Kulbhushan Parasher vs State

S. Ravindra Bhat, J.—The applicant is accused of having committed offences punishable under Sections 3 and 4 of the Official Secrets Act,

read with Section 120-B, Indian Penal Code, 1860 (hereafter ""IPC"").

According to allegations, the Indian Navy found that sensitive and classified information was being leaked. To ascertain the source and extent of

leakage of classified informations, the Indian Navy constituted a Board of Inquiry. On the basis of findings of the court of inquiry and the board of

inquiry, Sambajee Lal Surve of Indian Air Force Capt. Kashyap Kumar, Commander Vijender Rana and Commander V.K. Jha were dismissed

from the services. Apparently, the names of some private persons including retired defense officers also figured during the inquires, against whom

action was not possible under inter alias the Navy Act. The Central Government referred the matter to Central Bureau of Investigation (CBI) for

initiating criminal proceedings against all the involved persons.

The CBI registered case NO. RC 2(A)/2006/ACU-IX/CBI/ New Delhi on 20.03.2006 u/s 120-B IPC & Section 3(1)(i) and 5 of the Official

Secrets Act, 1923. According to allegations in the FIR, reliable information was received from the Ministry of defense that the then Wing

Commander Sambhajee L. Surve of India Air Force, the then Commander Vijender Rana, the then Commander Vinod Kumar Jha, the then

Captain Kashyap Kumar, all of the Indian Navy, in collusion with private persons, inter alia, the applicant Kulbhushan Parashar, Ravi Shankaran,

Wing Commander (Retired) S.K. Kohli, Mukesh Bajaj, Ms. Rajrani Jaiswal and unknown person of a communication company called ""Atlas

conspired to unauthorized trade in classified documents/ informations relating to Ministry of defense, Central Government, which, if disclosured

was likely to affect the sovereignty of India. During investigation, CBI conducted searches, u/s 11(2) of the Official Secrets Act. Six persons,

including the applicant were arrested in April, 2006; an accused, Ravi Shankaran, who allegedly conspired with them, could not be arrested, as he

was out of the country. His passport was revoked and the Central Government, is making efforts to have him brought back.

It was alleged that investigations established that for the purpose of collecting and obtaining sensitive information relating to safety, security and

sovereignty of the nation, accused petitioner Kulbhushan Parashar and Ravi Shankaran in conspiracy with each other allured the serving defense

officers, namely, SL Surve and Vijender Rana by way of providing them with gifts and allurements in cash and kind. In furtherance of the

conspiracy, the petitioner purchased and provided and provided pen drives to SL Surve and Vijender Rana, for the purpose of enabling them to

copy sensitive information relating to national security from secured computer systems of Navy and computers of Air force. The petitioner, acting

in a manner prejudicial to the safety and interest of the State, caused the collection and receipt of sensitive information unauthorisedly by way of

3603 pages of information in a Pen - drive, which was recovered from accused SL Surve and 3264 pages in ""Jet"" Flash Pen-drive, which was

recovered from accused Vijender Rana as well as by way of exchanging e-mails with the intension to promote his business interests.

It is submitted by Learned senior counsel, Mr. Mukul Rohtagi that the applicant was arrested on 5.04.2006 and was remanded to CBI custody;

he was later sent to judicial custody on 19.04.2006. Since then, he has been in jail. The trial court refused him bail. Counsel submitted that the

charge sheet in this case was submitted long back, on 3-7-2006.

Counsel submitted that the petitioner, a retired naval officer, who had started his business, has been falsely involved in the matter. It was

submitted that no incriminating material has been recovered from the applicant; there is also no material circumstance, linking him with anything that

can even remotely constitute offences under Sections 3 and 5 of the Official Secrets Act.

Learned Counsel submitted that the only material fact which the prosecution could point to was the so called recovery of pen drives on 13-4-

2006; yet that factor could not be termed incriminating, because nothing incriminating was found in those pen drives. Further, and more

importantly, the pen drives had been handed over over seven months before their recovery, and the chances of their being tampered with, or

worked upon were very real. Counsel relied upon D-12, the seizure memo, which reads as follows:

Today in the presence of independent witnesses S/sh. Mukesh Kumar Roy, Administrative Officer & Sanjeev Kumar Arora, Higher Grade

Assistance, both from Life Insurance Corporation, Vigilance Department, Jeevan Bharati Bldg., Tower-2. Connaught Place, New Delhi. Cdr.

Anupan Kaushal, as mentioned above, produced a Pen drive of silver grey colour, make ""Transcend"" with Sr. No. written on plastic part, visible

after removing the cap, as ""72989-0314-OC-6C"" in unsealed condition. He informed that the same was handed over by Ex. Cdr. Vijender Rana

on 07.08.2005 to him. Thereafter, forensic analysis was conducted by Cdr. S. Dutta by directly (without write block) accessing it and taking its

image on more than one occasion. Thereafter, the Pen Drive has remained in the possession of Cdr. Anupam Kaushal since then. This pen drive

was again accessed yesterday by Cdr. Dutta in his presence in order to identify that whether the same is the one which he had received from

Vijender Rana or not as he was having two other pen drive containing two clones of the Pen Drive recovered by Air Force authorities from

Sambajee Lal Surve. The pen drive has been sealed in the presence of the above mentioned witnesses under the signatures of all present.

It was submitted that on the basis of such flimsy material, no case could be made out against the petitioner, much less a case of grave suspicion.

Therefore, he was entitled to bail.

Ms. Mukta Gupta, learned Counsel for the State, opposed the application. She submitted that the petitioner, in conspiracy with co-accused

acted in a manner prejudicial to the safety and security of the nation by way of obtaining and exchanging classified information, which is critical for

the security of the nation, unauthorisedly, by way of exchanging e-mails and using internet voice and text messaging facility with the intention to

promote his ostensible business interests. According to investigation S.L. Surve, in conspiracy with the petitioner, compromised sensitive

information pertaining to national security by copying classified official files into non-official pen drives, given by the petitioner. The pen drives were

passed on to the petitioner, for illegal gratification, received by co-accused in the form of mobile phones, cash cards, air tickets, taxi services, cash

as well as accepting his hospitality on various occasions. A mobile phone received by S. L. Surve from the petitioner was used by Ms. Raj Rani

Jaiswal, with whom the said S.L. Surve had extra marital relations. He was in unauthorized possession of sensitive information of classified nature

running into 3603 pages relating to national security whose disclosure has serious implications.

Counsel submitted that the petitioner also conspired with Vijender Rana and Ravi Shankaran and compromised sensitive and critical

information pertaining to national security by unauthorized use of non-official pen drive on the DNO LAN by way off passing on the same to

unauthorized persons and with it may be passed on to some persons outside India. He (Rana) had unauthorized possession of sensitive information

running into 3264 pages on the Jet Flash pen drive. He unauthorisedly took an official computer from the DNO to his residence on the instance

and consent of V.K. Jha the then Joint Director Naval Operations (Systems) and (Administration & Coordination) which was used to exchange

sensitive information with unauthorised persons viz the petitioner and Ravi Shankaran through e-mails. Vijender Rana received substantial illegal

gratification from the petitioner, in various forms - cash, payment of telephone bills, the installation of land line telephone at his residence, hiring of

taxis and air tickets etc. in lieu of providing critical information related to national security by misusing his official position. Likewise, co-accused

V.K. Jha had unauthorizedly given an official computer to Vijender Rana''s residence at 7/73, Arjun Vihar, New Delhi which was used by the

latter to transmit sensitive information having serious implications on national security related to ''Sir Creek'' and various Patrol Boats specifications,

to the petitioner and co-accused Ravi Shankaran. As Joint Director Naval Operations (Systems) and (Administration & Coordination), V.K. Jha

had not the accounting of the official portable media (Pen drive) as per standing orders and he also allowed illegal use of Pen drive in DNO which

facilitated the leakage of sensitive information to the petitioner and Ravi Shankaran. The petitioner was an active party, and conspirator to all these

illegal acts.

It was submitted that according to investigation the petitioner maintained close association with various officers of Ministry of defense, both

from the services and staff, for obtaining sensitive information and favors in the commercial purchases of the Ministry of defense. The ''Tiff'' and

''PDF'' documents running into 369 pages were recovered from the Jet Flash Pen drive. They prima facie are related to the petitioner and point to

the involvement of more defense officers and other private persons (who are not named in the present FIR) in the collection and passing out of

sensitive defense information.

It was submitted that the allegation that the pen drives were tampered, as they had been in the custody of Cdr. Kaushal who had worked on

them, is unfounded, since a ""clone file"" containing the contents was created; that was worked upon. The pen drive itself was not tampered or

worked upon. It was submitted that contents of the pen drives were sought to be erased; yet some vital clues could be recovered, which pointed

sufficiently to illegal gratification received, and the nature of information passed on. In view of these circumstances, the applicant was not entitled to

bail.

The above discussion would show that leakages were found in the offices of the Indian Navy; a court and Board of inquiry was held. The

matter was later entrusted to the CBI, which seized materials, and documents. It proceeded to arrest several officers, and retired officials, including

the applicant. The materials and circumstances put against the petitioner are that he had furnished unauthorized pen drives, which were bought by

him; those were used by other co-accused, serving officials, to copy and transmit classified and sensitive information relating to national security. It

was also alleged that the serving officers were in constant touch with the petitioner, and other co-accused, through e-mail and on line chatting,

when they passed on sensitive information, which amounted to offences under the Official Secrets Act. The applicant''s defense is that nothing

incriminating was found in his possession; that the pen drives do not contain any comprehensible information and that the entire prosecution version

is premised on conjectures. It was also submitted that the possibility of evidence tampering could not be ruled out.

The charge sheet in this case has defined the role of the petitioner, as one of the conspirators who connived with the serving officers. The latter

passed on information to the applicant, through pen drives bought by him. The pen drives were used by the serving officers on official computers,

which was irregular; classified information was copied and passed on. Apart from this link, the other allegation is that the petitioner was involved in

passing on illegal gratification and favors to the co-accused, in exchange for the information. Additionally, it is alleged that the applicant also

received such classified information through e-mail and internet chatting, with other co-accused. Although the applicant has sought to raise a doubt

about the genuineness of a pen drive, stating that the possibility of its being tampered cannot be ruled out, yet the prosecution states that a clone file

was created, which was worked upon, and not the contents of the pen drive.

In considering applications for bail, apart from the period of custody or detention, which is a relevant circumstance, other factors, such as the

nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; reasonable apprehension of

tampering with the witness or apprehension of threat to the complainant; Prima facie satisfaction of the court in support of the charge, have to be

considered by the court. In the present case, there are several circumstances which prima facie appear to connect the applicant with the

incriminating features, such as evidence of his being instrumental in giving or offering illegal gratification; his being recipient of classified information

through e-mail and chatting, and also his supplying the unauthorized pen drives used to copy sensitive and forbidden information, which were

passed on to him.

On an overall conspectus of the facts, and having regard to the severity of the offences and allegations, I am of the considered view that it

would not be appropriate to grant bail to the applicant. In these circumstances, the application has to fail; it is accordingly dismissed.