NEW DELHI: In a major embarrassment to the CBI, a special court has acquitted businessman Harish Gupta who was accused of attempting to import an encryption system from Siemens in Germany in 1995 on the basis of forged certificate of the National Security Guard (NSG), calling it a "botched up probe".
In a series of terse remarks, the court pointed out that the matter involved "serious threat to the safety and security of the nation" which needed "deeper investigation", but it appears that the investigation officer (IO) "did not make even a shallow investigation".
"It appears that IO has purposefully not made an investigation either on his own or at the behest of some higher-up and thus, the possibility cannot be ruled out that all these were done to save the skin of the real culprit or maybe of the present accused, if at all he was involved," Special Judge Harish Kumar said, acquitting Gupta from the charges of forgery.
On a warm April afternoon in 1996 when the country was in the middle of parliamentary elections, NSG Squadron Commander Vimal Satyarthi received a letter from the Belgium Embassy asking him to reissue the end user certificate for the import of encryption equipment from Siemens NV, Germany.
The equipment was only sold to law enforcement agencies of a country and Satyarthi had not issued any end user certificate for interception equipment which he was being asked to re-issue.
The letter sent alarm bells ringing in the security establishment as the Belgium Embassy communique meant that someone was attempting to import the equipment with the help of forged end user certificate, dated December 18, 1995, purportedly issued by Satyarthi.
The NSG carried out an internal enquiry following which its then Director General AK Tandon wrote to the Ministry of Home Affairs (MHA) flagging the matter on May 9, 1996.
Then-Joint Secretary in Union Home Ministry UK Sinha enclosed the copy of letters from Tandon, that of the Embassy of Belgium with end user certificate, and handed over the probe to the CBI on May 28, 1996 to undertake "thorough enquiry in view of its seriousness and damaging ramification".
The CBI started a preliminary enquiry nearly two months later which was followed by an FIR on October 12, 1996.
During the probe, Satyarthi told the CBI that the NSG had received a letter from the then Joint Secretary in the External Affairs Ministry ESL Narsimhan, who later became Governor of Telangana and Andhra Pradesh, addressed to the Intelligence Bureau with a copy marked to the MHA and NSG, that one Harish Gupta of Secure Telecom Pvt.Ltd. had in fact tried to import the equipment using a forged certificate and this equipment may be used by the national security agencies of different governments.
The CBI claimed that Gupta was dealing in import of counter-surveillance equipment with his clientele involving government agencies like Narcotics Control Bureau, Enforcement Directorate, NSG, etc.
The CBI alleged Gupta had attempted to import two encryption systems -- T1285 CA including Key Generation Program CGP 2002 and Crypto Fill Device CED 2001 -- from Siemens, for which end user certificate from a government law enforcement agency was needed.
According to the CBI charge sheet filed on September 1998, Gupta allegedly forged the certificate to show it was purportedly issued by Satyarthi of the NSG and submitted it to Siemens.
During the trial, 11 witnesses were produced by the CBI, including Narsimhan when he was the Governor of Telangana and Andhra Pradesh, then Joint Secretary in MHA UK Sinha and senior officers of the NSG.
Nearly 22 years after filing of the charge sheet, the trial court acquitted Gupta from charges of cheating (420 IPC) but convicted him of forgery (468 IPC) on December 22, 2021 and sentenced him to undergo sentence of three years with a fine of Rs 10,000.
Gupta filed an appeal before the special CBI judge who acquitted him from the remaining charge of forgery and set aside his conviction.
Acquitting Gupta, the special court noted that the CBI investigation officer, Akhil Kaushik, had not recorded statement of any of the witnesses of the CBI under Section 161 of the CrPC, except for that of Satyarthi.
On how the name of Gupta cropped up, the court noted that except from a letter from Narsimhan having "hearsay reference" about Gupta using a forged end user certificate, there was nothing on record to show how the CBI concluded that the forgery was done by the businessman.
The investigation officer did not make any investigation either from the Embassy of Belgium or from Siemens and did not even meet and record statement of Narsimhan whose letter had hearsay reference about the involvement of Gupta, it said.
"Besides hearsay reference in the letter..., there is nothing on record showing how IO based his conclusion that it was Harish Gupta who attempted to import the above two systems and in the process forged end user certificate and sent them to Siemens NV," it said.
The judge marked a copy of the judgment to the CBI Director "to initiate appropriate action as per rules if he in his wisdom consider necessary, not only against the erring investigating officer but also against the then forwarding officer who forwarded the charge-sheet, if both or any of them is still in service; and also for taking steps to improve the quality of investigation by CBI's official if needed by imparting adequate training".