Ujjal Dasgupta v. State
In the High Court of Delhi
Crl. MC 1255/2008 & CRL MA 4760/2008
Before Justice S. Murlidhar
Decided on April 25, 2008

Relevancy of the case: Providing the copy of evidence to the accused under the Official Secrets Act, 1923.

Statutes & Provisions Involved
• The Official Secrets Act, 1923 (Section 3, 4, 5, 9, 14)
• The Indian Penal Code, 1860 (Section 409, 201, 120-B)
• The Criminal Procedure Code, 1973 (Section 173, 207)

Relevant Facts of the Case
•The petitioner was a retired Brigadier and working with the Research and Analysis Wing (R&AW), attended the training course of Indo US Cyber Security Forum in September and came in contact with Ms Rosanna Minchew.
•The petitioner acting on the basis of some secret information about a co-accused illegally procured certain classified documents from his office at the National Security Council Secretariat and supplied to foreign agents.
•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 he had classified data on his official laptop. He brought it to his home, worked on the data on his home PC and transferred information to the pen drives.
•The petitioner challenged an order dated 19.4.2008 passed by the learned Additional Sessions Judge (ASJ), Delhi dismissing the petitioner’s application under the Official Secrets Act, 1923, for the supply of certain documents relied upon by the respondents.

Prominent Arguments by the Advocates
•Mr. Sidharth Luthra, Sr. Advocate for the petitioner referred to Dharambir v Central Bureau of Investigation to submit that documents can only be denied on an extremely limited ground that the documents are voluminous in which case the accused will be allowed inspection personally or through a lawyer.
• He also referred to The Superintendent and Legal Remembrancer of Legal Affairs v. Satyen Bhowmick to submit that Section 14 OSA does not take away the right of the accused to copies of the documents which the prosecution claims as secret documents for the purpose of OSA.
•Ms. Gupta, Sr. Standing Counsel for the respondent opposed the plea for supply of the other documents on the ground that some of these documents are secret and classified, and if given to the accused would itself attract the prohibition of the OSA.

Opinion of the Bench
Merely because the case is under OSA, the legal position cannot be different. The only difference is that the prosecution can insist and rightly so that neither the accused nor the lawyer of the accused will be permitted to make the documents public or pass them on any person or disseminate them in any manner whatsoever. If, in fact, the accused or their lawyers do not observe this prohibition, they run the risk of committing an offense under the OSA.

Final Decision
The impugned order made by the ASJ is unsustainable in law and is hereby set aside by this Court. The accused has a right to examine the documents relied on by the prosecution.

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