[Espionage Case] Gujarat HC Denies Bail To Ex-Pakistani Citizen Accused Of Transmitting WhatsApp Based Malware To Airforce Personnel

The Gujarat High Court has recently rejected the regular bail plea of a man, a former Pakistani citizen who later obtained Indian citizenship, in connection with an alleged espionage case.

A single judge bench of Justice MR Mengdey in its order said, that from the record of the case it appeared that on April 3, 2023, a witness in the matter, "who was working in the Airforce", stationed at the Airforce Station Kargil, Jammu & Kashmir, received a WhatsApp message from an "unknown number", asking him to download an APK file. Unable to download it, the witness forwarded the message to his wife's mobile phone, where it was later discovered that the file contained malware intended to procure secret information about India's armed forces.

The court noted that further inquiry traced the SIM card to a resident of Jamnagar, Mohammed Saklen Umar Thaim, and this sim card was thereafter delivered to the Maheshwari. The court further noted that Maheshwari had asked another witness Vaibhav to insert the SIM card into his mobile phone "with the intention" to procure the WhatsApp OTP, which was then sent to Maheshwari's counterpart in Pakistan.

The counterpart, the order notes, in turn on the basis of the OTP had "activated a WhatsApp Account on the instrument which was working in Pakistan, and thereafter, with the help of the said WhatsApp Account, the message in question was sent to witness Santosh asking him to download an APK file which contained a Malware". 

"The record further reveals that after activation of the WhatsApp Account, the present Applicant (Maheshwari) had transported the simcard in question, to Pakistan, through his sister. The record also indicates that prior to attaining the Indian Citizenship, the Applicant was the citizen of Pakistan and has his roots in Pakistan. Having regard to these facts, no case is made out," the high court said while dismissing the bail plea. 

Background

The petitioner Labhshankar Maheshwari had filed an application under Section 439 of the Code of Criminal Procedure seeking bail concerning an FIR registered under Sections 121A (Waging, or attempting to wage war, or abetting waging of war, against the Government of India), 123 (Concealing with intent to facilitate design to wage war), and 120B (Punishment of criminal conspiracy) of the Indian Penal Code (IPC) and Sections 43 (Penalty and Compensation for damage to computer, computer system, etc), 66 (Computer related offences), and 66F(1)(b) of the Information Technology Act.

Contentions

Senior Advocate ND Nanavati, appearing on behalf of Maheshwari, argued that none of the ingredients of the  offences under the IPC alleged against the applicant are made. He noted that Maheshwari had relinquished his Pakistani citizenship and was granted Indian citizenship by the Government of India. The only accusation against Maheshwari was his alleged role to the effect that he had received "some sim card" allegedly "transported by him to Pakistan". Except this "no other overt act" has been attributed to Maheshwari in commission of the offence in question.

However, APP Chintan Dave opposed the bail application, emphasizing that Maheshwari had obtained a SIM card and transported it to Pakistan through his sister. The SIM card was initially inserted into the mobile phone of a witness named Vaibhav, who received a One Time Password (OTP) for WhatsApp, which Maheshwari then communicated to his counterpart in Pakistan. This allowed the activation of a WhatsApp account on another device using the SIM card provided by Maheshwari. The prosecution contended that Maheshwari's actions constituted "active participation" in the commission of the offense.

Case Title: Labhshankar Duryodhan Maheshwari Versus State Of Gujarat

LL Citation: 2024 LiveLaw (Guj) 123

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