Supreme Court Dismisses ED’s Challenge To Bail Granted To Former Mumbai Police Commissioner Sanjay Pandey In Phone Tapping Case

The Supreme Court, on Monday, dismissed a plea filed by the Directorate of Enforcement challenging the order of the Delhi High Court granting bail to former Mumbai Police Commissioner Sanjay Pandey in a money laundering case related to the alleged illegal phone tapping of employees by National Stock Exchange (NSE).

A Bench comprising Justice SK Kaul and Justice Ahsanuddin Amanullah found no reason to interfere with the High Court order. The Bench indicated that it has been almost 6 months since he was enlarged on bail and refused to cancel bail granted to him.

Additional Solicitor General, SV Raju appearing for the ED sought the Court’s interference submitting that the High Court has conducted a mini trial in the matter. Justice Kaul remarked that it is a new trend that bail matters are being argued at length and on merits by the parties. He said “This is how bail matters are being argued. What can be done?” 

At the request of the ASG, the Bench recorded in the order that the observations made by the High Court in the bail order would not have any bearing on the trial. 

ISEC Services Private Limited, an entity which had entered into a contract with NSE for analysing data and evaluating cyber vulnerabilities, was allegedly asked by the NSE in 2009 to analyse the pre-recorded calls of its employees. This was purportedly done to "identify and isolate suspicious calls bearing on the issue of data and information security and cyber and process vulnerability".

An FIR was registered initially by CBI alleging that ISEC was illegally monitoring and analysing such calls and sending periodic reports to the NSE. It has been alleged that the telephone monitoring was carried out without taking permission of the competent authority under Indian Telegraph Act, 1885 and that the same was done without the knowledge and consent of NSE employees. The FIR was registered under sections 120B, 409 and 420 of IPC, sections 69B, 72, 72A of Information Technology Act, 2000, sections 20, 21, 24 and 26 of the Indian Telegraph Act, sections 3 and 6 of the Indian Wireless Telegraphy Act and sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. Thereafter, the Enforcement Directorate (ED) registered an ECIR on the allegations of scheduled offences. The agency had alleged that the revenue of Rs. 4.54 crores generated by ISEC for providing the services constituted "proceeds of crime”.

While granting bail, the Delhi High Court observed that tapping phone lines or recording calls without the concerned individual's consent is a breach of privacy as enshrined under Article 21 of the Constitution of India.

The High Court prima facie agreed with the CBI that the actions of NSE and ISEC are violative of the Telegraph Act. However, it said the offences under the Telegraph Act are not scheduled offences under PMLA. The Court noted that for the bail application in the PMLA case, it is only required to look at the scheduled offences in the FIR and that other offences are not relevant. Regarding the offences under the IPC, the court prima facie observed that the ingredients of the alleged offences are not made out in the matter. The court also noted that offences under Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act cannot be invoked in the matter since there is no allegation in the prosecution case of giving or receiving a bribe or illegal gratification. It observed that there was nothing on record to demonstrate that the former cop employed any corrupt or illegal means to obtain a valuable thing or pecuniary advantage for himself, adding that no offence under section 13(1)(d) of the PC Act can be alleged to have been committed "as no presumption treating the receipt of monies as illegal gratification can be drawn." The High Court said since it has prima facie given a finding that none of the ingredients of the scheduled offence are made out, the provisions of PMLA are not attracted.

[Case Status: Directorate of Enforcement v. Sanjay Pandey Diary No. 12266/2023]

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