Ujjal Dasgupta (In J.C.) v. State

S.MURALIDHAR, J April 25, 2008 rk

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C. 1255/2008 & Crl M A 4760/2008 Date of decision: April 25, 2008 UJJAL DASGUPTA (IN J.C.) ..... Petitioner Through Mr. Sidharth Luthra, Senior Advocate with Mr. P.K. Dubey and Mr. Anurag Ahluwalia, Advocates versus STATE ..... Respondent Through Ms. Mukta Gupta, Sr. Standing Counsel with Mr. Pawan Behl, APP. CORAM: HON'BLE DR. JUSTICE S.MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes S.Muralidhar, J. (open court) 1. This petition under Section 482 of the Code of Criminal Procedure, 1973 ("CrPC") challenges an order dated 19th April 2008 passed by the learned Additional Sessions Judge ("ASJ"), Delhi dismissing an application filed by the Petitioner, who is an accused facing trial in FIR No. 42 of 2006 under Sections 3,4,5 and 9 of the Official Secrets Act 1923 ("OSA") and 409/201/120-B of the Indian Penal Code ("IPC") registered at Police Station Special Cell, for the supply of certain documents relied upon by the Respondent State. 2. A significant question of law that arises in this matter concerning the right of an accused facing trial under the OSA to be provided with the copies of the documents relied upon by the prosecution which are in digital form in pen drives and hard discs. The case of the prosecution is that under Section 14 OSA even documents gathered during investigation can, if they are classified or secret, be withheld from the accused although they are relied upon by the prosecution. 3. The brief facts relevant for the present petition are that the FIR No. 42 of 2006 dated 11th June 2006 was registered in the Police Station Special Cell in respect of the collection and dissemination of certain of secret defence related information. Separate complaints were filed against the co-accused. As regards the petitioner, a complaint dated 16th October 2006 under Section 13 (3) OSA was filed by the Deputy Commissioner of Police ("DCP") Special Cell, New Delhi in the court of the learned Chief Metropolitan Magistrate. A charge sheet was filed the next day i.e. 17th October 2006. 4. The background to the complaint against the petitioner is that acting on the basis of some secret information about the co-accused Shib Shankar Paul having illegally procured certain classified documents from his office at the National Security Council Secretariat for being supplied to foreign agents, a search of Mr. Paul"s house was conducted on 10th June 2006 and certain classified documents and a circular were recovered. The investigation of the case was taken up and the co-accused Mukesh Saini was arrested and at his instance certain further classified data was recovered. The interrogation of Mukesh Saini revealed that the petitioner, who was a retired Brigadier and working with the Research and Analysis Wing ("R&AW"), was in close touch with Ms. Rosanna Minchew with whom he came into contact during a training course of the Indo US Cyber Security Forum in September 2005. The arrest and interrogation of the Petitioner led to the recovery of three pen drives in which he had stored the secret information. It was further found that the Petitioner had in possession classified data on his official laptop. He brought it to his residence, worked on the data on his home PC and transferred information on to pen drives. The case of the prosecution as regards the contents of the hard discs and is evident from paras 11,12 and 13 of the Complaint which read as under: "11. The recovered hard disk drives and pen drives recovered from accused Ujjal Dasgupta were analysed in Cyber Lab of Special Cell. During analysis the steganography software "Stegno_tesec version 1.0" developed by "FCE, MCTE", Faculty of Communication Engineering Military College of Telecommunication Engineering, Mhow (An Army Institution). TCPDUMP version 3.9<2005.05.24>, "C Cleaner" and "Eraser" along