JUDGMENT :

1. The petitioner has sought for quashment of order dated 28.10.2020, dated 28.12.2020 and 17.3.2021 passed by the Secretary (Home), Government of Rajasthan permitting interception of Mobile Phones of the petitioner and others in purported exercise of power under Section 5(2) of the Indian Telegraph Act 1885.

By order dated 28.10.2020 Mobile No. 9829172463 of co-accused Sunil Sharma was ordered to be intercepted by the Anti Corruption Bureau on suspicion that the said mobile was possibly being used for illegal activity relating to incitement to the commission of an offence affecting public safety. The interception was permitted for a period of 60 days and the said order was extended for another 60 days by order dated 28.12.2020.

On the same reasons by two separate orders dated 17.3.2021, Mobile phones of the petitioner bearing No. 9587921137 and 9950830107 were ordered to be intercepted.

2. The challenge is on the ground that right to privacy has been infringed by putting the mobile phones of the petitioner and others on surveillance/spying by the State machinery. The orders are violative of Article 19 and 21 of the Constitution of India unless the same is consistent with the procedure established by law. In the case on hand, no reason for making of such orders is disclosed, rather are on teeth of the procedural requirement.

3. It is worth to notice that on the basis of information gathered on interception of mobile calls, FIR No. 20 of 2021 was registered on 12.4.2021 under Section 7 and 8 of the Prevention of Corruption Act as well as under Section 201 and 120B of the IPC with the Anti Corruption Bureau Police Station, Jaipur. After investigation of the case, charge-sheet No. 140/2021 dated 4.5.2021 has already been filed. On bare perusal of the call details disclosed in the FIR, it is evident that there is no direct evidence against the petitioner of being indulged in bribing any public servant rather in the purported trap proceeding, no graft money was recovered from possession of any of the accused persons including the petitioner.

4. Before considering the rival contentions of the parties, it would be apt to go through the provisions of Section 5(2) of the Indian Telegraphy Act and nature of the orders passed by the Secretary (Home) :

“Section 5 (2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order:

[Provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.]

4(a) The order dated 28.10.2020 at Annexure-3 reads as follows :

“Government of Rajasthan

Home (Group-9) Department

22(1)Home-9/2019

Jaipur, Dated: 28.10.2020

ORDER

1. Whereas it has been brought to the notice of Director General, Anti Corruption Bureau, Rajasthan, Jaipur that Mobile/LL/IMEI No.(s) 98291-72463 is possibly being used for illegal activities relating to incitement to the commission of an offence affecting public safety and whereas it is necessary and expedient to prevent such a situation by keeping the above mentioned Mobile Numbe