delhi and one Mr.Abdul Latif @ Javed from Pakistan working in New Delhi. 7 19] One more affidavit filed on record by prosecution is that of Mr.Krantikumar Tanajirao Patil, who has stated on oath that on 18.8.2009 in the presence of panchas he had taken search of www.goggle.com and opened site of www.ndapune. After having gone through all the images of NDA, Pune on Google site he found that photographs from page 163 to 244 of Criminal Application No. 3691 of 2009 were on Google site of www.ndapune but the photographs / images contained in the CDs, which were seized from the applicant did not tally exactly with images / photographs available on www.ndapune web-site. He has, thus, stated that images available on www.ndapune web-site are not exactly similar to that of the images found in the CDs seized from the applicant. 20] It is further stated in the affidavit that the applicant is residing at Jharkhand and if he is released on bail he may not be available for trial. The possibility of tampering evidence cannot be ruled out. Hence prayer is made to reject the bail application. REJOINDER 21] In rejoinder, Mr.Gupte, learned Senior Counsel appearing for the applicant submits that the present applicant was in love with one Ms. Fatima Salauddin residing at Karachi came in contact while chatting on Internet. He went a step ahead and submitted that the applicant has married Ms.Fatima Salauddin, when he was in Karachi. As such, in his submission, it was logical for the applicant to interact with Pakistani National Ms. Fatima and her parents and to receive money from their family for meeting expenses to visit Karachi 8 (Pakistan). He further submits that in none of the e-mails any incriminating material exists. He, thus, submits that the application of the applicant for bail may be considered in its proper perspective and that the applicant be released on bail considering length of time for which he is in custody. CONSIDERATION: 22] Having heard learned Senior Counsel appearing for the applicant and learned APP for the State, the third bail application under consideration is liable to be rejected for more than one reason. 23] Firstly, if one goes through the order passed by the learned Judge of this court [Karnik J] dated 18.12.2007, it gives an indication as to why the first bail application came to be withdrawn. Learned Judge has mentioned in the order that after having heard the matter for some time, the learned Advocate appearing for the applicant sought leave to withdraw the application unconditionally. It is, thus, clear that the bail application was argued at length before prayer for withdrawal was made. Our judicial experience shows that when the court is not inclined to grant prayer, normally request for withdrawal is made so as to take fresh chance before another bench may be after lapse of some duration. Therefore, one can conveniently infer the circumstance in which the first bail application must have been withdrawn. No reasons are disclosed in the present application by applicant as to why first bail prayer was not pressed, especially, when the facts were within the special knowledge of the applicant. 9 24] Be that as it may, the second bail application was heard by this court on 11.6.2008. It was urged on behalf of the applicant that there was no change in fact situation except that the trial had not begun. This submission did not find favour with this court, consequently, it was rejected. 25] Not satisfied with the above order, the matter was taken up to Apex Court by way of special leave petition. When the matter came up for hearing, the special leave petition was withdrawn stating that the applicant wants to move the High Court with certain additional documents, if advised. As already stated, without expressing any opinion, the Apex Court permitted withdrawal and dismissed the Special Leave Petition vide its order dated 25.8.2009. 26] On the aforesaid backdrop the third application moved by the applicant is required to be considered though there is no change in fact situation. The material sought to be relied upon in support of present application was very much available on Internet when prior bail applications were moved. It is another thing that applicant may not be aware of it. It is not a new material. It is nothing but an after-thought. 27] Be that as it may, let me now consider the submissions made on its own merits. The sole submission of the applicant is that the information contained in the CDs and the photographs is very much available on Internet as such the said material cannot be said to be within the teeth of the Official Secret Act 1923. 10 28] Both the parties have placed their respective photographs on the record of this court. The photographs downloaded by the applicant available on Internet are the part of the bail application, whereas the copies of the photographs taken from the seized CDs were handed over to this Court by the prosecution in a sealed cover for Court’s inspection. 29] At this juncture, it is relevant to mention that this Court, before opening sealed cover, made it clear to the advocates appearing for the applicant that the applicant or his advocates would not be allowed to see the photographs taken from the seized CDs. The idea of making it clear to them was to find out whether they had any reservation, if Court looked into those photographs for the purposes of comparison to appreciate the submission made in support of prayer for bail. 30] Mr.Gupte, learned Senior Advocate appearing for the applicant fairly extended his no-objection. Had any objection been raised, this court would have refrained from looking into those photographs. Since there was no object, the sealed packet was opened and the photographs were seen and compared by this Court with the photographs said to be available on Internet which were already placed on record by the applicant. 31] Having compared the same, this Court has no hesitation to hold that all those photographs which were in CDs did not tally with the photographs down-loaded by the applicant from the Internet. Needless to mention that some 11 of the photographs related to buildings may be available on the Internet but the vital photographs containing sketches, layout and map of the NDA area, plans, roads leading to the prohibited area depicting military weapons appears to be not available on the Internet. Had they been available, the same applicant would not have missed to place them on the record. 32] Having said so, it is primafacie clear that those photographs were taken by the applicant. There was no reason for him to enter into a prohibited area meant for defence. He had no cause to take photographs of the sketches and maps of the military area. On being asked as to what prompted applicant to take such photographs, the spontaneous reply from the learned Senior Counsel for the applicant was that it was nothing but a foolish act on the part of the applicant. One can understand a person taking photographs of the buildings exhibiting architectural beauty, but one fails to understand why the photographs of sketches, maps and lay out showing the military location of area, locations of various offices of military and roads leading to their various offices were taken which can hardly create any interest in the common man. The act of the applicant primafaice cannot be brushed aside as an innocent act. 33] The aforesaid material needs to be considered in the backdrop of other incriminating undisputed material such as marriage with Pakistani Citizen, constant contact with foreign / Pakistan nationals, who are out to threat the sovereignty of this country by indulging in extremist activities. The material seized from the applicant containing telephone numbers of military officers, his 12 visit to Karachi and the factum of receiving financial aid coupled with his matrimonial ties the possibility of his jumping or abusing the bail cannot be ruled out. The possibility of claiming heaven home in the Karachi (Pakistan) at in-laws place also cannot be ruled out. In such an event, it will not be possible to seek his custody from Pakistan, for want of treaty between India and Pakistan. The offences alleged against him under the provisions of the Official Secret Act is a serious offence. Looking to the gravity of the offence, I am compelled to hold that this is not a fit case for grant of bail in favour of the applicant accused, even if the length of the custody is taken into account. In the result application is rejected. (V.C.DAGA,J.)