O R D E R

% 29.08.2024 CRL.M.A. 25795/2024 (Exemption)

Exemption is allowed subject to all just exceptions.

The application stands disposed of.

W.P.(CRL) 2633/2024

1. The present petition has been filed for quashing of the first information report bearing number RC2172024A0013/AC-II/CBI registered under Section 5 of Official Secrets Act, 1923 read with Section 61(2) of BNS, 2023.

2. Mr.Rajiv Nayar and Mr.Siddharth Luthra, learned senior advocates have submitted that the gist of the case in brief is that the petitioner company bid for a contract. The project was initially awarded to the petitioner company by Indian Navy. However, later on it was terminated unrealistically for not completing the project in 42 months.

3. Learned senior counsels submit that this led to the dispute between the parties and the petitioner company initiated the arbitration proceedings. Learned senior counsel submits that in order to substantiate their claim the petitioners sought to produce the following experts:

(i) Prof. J.W. Van Der Meer, Principal of Van Der Meer Consulting B.V., Netherlands (ii) Mr. Eelco Bijl, Project Manager, Senior Coastal & Maritime Structure Specialist at CDR International BV, Netherlands (iii) Mr. Martin Mannion, Director of Mannion Marine Limited, Ireland (iv) Mr. Paul Greenwell, Director of Socotec Advisory Limited, United Kingdom (v) Dr. S. Nallayarasu, Professor and Head of Department, the Department of Ocean Engineering at the Indian Institute of Technology Madras, India (vi) Mr. Amit Bansal, Partner with the Forensic & Dispute Services practice of Deloitte Touche Tohmatsu India LLP, India.

4. Learned senior counsels submit that three of the aforementioned experts at serial nos. (i), (ii) and (v) namely Prof. J.W. Van Der Meer, Mr. Eelco Bijl & Dr. S. Nallayarasu were already participating in the execution of the project since 2020. Learned senior counsels submit that now the complainant before the CBI has sought to invoke the provisions of the Official Secrets Act in view of clause 1.15 of the conditions of the contract. Clause 1.15 is reproduced as under:

"All maps, plans, drawings, specifications, schemes and the subject matter contained therein and all other information given to the Contractor in connection with the performance of the Works shall be held confidential by the Contractor and shall remain the property of the Employer and shall not be used or disclosed to third parties by the Contractor for any purpose other than for which they have been supplied or prepared. The Contractor may, only with explicit prior approval of the Employer, disclose to third parties, upon execution of secrecy agreements, such part of the drawings, specifications or information if such disclosure is necessary for the performance of the Works under the Contract. The Contractor shall not publish, permit to be published, or disclose any particulars of the Works in any trade or technical paper. Neither shall the Contractor broadcast any particulars of the Works on television, radio or any medium such as internet without the prior approval in writing of the Employer.

On completion of the Works or upon termination of the Contract, the Contractor shall return to the Employer all drawings and documents received by him from the Employer. The Contractor shall ensure that neither the Contractor nor any of his officials or employees or any other persons shall have possession or access to any copy thereof.

The Contractor shall ensure that all persons employed on any work connected with this Contract have noted that the Indian Official Secrets Act 1923 (XIX of 1923) applies to them and continue to apply even after the termination or expiry of the Contract. This condition shall also apply to his Subcontractors. An undertaking to this effect is to be submitted by the Contractor to the Employer before the Commencement Date.

The Contractor, his Subcontractors and employees of either of them shall not, either during the term or after the expiration or termination