Ex-Brahmos scientist walks out of Maharashtra jail after seven years

Nagpur: Nishant Agarwal, an award-winning scientist who worked at the BrahMos missile centre, walked free late Tuesday night from Nagpur Central Jail after the Bombay High Court cleared him of charges of spying for Pakistan.

Agarwal had to spend seven years behind bars that put his career in jeopardy after what turned out to be a costly mistake while pursuing an overseas job without due diligence.

The legal battle at the Nagpur bench of the Bombay High Court centred around 'mens rea' (guilty mind) in the charges levelled against Agarwal, who was arrested in 2018 under various sections of Official Secrets Act and Information Technology Act.

"Yes, he walked out of the Nagpur Central Jail on Tuesday night," his counsel Chaitanya B Barve told PTI.

While efforts to speak to the 34-year-old Agarwal, who received 'Young Scientist Award' for 2017-18, did not fructify, a close relative said the family was grateful to the country's judicial system and all of them were relieved after a prolonged legal battle.

"He will pick up the threads again as he has been a fighter all his life," he said.

Miseries started for Agarwal only after he submitted his biodata on LinkedIn, a digital platform for professional networking and career development, in response to a friend request sent by one Sejal Kapoor without knowing that the account was being operated from Pakistan.

Pankaj Awasthi, investigating officer from Anti-Terror Squad of Uttar Pradesh Police, said the first connection was sent by Kapoor to Agarwal. Examining the chats of four days in 2017, the police officer said that on December 19, Kapoor gave information about a job in the UK for which Agarwal showed interest.

During further examination, the high court observed that from the chat it appears that Kapoor is inviting Agarwal for an interview with the manager of the UK company and asked him to download certain software for the same which turned out to be a malware.

The investigating officer made clear before the court that Agarwal had not sent or uploaded any departmental documents on the LinkedIn platform, the order said, adding that there is neither any circular from BrahMos prohibiting use of LinkedIn, nor restriction on employees for looking out for a job.

Barve summarised the judgement of the high court and said that after weighing all the evidence presented, the prosecution has failed to establish intent. Agarwal was also represented by senior advocate Sunil Manohar.

During the proceedings, Manohar contended that the trial court, which had sentenced him to life imprisonment, had committed a "grave error" in holding Agarwal guilty as prosecution had failed to prove the offence beyond reasonable grounds.

The files recovered from the personal laptop of Agarwal were found to be part of the training kit that were handed over to his entire batch of 23 people who were recruited at BrahMos in 2013.

In its 49-page judgement, the division bench comprising Justices Anil S Kilor and Pravin S Patil noted that prosecution witness NN Kumar, working as an executive director (production) with BrahMos Aerospace, said Agarwal was working under Alan Abraham as a trainee and as a part of the training programme, they had to prepare projects at their guest house located few kms from office.

During his cross examination, Kumar informed the court that Agarwal's superiors never complained of him misusing his computer and that the accused was authorised and permitted to have access to the computers of his immediate boss.

On the honey trap allegation levelled by the prosecution, the court said that the prosecution has failed to establish wrongful communication or any information and it has not been established that the accused willfully communicated.

Assistant investigating officer Krushna Mohan Rai, during his cross examination, admitted that many pen drives and external disks were used on the computer of Agarwal in the past, and a list was generated. "He (Rai) did not find any entry in the list of the usage of pen drives or extended hard disks by accused Nishant Agarwal".

The court said, "...evidence brought on record by the prosecution takes us to only conclusions that the alleged malware which was downloaded by the appellant (Agarwal) was with an intention to secure a job in the UK and not to transfer any information or data".

The court, while setting aside the trial court judgement, absolved him of all charges except one -- section 5(1)(d) of Official Secrets Act (OSA) -- which deals with failure to take reasonable care or for the conduct of Agarwal for downloading the alleged malware at the instructions of Sejal Kapoor.

The court noted that to attract charges under Section 66F (1)(A) and 1(B) of the IT Act, 2000, the prosecution must prove the intent of the accused to "threaten the unity" or that the act was done "knowingly or intentionally." Similarly, the Official Secrets Act, 1923, Section 3(1) requires an action to be committed "for any purpose prejudicial to the safety or interest of the State", which also indicates necessary intention and knowledge.

The court observed that the prosecution failed to establish "wrongful communication" or the passing of "any information" as defined in the OSA Act and there was no evidence to show that the accused willfully communicated or used any material "for the benefit of any foreign power or any other manner prejudicial to the safety of the State".