C.B.I, NEW DELHI. versus ABHISHEK VERMA

Citation: [2009] 7 S.C.R. 1154 · Decided: 06-05-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed
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Judgment (excerpt)

[2009] 7 S.C.R. 1154 
A 
C.8.1., NEW DELHI. 
V. 
ABHISHEK VERMA 
Criminal Appeal Nos. 935-936 of 2009 
B 
MAY 6, 2009 
(S.8. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.) 
i 
Official Secrets Act, 1923/Penal Code, 1860: 
Sections 3, 9 Sections 409, 109 rlw 120-B - Charges 
~ 
c framed -Application for Bail rejected by CMM as also by ADJ 
·" 
- High Court granted bail - Correctness of - Held: Correct -
There is no infirmity in the High Court's order - However, trial 
court to examine the evidence on their own merit without being 
influenced by the present observations or the order of the High 
D Court - Bail - Grant of 
The respondent was charged with having access to 
certain official records of the Defence Ministry having a 
J 
bearing on the safety and security of the nation, through 
some compromised officers who were paid /gratified for 
E providing information to him. According to CBI, a pen drive 
recovered by it from the respondent was proof of the 
charges against him. The CMM took cognizance of the 
offences under Sections 3 and 9 of the Official Secrets 
Act (OSA) and under Section 409/109 r/w Section 120-B 
F IPC. Respondent's bail application was rejected by the 
CMM and subsequently by the ADJ. The respondent 
moved Bail Application before the High Court and it 
granted him bail. Hence the appeals. 
Dismissing the appeals, the Court 
G 
HELD: 1. Before granting bail in cases involving non- t 
bailable offences particularly where the trial has not yet 
commenced, the first aspect which must be examined is 
with regard to the nature and seriousness of the offence. 
H 
1154 
C.8.1., NEW DELHI. V ABHISHEK VERMA 
1155 
lnter-alia, one of the charges against the respondent is A 
Section 3 of the OSA. A perusal of Section 3 shows that it 
contemplates two kinds of offences, one which attracts a 
greater punishment of 14 years and the other with a lesser 
punishment of 3 years. It was contended that when it is 
unclear which punishment to be applied under Section 3 B 
of OSA, the Court must proceed on the assumption that it 
is the more severe i.e. 14 years which is to be applied. 
However, in this case, the ac~used had already undergone 
pre-trial detention of twenty two months without ~ven a 
prima facie determination of the seriousness of the c 
offence.[Para 14] [1164-8-E] 
~ 
State v. Jaspal Singh Gill, (1984) 3 SCC 555 -
distinguished. 
2. With regard to nature and character of the 0 
evidence, the prosecution case is essentially based on 
circumstantial evidence." It would neither be appropriate 
nor desirable to discuss the entire evidence as the same 
is the subject matter of the trial. However, for the limited 
purpose of the disposal of the present appeal it is 
appropriate to consider the character of the evidence. It E 
is the case of the appellant that a copy of document in 
PDF form found in the pen drive recovered from Vijender 
Rana which is a letter dated 5th January, 2005 from an 
official of Indian High Commission, London to the Ministry 
of External Affairs, New Delhi. The right hand top corner F 
of the copy of the documents contains the word: 'Kind 
Attention A. Verma'. According to the respondent no such 
document is available in the records of the MEA and 'A. 
Verma' could well refer to Anupam Verma. The veracity of 
such rival claims can only be decided during the trial. G 
[Para 15] [1164-F-H; 1165-A] 
3. It was the case of the appellant that the pen drives 
recovered from the co-accused Vijendra Rana and the 
documents seized from the premises of Kulbhushan · H 
1156 
SUPREME COURT REPORTS 
[2009] 7 S.C.R. 
A Parashar contain sensitive information. However, there 
j 
is no denial of the fact that there was neither any recovery 
from the respondent nor at the instance of the respondent. 
Further, no satisfactory answer has been provided by the 
appellants to counter the submission of the respondent 
B that the pen drives were not tamper proof when handed 
over to the CBI and before handing it to the CBI, several 
copies of their contents was made by the authorities.[Para 
16] (1165-B-C] 
c 
4. Govt. of NCT, Delhi vs. Jaspal Singh succinctly 
explains the ambit of Section 3(2) of the OSA by stating 
that once the accused is found in conscious possession 
of the material then it would be presumed that such 
possession was for a purpose prejudicial to the interests 
of the State. Clearly, the said presumption under Section 
D 3(2) of the OSA is a rebuttable presumption and the 
respondent will ha
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