BAIL APPLICATION No.874 of 2008 Page 1 of 28 IN THE HIGH COURT OF DELHI AT NEW DELHI BAIL APPLICATION No.874 of 2008 Reserved on: 17th March 2009 Decision on: 9th April 2009 SAMBHAJI LAL SURVE ..... Petitioner Through Mr. S.S.Voditel, Advocate. versus CENTRAL BUREAU OF INVESTIGATION ..... Respondent Through :Ms.Mukta Gupta, Senior Standing Counsel with Mr.Rajat Katyal, Advocate. CORAM: HON'BLE DR. JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? No 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes J U D G M E N T Dr. S. MURALIDHAR, J. 1. The Petitioner is facing trial in RC No.2(A)/2006 ACU-IX/CBI under Sections 3(1)(c) and (5) of the Official Secrets Act 1923 (OSA) and Section 120 B Indian Penal Code (IPC). He has been in custody since 9th April 2006. By this application, he seeks release on regular bail. 2. The Petitioner was commissioned in the Indian Air Force as a Pilot Officer in December 1983. In December 2001, the Petitioner was posted at the College of Military Engineering, Pune at the faculty of Nuclear and Biological Warfare (NBC). He was posted as Joint Director (Air Defence) BAIL APPLICATION No.874 of 2008 Page 2 of 28 (JDAD) (Camouflage) in the Directorate of Operations Air Defence with effect from 29th March 2004. The Charter of Duties of the Petitioner included all matters on camouflage, concealment and deception, project Akash (Ops matters), project Trishul (Ops matters), Pechora upgrade (Ops matters), P-18/P-19 upgrade (Ops matters), new inductions of LLQRMs, MRSAM (Medium Range Surface to Air Missile) and IGLA, OSA-AK-M (missile) upgrade, parliament questions on missiles, Secretary-JSSG (Join Services Study Group) on GBADWS (Ground Based Air Defence Weapon System) and Administrative matters of the Directorate. The specific allegations against the petitioner 3. According to the prosecution, the Petitioner while working as JDAD (Operations) Indian Air Force („IAF‟) was suspected by the Air Force Intelligence of leaking vital information. Consequent thereto, his house and office were searched by the Air Force Intelligence on 21st May 2005. During this search, one Kingston pen drive was seized. This when analysed was found to contain the active Standard Operating Procedure („SOP‟) Pechora (a surface to air missile used in the IAF) file which was classified information. The remaining part of the pen drive when analysed showed that it had contained a large number of deleted files pertaining to the DNO. It was further found that the petitioner had unauthorisedly carried a JSSG presentation, which was a top secret document, from the office to the home personal computer (PC) in a pen drive. A Court of Inquiry was constituted by the Air Force on 25th May 2005. It is stated that during this Court of Inquiry, another Sandisk pen drive was recovered from the Petitioner. The BAIL APPLICATION No.874 of 2008 Page 3 of 28 forensic analysis revealed that the deleted layers of the first pen drive of Kingston make contained sensitive defence information pertaining to the Directorate of Naval Operations (DNO). Consequently, information was given to the Naval officials along with the seized pen drive for examination and necessary action. As regards the Sandisk pen drive, the petitioner admitted that this pen drive was collected back from Lt. (Retd) Kulbhushan Parashar, a former Indian Navy Officer with whom he had contacts. On forensic analysis this pen drive was found to have been tampered with in order to destroy all the data therein which was not possible to be recovered forensically. After the conclusion of the Court of Inquiry, the Petitioner was dismissed from service on 20th October 2005 with due approval of the competent authorities. 4. The Naval authorities also instituted a Board of Inquiry. The forensic analysis of the clone of the pen drive of Kingston make recovered from the Petitioner, was undertaken. On the basis of the findings of the Board of Inquiry Commander V.K.Jha, Commander Vijender Rana and Captain Kashyap Kumar were dismissed from service on 28th October 2005 with due approval of the competent authorities. 5. On 18th February 2006, the Ministry of Defence sent a reference to the Central Bureau of Investigation (CBI) stating that in May 2005, the Court of Inquiry conducted by the Air Headquarters had established that the Petitioner had obtained a pen drive from Lt. (Retd.) Kulbhushan Parashar, a former Indian Navy Officer which was found to contain classified BAIL APPLICATION No.874 of 2008 Page 4 of 28 information pertaining to the DNO. It was stated that the Board of Inquiry instituted by the Naval authorities had established that there had been a leakage of information to unauthorized persons. The aforementioned three Naval officers were indicted. The Naval Headquarters had pointed out that considering the seriousness of the offences, the said three officers were liable to be tried by Court Martial. However, the trial by Court Martial was considered to be impracticable since other retired Naval Officers and civilians were not subject to the Navy Act. Accordingly, it was requested that criminal proceedings be instituted against each individual. It is submitted that the reports of the Air Force Court of Inquiry and the Naval Board of Inquiry were scrutinized and since the facts disclosed a cognizable offence under OSA as well as 120 B IPC, an FIR was registered. 6. The allegations in the FIR were that the Petitioner, Vijender Rana, Vinod Kumar Jha and Kashyap Kumar in collusion with Kulbhushan Parashar, Ravi Shankaran, Wing Commander (Retd.) S.K. Kohli, Mukesh Bajaj, Ms.Raj Rani Jaiswal and other unknown persons of a communication company called `Atlas‟ conspired to unauthorizedly trade off classified documents/information relating to the Ministry of Defence, the disclosure of which was likely to affect the sovereignty and integrity of India. Searches were carried out at 20 different locations in the country. One of the accused persons Ravi Shankaran is stated to be staying outside the country and evading the process of law. A red corner alert notice has been issued against him. BAIL APPLICATION No.874 of 2008 Page 5 of 28 7. A complaint was filed by the CBI under the OSA on 1st July 2006 in the Court of the Chief Metropolitan Magistrate (CMM) with due authority from Ministry of Home Affairs along with the application under Section 210 of the Code of Criminal Procedure (CrPC) informing the Court that an FIR registered with the CBI was still under investigation and for clubbing of the complaint with the charge sheet after it was filed by the Investigating Officer (IO). The IO filed the charge sheet on 3rd July 2006 with the request to allow further investigation under Section 173(8) CrPC. He also filed a status report on 4th July 2006 informing the Court that the charge sheet filed on 3rd July 2006 was against 5 persons and that investigation was continuing. The learned CMM took cognizance of the offences under Sections 3 and 5 OSA on 10th July 2006. On the basis of the complaint filed on 1st July 2006 and charge sheet filed on 3rd July 2006, an order was passed by the learned CMM on 10th July 2006 granting CBI the liberty to file a supplementary charge sheet under Section 173 (8) CrPC. The learned CMM also ordered clubbing of the complaint and the charge sheet. 8. It is stated by the prosecution that during further investigation, the role of one more accused, Abhishek Verma, surfaced. It came to light that he was closely associated with the Atlas Group of Companies. Kulbhushan Parashar was working with co-accused Ravi Shankaran and the Atlas Group of companies which were interested in supply of communication equipments to the Ministry of Defence. It is stated that the majority of the information retrieved from the two pen drives in question mainly related to the BAIL APPLICATION No.874 of 2008 Page 6 of 28 communication networking project and was of vital importance for the Atlas Group of Companies. A second complaint under the OSA and a second charge sheet against Abhishek Verma was filed on 18th and 19th October 2006 respectively and cognizance was taken of those offences against Abhishek Verma as well. Grounds on which bail is sought by the petitioner 9. Mr. S.S. Voditel, learned counsel for the petitioner submitted that the Petitioner did not file any bail application earlier since the filing of the charge sheet against him. One of the grounds on which bail is sought is that the investigating authorities have already recorded the statements of all the material witnesses. The Petitioner is no longer serving with the IAF. He is, therefore, not in a position to tamper with the evidence, intimidate any witness and influence the outcome of the trial. It is submitted that from the date of the commencement of the Court of Inquiry on 24th May 2005 and till date of his dismissal from service on 17th October 2005, the petitioner had access to his work place as well as work place of his colleagues but did not commit any overt act to tamper with any evidence. Further, for a period of 5½ months thereafter till the registration of the FIR against him i.e. 20th March 2006, the Petitioner was a free person but he never committed any overt act in the IAF or contacted any of his serving colleagues. He also did not visit any of the establishments of the IAF during this period. The Petitioner was arrested on 9th April 2006 and after undergoing police custody remand for 9 days was lodged in Tihar Jail on 18th April 2006. BAIL APPLICATION No.874 of 2008 Page 7 of 28 10. The case of the Petitioner in the bail application is that he himself was the target of an espionage racket and was sought to be spied upon. For this purpose, Kulbhushan Parashar (A-1) was introduced to him by Ex.Wing Commander S.K.Kohli who was then a senior colleague of the Petitioner. During friendly interaction with A-1 and S.K.Kohli some indiscretions were committed by the Petitioner without realising their actual intentions. According to the petitioner, Raj Rani Jaiswal and her foster father Mukesh Bajaj were planted on him by A-1 and S.K.Kohli. They were successful in making the Petitioner have a physical relationship with Raj Rani Jaiswal and this led to the Petitioner being blackmailed. He, however, disclosed the complete truth to his wife and parents and therefore the conspiracy of making the Petitioner a part of the espionage racket on the basis of the threat of disclosing the illicit relationship with Raj Rani Jaiswal to his wife and parents did not materialize. It is submitted that out of sheer vengeance an anonymous letter was sent to the Air Headquarters possibly by Raj Rani Jaiswal in order to falsely implicate the Petitioner. It is pointed out that although Mukesh Bajaj, S.K.Kohli and Raj Rani Jaiswal were named as accused in the FIR, no chargesheet has been filed against them. 11. It is submitted that the petitioner never really passed on the information concerning the SOP Pechora to anyone and handed over the Kingston pen drive voluntarily to the raiding party of the Air Force Intelligence by calling them back. As regards the JSSG presentation, it is submitted that this was not classified information and in any event the act of bringing the BAIL APPLICATION No.874 of 2008 Page 8 of 28 presentation home to his PC can at best be an unauthorised act and not an espionage activity. Moreover there were practical difficulties in working since the entire Air Headquarters had just one pen drive and since the petitioner was permitted to work after office hours, this became inevitable. There is nothing to show that this information was passed on to anyone. As regards the allegedly deleted information on the Kingston pen drive pertaining to the DNO, it is submitted that this also did not attract Section 3(1) (c) OSA and at the highest Section 5 thereof. 12. There are several other grounds urged. It is submitted that the Court of Enquiry found that the petitioner was indeed trapped by Mukesh Bajaj, S.K.Kohli and Raj Rani Jaiswal; that the petitioner did not actually destroy any evidence on 24th May 2005; that he did not possess assets disproportionate to his known sources of income; that the pen drives seized from the petitioner were not in a sealed condition when handed over to the CBI by the Air Headquarters and the Naval authorities. It was shown that the Kingston pen drive seized from the petitioner on 21st May 2005 was handed over to the CBI in an unsealed condition on 15th June 2005. Further it was shown that files were created on it on 3rd June 2005. It is accordingly submitted that the pen drive was tampered and therefore unreliable. Relying on the decision in State NCT of Delhi v. Navjyot Sandhu (2005) 11 SCC 600 it is submitted that the allegations against the petitioner of leaking sensitive information are too improbable for prosecuting him for the offence under Section 120 B. On the other hand, if he had not voluntarily handed BAIL APPLICATION No.874 of 2008 Page 9 of 28 over the Kingston pen drive without realising the nature of its deleted files, the fact that an espionage activity was being carried on by Kulbhushan Parashar with the help of naval officers may not have come to light. 13. It is submitted that unlike the recommendations of the Board of Enquiry instituted by the Naval authorities, the Court of Inquiry instituted by the Air headquarters made no recommendation for court martialling the petitioner. On the same material, the CBI could not have proceeded to charge sheet the petitioner. Counsel for the petitioner also referred to Section 122 of the Air Force Act to contend that cognisance of the acts of an officer in service constituting the alleged offences is required to be first examined by the Competent Authority of the Air Force. If a Court of Enquiry recommends that it is inexpedient to hold a court martial against the officer and instead recommends only to take disciplinary action against the petitioner by invoking Section 19 of the Air Force Act read with Rule 16 (4) of the Air Force Rules and that recommendation is accepted by the central government by removing him from service, then the petitioner cannot be prosecuted for the OSA offences and the offence under Section 120 B IPC without the previous sanction of the central government under Section 126 of the Air Force Act. It is submitted that in the instant case no such sanction was obtained. BAIL APPLICATION No.874 of 2008 Page 10 of 28 14. Finally it is submitted that the petitioner has completed nearly three years of pre-trial detention and the case has progressed only to the stage of arguments on charge. There is no prospect of the trial commencing and concluding in the near future. Considering that the maximum sentence prescribed for the offence under Section 3 (1) (c) OSA (assuming that he can be said to have leaked a non-official secret code) and for the offence under Section 5 OSA is three years, the petitioner cannot be denied bail any further. Case of the prosecution 15. Ms.Mukta Gupta, learned Senior Standing Counsel appeared for the CBI. The resistance by the CBI to the grant of bail is based on the fact that the Petitioner is accused of grave offences under Section 3(1) (c) and (5) OSA. Reliance is placed on the judgment in Govt. of NCT of Delhi vs. Jaspal Singh (2003) 10 Supreme Court Cases 586 wherein it was held that a statutory presumption under Section 3(2) OSA that the information that was obtained or collected was for a purpose prejudicial to the safety or interests of the State is attracted. The mens rea has to be presumed once it was proved that the accused was found in conscious possession of classified material and no plausible explanation is given for its possession. 16. It is submitted that as far as the SOP Pechora flies were concerned, the petitioner had unauthorisedly copied them on to a pen drive not officially issued to him and for which no permission had been granted by his superior. BAIL APPLICATION No.874 of 2008 Page 11 of 28 Classified files could not be worked directly on the hard disk but only on a floppy. He was found having loaded the Nokia PC Suite on his official computer and possessed a Nokia mobile phone through which by using the blue tooth mechanism he could easily transmit and store data. The JSSG files were classified as top secret as they pertained to vulnerable areas (Vas) and vulnerable points (VPs). The analysis of the Sandisk pen drive which he admittedly got back from Kulbhushan Parashar showed that the JSSG presentation had been removed. The petitioner‟s close association with Kulbhushan Parashar was proved by the statement under Section 164 CrPC by Manish Kumar, who worked for the latter and Mrs. Mrudula Surve, the wife of the petitioner. 17. It is submitted that the Court of Enquiry in fact recommended that further investigation into the role of the conspirators should be undertaken by an external agency and therefore it had not exonerated the petitioner. Further it held that he had knowingly or unknowingly passed on classified information to Kulbhushan Parashar while exchanging pen drives. As regards the procedure under the Air Force Act it is submitted that the Defence Ministry which referred the case to the CBI is in fact part of the central government and therefore no separate sanction to prosecute the petitioner was required. The findings of the Court of Enquiry, which were in the nature of a preliminary enquiry, could be dealt with either in a court martial or trial by the criminal court. Reliance is placed on the judgments in BAIL APPLICATION No.874 of 2008 Page 12 of 28 Balbir Singh v. State of Punjab 1994 (3) Crimes 900 (SC) and S.R.Tripathi v. State AIR 1964 ALL 372. General principles concerning grant of bail 18. In State of U.P. vs. Amar Mani Tripathi (2005) 8 SCC 21, the Supreme Court in Para 18 set out the factors to be considered for grant of bail as under: “18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhatt v. NCT, Delhi and Gurcharan Singh v. State (Delhi Administration). While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan BAIL APPLICATION No.874 of 2008 Page 13 of 28 Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528 (SCC pp.535-36, para 11): "The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: a. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. b. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. c. Prima facie satisfaction of the court in support of the charge. (see Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598, and Puran v. Ram Bilas (2001) 6 SCC 338.” BAIL APPLICATION No.874 of 2008 Page 14 of 28 19. In Chenna Boyanna Krishna Yadav vs. State of Maharashtra and Another (2007) 1 Supreme Court Cases 242, it was observed that although mere period of incarceration and/or likelihood of delays in conclusion of trial are not by themselves singly or conjointly enough for grant of bail, yet both these factors may be taken into consideration. 20. In the background of the aforementioned principles, and in light of the submissions of counsel for the parties, one of the primary factors to be considered is the gravity of the offence itself. The OSA Provisions 21. Section 3 OSA itself admits of two possible kinds of offences; one which attracts the more severe punishment of 14 years and the other with a lesser punishment of 3 years. Where the offence is in relation to affairs of defence involving the integrity and security of the country, the greater punishment stands attracted. However, what is important for the purposes of Section 3(1) (c) is that the accused should obtain, collect record or publish or communicate to any other person “any secret official code or password or other document or information” and the intention of such obtaining and collecting of information has to be “for any purpose prejudicial to the safety or interest of the State.” In order to attract the offence under Section 3 (1) (c) OSA it has to first be shown that there was an actual passing on of the sensitive or „classified‟ information. For the more severe punishment to be attracted it has to be shown that what was passed on relates to a matter the BAIL APPLICATION No.874 of 2008 Page 15 of 28 disclosure of which is likely to affect the sovereignty and integrity of India or the security of the State and is committed in relation to a defence establishment. Whether the information is classified or not would be a matter of certification by the competent authorities and further subject to such opinion being tested at the trial. At the initial stage for the grant of bail, it has to be only seen if the information has been certified to be a classified one and it has been shown to have been passed on by the accused to any other person. 22. Under Section 3(2) OSA, in order to attract the offence under Section 3 (1) it is not necessary to show that the accused was guilty of any particular act tending to show a purpose prejudicial to the interest of the State. This can be presumed if it appears “from the circumstances of the case or his conduct or his known character as proved” “that his purpose was a purpose prejudicial to the safety or the interests of the State.” Such presumption therefore hinges on the prosecution “proving” the known character of the accused or his conduct. This in turn requires the trial to be gone through. It would be unsafe to straightaway presume, without even charges being framed, that Section 3(2) stands attracted to the facts of the case. The decision in Jaspal Singh has to be understood in that context of the presumption to be drawn in that behalf at the conclusion of the trial. 23. On