Lawfulness of call recording activities requires consent; absence of dishonest intent under IPC prevents cognizable charges, and no proceeds of crime established under PMLA.

JUDGMENT

Jasmeet Singh, J.

1. This is BAIL APPLN. 2409/2022 to enlarge the applicant on regular bail in ECIR/DLZO-I/28/2022 registered on the basis of FIR bearing RC No. 2212022E0030 registered by CBI/EO-III/Delhi.

2. It has been stated that the Ministry of Home Affairs on 19.05.2022 and 20.05.2022 sent two communications to Central Bureau of Investigation (hereinafter referred to as `CBI') against M/s. ISEC SERVICES PVT. LTD. and Sh. Sanjay Pandey, the applicant herein and:

(i) Smt. Santosh Pandey;

(ii) Sh. Anand Narayan;

(iii) Sh. Armaan Pandey;

(iv) Sh. Manish Mittal;

(v) Sh. Naman Chaturvedi;

(vi) Sh. Ravi Varanasi;

(vii) Sh. Mahesh Haldipur;

(viii) Sh. Ravi Narain;

(ix) Ms. Chitra Ramkrishna;

(x) Sh. Arun Kumar Singh; and

(xi) Other unknown persons.

3. It is stated that ISEC SERVICES PVT. LTD. in conspiracy with other accused illegally intercepted MTNL lines at National Stock Exchange (hereinafter referred to as `NSE') between 2009 to 2017 and recorded calls by various NSE officials. The transcript of these calls was thereafter made available by ISEC to NSE officials. No other phone lines outside NSE are alleged to have been recorded or monitored. It is further stated that the telephone monitoring was carried out by ISEC without taking permission of the competent authority as required under Section 5 of the Indian Telegraph Act, 1885 and also it was without the knowledge and consent of NSE employees. It has further been stated that for the work carried out between 2009 to 2017, ISEC was paid a sum of Rs. 4.54 crores by NSE. The FIR No. RC2212022E0030 dated 07.07.2022 was registered on the allegations levelled by CBI under Sections 120-B read with 409 and 420 of the Indian Penal Code, 1860 ("IPC") and Sections 69B, 72, 72A of the Information Technology Act, 2000 ("IT Act") and Sections 20, 21, 24 & 26 of the Indian Telegraph Act, 1885 ("Telegraph Act") and Sections 3 & 6 of the Indian Wireless Telegraphy Act, 1933 and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 ("PC Act") at PS - EO-III, CBI, Delhi.

4. Thereupon, the Directorate of Enforcement has registered the ECIR bearing no. ECIR/DLZO-I/28/2022 on 11.07.2022 allegations of scheduled offences. Pursuant to the FIR, the CBI carried out search in the office premises of ISEC and seized various articles and properties. The CBI also carried out a search of the applicant and seized his mobile phone. The ED arrested applicant on 19.07.2022 and the CBI arrested the applicant on 24.09.2022.

5. The applicant states that in or around 2009, NSE approached ISEC with a request to engage its services for analysis of calls that NSE was recording of its employees. As per ISEC, NSE had been monitoring calls from the landlines installed in its premises since 1997. As per the proposal, NSE was to be provided a hard drive containing pre- recorded call data of its employees and ISEC was required to listen to the data provided by NSE on a weekly basis a