Research › Search › Judgment

Delhi High Court · body

2008 DIGILAW 600 (DEL)

ABHISHEK VERMA v. CENTRAL BUREAU OF INVESTIGATION

2008-05-30

S.MURALIDHAR

body2008
JUDGMENT Dr. S. Muralidhar, J.:- These two petitions arise out of the same set of facts and are accordingly being disposed of by this common judgment. The prayer in Bail Appln. No. 2546 of 2007 under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) is for the grant of bail to the petitioner who is facing trial in complaint case RC No. 2(A)/2006/ ACU-IX/CBI, New Delhi under Sections 3, 9 of the Official Secrets Act, 1923 (OSA) and the Criminal Case instituted upon the charge sheet filed under Sections 409/109 read with Section 120B, IPC. 1. 2. Crl.M.C.No. 4231 of 2006 filed under Section 482, Cr.P.C. challenges the order dated 22nd July, 2006 passed by the learned Chief Metropolitan Magistrate (CMM) remanding the petitioner to police custody till 1st August, 2006. By a subsequent application the prayer was amended to include a challenge to all subsequent proceedings as well. 2.1 According to the prosecution in May 2005 a Court of Inquiry conducted by the Air Force Headquarters had established that Wing Commander S.L. Surve had obtained a pen drive containing information pertaining to the Directorate of Naval Operation (DNO) from Kulbhushan Parashar, a former officer of the Indian Navy. A Board of Inquiry was also conducted by the Naval Headquarters and three Naval Officers Kashyap Kumar, Vijender Rana and Vinod Kumar Jha were indicted for causing classified naval information to be leaked to unauthorised persons thus jeopardizing the security of the State. In the Air Forces Court of Inquiry it came to light that Kulbhushan Parashar was associated with a company named Atlas. 3. On the basis of the information received from the Ministry of Defence, the Central Bureau of Investigation (CBI) registered FIR No. RC 2A/2006/ ACU IX on 20th March, 2006 under Section 120B read with Section 3(1)(c) and Section 5, OSA against Kulbhushan Parashar, Ravi Shankaran, S.K. Kohli, Mukesh Bajaj, Ms. Rajrani Jaiswal, Sambhajee L. Surve, Virender Rana, Kashyap Kumar and Vijender Kumar Jha. It is stated that the CBI arrested the aforementioned accused persons except Ravi Shankaran. On 23rd June, 2006 a raid was conducted on the house of the petitioner. No incriminating material was recovered from the possession of the petitioner or recovered at his instance. Rajrani Jaiswal, Sambhajee L. Surve, Virender Rana, Kashyap Kumar and Vijender Kumar Jha. It is stated that the CBI arrested the aforementioned accused persons except Ravi Shankaran. On 23rd June, 2006 a raid was conducted on the house of the petitioner. No incriminating material was recovered from the possession of the petitioner or recovered at his instance. On 1st July, 2006 a Criminal Complaint was lodged against Kulbhushan Parashar, Ravi Shankaran, S.L. Surve, Virender Rana and Vinod Kumar Jha in RC No. 2(A)/2006/ ACUIX/CBI, New Delhi under Sections 3 and 5, OSA read with Section 120B, IPC. On that very day, the learned Chief Metropolitan Magistrate (CMM), Delhi by an order dated 1st July, 2006 took cognizance of the offences under the aforementioned provisions. On 10th July, 2006 the learned CMM again passed an order taking cognizance of the same offences. 4. The allegation in the charge-sheet was that Kulbhushan Parashar, who was earlier working with Ravi Shankaran at Mumbai started working with Abhishek Verma after he moved to Delhi. It is stated that Kulbhushan Prashar was the Vice-President of Atlas Defence System (ADS) and was interacting with the Ministry of Defence for various products including 2 MB PCM MUX multiplexing equipment for simultaneous transmission of subject, telegraph messages and data over point to point communication, SESD (Subscriber End Secrecy Device) and TETRA (Terrestrial Trunk Radio) and Aerostat. It is stated that there was evidence on record to show that although the bids were made by M/ s. Atlas Telecom Network (ATN) and ADS, Mr. Abhishek Verma was also associated with these companies and was monitoring the bids. This inference is drawn on the basis that Abhishek Verma was on the board of two other companies, viz., Atlas Interactive India Pvt. Ltd. (AIIPL) and One World Interactive India Pvt. Ltd. (OWIIPL). The address of both these companies was 407 Tower B, Global Business Park, MG Road, Gurgaon. This address was also used by ADS and ATN. According to the CBI, ADS was a division of the Atlas Group which provided turnkey high speed aeronautical satellite communications solutions from highly secure military applications. 5. The other link which is sought to be established against the petitioner is a statement of one Ravi Chauhan, an employee and senior functionary in one of the. Atlas Group of companies. According to the CBI, ADS was a division of the Atlas Group which provided turnkey high speed aeronautical satellite communications solutions from highly secure military applications. 5. The other link which is sought to be established against the petitioner is a statement of one Ravi Chauhan, an employee and senior functionary in one of the. Atlas Group of companies. In it Chauhan is stated to have claimed that no official transaction was made by the group employees without the consent of Abhishek Verma. The group was not doing too well but there was an inflow of foreign funds into the Atlas Group company accounts and one of the authorised signatories of these accounts was the petitioner. It was stated that there was evidence to show that Rs. 10 lakh was paid by Abhishek Verma to Ravi Shankaran from the accounts of OWIIPL. 6. The case of the CBI is that there was a close association between Kashyap Kumar, Abhishek Verma and Ravi Shankaran. A jet flash pen drive recovered from Vijender Rana, an officer posted in the Naval War Room, indicated the commission paid to Abhishek Verma by Kulbhushan Parashar and Ravi Shankaran in Mumbai and Delhi as between 0.5% and 1.5% for procurement of equipments. Documents seized from the residential premises of Kulbhushan Parashar contained official correspondence between the Atlas Group of Companies with the armed forces and the Ministry of Defence relating to the supply of equipment for the Indian Army for which A TN was one of the bidders. Kulbhushan Parashar is stated to have purchased pen drives and distributed it to the other officers including Vijender Rana and S.L. Survey. Therefore Kulbhushan Parashar and Ravi Shankaran had an active role in collecting and passing on of 6867 pages of classified defence information from the computers of the Naval War Room of Indian Air Force and this is evident from the pen drives recovered from Vijender Rana and S.L. Surve. 7. Therefore Kulbhushan Parashar and Ravi Shankaran had an active role in collecting and passing on of 6867 pages of classified defence information from the computers of the Naval War Room of Indian Air Force and this is evident from the pen drives recovered from Vijender Rana and S.L. Surve. 7. According to the CBI, classified information contained in the two pen drives recovered from Vijender Rana pertained, inter alia, to the Network Centric Operations of the Indian Navy, to PECHORA (a missile used in Indian Air Force, which is a surface to air missile, procured from Russia and which is an important, part of the Indian Air Defence System), to the Joint Service Study Group (JSSG) on Ground Based Air Defence Weapon System (GBADWS) a strategically sensitive study being taken up as a joint venture by the three wings of the Defence i.e. Air Force, Navy and the Army to identify their vulnerable areas (V As) and vulnerable points (VPs), and vital information pertaining to Sir Creek Area. It is further submitted that 369 Portable Document Format (PDF) format and Tagged image file format (TIFF) pages which contained documents being copies of the official notings of the various offices of the Ministry of Defence and other defence documents were also recovered. One of the letters linked the pen drives recovered (from Vijender Rana to Kulbhushan Prashar. 8. The document in which the name A. Verma rigures and on which considerable reliance has been placed by the prosecution is described in para 14.2.4 of the complaint which reads as under: "14.2.4 One of these PDF documents recovered from the Jet Flash Pen Drive of Vijender Rana is a letter of Shri G. Mukhopadhaya, JS (Planning and International Cooperation) PIC dated 5.1.2005 along with enclosures, which is a proposal of a firm called EADS (European Aeronautical & Defence Systems) to set up small/ medium local area voice and data network to assess ongoing relief operations in Andaman and Nicobar. This letter addressed to Brigadier R.K. Yadav, Military Attache, High Commission of India, London and was sent to MEA, New Delhi and JS PIC, Ministry of Defence by Shri Satyabrata Pal, Deputy High Commissioner, High Commission of India, London. In the right hand top corner of this document is written "Kind Attn: A Verma". This letter addressed to Brigadier R.K. Yadav, Military Attache, High Commission of India, London and was sent to MEA, New Delhi and JS PIC, Ministry of Defence by Shri Satyabrata Pal, Deputy High Commissioner, High Commission of India, London. In the right hand top corner of this document is written "Kind Attn: A Verma". The office copies of this letter have been collected from the International Cooperation Section of Ministry of Defence as well as from Integrated Defence Staff Headquarters which reveals that this document, which was addressed to CISC (Chief of Integrated Staff Committee) was further marked to DGDIA (Tech Int), (Director General Defence Intelligence Agency), DCIDS (Ops), (Deputy Chief Integrated Defence Staff Operations), DACIDSC C412, (Deputy Assistant Chief Integrated Defence Staff Command Control Communication Computer Intelligence and Interoperability), DACIDS (ISWSIT), (Deputy Chief Integrated Defence Staff (Information Warfare and Information Technology» and SAG (System Analysis Group). These markings have been erased in the scanned copy recovered from the Jet Flash Pen Drive with the mala fide intention to conceal the identity of the compromised unidentified person in the CISC. This document was not addressed to any private person but was for official use only. Evidence has come on record that in CISC, this matter was dealt with in file No. IDS/ Ops/C412/32037, which is a file classified as secret and deals with matters related to Andaman and Nicobar Command of Indian Army which is of high strategic importance from view-point of National Security. The fact that this document has been sent to Abhishek Verma and has been recovered from this Jet Flash Pen Drive clearly proves that Abhishek Verma was having access to such official records of Defence Ministry having a bearing on the safety and security of the nation, through some compromised officers, who were paid/ gratified for providing information illegally to him directly and also to Kulbhushan Parashar and Ravi Shankaran. Abhishek Vermas interests in the Telecom equipments because of Atlas Interactive which became joint venture with Atlas Telecom, and earlier only with Atlas Telecom already stands proved. Abhishek Verma through his Atlas Group of companies has been bidding for Telecommunication equipments which shows the likely reason and intention of collecting any such information related to supply of equipment related to telecommunication for the furtherance of his business interest at the earliest, and in the process, national security was compromised."• 9. Abhishek Verma through his Atlas Group of companies has been bidding for Telecommunication equipments which shows the likely reason and intention of collecting any such information related to supply of equipment related to telecommunication for the furtherance of his business interest at the earliest, and in the process, national security was compromised."• 9. The other plea was that Kulbhushan Parashar was closely associated with and in working for Abhishek Verma and that the latter was connected with and in control of all that was done by Kulbhushan Parashar. he conclusions in the complaint as set in para 16 thereof reads as under: "16. Therefore, the aforesaid facts prima facie establish that: (i) Abhishek Verma was closely associated with Atlas Group of Companies and also those which existed in India in the name and style Atlas Interactive (India) Pvt. Ltd. and M/s. One World Interactive India Pvt. Ltd. which had dose links with foreign registered sister concerns M/s. Atlas Defence Systems, Atlas Telecom Pvt. Ltd., U.K. (H) Abhishek Verma is very closely associated with Kulbhushan Parashar who provided at least 8 pen drives to the compromised defence officers to copy and trade off sensitive information of interest to the group in exchange for gratification. (Hi) Abhishek Verma was privy to the sensitive defence information at least on one of these pen drives which has implications for National Security. This information includes the Network Centric Operations Project of the Navy, on the strategic Sir Creek and on the Pak War Game. He was also privy to the 369 pages of PDF and TIFF files which are about many sensitive procurements of the Ministry of Defence. One of these documents is an internal letter of the Ministry of Defence from a secret file which has been unauthorisedly obtained by Abhishek Verma. (iv) Abhishek Verma is very closely associated with Ravi Shankaran, who has received such critical information on national security from the compromised defence officers namely Vijender Rana, through the Jet Flash Pen Drive and e-mails, and who was also in touch with foreign companies. (v) Abhishek Verma is very closely associated with foreigners linked to the Atlas Group of Companies and others and also had financial transactions with them. (vi) Abhishek Verma has received pecuniary benefits from these foreign companies in the form of cash remittances. These companies had interest in various defence procurement by the Government of India." 10. (v) Abhishek Verma is very closely associated with foreigners linked to the Atlas Group of Companies and others and also had financial transactions with them. (vi) Abhishek Verma has received pecuniary benefits from these foreign companies in the form of cash remittances. These companies had interest in various defence procurement by the Government of India." 10. Soon after his arrest Abhishek Verma filed Cd. M.C. No. 4231 of 2006 in this Court challenging the order dated 22nd July, 2006 passed by the learned CM VI remanding him to police custody and seeking an order directing the petitioners release forthwith. On this petition no interim order was passed. On 17th August, 2006 the petitioner was permitted to amend the prayer clause seeking quashing of the order dated 22nd July, 2006 and "all orders/proceedings consequent thereto in view of the subsequent developments". 11. On 18th and 19th October, 2006 a complaint under Section 13, OSA and a supplementary charge-sheet were filed against Abhishek Verma. The learned CMM took cognizance of the offences against the petitioner as mentioned in the opening paragraph of this judgment. On 13th April, 2007 the application for bail was rejected by the learned CMM. The petitioners subsequent application for bail was dismissed by the learned Additional Sessions Judge, Delhi on 29th May, 2007. The petitioner has been in custody since 21st July, 2006. 12. Mr. Siddharth Luthra, learned Senior Counsel appearing on behalf of the petitioner, first addressed arguments in relation to Crl. Misc. Case No. 3241 of 2006 where the challenge is to the order dated 22nd July, 2006 passed by the learned CMM remanding the petitioner to police custody till 1st August, 2006. Mr. Luthra submitted that notwithstanding the developments that have taken place since the filing of the separate complaint and supplementary charge-sheet against the petitioner on 18th and 19th October, 2006 he would still urge that the procedure adopted by the prosecution in regard to the petitioner in this case was in violation of the various provisions of the Cr.P.C. and therefore that is an additional factor that should be taken into account while considering the petitioners prayer for release on bail. 13. 13. The submission is that the procedural infraction is incurable in as much as under Section 13, OSA cognizance can be taken of the offence only upon a complaint (as defined under Section 2(d), Cr.P.C.) and not on a police report as defined under Section 2 (r), Cr.P.C. In the present case the complaint had already been filed on 1st July, 2006 and the learned CMM had taken cognizance on that very date. It is stated that on the same date the CB1 moved a misconceived application under Section 210, Cr.P.C. on which notice was issued to the Investigating Officer in the FIR that had already been filed on 20th March, 2006 for filing a status report/ chargesheet. The submission is that once process has been issued to the accused, the procedure that ought to be followed was that relating to a warrant case in terms of part B of Chapter 19 of the Cr.P.c. and that without seeking the permission of the Court under Section 173(8); Cr.P.C. the CBI continued to illegally investigate the matter. A raid had already taken place on the petitioners premises on 23rd June, 2006, but nothing incriminating had been found. Thereafter the complaint was filed on 1st July, 2006 and the charge sheet on 3rd July, 2006. Despite the petitioners name figuring in these documents, he was not shown or summoned as an accused at that stage. Since cognizance was taken on 1st July, 2006 and again on 10th July, 2006 and process had not been issued against the petitioner, the CBI was 1 required to proceed as per Chapter 16 and should have sought directions under Section 202, Cr.P.C. to investigate the role of the petitioner. 14. Mr. Luthra points out that there are two separate kinds of procedures that can be followed in criminal cases. One emanates from a complaint under Section 2(d), Cr.P.C. on which cognizance is taken under, Section 190, Cr.P.C. and thereafter the procedure under Chapter 15, Sections 200 to 203 is followed. The other path is that an FIR is registered under Section 154, Cr.P.C. in which investigation begins under Section 156, Cr.P. C. which culminates in a report under Section 173, Cr.P.C. It is possible that ii1 a complaint the Magistrate could direct an investigation under Section 156(3), Cr.P.C. but in the present case the complaint itself was filed at the completion of the investigation. Instead of following either of these distinct paths the prosecution chose to file a supplementary charge sheet based on further investigation under Section 173(8), Cr.P.C. whereas in a complaint case as the present one no such procedure is known to law. He relies on the decisions in Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986 and Mohd Yusuf v. Afaq Jahan, I (2006) SLT 120=1 (2006) CCR 1 (SC)=(2006) 1SCC 627. 15. The submission is that if the procedure by which the petitioner was arrested and detained is itself illegal, then all further proceedings are also bad in law. On three occasions i.e. on 1st July 2006, 10th July, 2006 and 4th August, 2006 when the case was taken up by the learned CMM, no orders 4 could have been passed in respect of the petitioner as he was not named in the case and no complaint war pending against him. The complaint and charge-sheet against him were filed only on 17th October, 2006. Therefore by the order dated 22nd July, 2006 the petitioner could not have been remanded to police custody. 16. Mr. Luthra submitted that in view of the subsequent developments, these submissions in the petition under Section 482, Cr.P.C. should be read as forming part of the bail application. 17. On the merits of the bail application, he submits that there is absolutely no material on record to show that the petitioner was a director / principal officer of Atlas Interactive India Ltd. or that he was heading the Atlas Group of Companies in India of which ADS formed a part. The only evidence that is available is to show that the petitioner was an authorised signatory of the bank accounts of the AIN. There was no evidence that the pen drives which were recovered from Vijender Rana were in the possession of the petitioner at any time. Nor was there any) evidence of transmission of the material by the co-accused to the petitioner. The highest case against the petitioner was of his connection with the Atlas Group Companies but those companies by themselves were not made accused and there is no vicarious liability under the Indian Penal Code attached to persons associated with such companies. Nor was there any) evidence of transmission of the material by the co-accused to the petitioner. The highest case against the petitioner was of his connection with the Atlas Group Companies but those companies by themselves were not made accused and there is no vicarious liability under the Indian Penal Code attached to persons associated with such companies. It is submitted that the offence at the highest as regards ADS would be that it was in possession of secret information which would at best constitute an offence under Section 5, OSA. Vinod Kumar Jha bas already been granted bail by this Court and the petitioners case could not be put on a higher footing. Vinod Kumar Jha was granted bail on the ground that Section 5, OSA would be attracted, if at all, and not Section 3. The pen drives were in an unsealed condition and multiple copies were made by the authorities nine months prior to the pen drives being taken in possession by the CBI. It is submitted that nothing was recovered from the petitioner at any point of time. He did not make any disclosure statement leading to any recovery. No incriminating document was seized from the petitioner. No connection had been established between the pen drives and any computer belonging to the petitioner either at his residence or in his office. The entire case is based on surmises and conjectures. Even the allegation that the petitioner was in constant touch with foreign nationals through mail was not substantiated by any document or material on record. In regard to the document in which the endorsement “A. Verma" occurs, it is submitted that there is another employee by the name Anupam Verma in the company as is evident from a letter from Bharat Electronics Ltd. which is part of the case record. As per the petitioners inquiry made under the Right to Information Act, 2005 the alleged letter was in fact not part of the Ministrys record at all. In its reply the MEA stated: "The concerned Division of this Ministry have checked their records. It is regretted that no such papers are available with them." 18. Finally it is submitted that the petitioner has been in custody for more than 22 months. In its reply the MEA stated: "The concerned Division of this Ministry have checked their records. It is regretted that no such papers are available with them." 18. Finally it is submitted that the petitioner has been in custody for more than 22 months. If indeed the offence is under Section 5 which was punishable with a maximum of three years imprisonment, and not under Section 3, OSA, then considering the length of time he has already been in custody, the petitioner ought to be enlarged on bail because there is no likelihood of an earlier conclusion of the trial. According to the learned Senior Counsel for the petitioner the case is at the stage of supply of documents including those in an electronic format and charges are yet to be framed. No further evidence is required to be gathered. 19. With regard to the continued presence of the petitioner before the Court in the event of grant of bail, it is pointed out that the petitioner has been made an approver and granted a pardon by the Special Judge, CBI in another case relating to one Ashok Agarwal, a former Deputy Director of Enforcement. Although the order granting pardon has been challenged before the Supreme Court, the petitioner has been provided security by the Delhi Police due to the death threats faced by the petitioner in the aforementioned case. Therefore the movements of the petitioner have always been kept track of by the police. In the numerous proceedings against the petitioner under FERA at the behest of Ashok Agarwal restrictions have already been imposed on the petitioner on his travelling abroad. It is stated that the petitioner is alleged to have obtained a second passport by misrepresentation for which prosecution is pending under the Passport Act. However the petitioner has not violated any of the conditions of the bail imposed in that case. He has complied with all the conditions imposed while granting him temporary suspension of the travelling restriction in the past in those cases. 20. Ms. Mukta Gupta, learned Senior Standing Counsel for the State, vehemently opposed the grant of bail. She submits in the first place any procedural irregularity committed by the learned CMM in repeatedly taking cognizance was curable under Section 465, Cr.P.C. Unless the accused demonstrated that there was a failure of justice, such irregularities would not vitiate the proceedings. 20. Ms. Mukta Gupta, learned Senior Standing Counsel for the State, vehemently opposed the grant of bail. She submits in the first place any procedural irregularity committed by the learned CMM in repeatedly taking cognizance was curable under Section 465, Cr.P.C. Unless the accused demonstrated that there was a failure of justice, such irregularities would not vitiate the proceedings. Where the information gathered disclosed the commission of a cognizable offence, the police was duty-bound to register an FIR under Section 154 and proceed with the investigation notwithstanding that at that stage no complaint had been filed. What was filed in this case was a separate complaint and not a supplementary charge sheet. There was no option but to adopt two procedures: the complaint procedure for the OSA offences and the FIR procedure for the offences under IPC. It is stated that even though a complaint may have been filed, it does not take away the power of the police to arrest an accused who is suspected of having committed a cognizable offence. Cognizance can be taken even on a police report. She relies upon the decision in Ram Chander v. P.K. Gupta, 99 (2002) DLT 706. In support of the submission that the prosecution was bound to follow the procedure under the Cr.P.C. till such time a complaint was filed under OSA, reliance is placed on the decision of this Court in Frank Dalton Larkins v. State (Delhi Administration), 1985 Crl.LJ 377. Accordingly she submits that no irregularity was committed by the learned CMM in permitting the grant of police custody of the petitioner by the order dated 22nd July, 2006. 21. As regards the merits of the case, Ms. Gupta points out that different considerations would come into play when the Court has to consider the question of grant of bail where the offences are under the OSA. Reliance is placed on the judgment in Govt. of NCT of Delhi v. Jaspal Singh, IV (2003) SLT 900=III (2003) CCR 150 (SC)= (2003) 10 SCC 586 to urge that under Section 3(2), OSA a greater latitude is given to the prosecution as it would be difficult to come across precise evidence that can link the accused with the offence and that the offence of conspiracy under Section 120B would be attracted even if one of the accused is shown to have overtly acted in pursuance of the conspiracy. Overt acts need not to be attributed to each of the accused. The statements of the witnesses recorded by the CBI show that there was a chain of transactions among the accused. She also referred to the e-mail address of Abhishek Verma which might indicate that the words" A Verma" written on the copy of the text message referred to earlier could only refer to the petitioner. Since over six thousand pages of sensitive information was found contained in the pen drives recovered from Vijender Rana, the crime was of a grave nature. It would be unsafe to release the petitioner on bail. Given the fact that he is facing two case under the Passport Act, and one of them is related with obtaining a fake passport during the pendency of the case, there is every likelihood of the petitioner misusing the liberty granted to him. Given the sensitive nature of the information, there is also an apprehension of his being able to tamper with the evidence. She also referred to the order dated 31st May 2007, passed by the learned Single Judge of this Court rejecting the bail application of Kulbushan Parashar. 22. In the first place this Court takes note of the fact that a separate complaint and supplementary charge-sheet has been filed against the petitioner on the basis of which cognizance has been taken of the offences alleged to have been committed by him. Therefore, at this stage, the question of procedural irregularities committed at the stage of arrest of the petitioner and his remand to police custody by the learned CMM by the order dated 22nd July, 2006 is relevant only to a limited extent. If the procedure adopted is not as envisaged by law, then it might form additional factor for considering if the continued pre-trial detention of the petitioner is justified. Moreover the learned Senior Counsel for the petitioner submitted that in view of the subsequent development, this aspect also be treated as forming part of the bail application itself. 23. The sequence of events narrated above indicates that the raid on the petitioners premises on 23rd June, 2006 did not result in seizure of any document from his possession. By that time an FIR had already been registered. Although the complaint and charge-sheet were filed on 1st July, and 3rd July, 2006, the petitioner was not named in either of those documents. By that time an FIR had already been registered. Although the complaint and charge-sheet were filed on 1st July, and 3rd July, 2006, the petitioner was not named in either of those documents. Cognizance was taken on 1st July, 2006 and then again on 10th July, 2006 of the offences. The petitioner was not in the picture then. He was arrested on 21st July, 2006 and produced before the learned CMM on 22nd July, 2006 and he was remanded to police custody for ten days. Notwithstanding the submission of the learned Counsel for the State that it was open to the police to register an FIR and proceed in the matter even in respect of an OSA offence, in the present case by the time the petitioner was arrested a complaint had already been filed against the co-accused on 1st July, 2006. The raid on his residence had already taken place on 13rd June, 2006 and nothing incriminating had been found. If between that date and 1st July, 2006 when the complaint against the co-accused was filed any material against the petitioner had been gathered, then the question arises as to why he was not named as an accused in that complaint arises. If there was material gathered between 1st and 21st July, 2006, then the complaint filed later on 17th October, 2006 should indicate that. In the absence of reference to such material, the inference is that no new material which the prosecution was not already aware of had been gathered against the petitioner between 23rd June and 20th July, 2006. The circumstances under which the petitioner was arrested on 20th July, 2006 is not clear. Also, the submission that the procedure adopted in regard to the petitioner at that stage was a departure from the complaint procedure is not without merit. 7 The learned Counsel for the State was unable to show how in respect of a complaint already filed under the OSA. in respect of one of the accused proposed to be included in the case, the FIR procedure was commenced even when the learned CMM had already taken cognizance of the offence under the OSA against other co-accused. 7 The learned Counsel for the State was unable to show how in respect of a complaint already filed under the OSA. in respect of one of the accused proposed to be included in the case, the FIR procedure was commenced even when the learned CMM had already taken cognizance of the offence under the OSA against other co-accused. This Court however does not consider it necessary to dwell on this aspect further in view of the submission of learned Senior Counsel for the petitioner that he would press the grounds of illegality of the procedure only as an additional factor for considering whether the petitioner should be granted bail. Accordingly, the Court proposes to now consider the merits of the application for grant of bail. 24. Considerable emphasis was laid by the learned Counsel for the prosecution on decisions of the Supreme Court and this Court to urge that certain special considerations should weigh with the Court while deciding the question of grant of bail to the accused in an OSA case. The first of these decisions is State v. Captain Jagjit Singh, (1962) 3 SCR 622 . In that case, the High Court had granted bail at the pre-charge (but post-committal stage) to the accused, inter alia, on the ground that other co-accused had been already enlarged on bail and further that it was arguable whether the offence fell within Section 3, OSA which was non-bailable or Section 5, OSA which at that time was bailable. The Supreme Court disapproved of the approach holding that in such a case the High Court should have proceeded on the assumption that the case fell under Section 3, OSA. It then explained the factors that should weigh with the Court in such a case while deciding whether bail should be granted (SCR, para 5): "5. The first question therefore that we have to decide in considering whether the High Courts order should be set aside is whether this is a case which falls prima facie under Section 3 of the Act. It is, however, unnecessary now in view of what has transpired since the High Courts order to decide that question. The first question therefore that we have to decide in considering whether the High Courts order should be set aside is whether this is a case which falls prima facie under Section 3 of the Act. It is, however, unnecessary now in view of what has transpired since the High Courts order to decide that question. It appears that the respondent has been committed to the Court of Session along with the other two persons under Section 120 B of the Indian Penal Code and under Sections 3 and 5 of the Act read with Section 120 B. Prima facie, therefore, a case has been found against the respondent under Section 3, which is a non-bailable offence. It is in this background that we have now to consider whether the order of the High Court should be set aside. Among other considerations, which a Court has to take into account in deciding whether bail should be granted in a non-bailable offence, is the nature of the offence; and if the offence is of a kind in which bail should not be granted considering its seriousness, the Court should refuse bail even though it has very wide powers under Section 498 of the Code of Criminal Procedure. Now Section 3 of the Act erects an offence which is prejudicial to the safety or interests of the State and relates to obtaining, collecting, recording or publishing or communicating 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. Obviously, the offence is of a very serious kind affecting the safety or the interests of the State. Further 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, it is punishable with fourteen years imprisonment. The case against the respondent is in relation to the military affairs of the Government, and prima facie, therefore, the respondent if convicted would be liable up to fourteen years imprisonment. The case against the respondent is in relation to the military affairs of the Government, and prima facie, therefore, the respondent if convicted would be liable up to fourteen years imprisonment. In these circumstances considering the nature of the offence, it seems to us that this is not a case where discretion, which undoubtedly vests in the Court, under Section 498 of the Code of Criminal Procedure, should have been exercised in favour of the respondent. We advisedly say no more as the case has still to be tried." (Emphasis supplied) 25. The next decision relied upon is State v. Jaspal Singh Gill, (1984) 3 SCC 555 , where after referring to the decision in Capt. Jagjit Singh, a learned Single Judge of the Supreme Court held (SCR, p. 559): "The Court before granting bail• in cases involving non-bailable offences particularly where the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence, the character of the evide"1ce, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations." (Emphasis supplied) 26. Turning to the case on hand, the first aspect to be considered is the nature and seriousness of the offence. The case of the prosecution is that Section 3, OSA is attracted. The relevant portion thereof reads: Section 3. Penalties for spying.- (1) If any person for any purpose prejudicial to the safety or interests of the State-: (a) and (b) .......... The case of the prosecution is that Section 3, OSA is attracted. The relevant portion thereof reads: Section 3. Penalties for spying.- (1) If any person for any purpose prejudicial to the safety or interests of the State-: (a) and (b) .......... (c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, 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 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 10 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 pass word 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 pass word 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. 27. Section 3 contemplates two kinds of offences, one which attracts a greater punishment of 14 years and the other with a lesser punishment of three years. Where the offence is in relation to defence affairs, then the heavier sentence applies. However, if one went by the decision in Capt. Jagjit Singh, at the pre-charge stage, when it is unclear which of the offences is attracted, this Court must proceed on the assumption that the more severe sentence under Section 3, OSA is attracted. This however is not the solitary factor to be considered as is pointed out in Jaspal Singh Gill. 28. Still, even while the decision in Capt. Jagjit Singh requires the Court to presume, at the pre-charge stage, that Section 3, OSA is attracted, certain aspects require to be notice. The first is that in Capt. jagjit Singh there had been committal proceedings before the Magistrate after which the case had been sent to the Court of Session. This was under the Cr.P.C. of 1898. Jagjit Singh requires the Court to presume, at the pre-charge stage, that Section 3, OSA is attracted, certain aspects require to be notice. The first is that in Capt. jagjit Singh there had been committal proceedings before the Magistrate after which the case had been sent to the Court of Session. This was under the Cr.P.C. of 1898. Under the present Cr.P.C. there are no such committal proceedings where the Magistrate applies his mind to the materials to form a prima facie opinion. The order passed in the instant case by the CMM taking cognizance of the offence under the OSA is virtually a non-speaking order. Therefore no Court has as yet formed an opinion, even prima facie, as to the seriousness of the offence. Secondly, there was evidence against the accused there that as a former Captain of the Indian Army he was "in touch with the foreign agency" He had undergone about five months custody when he was enlarged on bail. His bail was cancelled by the Supreme Court within four months thereafter. In the second decision i.e. jaspal Singh Gill the accused had been arrested on 19th November, 1983 and the High Court had granted bail on 3rd May, 1984. The Supreme Court reversed the order of the High Court after applying the above parameters. In neither case was the Court faced with a situation where the accused had already undergone, as in this case, 22 months of pre-trial detention, without even a prima facie determination of the seriousness of the offence. 29. The next factor to be considered therefore is about the nature or character of the evidence. The case against the petitioner essentially rests on circumstantial evidence. Counsel on both sides referred to the voluminous record of documents, and statements of witnesses tendered with the charge-sheet. The respective written submissions filed also refer to the evidence in great detail. This Court is required to form an opinion on the character of the evidence; it is not required to discuss the evidence in any detail at this stage except to the limited extent of considering whether the character of the evidence is such as to warrant continued refusal of bail to the petitioner. 30. This Court is required to form an opinion on the character of the evidence; it is not required to discuss the evidence in any detail at this stage except to the limited extent of considering whether the character of the evidence is such as to warrant continued refusal of bail to the petitioner. 30. Considerable reliance has been placed by the prosecution on a copy of a document in PDF found in the pen drive recovered from Vijender Rana which is a letter dated 5th January, 2005 from one Shri G. Mukhopadhaya, JS (Planning and International Corporation) PIC addressed to Brigadier U.K. Yadav, Military Attache, High Commission of India, London which was sent to the Ministry of External Affairs (MEN), New Delhi. The right hand top corner of the copy of the document contains the words: Kind Attention A. Verma. Even if it can be said that the subsequent correspondence between the MEA and the petitioner showing that no such document is available in the records of the MEA should not be looked into at this stage, it appears that this is the only document which is being relied upon by the prosecution to show that the petitioner was connected with the offence. Further, in order to counter the petitioner’s contention that A Verma could well refer to an Anupam Verma, the prosecution relies on other contemporaneous documents to show that ‘A. Verma indeed refers to the petitioner. 31. The case of the prosecution is that the pen drives recovered from the co-accused Vijender Rana and the documents seized from the premises of the Kulbhushan Parashar contain sensitive information. The fact remains that there were no recoveries made from, or at the instance of the petitioner. The prosecution was not able to rebut the submission of the petitioner that the pen drives were not tamper proof when handed over to the CBI and by then several copies of their contents had been made. This is being adverted to only to the extent it is relevant to consider the character of the evidence. In order to show that the petitioner is connected with these accused the prosecution relies on statements of certain witnesses, which again cannot be discussed in any detail at this stage. This is being adverted to only to the extent it is relevant to consider the character of the evidence. In order to show that the petitioner is connected with these accused the prosecution relies on statements of certain witnesses, which again cannot be discussed in any detail at this stage. The absence of evidence of recovery of incriminating material from the petitioner which could link him with the alleged offence, makes his case different from that of Kulbhushan Parashar whose bail application was rejected by this Court. 32. The other factor that is urged by the prosecution is that the petitioner is involved with Atlas Group of Companies. The fact that two companies with which the petitioner was supposed to be associated have the same address as ADS is not by itself sufficient, when his association with these two companies is not established. Further, it has been pointed out by the Counsel for the petitioner dial ADS and ATN were even according to the prosecution supplying sensitive equipment to the defence. This perhaps explains some of the correspondence with the ministries. The statements of certain witnesses, which have been referred to any some length during the course of arguments, also do not appear to provide any clear picture as to the petitioners involvement. The evidence in support of the prosecutions assertions that the petitioner was closely associated or was in charge of and in control of the Atlas Group of companies, or "privy" to the passing of secret information by the co-accused is not clearly discernible at this stage. This is a tentative opinion since these aspects will doubtlessly have to be examined at some length by the trial Court at the subsequent stages of the case. 33. The Court is also conscious that in cases of conspiracy it is difficult to produce direct evidence and that is only through circumstances that the role of the different conspirators can be determined. The decision of the Supreme Court in Government of NCT of Delhi v. Jaspal Singh (supra) explains that under Section 3(2), OSA, once the accused is "found in conscious possession of the material" then it will be presumed that the possession was for a purpose prejudicial to the interests of the State. The decision of the Supreme Court in Government of NCT of Delhi v. Jaspal Singh (supra) explains that under Section 3(2), OSA, once the accused is "found in conscious possession of the material" then it will be presumed that the possession was for a purpose prejudicial to the interests of the State. Further it was held that (SCC, p. 594): "Each one of the several acts enumerated in Clause (c) of sub-section (1) of Section 3 of the Act, by themselves will constitute, individually, an offending act to attract the said provision and it is not necessary that only one or more of them and particularly, publishing or communication of the same need be conjointly proved for convicting one charged with the offence of obtaining or collecting records or secret official code or password or any sketch, plan, model, article or note or other document or information." However in that case the stage was that of post-conviction whereas here the evidence is yet to be tested even for a prima facie determination. In any event the presumption under Section 3(2) is a rebuttable one and that exercise will have to await the trial. It is unsafe to invoke Section 3(2) at this stage when a clear picture as to the involvement of the petitioner is yet to emerge. 34. The other factors to be considered are whether it can be ensured that the accused does not evade the proceedings and is available at every hearing, that he does not tamper with the evidence or impede the fair progress of the trial. The prosecution does not deny, and in fact it is stated in as many words in the complaint itself, that the petitioner is an approved in another case involving one Ashok Agarwal, a former Deputy Director of Enforcement. They also do not deny that the order granting pardon is pending challenge before the Supreme Court and that the petitioner was provided security by the Delhi Police due to the death threats faced by him in that case. Clearly, therefore, the movements of the petitioner would have been under close surveillance of the police. The cases under FERA and the Passport Act were earlier to the present case and restrictions have already been imposed by the petitioner on his travelling abroad. Clearly, therefore, the movements of the petitioner would have been under close surveillance of the police. The cases under FERA and the Passport Act were earlier to the present case and restrictions have already been imposed by the petitioner on his travelling abroad. This Court is to the view that that if appropriate restrictions can be put in place, the prosecution should be able to ensure the presence of the petitioner at the trial. 35. The prosecution should also be able to ensure that the petitioner does not tamper with the documentary evidence all of which has been already gathered by it and is the custody of the Court. The case turns essentially on such documentary evidence. As far as witnesses are concerned, one of the accused is already on bail and there is no incident of any of the witnesses being intimidated. Again, the prosecution should in anticipation of such contingency not only ensure that the witnesses receive adequate protection but if any such threat is received by any witness it should immediately move the Court for cancellation of bail. 36. The petitioner has been in custody for over 22 months. It does not seem possible that the trial will commence in the immediate future since the stage of order on charge is yet to be crossed. Considering the large volume of documents in the case and the number of accused persons involved, it seems unlikely that the trial will conclude within a reasonable period thereafter. On the sole consideration of the seriousness of the offence, on which a prima facie opinion is yet to be formed by the trial Court, would it be justified to continue the pre-trial detention of the petitioner which is already beyond 22 months? On balancing the several factors discussed this Court comes to the conclusion that the petitioner should be granted bail, subject to conditions which would be stringent considering the nature of the case and the fact that the petitioner is facing trial and prosecution in certain other cases. The Court also proposes to direct the trial Court to expeditiously pass an order on charge so that the case can progress to the next stage without further delay. 37. The Court also proposes to direct the trial Court to expeditiously pass an order on charge so that the case can progress to the next stage without further delay. 37. It is made clear that the observations made in this order are limited considering the case of the petitioner for grant of bail and are not intended to influence the opinion to be formed by the trial Court at any of the subsequent stages of the case. 38. The Court accordingly directs that the petitioner will be released on bail subject to the following conditions: (a) The petitioner will furnish a personal bond in the sum of Rs.10 lakh with two sureties in the like amount to the satisfaction of the trial Court. (b) The petitioner will not leave Delhi during the pendency of the criminal proceedings against him without the prior permission of the trial Court. (c) 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 outside India during the pendency of the criminal proceedings. (d) The petitioner will appear on the second and fourth Monday of every month before the trial Court, and also on each date the case is fixed before the trial Court and will on each occasion furnish his correct current address. (e) The petitioner will not attempt to influence any witness or tamper with the evidence or seek unnecessary adjournments before the trial Court. If any of the above conditions is violated, it would be open to the CBI to apply for cancellation of bail. 39. The trial Court should complete the supply of documents to the accused and hear arguments on charge and pass an order on charge at the conclusion of the arguments on or before 3rd September, 2008. 40. The bail application and the petition under Section 482, Cr.P.C. are disposed of accordingly. 41. Order dasti to the Counsel for the parties. Bail Application and Petition disposed of.