[Cites 30, Cited by 0]
Bombay High Court
Nishant S/O Pradeep Agrawal vs Anti Terrorist Squad, Lucknow, Thr. ... on 1 December, 2025
Author: Anil S. Kilor
Bench: Anil S. Kilor
2025:BHC-NAG:13335-DB
Judgment 1 CRI.APPEAL303.24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 303 OF 2024
Nishant S/o. Pradeep Agrawal,
aged about 34 years, Occ. - Nil,
R/o. House No.449, Nehru Nagar,
Rudki, District : Haridwar,
Uttarakhand.
... APPELLANT.
// VERSUS //
1) Anti Terrorist Squad, Lucknow,
through Investigating Officer,
Uttar Pradesh
2) State of Maharashtra,
through Police Station Officer,
Police Station, Sonegaon, Nagpur.
... RESPONDENTS.
______________________________________________________________
Shri Sunil Maohar, Sr.Advocate a/b Shri C.B.Barve, Advocate for Appellant.
Shri S.S.Doifode, Addl.Public Prosecutor a/w Shri A.B.Badar, APP for
Respondent / State.
______________________________________________________________
CORAM : ANIL S. KILOR AND PRAVIN S. PATIL, JJ.
DATE OF RESERVING THE ORDER : 24/04/2025
DATE OF PRONOUNCING THE JUDGMENT : 01/12/2025
JUDGMENT :
(Per : Anil S. Kilor, J)
1. Heard.
Judgment 2 CRI.APPEAL303.24.odt
2. This is an appeal filed under Section 374 of the Criminal
Procedure Code questioning the legality and validity of the judgment and
order dated 3rd June, 2024 passed by the learned Additional Sessions
Judge-1, Nagpur in Sessions Case No.726 of 2021, thereby convicting
the appellant for offences punishable under Section 66-F of the
Information Technology Act, 2000 (hereinafter referred to as "the Act of
2000") read with Section 3(1)(c) and Section 5(1)(a), (b), (c) and (d) of
the Official Secrets Act, 1923 (hereinafter referred to as "the Act of
1923").
3. The appellant is sentenced to suffer life imprisonment for the
offence punishable under Section 66-F of the Act of 2000. He is
sentenced to suffer rigorous imprisonment for fourteen years under
Section 3(1)(c) of the Act of 1923 and is further sentenced to suffer
rigorous imprisonment for three years and to pay a fine of Rs.3,000/-, in
default to suffer further simple imprisonment for six months under
Section 5(1)(a), (b), (c) and (d) and Section 5(3) of the Act of 1923.
4. As recorded by the trial Court, it is the case of the prosecution
that the informant Harishanker Mishra (PW-1) filed a First Information
Report stating that he received secret information that Neha Sharma and
Pooja Ranjan were operating the Facebook accounts in the fake names
from Pakistan. The said foreign agents and spy are in contact via Internet
Judgment 3 CRI.APPEAL303.24.odt
through these Facebook accounts with the unknown employees holding
important posts in various defence establishments in India. Important
data was leaked through them, which was pertaining to National Security.
The ID of Neha Sharma was URL
https://www.facebook.com/100009767463432 and email ID was
[email protected] and the ID of Pooja Rajan was URL
https://www.facebook.com/100009951960524 and the email ID was
[email protected]. These Facebook accounts were operated
from Pakistan and it was likely to adversely affect the sovereignty,
integrity and security of India, which was directly useful to an enemy. So,
he filed the report at ATS, Lucknow, Uttar Pradesh.
5. The offence was registered vide Crime No.7 of 2018 under
Sections 419, 420, 467, 468, 121A, 120B of the Indian Penal Code and
under Section 66-F of the Act of 2000 and under Sections 3, 4, 5, 9 of
the Act of 1923.
6. The proposal for sanction order under Section 13(3) of the Act
of 1923 was sent to the Secretary (Home), Government of Uttar Pradesh,
Lucknow. The investigation was handed over to the Investigating Officer
Inspector Pankaj Awasthi, ATS Uttar Pradesh, Kanpur. For the
investigation purpose, he received the copy of report, general diary and
related documents.
Judgment 4 CRI.APPEAL303.24.odt
7. After going through the report, he recorded the statement of
Inspector Harishankar Mishra, the informant, and Yogendranath Shukla,
the Head Constable, who registered the offence. He issued the letter to
the Director, Indian Computer Emergency Response Team, Ministry of
Information and Technology, Government of India, Delhi and sought the
details of Facebook accounts and IP, creation IP address and other
relevant details. He issued letter by official e-mail to Deputy
Superintendent of Police Sonkar.
8. He opened the Facebook accounts of Pooja Ranjan and Neha
Sharma and found two Scientists, namely Debmalya Roy and Aarti
Kolhe, working in DMSRDE, Kanpur and accused Nishant Agrawal,
working at BrahMos Aerospace, Nagpur are in the friend-list of Pooja
Ranjan and Neha Sharma. With the help of Cert-In, New Delhi, the
Investigating Officer received the account details of the Facebook
account of Neha Sharma, which shows address of Islamabad, Pakistan.
9. The PI-Pankaj Awasthi, who is Investigating Officer (PW-11),
got search warrant against the accused and Debmalya Roy and Aarti
Kolhe.
Judgment 5 CRI.APPEAL303.24.odt
10. The Investigating Officer approached ATS Nagpur and took
search of the house of the accused. On enquiry, the accused consented to
open his Facebook account on the official laptop of computer operator
Wakil Ahmad. It was found that the accused was in the friend-list of
Neha Sharma and Pooja Ranjan and was having communication with
Sejal Kapoor on Linkedin App. It was found that there was
communication in between Sejal Kapoor and the accused and Sejal
Kapoor had sent some links and asked the accused to download them on
laptop. The accused tried to download those links. On inspecting the
personal laptop of the accused, it was found that the accused was having
various files regarding BrahMos Supersonic Cruise Missiles and files of
BrahMos Company.
11. The Investigating Officer asked the Assistant Investigating
Officer to visit BrahMos Station, Nagpur, give notice under Section 91 of
the Criminal Procedure Code and seek information about the secret files.
12. Thereafter, the Investigating Officer seized the laptop, three
mobile handsets, one router, one hard-disc, laptop bag and charger and
prepared the seizure panchnama, by visiting house of the accused at
Nagpur. The Investigating Officer arrested the accused.
Judgment 6 CRI.APPEAL303.24.odt
13. The Investigating Officer got details of Facebook accounts of
Sejal Kapoor and Pooja Ranjan by giving letter to the Director General,
Cert-In, New Delhi. The Investigating Officer searched the address of
Sejal Kapoor and personal laptop and found that the IP address of Sejal
Kapoor was created in Pakistan. The Facebook account of Pooja Ranjan
was having linked numbers from Pakistan.
14. The Investigating Officer prepared the questionnaires and sent
it to Director, Cert-In, New Delhi. The Investigating Officer collected the
documents from Hyderabad Team Officers.
15. The Assistant Investigating Officer Krushna Mohan Rai (PW-
8) visited the BrahMos Aerospace Hyderabad and made investigation
with regard to section in which the accused was working. He collected all
the documents and sent it to the Investigating Officer. He found that
from time to time external devices were inserted to the system of
BrahMos Aerospace Hyderabad, which was used by the accused Nishant
Agrawal. The system was containing various secret files pertaining to
BrahMos Missile. Those secret files were found in the personal laptop of
accused Nishant Agrawal.
Judgment 7 CRI.APPEAL303.24.odt
16. When the personal laptop of the accused Nishant Agrawal was
seized, the Assistant Investigating Officer drew the hash value of all the
files of official system and prepared two copies in different DVD's. One
DVD was handed over to authority of Hyderabad and one DVD was
seized for investigation purpose.
17. The Assistant Investigating Officer has given notice to
BrahMos Aerospace Hyderabad and received the necessary documents.
Investigating Officer Inspector Pankaj Awasthi found that there was
chatting in between Nishant Agrawal and Sejal Kapoor. Nishant Agrawal
shared his bio-data on e-mail linked with Sejal Kapoor's Linkedin
account.
18. The Investigating Officer Pankaj Awasthi had sent laptop,
mobile phones and sim cards of accused Nishant Agrawal to Forensic
Laboratory, Cert-In, New Delhi. After receipt of report of analysis, it was
found that the accused Nishant Agrawal was having data on his laptop
and personal hard-disc containing stealing malware, namely chat 2 hire,
X-trust, Q-whisper and one update version of X-trust. It was mentioned
in the forensic report that links, which were already installed in the laptop
of the accused and remained active, are capable of sharing all the data and
cloud base server.
Judgment 8 CRI.APPEAL303.24.odt
19. The Investigating Officer found 19 files which were titled as
secret and restricted files. Nishant Agrawal, while joining the duty, has
given the undertaking of maintaining secrecy. However, he has disclosed
his identity and accepted the friend request of the Facebook accounts
which were operated from Pakistan. It was found that those links namely
chat 2 hire, X-trust, Q-whisper and one update version of X-trust were
data stealing malware. The accused Nishant Agrawal during his posting at
Hyderabad unauthorizedly copied the secret and restricted files in his
personal laptop and personal hard-disc. All the data was pertaining to
BrahMos Supersonic cruise missiles used by all defence forces.
20. Investigating Officer Pankaj Awasthi has also given letter to the
Additional Director General (Crimes). The Additional Director General
(Crimes) gave letter to the Home Secretary, Uttar Pradesh Government.
He issued notice to the Chief Executive Officer/Managing Director of
BrahMos Aerospace. The Special Chief Judicial Magistrate, Custom,
Lucknow passed the order that it is not the Competent Court to take
cognizance. Thereafter, he filed the complaint before the learned Judicial
Magistrate First Class, Court No.8, Nagpur. He has submitted all the
documents to the Ministry of Home Affairs, New Delhi, which gave
sanction and authority to institute the complaint. So, he filed the
complaint under Section 66-F of the I.T.Act and under Sections 3(1)(c),
5(1)(a), (b), (c) and (d) and 5(3) of the Act of 1923.
Judgment 9 CRI.APPEAL303.24.odt
21. The charge was framed against the accused under Section 66-F
of the Act of 2000 and under Sections 3(c), 5(1)(a), (b), (c) and (d) and
5(3) of the Act of 1923.
22. The accused pleaded not guilty and claimed to be tried.
23. The statement of the accused under Section 313 of the Criminal
Procedure Code was recorded.
24. The defence of the accused was of total denial. It was the
defence of the accused that on the basis of his qualifications, he got
placed in BrahMos Aerospace initially as Executive Trainee and
thereafter, as System Engineer and Senior System Engineer. His work was
appreciated by the Authorities of BrahMos. His Boss Alan Abraham gave
pen-drive having project material in official capacity in authorized
manner to all 23 executive trainees. He made project of Combined
Pneumatic Hydraulic System (CPHS) and submitted the project to his
superiors. Those documents were given to him by his superior Alan
Abraham. None of those files were secret, restricted and classified. He was
a part of the core team dealing with handing over of 70 to 80 missiles
during 2014 and 2018, to Armed Forces. He was part of the top secret
projects of BrahMos. He was having these files, documents in his official
Judgment 10 CRI.APPEAL303.24.odt
system and he had not copied those documents on his personal devices.
He was awarded with 'Young Scientist Award' in the year 2017-2018.
25. It is the say of the defence that Sejal Kapoor approached him on
Linkedin account for a recruitment proposal. He sent his bio-data to her.
Sejal Kapoor asked him to download all three applications. He verified
the authenticity and genuineness of those applications and clicked on the
link. He accepted the friend request of Neha Sharma and Pooja Ranjan in
a normal stance. He was looking for new job prospects outside India. He
is innocent.
26. After considering and appreciating the material in the
chargesheet and the oral and documentary evidence and after hearing the
parties, the learned Additional Sessions Judge-1, Nagpur, has passed the
judgment and order dated 3rd June, 2024, which is impugned in the
present appeal.
27. We have heard learned counsel for both the parties.
28. Shri Manohar, learned Senior Advocate appearing for the
appellant argued that the learned trial Court committed grave error in
holding the appellant guilty. It is submitted that the prosecution has
failed to prove the offence beyond reasonable doubt.
Judgment 11 CRI.APPEAL303.24.odt
29. It is submitted that even if the oral as well as documentary
evidence is considered, no offence under Section 66F of the Act of 2000
or under Section 3(1)(c), Section 5(1)(a), (b) & (c) and Section 5(3) of
the Act of 1923 can be said to be proved. It is argued that at the most it
can be said that the accused failed to take reasonable care or the accused
so conducted himself as to endanger the safety of the information
possessed by him. It is therefore, argued that the evidence brought on
record by the prosecution does not go beyond the offence punishable
under Section 5(1)(d) of the Act of 1923.
30. Shri Manohar, learned Senior Advocate has argued that there is
no evidence to show that the appellant unauthorisedly copied the secrets
or classified files in his personal device. It is argued that the material
which was found in the laptop of the appellant was relating to his project
which he did while working at Hyderabad.
31. It is argued that the appellant shared his bio-data on the e-mail
of Sejal Kapoor and also chatted with her on the Linked-in account for
the purpose of securing a job in the UK. However, there was no such
intention, as alleged, to attract Section 66F of the I.T.Act or Section 5(1)
(a),(b),(c) of the Act of 1923.
Judgment 12 CRI.APPEAL303.24.odt
32. It is argued that the learned trial Court has not recorded a single
finding to show the presence of prerequisites to attract offence punishable
under Section 66F of the Act of 2000 and despite the same the appellant
has been held guilty for the offence punishable under Section 66F of the
Act of 2000 and Sections 3(1)(c), 5(1)(a),(b) and (c) of the Act of 1923,
and thus, the conviction of the appellant is perverse and without any
evidence.
33. On the other hand, learned Additional Public Prosecutor Shri
Doifode strongly opposed the appeal and submited that the undertaking
to maintain secrecy (Exh.26) submitted by the appellant is sufficient to
show that the appellant had every knowledge about the importance of the
documents and the consequences if the said documents are leaked. It is
argued that despite this fact he accepted the friend request of Neha
Sharma and Pooja Ranjan and further shared his bio-data to Sejal Kapoor.
It is submitted that the appellant also downloaded malware and because
of such malware the secret and classified information available in the
computer of the appellant was leaked. It is therefore, submitted that the
appellant was rightly held guilty and punished by the trial Court.
34. It is argued that the prosecution has examined 15 witnesses to
bring the guilt of the accused at home. It is submitted that the
prosecution has succeeded in proving and establishing the guilt of the
Judgment 13 CRI.APPEAL303.24.odt
appellant beyond doubt. The evidence brought on record by the
prosecution has established the act of the appellant to copy the secret and
classified documents from the official desktop into his laptop and then
leaked the same by downloading the malware. It is, therefore, submitted
that no perversity is committed by the learned trial Court in punishing
the accused for the offence punishable under Section 66F of the Act of
2000 and Section 3(1)(c), 5(1) (a), (b), (c), (d) and 5(3) of the Act of
1923.
35. In light of the rival contentions, let us now examine and
scrutinize the evidence on record.
36. PW-1-Harishankar Ramaj Mishra, who was working as
Inspector with ATS Kanpur at the relevant time in the year 2018, has
deposed that he received the information that Neha Sharma and Pooja
Ranjan were operating in fake names from Pakistan on facebook. The
said foreign agents and spy are in contact via internet through these
facebook accounts with the unknown employees holding important
positions with various defence establishments in India including Uttar
Pradesh. The important data was leaked through them, which was
pertaining to national security. He further deposed that he prepared a
report and lodged it with the Police Station, A.T.S., Lucknow.
Judgment 14 CRI.APPEAL303.24.odt
37. PW-2 Yogendra Nath Shivkant Shukla who was working as
Constable with Police Station-ATS, Lucknow has deposed that on lodging
the report by PW-1, he had registered the offence vide Crime No.7/2018
(Exh.22) for the offences punishable under Sections 419, 420, 467, 121-
A, 120-B of the IPC, Sections 66-D of the I.T.Act and under Sections 3,
4, 5 & 9 of the Act of 1923.
38. Thus, PW-1 and PW-2 have established that on receiving an
information by PW-1 that Neha Sharma and Pooja Ranjan were
operating in fake names from Pakistan on Facebook and important data
was leaked through the unknown employees holding important positions
with various defence establishments in India and on submission of report
by PW-1, PW-2 registered the crime vide Crime No.07 of 2018.
39. The learned trial Court while holding the accused guilty, has
observed in Para 92 that the accused unauthorizedly obtained the
classified documents on his personal device, he copied the secret,
restricted and sensitive information and documents from the official
computer of BrahMos Aerospace Limited, Hyderabad-Nagpur and
retained the same to his personal laptop and hard-disk. The accused
contacted various foreign agents through social media applications and
internet, and due to which, secret, restricted and sensitive documents
Judgment 15 CRI.APPEAL303.24.odt
containing prohibited information was passed on to the foreign agents
which was prejudicial to the safety and security of State through internet
spyware. Thus, the act of the accused is prejudicial to safety, security and
interest of the State and constitutes offences under Section 3(1)(c),
Section 5(1)(a),(b),(c) and (d) and Section 5 of the Act of 1923 and
Section 66F of the Act of 2000.
40. At this stage, therefore, it will be appropriate and beneficial to
refer to the above referred provisions under which the accused has been
held guilty. Section 66F of the Information Technology Act, 2000 reads
thus :
"Section 66F. - Punishment for cyber terrorism.
(1) Whoever,--
(A) with intent to threaten the unity, integrity, security or
sovereignty of India or to strike terror in the people or any
section of the people by-
(i) denying or cause the denial of access to any person
authorised to access computer resource; or
(ii) attempting to penetrate or access a computer resource
without authorisation or exceeding authorised access; or
(iii) introducing or causing to introduce any computer
contaminant, and by means of such conduct causes or is likely
to cause death or injuries to persons or damage to or
destruction of property or disrupts or knowing that it is likely
to cause damage or disruption of supplies or services essential
to the life of the community or adversely affect the critical
information infrastructure specified under section 70; or
(B) knowingly or intentionally penetrates or accesses a
computer resource without authorisation or exceeding
authorised access, and by means of such conduct obtains
access to information, data or computer data base that is
restricted for reasons of the security of the State or foreign
relations; or any restricted information, data or computer data
base, with reasons to believe that such information, data or
Judgment 16 CRI.APPEAL303.24.odt
computer data base so obtained may be used to cause or likely
to cause injury to the interests of the sovereignty and integrity
of India, the security of the State, friendly relations with
foreign States, public order, decency or morality, or in relation
to contempt of court, defamation or incitement to an offence,
or to the advantage of any foreign nation, group of individuals
or otherwise, commits the offence of cyber terrorism.
(2) Whoever commits or conspires to commit cyber terrorism
shall be punishable with imprisonment which may extend to
imprisonment for life.
Sections 3 and 5 of the Official Secrets Act, 1923 read thus :
3. Penalties for spying-
(1) If any person for any purpose prejudicial to the safety or
interests of the State-
(a) approaches, inspects, passes over or is in the vicinity of, or
enters, any prohibited place, or
(b) makes any sketch, plan, model, or note which is calculated
to be or might be or is intended to be, directly or indirectly,
useful to an enemy; or
(c) obtains, collects, records or publishes or communicates to
any other person any secret official code or password, or any
sketch, plan, model, article or note or other document or
information which is calculated to be or might be or is
intended to be, directly or indirectly, useful to an enemy (or
which relates to a matter the disclosure of which is likely to
affect the sovereignty and Integrity of India, the security of the
State or friendly relations with foreign States),
he shall be punishable with imprisonment for a term which
may extend, where the offence is committed in relation to any
work of defence, arsenal, naval, military or air force
establishment or station, mine, minefield, factory, dockyard,
camp, ship or aircraft or otherwise in relation to the naval,
military or air force affairs of Government or in relation to any
secret official code, to fourteen years and in other cases to
three years.
(2) On a prosecution for an offence punishable under this
section it shall not be necessary to show that the accused
person was guilty of any particular act tending to show a
Judgment 17 CRI.APPEAL303.24.odt
purpose prejudicial to the safety or interests of the State, and,
notwithstanding that no such act is proved against him, he
may be convicted if, from the circumstances of the case or his
conduct or his known character as proved, it appears that his
purpose was a purpose prejudicial to the safety or interests of
the State, and if any sketch, plan, model, article, note,
document, or information relating to or used in any
prohibited place, or relating to anything in such a place, or any
secret official code or password is made, obtained, collected,
recorded, published or communicated by any person other
than a person acting under lawful authority, and from the
circumstances of the case or his conduct or his known
character as proved it appears that his purpose was a purpose
prejudicial to the safety or interests of the State, such sketch,
plan, model, article, note, document, (information, code or
password shall be presumed to have been made), obtained,
collected, recorded published or communicated for a purpose
prejudicial to the safety or interests of the State.
4. ...
5. Wrongful communication, etc., of information.--
(1) If any person having in his possession or control any secret
official code or pass word or any sketch, plan, model, article,
note, document or information which relates to or is used in a
prohibited place or relates to anything in such a place, [or
which is likely to assist, directly or indirectly, an enemy or
which relates to a matter the disclosure of which is likely to
affect the sovereignty and integrity of India, the security of the
State or friendly relations with foreign States or which has
been made or obtained in contravention of this Act,] or which
has been entrusted in confidence to him by any person
holding office under Government, or which he has obtained
or to which he has had access owing to his position as a person
who holds or has held office under Government, or as a
person who holds or has held a contract made, on behalf of
Government, or as a person who is or has been employed
under a person who holds or has held such an office or
contract--
(a) wilfully communicates the code or password, sketch, plan,
model, article, note, document or information to any person
other than a person to whom he is authorised to communicate
it, or a Court of Justice or a person to whom it is, in the
interests of the State his duty to communicate it; or
Judgment 18 CRI.APPEAL303.24.odt
(b) uses the information in his possession for the benefit of
any foreign power or in any other manner prejudicial to the
safety of the State; or
(c) retains the sketch, plan, model, article, note or document
in his possession or control when he has no right to retain it,
or when it is contrary to his duty to retain it, or wilfully fails to
comply with all directions issued by lawful authority with
regard to the return or disposal thereof; or
(d) fails to take reasonable care of, or so conducts himself as to
endanger the safety of, the sketch, plan, model, article, note,
document, secret official code or password or information;
he shall be guilty of an offence under this section.
(2) If any person voluntarily receives any secret official code or
password or any sketch, plan, model, article, note, document
or information knowing or having reasonable ground to
believe, at the time when he receives it, that the code,
password, sketch, plan, model, article, note, document or
information is communicated in contravention of this Act, he
shall be guilty of an offence under this section.
(3) If any person having in his possession or control any
sketch, plan, model, article, note, document or information,
which relates to munitions of war, communicates it, directly or
indirectly, to any foreign power or in any other manner
prejudicial to the safety or interests of the State, he shall be
guilty of an offence under this section.
(4) A person guilty of an offence under this section shall be
punishable with imprisonment for a term which may extend
to three years, or with fine, or with both."
41. It is evident from the language of Section 66F (1)(A) and 1(B)
of the Act of 2000, wherein the expressions used 'with intent to threaten
the unity' and 'knowingly or intentionally' show that mens rea, which
means 'guilty mind', is an essential ingredient to attract the said
provision.
Judgment 19 CRI.APPEAL303.24.odt
42. Similarly, Section 3(1) of the Act of 1923 uses expression " if
any person for any purpose prejudicial to the safety or interest of the
State." The word "purpose" also indicates the intention and knowledge of
such person. Under Section 3(2) of the Act of 1923, there is a
presumption that if a person, without lawful authority, makes, obtains,
collects, records, publishes or communicates any secret or prohibited
defence-related material, it is deemed to have been done with a purpose
prejudicial to the safety or interests of the State. However, for this
presumption to arise, the prosecution must first establish the
circumstances of the case, the conduct of the accused, or his known
character; once these are proved, it is not necessary to show that the
accused committed any specific act demonstrating a prejudicial purpose.
43. Similarly, the provision of Section 5(1)(a), (b) and (c) of the Act
of 1923 uses expressions "wilfully communicates...", "uses the
information in his possession for the benefit of any foreign power or in
any other manner prejudicial to the safety of the State;" or "wilfully fails
to comply...", which indicate that to attract Section 5(1)(a), (b) and (c) of
the Act of 1923, mens rea is required as a foundational requirement for
conviction.
Judgment 20 CRI.APPEAL303.24.odt
44. Contrary to the above-referred requirements of Section 5(1) (a),
(b) and (c) of the Act of 1923, the language in Section 5(1)(d) of the said
Act uses expression "fails to take reasonable care of, or so conducts
himself as to endanger the safety of ..." which indicates negligence on the
part of the accused rather than a wilfull intent to disclose. In other words,
Section 5(1)(d) attracts where the accused does not take proper, normal
and sensible precautions to protect the confidential material, or behaves
in a manner which exposes its secrecy or security, even if he did not
specifically intent to look or communicate it.
45. The expression "reasonable care", as used in Section 5(1)(d) of
the Act of 1923, has been judiciously and academically associated with
negligence. The Black's Law Dictionary, Ninth Edition defines the word
'reasonable care' as follows :
"As a test of liability for negligence, the degree of care that a
prudent and competent person engaged in the same line of business
or endeavor would exercise under similar circumstances."
46. After having appreciated the pre-requisites to attract the
offences under which the appellant has been convicted, let us now move
to the oral evidence led by the prosecution to find out whether the
prosecution succeeded to bring on record the aforesaid prerequisites to
prove the guilt against the accused.
Judgment 21 CRI.APPEAL303.24.odt
47. The prosecution has examined total 15 witnesses to bring the
guilt of the accused at home. PW-3, PW-4, PW-6 and PW-10 are the
witnesses who deposed about duties of the accused while working in
BrahMos Aerospace Private Limited at Hyderabad or at Nagpur, the data
allegedly collected from the desktop, and other relevant information
about the accused and the alleged classified documents, which according
to the prosecution were leaked by the accused.
48. PW-3-N.N.Kumar, who was working as Executive Director
(Production) with BrahMos Aerospace Private Limited, Hyderabad, has
deposed that initially, the accused was working as executive trainee at
Hyderabad during July 2013 to December 2013. Thereafter, he was
appointed as System Engineer on 30 th December 2013 and then
transferred to Nagpur in August 2014.
49. PW-4-Achyut Deo, who was working as General Manager at
BrahMos Aerospace Private Limited, Nagpur has deposed that Nishant
Agrawal was promoted in the year 2017 as Senior System Engineer and
was responsible for supervision of the mechanical parts of warhead
integration.
Judgment 22 CRI.APPEAL303.24.odt
50. PW-10-Setu Ramchandran Krushnamurthy Ayer, Former Chief
General Manager of BrahMos has deposed that Nishant Agrawal joined
BrahMos as Executive Trainee in the year 2013. Thereafter, he was
appointed as Executive Engineer and was lastly posted at Nagpur.
51. Thus, it is evident that initially the accused was working as
Executive Trainee at Hyderabad during July 2013 to December 2013,
then he was appointed as System Engineer on 30 th December, 2013. He
was transferred to Nagpur in August 2014 and was then promoted in the
year 2017 as Senior System Engineer.
52. Let us now move to examine the material/documents found in
the desktop seized from the office at Hyderabad and the laptop of the
appellant, which are alleged to have been leaked by the accused.
53. According to PW-3, the accused was assigned to the Leak
Check and Fueling Section of Missile Integration at Hyderabad. It is one
of the stages of integration. One Masood Ahmad was Additional General
Manager (Production) at Hyderabad, who was subordinate to PW-3 and
accused Nishant was subordinate to Masood Ahmad. Accused Nishant
was also subordinate to Alan Abraham, who was incharge of the Leak
Check and Fueling Facility.
Judgment 23 CRI.APPEAL303.24.odt
54. As per the version of PW-8-Krushna Mohan Rai, who was
working as Inspector, ATS, Kanpur, on his application permission was
granted for verification of the Desktop used by the accused. He further
states that the desktop which was used by accused Nishant was pointed
out by Bibish Thomas (PW-6). The file BrahMos Missile 310 was found
in the said desktop after extensive search, which was named as "secret" in
red colour. Other 12 files were searched, which were secret files relating to
BrahMos Missile. He states that when the desktop was checked, it was
revealed that previously on several occasions the pen-drive and hard disk
were used.
55. PW-10 has deposed that he received notice from ATS along
with pendrive wherein the documents were in the soft copy. He states
that the documents at Sr. Nos. 1 to 17 and 19 were created for training
and user documentation purpose. The document at Sr. No.18 was created
for inspection purpose for use by production agencies to ensure quality.
Document at Sr. No.11 is a technology received from Russia, which
contains more sensitive information. It contains seeker which is critical
part of the missile. He then states that if the technology is compromised
then the enemy can jam the transmission. He admitted that he deposed
on the basis of his general knowledge that if technology is compromised
the enemy can jam the transmission and seeker is critical part of the
Judgment 24 CRI.APPEAL303.24.odt
missile. The unauthorized possession of all these documents is not in the
national interest.
56. He further deposed that there are four categories viz. top secret,
secret, confidential and restricted. Any information which may cause
harm to the national security is a classified information. Any information
which may cause serious damage to the national security is the secret
information. The restricted information is that which is not to be shared
or to be published and it is only for the official use of the organization.
No employee is authorized to keep the classified information in his
personal device. He further deposed that accused was not authorized to
keep the classified information in his personal device.
57. PW-7-Nilesh Mahadeorao Punse, who acted as Panch to house
search of the accused, has deposed that Nishant opened his Laptop and
showed his Facebook account. Neha Sharma and Pooja Ranjan were in
his friends list of Facebook account. One file with the file name 'secret' in
red colour was found in the laptop of Nishant.
58. According to PW-3, the accused was not authorized to keep the
departmental secret information in his computer. The secret document
No.BM/UDN/MSL was prepared as a draft version for approval by
technical specialists for issuing to the user. The document is a technical
Judgment 25 CRI.APPEAL303.24.odt
description of BrahMos Missile CK-310. There are different
classifications of the documents. This document is classified as a secret
document considering its contents. If this document is compromised, the
technical know-how and the capability of the missile will be known to the
persons, who are not authorized to know it. The document was a
sensitive document.
59. PW-4 states that he knows the procedure adopted by the armed
forces for classification of information and documents, where he has
worked for 32 years. The information which is not required to be shared
other than the company people is a classified information. No employee
is authorized to keep the classified information in his personal electronic
device. The accused was not authorized to keep any classified
information in his personal device. The document bearing Secret
Document No. BM/UDN/MSL/1002/02/00, Technical Description
BrahMos missile (CK 10) was a classified information. This information
was sensitive and was relating to the security and integrity of the country.
From this information, the enemy may prepare defence to counter the
effect of the missile.
60. PW-6-Bibish Thomas Mathew, who was working as System
Manager, BrahMos, Hyderabad, has deposed that he had shown the ATS
team, the computer system, which was used by accused Nishant. At that
Judgment 26 CRI.APPEAL303.24.odt
time, Gautam Das and Rohit Ravi Chandran were using the said
computer system. Lal Dhari Yadav, officer of ATS Lucknow started
inspecting the computer system. The officers of ATS Lucknow tried to
search secret files in the said system. They could find file No.BM/ UDN/
MSL/1002/02/00. Its technical description was BrahMos Missile
(CK310). In that folder 12 files were found. The files were of secret
nature.
61. It is thus, evident from the above discussed oral evidence
that the accused was assigned to the Leak Check and Fueling Section of
Missile Integration at Hyderabad. He was subordinate to Alan Abraham
who was the incharge of the Leak Check and Fueling Facility. Upon
inspection of the desktop, which was used by the appellant while he was
working in the office of BrahMos Aerospace Private limited, Hyderabad,
the file BrahMos missile CK310 was found. The file was named as 'secret'
in red colour. Other 12 files were searched and those were secret files
relating to BrahMos Missile. It was also noticed on inspection of desktop
that previously on several occasions the pendrives and hard disks were
used.
62. It is further evident that the documents found in the desktop
of the appellant, i.e. Documents at Serial Nos. 1 to 17 and 19 were
created for training and user documentation purpose. The document at
Judgment 27 CRI.APPEAL303.24.odt
Sr. No. 18 was created for inspection purpose for the use by production
agencies to ensure quality. Whereas, Serial No.11 is a technology from
Russia which, according to PW-10, contains sensitive information.
63. Furthermore, it is evident from the above referred oral
evidence that HP company laptop hard disks and mobiles were seized
from the appellant from his house at Nagpur. In the laptop, it was found
that in the friend list of his Facebook account, Neha Sharma and Pooja
Ranjan were there. Similarly, one file with the file name 'secret', in red
colour, was found in the laptop of the appellant. Furthermore, the
chatting data of the appellant with one Sejal Kapoor was found.
64. At the same time, the secret document No.BM/UDN/MSL
which is a technical description of BrahMos missile CK-310, was found in
the computer of the accused.
65. Thus, there is no element of doubt that certain important
documents which, according to the prosecution are secret and classified
documents, were found in the desktop used by the appellant when he was
at Hyderabad.
66. However, the defence of the appellant is that he was working
under Alan Abraham who gave pendrive, having project material to him
Judgment 28 CRI.APPEAL303.24.odt
in official capacity, in authorized manner, like all 23 executive trainees.
He made project of CPHS and submitted the project to his superiors.
Thus, according to the defence, those documents were given to accused
by his superior Alan Abraham and none of those files were secret or
classified.
67. Let us test the merit in the case of the defence.
68. PW-3 has deposed that Alan Abraham worked with BrahMos
for approximately 7 to 8 years. He resigned from BrahMos on 31/8/2018.
Alan Abraham was imparting training to the newly recruited executive
trainees. It was his discretion to allot the projects to the trainees.
69. PW-3 further states that accused Nishant Agrawal worked
under Alan Abraham as a trainee and System Engineer. The trainees were
required to submit the project report of the projects allotted to them.
There is no prohibition or circular for preparing a project by a trainee on
his own electronic device.
70. He states that the trainees were prohibited to bring their
electronic devices within the campus of BrahMos.
Judgment 29 CRI.APPEAL303.24.odt
71. According to PW-3, there was a Guest House for executive
trainees a few kilometers away from the BrahMos establishment at
Hyderabad. There was no prohibition for trainees to prepare projects at
the Guest House on their own electronic device. The concerned Project
Coordinator was responsible to provide data to the trainees for the
project.
72. PW-3 states that Alan Abraham was competent to provide data
to the concerned trainees for their respective projects and accused-
Nishant was authorized and permitted to have access to the computer of
Alan Abraham.
73. According to PW-3, Alan Abraham never complained that
Nishant Agrawal misused his computer or compromised its data. He had
not received any complaint from Alan Abraham that Nishant Agrawal
had no authority to possess the information/data found in his laptop.
74. He states that when the information was found in the laptop of
the accused, by that time, Alan Abraham had resigned. No efforts were
made by BrahMos to confirm from Alan Abraham that the
information/data found in the laptop of the accused was without his
authority. The project of the accused was completed when Alan Abraham
was working with BrahMos.
Judgment 30 CRI.APPEAL303.24.odt
75. PW-3 in his cross-examination has deposed that it might be true
that the accused was undertaking a project by name CPHS. He admitted
that the accused was working with the Hydraulic Pneumatic Department,
which was part of the Leak Check and Fueling Department. He admitted
that the information, which was allegedly found in the laptop of the
accused, was related to his project. The accused Agrawal was authorized
and permitted to have access to the computer of Alan Abraham.
76. PW-4 in his cross-examination has deposed that he came to
know that the accused was working at Hyderabad in the Leak Check
Department which is a Hydraulic Pneumatic Department. Combined
Pneumatic Hydraulic System (CPHS) is part of the said department.
77. PW-6 deposed that he was allotted the same computer system,
which was allotted to Alan Abraham. Nishant and Alan were working on
the said computer system. Except for these two, the other person was not
authorized to have access to the said system.
78. Thus, it is evident that Alan Abraham, while working in
BrahMos, used to impart training to the newly instituted trainees.
Accused worked under Alan Abraham as a trainee and System Engineer.
Trainees were required to submit the project reports of the projects
allotted to them and there was no prohibition for preparing a project by
Judgment 31 CRI.APPEAL303.24.odt
trainee on his personal electronic device. There was also no prohibition to
prepare projects at the guest house by the trainees on their own electronic
device. The concerned project coordinator was responsible to provide
data to the trainees for the project. And as such, Alan Abraham was
competent to provide data to the concerned trainees for their respective
projects.
79. It is further evident that the desktop which was seized from the
Hyderabad office was allotted to Alan Abraham. Nishant and Alan
Abraham were working on the said computer system. Alan Abraham
never complained that Nishant Agrawal misused his computer or
compromised its data. PW-3 never received any complaint from Alan
Abraham that Nishant Agrawal had no authority to possess information/
data found in his laptop. It is further evident that no efforts were made by
the prosecution or BrahMos to confirm from Alan Abraham that the
information/data found in the laptop of the accused was without Alan's
authority.
80. Moreover, PW-10 in his cross-examination stated that if the
employee obtained possession of this document from a senior employee,
who has authority to possess it, then such possession of the employee
would be a valid possession.
Judgment 32 CRI.APPEAL303.24.odt
81. PW-6 in his cross-examination has deposed that when the
system was checked, five different drives were found. When the system
was inspected, personal files of Alan Abraham were found in D, E and F
Drives.
82. He further states that the system does not allow insertion of
pendrive or external hard disk. At the time of inspection, it was noticed
that previously external hard disks, pendrives and other memory devices
were used. Furthermore, there were 1170 files of Alan Abraham in the
system and no file in the name of Nishant Agrawal was found.
83. It is imperative to note that Alan Abraham was not examined
by the prosecution. In light of above discussion made on scrutiny of
evidence, an adverse inference can be drawn against the prosecution for
not examining this vital witness.
84. In the circumstances, the possibility that Alan Abraham gave
the alleged secret documents to the accused during training for the
project purpose cannot be ruled out.
85. PW-1 and PW-11 have stated that initially information
received by them was with respect to honey trap. Let us, therefore,
examine whether it was a honey trap
Judgment 33 CRI.APPEAL303.24.odt
86. PW-1, in his cross examination, stated that he received the
information that Facebook accounts in the name of Neha Sharma and
Pooja Ranjan were created to honey trap the officers. Similarly, PW-11 in
his cross examination admitted that as per the FIR, the informant
received secret information that two fake Facebook accounts are created
in the name of Neha Sharma and Pooja Ranjan and the said accounts are
operated in Pakistan and they are trying to contact important persons of
defence by using honey trap and money allurement with intent to extract
secret information.
87. Thus, since beginning, it was the case of the prosecution that it
was a case of honey trap and not giving secret information to the third
party with intention, knowledge and purpose prejudicial to the safety and
interest of the State.
88. PW-11 has stated that the first connection was sent by Sejal
Kapoor to accused-Nishant. He further stated that there are four days of
chat on 18/12/2017, 19/12/2017, 20/12/2017 and 21/12/2017. He states
that from the chat of 19/12/2017, it is found that Sejal Kapoor gave
information about a job in Aviation at Hays United Kingdom and
Nishant has shown interest in the said job. He admitted that Sejal Kapoor
asked to send the CV of Nishant on her e-mail ID. He has investigated
Judgment 34 CRI.APPEAL303.24.odt
with regard to e-mail address of Sejal Kapoor but, CERT-in has not
replied about the e-mail address. He does not know that Yandex.com is a
Russian e-mail service provider. He states that Sejal Kapoor asked
Nishant to download the X-trust link in the Windows system on
20/12/2017. From the chat, it appears that Sejal Kapoor is inviting the
accused for an interview with the Manager of the company and for that
X-trust link is sent by Sejal Kapoor.
89. According to PW-11, it appeared that Nishant Agrawal was
trying to face an interview. He has sent the queries with regard to X-trust
link and Q-whisper link to CERT-in. He personally has not investigated
about X-trust link and Q-whisper link. He does not know that X-trust
link and Q-whisper link are the communication apps in other countries.
After going through Exh.170, it is found that Nishant has not sent any
departmental documents on the LinkedIn App. He further states that
Nishant has not communicated with Sejal Kapoor, Pooja Ranjan and
Neha Sharma through phone or any other electronic media except chat.
He states that there is no restriction to use any social media platform. He
further states that none of the Circulars from BrahMos Aerospace
prohibits use of LinkedIn App. He states that none of the circular from
BrahMos Aerospace prohibits any employee to apply in other company
for a job during his employment.
Judgment 35 CRI.APPEAL303.24.odt
90. Thus, the prosecution has failed to establish wrongful
communication or any information as stated in Section 5(1)(a),(b),(c)
and 5(3) of the Act of 1923. It has not been established that the accused
willfully communicated or used the same for the benefit of any foreign
power or any other manner prejudicial to the safety of the State or
willfully failed to comply with any direction issued by any lawful
Authority with regard to return or for disposal of such material.
91. At this juncture, it is necessary to find out evidence, if any,
produced by the prosecution to establish that the accused unauthorizedly
accessed the computer data and copied the same in his personal device.
92. For this purpose, evidence of PW-8 is important. PW-8 in his
cross-examination has admitted that after giving 'run-type-regedit'
command, they found that several pen-drives and external hard disks
were used in the said desktop in the past and the list of the past users of
the pen-drives and external hard disks was generated. He did not find
any entry in the list of the usage of pen-drives or external hard disks by
accused Nishant Agrawal in the past.
93. Thus, it is evident that after giving the command 'run-type-
regedit' it was found that several pendrives and external hard disks were
used in the said desktop in the past. After giving the command, the list of
Judgment 36 CRI.APPEAL303.24.odt
past users of the pendrives and external hard disks was generated. No
entry was found in the said list of the usage of pendrives or external hard
disks by the accused in the past.
94. PW-6, however, refused to answer the question whether upon
giving the command 'run-type-regedit' complete user history was
generated. He stated that he does not remember that when the command
run-type-regedit was given, the system generated the list of pendrives,
external hard-disks, and memory devices used previously in the system
along with date, time and users' name.
95. Therefore, we are of the opinion that there is a substance in the
version of the defence that accused was having these files and documents
as they are relating to his project and not copied in his personal device.
96. Moving further, as regards the classification of the alleged
documents as 'secret' or 'classified documents', it is the case of the defence
that none of these files were secret, restricted or classified.
97. PW-10 in his cross-examination has stated that he has not
produced any document to show that the classified information is to be
retained in the official device at the office. There was no prohibition for
accused-Nishant to receive the classified information.
Judgment 37 CRI.APPEAL303.24.odt
98. PW-4 has deposed that as he had received a single hard copy of
the document in question from the Hyderabad office on which it was
written as "secret", therefore, he treated it as a classified secret document.
He did not inquire from the Hyderabad office the reason for tagging this
document as a secret document.
99. PW-4 deposed that he was not given the entire document by
the investigating officer when the notice was issued to him. The
investigating officer has only provided the name of the document. He was
never informed from which drive of Nishant's laptop the documents were
taken. He was also not informed that in which folder of the drive this
document was found. He was also not informed which other material was
found in the laptop. He did not have any personal knowledge whether
the said secret information was derived from the laptop of the Nishant.
100. PW-4 further states that he was never given the file which is
alleged to have been found in the laptop of the accused for giving reply to
the query raised by the Investigating Officer. He was only provided with
the name of the document. He cannot say whether the said document
was actually found in the laptop of the accused or not.
Judgment 38 CRI.APPEAL303.24.odt
101. Moving further, it is the case of the defence that most of the
information about the BrahMos is in public domain and therefore it
cannot be said that any information was leaked by the accused relating to
BrahMos missile.
102. The evidence of PW-4 and PW-10 is relevant for this purpose.
103. PW-4 in his cross-examination states that much of the
information of the missile is in the public domain and is known to the
general public. These missiles are displayed since 10 years. The part of the
information which was alleged to be found in the laptop of the accused
was already in the public domain. The information alleged to be found in
the laptop was not a complete classified information. The technical
information was classified information and was not available in the public
domain.
104. PW-10 in his cross-examination states that there is a website of
BrahMos as brahmos.com. On the website details of working of BrahMos
missile and the manner of production of BrahMos missile are available.
Most of the information about the components of BrahMos missile is
available in the public domain.
Judgment 39 CRI.APPEAL303.24.odt
105. Thus, the above referred evidence of PW-4 and PW-10 and
other evidence brought on record by the prosecution takes us to only
conclusion that the alleged malware which were downloaded by the
appellant were with an intention to apply to secure a job in the UK and
not to transfer any information or data. Thus, no offence, as alleged,
attracts against the appellant except the offence under Section 5(1)(d) of
the Act of 1923 i.e., failure to take reasonable care or for the conduct of
the appellant of downloading the alleged malware at the instruction of
Sejal Kapoor.
106. We have considered the language of Section 66F of the Act of
2000 and Section 3(1) and 5(1)(a), (b), (c) of the Act of 1923 and
observed that to attract these provisions, mens rea is a paramount
requirement.
107. It is important to note that the accused was at Hyderabad from
01/07/2013 to 24/08/2014. And the allegation that the accused copied
the secret and classified information from his official desktop to his
personal device was with respect to the period from 01/07/2013 to
30/12/2013.
Judgment 40 CRI.APPEAL303.24.odt
108. PW-11, in his cross examination, has admitted that during the
investigation it was found that alleged secret files were pertaining to the
period when the accused was working in BrahMos, Hyderabad, from
01/07/2013 to 30/12/2013. He further admitted that name of Nishant
was not found in the list of inserted devices. He further admits that in
Exh.95 (Annexure-V) it is mentioned that the files are suspected to be
leaked and not absolutely leaked.
109. PW-11 stated that while working at Nagpur in BrahMos
Aerospace the accused might be having several secret files in his official
system.
110. Admittedly, the chat of the accused with Sejal Kapoor on
LinkedIn, produced on record by the prosecution shows that it was of
December 2017, while the accused was posted at Nagpur. The accused
was posted at Nagpur since August 2014.
111. Thus, the first chat with Sejal Kapoor is dated 18/12/2017, i.e.,
after more than 3 years of alleged access by the appellant to the official
computer. It is the case of the prosecution that at the instruction of Sejal
Kapoor the accused downloaded three malware which were sufficient to
give access to third party to the documents and material in the laptop of
the accused.
Judgment 41 CRI.APPEAL303.24.odt
112. Even if this assertion of the prosecution is accepted, the
prosecution has failed to establish that there was any intention of the
accused during the period 01/07/2013 to 30/12/2013 to copy the
information for the purpose to leak the same to Sejal Kapoor
subsequently in the year 2018. To attract section 66F(1)(A)(ii) of the Act
of 2000, it has to be established that when the attempt to penetrate or
access a computer resource without authorization or exceeding
authorized access was made, it was done, at that relevant time, with intent
to threaten the unity, integrity, security, or sovereignty of India or to
strike terror in the people or any section of the people. The prosecution
failed to establish such intention of the appellant when such data was
allegedly copied by the appellant during the period 01/07/2013 to
30/12/2013.
113. Thus, there is nothing brought on record by the prosecution to
show that the accused intentionally, to threaten the unity, integrity,
security or safety of India, or to strike terror in the people or any section
of the society, or knowingly or intentionally penetrated or accessed a
computer resource to cause or likely to cause injury to the interests of
safety and integrity of India, the security of the State, friendly relations
with foreign states, public order, decency or morality, or in intention to
contempt of court, defamation or incitement to offence or to the
Judgment 42 CRI.APPEAL303.24.odt
advantage of any foreign nation, group of individuals or otherwise,
committed a cyber terrorism.
114. While holding the appellant guilty under section 66F of the Act
of 2000, there is not a single observation or finding recorded by the
learned trial court that there was such intention of the appellant during
the period 01/07/2013 to 30/12/2013, during which period the said
information and data was allegedly copied by the appellant.
115. In the circumstances, it is difficult to say that the prosecution
has established beyond reasonable doubt that the accused is guilty of the
offence punishable under Sections 66F of the Act of 2000 and Section
5(1)(a)(b)(c) and 5(3) of the Act of 1923.
116. As far as section 3(1) of Act of 1923 is concerned, as observed,
under Section 3(2) of the said Act, there is a presumption that if a person,
without lawful authority, makes, obtains, collects, records, publishes or
communicates any secret or prohibited defence-related material, it is
deemed to have been done with a purpose prejudicial to the safety or
interests of the State. However, for this presumption to arise, the
prosecution must first establish the circumstances of the case, the conduct
of the accused, or his known character; once these are proved, it is not
Judgment 43 CRI.APPEAL303.24.odt
necessary to show that the accused committed any specific act
demonstrating a prejudicial purpose.
117. In the circumstances, the conduct of the appellant or his known
character is to be seen from the oral evidence of the witnesses.
118. Much emphasis is placed on Undertaking of Secrecy (Exh.26)
submitted by the accused. The undertaking is to the effect to keep all
information known to him and data related to the business of the
company in his possession as strictly confidential. There is nothing
brought on record by the prosecution to show that the appellant
knowingly or intentionally transferred any information known to him
and data related to the business of the company which was in his
possession as strictly confidential.
119. PW-4 in his cross-examination has deposed that he did not
receive any negative report as regard working of the accused from
Hyderabad office when the accused joined at Nagpur. Even there was no
report regarding the accused's suspicious conduct. He has not also
received any report as regards the accused's misconduct while working at
Hyderabad. He never received any negative inputs as regards accused
from I.B. or other security agencies.
Judgment 44 CRI.APPEAL303.24.odt
120. PW-4 in his cross-examination has further deposed that during
his working at Nagpur he had no occasion to summon accused or issue
memo for violation of any of the service conditions. He never found
accused violating Govt. circular, office order, circular and guidelines
issued by him. The Annual Confidential Reports of Nishant Agrawal,
written by the reporting officer Shri Krantikumar, were always 'very good'
and 'outstanding'. Due to his performance he was promoted as Sr.System
Engineer. He recommended the name of the accused for the Young
Scientist Award in the year 2017. He was granted with the said award in
the year 2018.
121. PW-3 in his cross-examination has deposed that there was no
complaint as regards working and conduct of Nishant while working as a
trainee and system engineer at Hyderabad. He admitted that none of his
subordinates reported any suspicious conduct of Nishant Agrawal. He
further deposed that during the entire service tenure of the accused with
BrahMos, he did not get any input from any of the security agencies as
regards the suspicious working and conduct of the accused.
122. PW-10 in his cross-examination has admitted that being HR
Head he was receiving the Annual Confidential Reports of all the officers
including Nishant. He admitted that he never received any adverse
Judgment 45 CRI.APPEAL303.24.odt
confidential report against Nishant. He admitted that many Russian
officers were also working with BrahMos. He admitted that none of the
conduct of the Nishant Agrawal was against the national interest and
there was no such intention on his part.
123. PW-4 in his cross-examination has deposed that the accused
was working in the assembly unit at Nagpur and that he was also
responsible for delivery of missiles to the armed forces. While working at
Nagpur for a period of 4 years, the accused was personally involved in
delivery of around 70 to 80 missiles to the armed forces. The accused was
having all the information about the customers and delivery locations of
the missiles. He admitted that this information was equally secret and the
computer which was provided to him at the Nagpur office was having
more secret and classified information in it than the present information.
He never had any occasion to come across with the incident where the
accused shared, tampered or misused the information available in the
office computer at Nagpur.
124. PW-11, in his cross-examination, deposed that he has not
investigated as to what work was allotted to the accused and what work
he has done during his training period. He has not made a detailed
investigation as to what work was allotted to the accused. He never felt it
Judgment 46 CRI.APPEAL303.24.odt
necessary to investigate as to what work was allotted to the accused when
he was working as System Engineer and Senior System Engineer. He does
not know that when Nishant Agrawal was working as System Engineer at
that time he has handed over 70 missiles to the Armed Forces. He stated
that while working as System Engineer and Senior System Engineer,
Nishant may be having much more secret information. He does not
know that in the year 2015-16, Nishant was working on a top secret
project of Air Version BrahMos. He further deposed that he has not
investigated about the character and conduct of accused-Nishant during
interrogation with Senior Officers of BrahMos Aerospace. He admitted
that no secret file was found in the official system of BrahMos Aerospace,
Nagpur in the section where the accused was working. He stated that
during the investigation, it was found that the alleged secret files were
pertaining to the period when the accused was working at BrahMos,
Hyderabad from 1st July, 2013 to 30th December, 2013.
125. PW-6 in his cross-examination admitted that Nishant Agrawal
joined BrahMos as Executive Trainee on 1/7/2013 and he was transferred
from Hyderabad on 24/8/2014. No internal enquiry was done to find out
who violated the guidelines, circulars etc. of the BrahMos for using the
external devices with the computer. He had also not recommended for
any such enquiry.
Judgment 47 CRI.APPEAL303.24.odt
126. Thus, it is evident that no file was found in the laptop of the
appellant of the period after December 2013. Whereas, the appellant was
a part of the core team dealing with handing over 70 to 80 missiles
during 2014 and 2018 to the armed forces. He was part of the top-secret
projects of BrahMos. He was having these files, documents in his official
system. He could have copied those documents on his personal device
had there been any such intention to transfer the secret and confidential
information to the third party. Even from the evidence of PW-11, it is
clear that no chats were found with Pooja Ranjan and Neha Sharma. The
chats which were found with Sejal Kapoor were in respect of job in the
UK. It has also come on record that no telephonic conversation took
place between them at any time.
127. Having observed so, it can be said that the prosecution has
failed to prove the circumstances or the conduct of the accused or his
known character to show purpose prejudicial to the safety or interest of
the State, to presume under Section 3(2) of the Act of 1923.
128. The conduct of the accused, or his known character, as has
come on record, show that the Annual Confidential Report of the
appellant was always 'very good' and 'outstanding'. Due to his
performance, he was promoted as Senior System Engineer and awarded
Judgment 48 CRI.APPEAL303.24.odt
with Young Scientist Award. And none of the conduct of the appellant
was ever found against the national interest or that he had any such
intention since the joining of BrahMos Aerospace Private Limited. Thus,
the conviction under Section 3(1) of Act of 1923 is based on perverse
findings. Hence, the same is not sustainable in the eyes of law.
129. In the above referred facts and circumstances, and the findings
recorded on scrutinizing and examining oral as well as documentary
evidence available on record, we have no hesitation to hold that except
the offence punishable under Section 5(1)(d) of the Act of 1923, no other
offence, under which the appellant was tried, is proved by the
prosecution.
130. In that view of the matter, we pass the following order :
i) The appeal is partly allowed.
ii) The impugned judgment and order dated 03/06/2024
passed by Additional Sessions Judge-1, Nagpur in Sessions
Case No.726 of 2021 is hereby quashed and set aside.
iii) The conviction and sentence, imposed upon the appellant,
for the offences punishable under Section 66F of the
Information Technology Act, 2000, Section 3(1)(c) of the
Official Secrets Act, 1923 and Section 5(1)(a), (b) and (c)
and 5(3) of the Official Secrets Act, 1923 is set aside.
Judgment 49 CRI.APPEAL303.24.odt
iv) The conviction and sentence, imposed upon the appellant,
for the offence punishable under Section 5(1)(d) of the
Official Secrets Act, 1923, is maintained.
v) Set off be given to the appellant under Section 428 of the
Code of Criminal Procedure.
The Criminal Appeal is disposed of accordingly. Pending
application (s), if any, shall stand disposed of.
( PRAVIN S. PATIL, J ) ( ANIL S. KILOR, J )
RRaut..
Signed by: Raut (RR)
Designation: PS To Honourable Judge
Date: 02/12/2025 14:59:14
