Case: C.B.I., New Delhi Vs. Abhishek Verma

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 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. Subbarao. We are unable to agree with this extreme submission on behalf of the respondent. This Court in Sama Alana Abdulla v. State of Gujarat 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 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 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 prayer in accordance with law and pass such order as deem fit and proper.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]14. So, before granting bail in cases involvingoffences 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.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 undergonedetention 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 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 theVijendra 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.ed 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 thecase the stage was that ofand 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 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 prayer in accordance with law and pass such order as deem fit and proper.