Delhi HC allows virtual examination of US whistleblower in Official Secrets Act case involving arms dealer Abhishek Verma

Verma and his wife, Anca Maria Neacsu, were accused of conspiring with others to obtain and disseminate classified defence information to unauthorised persons, including Allen, who was Verma’s escrow fund manager. The confidential defence documents included specifications of surveillance aircraft being bought by the Research and Analysis Wing (R&AW), the minutes of a meeting of the Defence Acquisition Council, and a classified report on the Navy’s procurement of next-generation submarines. The first chargesheet was filed in November 2012, along with two other supplementary chargesheets filed in 2015 and 2016.

While allowing the whistleblower’s examination as a prosecution witness, Justice Narula relaxed a stipulation under the Delhi High Court Video Conferencing Rules 2020, which mandates that before directing examination of a witness via video conference, the court “will obtain the consent of the accused.”

The Central Bureau of Investigation (CBI) had challenged a special CBI court’s order from April 2023, wherein the trial court had refused the central agency’s request. The CBI had emphasised that examining Allen was essential to prove the chain of custody of the confidential documents, and video conferencing is the only viable means to secure his evidence without compromising his safety or health. The CBI had lodged the First Information Report (FIR) based on a complaint by the Ministry of Defence.

Justice Narula, overturning the trial court’s order, noted, “While the apprehension recorded by the Trial Court, that the use of video conferencing may occasion leakage of classified material, cannot be dismissed as fanciful, yet the answer in law is not prohibition but regulation in a just and equitable manner through adequate safeguards. OSA does not interdict the conduct of trials; it prescribes the manner in which sensitive proceedings are to be held…The proper judicial response is therefore to manage risk, while preserving the integrity of the proceeding.”

The judge stated that the “…objective of the stringent OSA provisions is achievable through calibrated safeguards, including conducting the examination from a secured State-controlled facility, ensuring an in-camera regime, restricting devices, and controlling the display and movement of documents. The law demands reasonable containment of risk. On that touchstone, a safeguarded video examination is the apposite course.”

Justice Narula said that since the case involves OSA-protected material, “it calls for stricter safeguards, not a different approach”. “The Indian Consulate VC mechanism has already been tested in many cases; it is workable, and therefore, can be suitably calibrated in the present case to address the confidentiality requirements under the OSA,” the court held while directing that his testimony shall be recorded in-camera.

The court further directed that if certified copies are indispensable, they shall be sanitised/redacted to the minimum essential content, transmitted only through official diplomatic channels to the Consulate, kept in locked custody there, and returned sealed immediately upon conclusion of the deposition. It also directed that the examination shall take place on a court-approved, end-to-end encrypted VC platform, with no recording, download, save, print, copy, or screenshot functions enabled at the remote point.

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