by Commander Mukesh Saini.

Additional sessions court judge MV Deshpande have announced the maximum possible punishment for Nishant Agarwal under section 3 and 5 of The Official Secrets Act, 1923 along with Cyber Terrorism section 66(f) of the Information Technology Act 2000.

In 2018, Nishant Kumar was the working in the technical research section of the Brahmos missile centre in Nagpur, was arrested in a joint operation by the military intelligence and Anti-terrorism squads (ATS) of Uttar Pradesh and Maharashtra.
Brahmos Missile program is a sensitive joint work of India and Russia. Nishant was e-Honey trapped through fake Facebook account of Neha Sharma and Pooja Ranjan. Both accounts are said to be operated by ISI.

He took away RED files from office and the same were found on his laptop in PDF form, which also had his personal social media accounts.

Here it is important to note that the provisions of the Official Secrets Act and also Section 66 (f) of Information Technology Act are very loosely drafted, meaning both the laws have catch all provisions and mere suspension and a hint of evidence is sufficient to convict. There are some safeguards built to protect innocents in OS Act but 66(f) IT Act does not even have those safeguards.

In April 2023, the Nagpur bench of the Bombay High Court had granted him bail saying that there appears to be not sufficient evidences against him. The trial court after conviction has also granted him bail on grounds that the decision will be challenged in the High Court.

It will be interesting to see how High Court and may be later Supreme Court will view it. Were all safeguards built into OS Act were maintained?  What exactly of 66(f) got proven? As it appears that Nishant never physically met these girls in persons, does he deserve full Punishment because Section 3 OS Act, where prosecution needs to prove Mens Rea that the person was Prejudicial to the country, meaning he had mala-fied intent against the country. Section 3 OS Act do provide as to how same can be indirectly proved.

Lessons for others in defence and persons working in sensitive organisation some how linked to defence, even in private sectors and Defence PSUs are:

(1)   Never Work from home. Your dedication can cost you. Else get it in writing / email for superior to be authorised to work from home. Even then DONOT use personal Computer for official work.
(2)  Do not have any social media account on the laptop or mobile which is used for official purpose.
(3)  Do not keep any information / study material of preparation of promotional or career exams such as Staff College, NDC, Higher Command etc on personal devices.
(4)  Even study material provided by these training institutions are used to frame the charges.
(5)  And control your hormones.

It is easy to get trapped under these laws and mere suspicions can lead to conviction.

#law #secrets