The seriousness of allegations related to national security and the potential risk of the accused engaging in anti-national activities are key considerations in determining bail applications in cases involving the Official Secrets Act.

P.S. TEJI, J.

1. Petitioner seeks bail in FIR No. 166/2015 under Section 3/9 of Official Secrets Act, 1923 registered at Police Station Crime Branch, by filing the present petition under Section 439 of Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr. P.C.).

2. As per prosecution, the petitioner is involved in providing secret information to co-accused who used to forward the same to Pakistan based intelligence operatives (PIO), for monetary gains. The prosecution case, in nutshell, is that on meeting a secret informer met the Duty Officer, PS Crime Branch, Malviya Nagar, Delhi, in the office of ISC, Crime Branch Chanakyapuri, Delhi, and he gave information regarding anti social activites supported by Pakistan based intelligence operatives (PIO). As per the informant, the PIO is having an Indian handler who is collecting information regarding the deployment of army and BSF in Jammu & Kashmir and passing the same across the border which can be hugely detrimental for national security. The handler is believed to have a pan India network of informers who comprise of security personnel. Being a matter of national security, the concerned mobile number was taken on interception and two characters namely Kafaitullah Khan and Abdul Rasheed have surfaced. As per intercepts Kafaitulla Khan is based in Rajouri District of Jammu & Kashmir and Abdul Rashid is serving in border security force and working as per the instructions of PIO. Abdul Rasheed is passing on secret information to Kafaitullah Khan in lieu of money. The said information obtained can be directly or indirectly used by enemy country. Accordingly they have committed prima facie an offence under Section 3/9 of the Official Secrets Act, 1923.

3. During investigation, Kafaitullah Khan disclosed the name of the petitioner, who is a permanent resident of Jammu & Kashmir and retired from Indian Army and was arrested by police on 06.12.2015 and since then he is in judicial custody.

4. Mr. Santosh Kumar Suman, counsel for the petitioner contended that one of his uncles was working in Police Department, J&K, and two other uncles retired from Indian Army and all the family members of the petitioner are serving the Nation. It is contended that the petitioner belongs to Islam religion therefore the Government of Jammu & Kashmir supported by Central Government, intentionally passed the direction to the authorities of Crime Branch to torture the petitioner. It is further contended that the petitioner is a constable and has to do duties of the constable only for safety of his office and for compliance of the higher officer and at no point of time he was in possession of any document/ article/ secret information of Department. The petitioner has not been named in the FIR and nothing has been recovered from the possession of the petitioner. However, it is contended that the police falsely planted the recovery from the house of the petitioner. Counsel for the petitioner further contended that there is no evidence to conclude the guilt of the petitioner. In such a situation, the petitioner ought to be granted bail in the present case.

5. Mr. Amit Chadha, learned Additional Public Prosecutor for the State submitted that the petitioner is involved in the offence relating the national security and the information passed by the petitioner include (1) documents containing details of Sector Commanders meeting, (2) ORBAT of 25 Division, (3) Details of Section Commanders Course taken from booklet named Military Law Instructions, (4) Army Postal PIN Codes of 25 Infantry Division and (5) copy of a letter on directions from the timing of Switch On and Off of the lights in the Unit. In addition, it is stated that at the time of passing of the information the petitioner was posted as Company Clerk at 17 JAKLI, Poonch, J&K and he was having full access to the secret files of the office. It is further submitted that the petitioner had received Rs.20,000/-from ISI Agent Faisal ur Rehma