Sambhaji Lal Surve vs Central Bureau Of Investigation
2009 Latest Caselaw 1262 Del

      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


                             JUDGMENT

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)

(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 21 st 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

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

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.

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 3 rd

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

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 18 th 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.

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

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

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.

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.

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

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

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."

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

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 the other hand, when Section 3 (1) OSA is compared with Section 5

OSA, it appears that when such information found in possession of a person

who is "entrusted" with it "in confidence" by virtue of his "holding office

under (Government)" and such person passes on such information to any

person other than a person to whom he is authorised to communicate, then

the punishment is for a term which may extend to 3 years. The court when

considering the question of grant of bail to a person who at the time of the

commission of the alleged offence was working in an official capacity in

government, has to satisfy itself prima facie as to which of the offences is

attracted.

24. In light of the above legal position, this Court first proposes to examine

the nature of the offence in light of the allegations made against the

petitioner and in light of the material available on record at this stage.

The SOP.Doc Pechora file on the Kingston pen drive

25. One of the classified documents alleged to have been unauthorisedly

possessed by the Petitioner is the SOP.DOC (Pechora) file which was

unauthorisedly carried by him on a pen drive from the office to his

residence. The records show that the tour programme of the petitioner for

the period March 2004 to July 2005 was fixed in advance on the day of his

joining Air Headquarters at New Delhi with effect from 29th March 2004.

He travelled to ITR Chandipur on 27th April 2005 and returned on 4th May

2005 after witnessing the firing of Akash Surface to Air Missile. From 17th

May 2005 till 21st May 2005, he went on a tour programme to Pathankot for

inspecting the Pechora Missile Squadron Station.

26. It is the case of the Petitioner that as per the directions of the Principal

Director (Operations) Air Defence he was instructed to carry whatever

material was necessary for making the inspection. It is submitted that for this

purpose, the Petitioner copied the Standard Operating Procedure (SOP)

Pechora file, which was a classified file, on a pen drive. For the sake of easy

reference for preparing an inspection report, the petitioner carried with him a

report of inspection of 2204 Squadron Air Force. It was a disbanded

Squadron from the Air Headquarters, Vayu Bhawan. He states that he was

contemplating to prepare a report on the lines of the said report after his

inspection of Pechora Missile Squadron at Pathankot. That the Petitioner

was sent to Pathankot for official work on 17th May 2005 is evident from the

tour programme enclosed with the letter dated 18th May 2006 of the Air

Commodore PD (Operations) addressed to the Director (CI and Desk).

27. In response to a question to the Principal Director Air Commander by

the CBI on 25th May 2006 whether "SL Surve permitted by written orders to

carry the document SOP.Pechora on a Pen Drive on temporary duty to

Pathankot on 17.5.05", the answer was "information to be provided."

Interestingly this officer informed the CBI that the Directorate was having

only one pen drive and that the Petitioner was not provided any separate pen

drive. The statement of Group Captain Rajesh Kumar was to the effect that

"SL Surve was also assigned to work on Standard Operating Procedures

(SOP) of Pechora Missile in the absence of Wg. Cdr. SK. Bhatt, much

before the incident of 17.5.05. Similarly, SL Surve was working on the

entire cases of JSGG (Joint Service Study Group)." Captain Rajesh Kumar

also confirmed that "the Directorate has one Official Pen Drive, which is

shared by Officers of Directorate and it was not allowed to carry this Pen

Drive without Official permission." This officer stated to the CBI that SOP

Pechora file was a classified document and that the document on the pen

drive recovered from Surve i.e. SOP.Doc. was "created on 17.5.05, time

9:21:26 AM". He, however, added as per guidelines SOP-Pechora being a

classified document should not have been on a personal pen drive. S.L.Surve

was also not granted permission to carry SOP file to him as per guidelines.

The other file on this pen drive are not related to the Directorate of OPS.

28. From the above statements made to the CBI, it appears that the Petitioner

was in fact on an official tour to Pathankot from 17 th May 2005 onwards.

The classified document in question was possibly got copied by him on the

pen drive on 17th May 2005 in the morning hours. Although Captain Rajesh

Kumar states that he was not granted permission to carry the SOP Pechora

file home, there was no denial by Air Commodore R.Pratap, Principal

Director (Operations) when asked whether the Petitioner had been permitted

to carry the said document to Pathankot for work. Thus, it appears that on

17th May 2005, the Petition got the said file copied on his pen drive and

straightway proceeded to Pathankot on his official work.

29. What happened on his return is evident from the seizure memo at the

time of the search of his premises by the Air Headquarters Intelligence on

21st May 2005. Squadron Leader Sujata Tiwari stated that she was directed

to accompany Wing Commander H.S.Reen on 21st May 2005 to escort the

Petitioner from the airport to his residence and act as a witness to the search

of the house of the Petitioner located at 22, Princess Park, New Delhi around

mid-noon. They seized one CPU, 59 CDs and two pen drives. A panchnama

was drawn on the spot. As her residence was nearby, after the panchnama

was drawn she and Wing Commander H.S.Reen left the place. After about

half-an-hour, after reaching her home, she was informed by Wing

Commander H.S.Reen that Petitioner had called him and they would have to

go again to the residence of the Petitioner "as one more pen drive is required

to be collected". They accordingly went to the Petitioner‟s house where he

gave them a pen drive which was grey in colour with blue colour strip on the

sides. She further added that at that time Reen was told by the Petitioner

that the earlier two devices were not pen drives but IR Port and blue tooth

device. Accordingly, the panchnama was amended and two pen drives were

corrected to one pen drive.

30. It is plain from the above statement of Squadron Leader Sujata Tiwari,

which is corroborated by the statement of Wing Commander H.S.Reen, that

it was the Petitioner who called Wing Commander H.S.Reen and asked

them to come back to collect the pen drive. Therefore, the Petitioner really

did not keep the pen drive at his residence. It is sought to be contended by

the CBI in its written submissions that petitioner was not directly reporting

to Air Commodore R.Pratap, Principal Director (Operations) but to Group

Captain Rajesh Kumar. This does not really change the position very much.

Even if the Petitioner was not permitted to carry the information to his

residence, it appears he did go on official work to Pathankot in connection

with the SOP-Pechora and that no sooner he returned to Delhi he called the

officers and handed over to them the pen drive. On the status of the present

evidence, there is nothing to show that the Petitioner passed on the

SPO.DOC Pechora files to any other person other than the Air Force

Officers themselves. Also, from the report of the Court of Enquiry it

appears that the petitioner was found having done an unauthorised act but

not of the kind that called for his being court martialled or tried by a criminal

court.

The JSSG Presentation

31. The second document with which the Petitioner is accused of

unauthorisedly possessing and attempting to pass on to others is the JSSG

presentation. It was retrieved from the hard disk of the home computer of

the Petitioner. In response to a specific question, Air Cmdr R.Pratap states

that "JSSG presentation is classified document". In response to a question

whether permission as per procedure was given to the Petitioner to carry the

presentation of JSSG home to work on, the answer was in the negative. This

much was certain that the Petitioner‟s work involved being part of the JSSG

itself. According to Group Captain Rajesh Kumar, the petitioner was

working on the entire case of JSSG.

32. The Petitioner refers to the dismissal order dated 17th October 2005

wherein in Para 8 it is stated that the Court of Inquiry found "Although the

JSSG presentation is not stated to bear TOP SECRET classification, it

related to information on Vulnerable Areas and Vulnerable Points (Vas and

VPs), update on threat perceptions, marking of Vas/VPs on the maps,

updating Intelligence etc. which was compiled in a TOP SECRET file". It

was further stated therein that the Court of Inquiry had established that the

petitioner had worked on a TOP SECRET document on 21st April 2005 and

then carried it home and that when the said information was merged with

other commands, the entire document became TOP SECRET. The Court of

Inquiry therefore found that the Petitioner had "by unauthorisedly copying

classified information and carrying out home on his personal pen drive

breached computer security and thus violated provisions of IAP 3903,

Chapter II, Para 7 (d)."

33. It is seen that in its recommendations, the Court of Inquiry did not advise

the trial of the Petitioner for any offence. It was noted that he had loaded

from a CD the Nokia phone PC Suite 5 software on his office PC and that he

was found using the Nokia mobile phone in his office and the said mobile

was capable of data transfer. The Court of Enquiry recommended "Greater

awareness of IAP 3902 and IAP 3903 be emphasized in the IAF and steps to

introduce certification of the same be evolved". There is force in the

Petitioner‟s contention that till this incident there was no authorised

procedure which would tell the officers what they should and should not do

in relation to computers and pen drives and taking work home. Again, there

is nothing to show that the Petitioner in fact passed on this information to

anyone else. At the highest it only shows that he unauthorisedly took work

home.

34. The case of the prosecution is that during the Court of Inquiry, the

Petitioner produced a further pen drive given by the Petitioner to

Kulbhushan Parashar and retrieved from him subsequently. The case of the

Petitioner is that the JSSG presentation which was on this pen drive was

deleted and a blank pen drive was given to Kulbhushan Parashar for

recording some music.

35. From the statement of Squadron Leader Prince Devraj recorded by the

CBI on 23rd May 2006, it is seen that the said witness was a member of the

Court of Inquiry. He was asked by Director (CI & S) to analyse the hard

disk of the computer installed in the office of the Petitioner. He also did the

forensic analysis of the home PC of the Petitioner. When in the Court of

Inquiry, the Petitioner was asked about the mode of transferring the JSSG

presentation to his home PC, he produced a UMAX (Sandisk) pen drive

which was found to be brand new and unused.

36. Reliance is placed by the CBI on the statement made by the

Petitioner‟s wife Mrs. Mrudula Surve. She states that during the course of

the Air Force Court of Inquiry, Air Commander Nigam asked the Petitioner

to bring a pen drive in which he took the JSSG presentation home. The

Petitioner informed the Court of Inquiry that he had given the said pen drive

to Kulbhushan (for loading music) after deleting the JSSG presentation but

Air Commander Nigam insisted that the Petitioner should bring the said pen

drive and even told him that "said pen drive will be his ticket to heaven".

The Petitioner then contacted Kulbhushan Parashar who fixed a place at

Lajpat Nagar. Kulbhushan Parashar assured that he would hand over the

said pen drive at Bengali Market some time in June 2005. Manish who

worked with Kulbhushan Parashar handed over the pen drive to Mrs.Surve.

It was then handed over to the Court of Inquiry. Mrs.Surve‟s statement as to

what transpired thereafter reads as under:

"Later on Mr.Surve told me that the Court of Inquiry told him that the said Pen drive has nothing in it and the date time was changed due to which they could not retrieve anything from it."

37. It is sought to be contended on behalf of the CBI that this is evident

that the said presentation was tampered with and that if the JSSG

presentation would have been deleted before handing over the pen drive to

Kulbhushan Parashar, the same could not have been retrieved scientifically

like the information about the DNO from the Naval War Room which was

available in the deleted form in the Kingston make pen drive. The

conclusion sought to be drawn is that the JSSG, a classified file, was

therefore passed on to Kulbhushan Parashar through a pen drive. This Court

is unable to appreciate the submissions. The pen drive stated to have been

obtained back by the Petitioner from Kulbhushan Parashar did not contain

the JSSG presentation. The forensic analysis also did not substantiate this.

As of now therefore there is nothing to show that the Petitioner passed on

JSSG presentation to Kulbhushan Parashar through a pen drive or otherwise.

Information pertaining to the DNO

38. The third document which the petitioner is accused of unauthorisedly

possessing is the information pertaining to the DNO which was found in the

deleted form in the Kingston pen drive seized from the petitioner. The

prosecution does not say that Petitioner passed on the information pertaining

to the DNO to Kulbhushan Parashar. Rather it is that he obtained from the

latter information concerning the DNO without even realising it. The

Kingston pen drive when analysed revealed that apart from the SOP Pechora

document "all other documents recovered from the said Pen drive were

related to the Navy." The clone of the pen drive and the other relevant

documents were sent to the Naval authorities who instituted their own Board

of Enquiry. There is force in the contention that but for the petitioner

drawing attention of the Air Intelligence to the Kingston pen drive which he

voluntarily handed over to them, the espionage activity at the Naval War

Room involving Kulbhushan Parashar may not have been unearthed.

39. This Court has also not had a satisfactory explanation from the side of

the CBI as regards the contention of the counsel for the petitioner that the

pen drives seized from the petitioner were handed over in an unsealed

condition to the CBI. The Kingston pen drive seized on 21st May 2005 was

handed over to the CBI in an unsealed condition on 15 th June 2005. Further

it was shown that files were created on it on 3rd June 2005.

40. The net result of the above discussion is that as determined in the Court

of Inquiry, two sets of information i.e. the POC.DOC of Pechora, the JSSG

presentation were perhaps unauthorisedly taken by the petitioner on pen

drives. But there is no evidence to show that he passed it to anyone. It is

not the case of the prosecution that the Petitioner passed on any information

constraining the DNO to anyone. It is perhaps why unlike the Board of

Inquiry set up by Naval authorities which made a specific recommendation

that its three officers should be sent for trial, the Court of Inquiry instituted

by the Air Force Headquarters did not make any such recommendation in

relation to the Petitioner.

41. This Court is therefore satisfied prima facie, and for the limited purposes

of considering the case of the petitioner for grant of bail, that the prosecution

has not been able to show that the offence under Section 3 (1) (c) OSA is

attracted vis-a-vis the petitioner. At the highest the offence under Section 5

OSA could be said to be attracted. AS regards the charge under Section 120

B IPC, the statement of Manish Kumar under Section 164 CrPC is the only

piece of evidence that shows the association of the petitioner and

Kulbhushan Parashar. The petitioner himself does not deny having been

introduced to Kulbhushan Parashar. But the statement of Manish Kumar

under Section 164 CrPC does not show him being in criminal conspiracy

with the latter to commit the OSA offences. This is however only a prima

facie view and is not intended to influence the opinion to be formed by the

trial court at the stage of charge or any of the subsequent stages.

42. Numerous other points have been argued on behalf of the Petitioner

including whether in terms of the Air Force Act 1950, he could be subject to

a trial at all. However, in light of what has been held hereinbefore

concerning the prima facie nature of the offence, this Court is not examining

those points for the present. Those contentions are left open to be urged by

the petitioner at the appropriate stage.

Factors for grant of bail

43. There are certain other factors that have weighed with this Court in

considering the case of the petitioner for grant of bail. The Petitioner has

already completed three years of pre-trail detention. An order on charge is

yet to be passed although arguments thereon are stated to be in progress.

This is an indication that trial is unlikely to commence in the near future and

given the trend of similar trials, it is unlikely to conclude within a reasonable

time frame.

44. At the present stage on a conspectus of the materials available on record,

this Court is of the view that the Petitioner has made out a case for grant of

bail, subject to conditions which would be stringent.

45. The Court accordingly directs that Petitioner be released on bail,

subject to the following conditions:

(1) The Petitioner will furnish a personal bond in the sum of Rs.1 lakh with two sureties in the like amount -one surety of New Delhi and the other a surety of the petitioner‟s permanent address in Pune - to the satisfaction of the trial court;

(2) The Petitioner will not leave India without the prior permission of the trial court;

(3) If not already done, the Petitioner will surrender his passport forthwith to the CBI and appropriate measures will be taken by the CBI to ensure that the Petitioner does not travel during the pendency of the criminal case;

(4) The Petitioner will appear on the every date the case is fixed before the trial court and furnish his present address;

(5) The Petitioner will not attempt to influence any witness or tamper the evidence or seek unnecessary adjournments before the trial court. He will not in any manner impede the fair progress of the case.

46. If any of the above conditions is violated, it would be open to the CBI

to apply for cancellation of bail. It is made clear that the observations in this

order are limited to considering the case of the Petitioner for grant of bail

and are not intended to influence the case of any of the co-accused for

release on bail or influence the opinion to be formed by the trial court on an

independent assessment of the materials at any of the subsequent stages of

the case.

47. The bail application is disposed of. Dasti to the counsel for parties.

S. MURALIDHAR, J.

APRIL9, 2009 ks