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2003 DIGILAW 385 (HP)

SENJAM NONGDRENKTOMBE SINGH v. STATE OF H. P.

2003-12-31

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—This application under Section 439 of the Code of Criminal Procedure (hereafter referred to as the Code) has been filed by the petitioner-accused (hereafter referred to as the accused) for grant of bail to him in case FIR No. 173 of 2003 dated 21.10.2003 under Sections 171, 419, 420, 468, 471, Indian Penal Code, Section 25 of-Arms Act and Section 6(D) of the Official Secrets Act, 1923, registered at Police Station West Shimla. 2. In brief accusations against the accused are that on receipt of information that the accused, posing as Captain and sometimes as Major, is indulging in suspicious activities and arms & ammunitions could be found in his house on search, a police party went to the residential premises of the accused who introduced himself as Major Senjam Nongdren Khomba Singh of Rashtriya Rifles. He was called upon to produce his Identity Card which he produced but it was in the name of Senjam Basil Singh INT CD, Major-Duty Officer and the Identity Card was signed by S.B. Singh, Directing Officer. The accused further informed that he was an Intelligence Officer. Suspecting the identity of the accused, the police called the Military Intelligence Officer to the spot, who after making necessary inquiries stated that the accused was not an Army Officer. Search of the residential house of the accused was then carried out and two identity cards in different names, 91 files containing different papers, Internet downloaded topics, regarding most wanted persons, CBI, LITE, RAW, Osama Bin Laden, Al-Quaida, Lashker-e-Toiba, Hijbul Mujkahadin, most wanted criminals, Military Intelligence, etc., and a suite-case containing cartridges, compass, bank passbooks, etc., stamps, stamp pads, army uniform with badges, books on Arms and Al-Quaida, CDs and Floppies, 2876 blank Identity Cards, field information papers of ISI, R.R., CIA etc., intelligence messages, papers regarding Chinas Intelligence, Indian Intelligence, US Arms pending transfer papers and many other incriminating papers and material were recovered and as a consequence the aforesaid FIR came to be registered against the accused. During investigation it has been found that the accused joined United Nations Liberation Fronts and has contacts with such organisation since December, 2001. Thereafter he eloped with a girl Meena and came to Shimla alongwith a sum of Rs. 4.00 lacs, Army Uniform etc. and bought a flat in Chakkar and started living there as Major. During investigation it has been found that the accused joined United Nations Liberation Fronts and has contacts with such organisation since December, 2001. Thereafter he eloped with a girl Meena and came to Shimla alongwith a sum of Rs. 4.00 lacs, Army Uniform etc. and bought a flat in Chakkar and started living there as Major. It was also found that the accused had earlier been arrested twice, once in a case under Sections 121/121-A, IPC, Section 13 UA(P) Act and 6(1-A) IWT Act and another under Sections 10/ 13 UA(P) and 6(1-A) IWT Act, 1933. Incriminating articles like wireless set, vehicles including toy pistols were also recovered from him. He jumped bail in both the aforesaid cases and because of the fear of UNLF came to Shimla by impersonating as an Army Officer. It was further found that he had been frequently visiting ARTRAC and has been an active member of UNLF and himself established an Organisation under the name and style of United Service and Trustees League in Manipur and collected huge amount to the tune of Rs. 45.00 lacs from the members. The case is stated to be under investigation and the accused is presently in judicial custody. The present application has been moved mainly on the ground that the concerned police had failed to submit a charge-sheet against the accused within the period prescribed under Section 167 of the Code, therefore, the accused is entitled to be released on bail. 3. I had heard the learned Counsel for the accused and the learned Deputy Advocate General for the State at length and have also gone through the relevant records. 4. It was contended by the learned Counsel for the accused that none of the offences alleged to have been committed by the accused is punishable with death or imprisonment for life or imprisonment of less than 10 years. The police have failed to put up the charge sheet against the accused within 60 days of the arrest and custody of the accused, therefore, by virtue of the provisions of Section 167 of the Code the accused is entitled to be released on bail. To substantiate the contention the learned Counsel had relied on Om Prakash Gabbar v. State of Punjab, 1997 Cr.LJ 2974. 5. To substantiate the contention the learned Counsel had relied on Om Prakash Gabbar v. State of Punjab, 1997 Cr.LJ 2974. 5. On the other hand, the learned Deputy Advocate General had contended that inter alia the accused has committed an offence punishable under Section 25(1-A) of the Arms Act wherein the punishment provided is imprisonment of 10 years and fine, therefore, the prescribed period for submission of charge-sheet in such offences being 90 days, the accused cannot claim bail by virtue of the provisions of Section 167 of the Code as the period of 90 days has not yet expired from the date of arrest of the accused. It was also contended that the accused is involved in the commission of grave offences and had earlier jumped the bail, therefore, also he is not entitled to be bailed out. 6. To appreciate the rival contentions it is necessary to refer to the provisions of sub-section (2) of Section 167 of the Code, relevant part whereof reads as under: "(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has not jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that— (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,— (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. (ii) sixty days, where the investigation relates to other offence, and on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter." 7. It is clear on a bare reading of the above provisions that to avoid release of the accused under Section 167 of the Code the police is required to submit the charge-sheet within 90 days if the offence is punishable with death or imprisonment for life or imprisonment for a term of not less than 10 years and within 60 days in any other case. Therefore, the fate of this case rests on the meaning of the expression "imprisonment for a term of not less than 10 years". Grammatically and with reference to the context the expression "imprisonment for a term of not less than 10 years" must mean "minimum imprisonment of 10 years" as this meaning alone will bring the offence for which such punishment is provided within the category of grave offences for which severe punishments like death and imprisonment for life are provided for. To interpret the expression "not less than ten years" as "upto ten years" will defeat the very purpose of the provisions fixing a time limit for filing charge-sheet against the accused-in-custody. 8. In Sohan Lal v. State, 1991 All. Cr. R. 383, the Allahabad High Court while dealing with a similar question held as under:— "Section 167 (2)(a) of the Code of Criminal Procedure lays down that the Magistrate may authorise the detention of the accused person, otherwise than in police custody, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so. But total period of detention shall not exceed ninety days where the investigation relates to an offence punishable with death/imprisonment for life or imprisonment for a term of not less than ten years. If the investigation relates to any other offence, the total period of detention shall not exceed sixty days. The words "imprisonment for a term of not less than ten years" mean that the minimum punishment shall be ten years. If the investigation relates to any other offence, the total period of detention shall not exceed sixty days. The words "imprisonment for a term of not less than ten years" mean that the minimum punishment shall be ten years. The term not less than ten years is not to be confused with the term upto ten years. In a case where the maximum punishment is upto ten years, the period of detention, which is permissible under Section 167(2) Cr.P.C. is only sixty days." 9. In Otn Prakashs case (supra) a Division Bench of the High Court of Punjab and Haryana relying on Sohan Lais case supra held :— "We accordingly answer the reference as under:— The words "imprisonment for a term of not less than 10 years" occurring in Section 167(2)(a)(i) of the Code means that the minimum punishment provided should be ten years." 10. For the reasons already recorded hereinabove, I am in respectful agreement with the view taken by the Allahabad High Court and Punjab and Haryana High Court in the above referred cases. 11. It is not in dispute that the accused was arrested on 21.10.2003 and since then is in custody. According to the prosecution the accused is involved in the commission of offences punishable under Sections 171, 419, 420, 408, 471, Indian Penal Code, Section 25 of the Arms Act and Section 6(D) of the Official Secrets Act, 1923. All these penal provisions except Section 25 of the Arms Act provide maximum punishment of less than 10 years imprisonment. 12. An offence under sub-section (1-A) of Section 25 of the Arms Act is punishable with imprisonment for a terms which shall not be less than five years but may extend to ten years. It cannot, therefore, be said that the minimum sentence of imprisonment provided for the said offence is not less than 10 years. Therefore, the investigating agency was required to submit charge-sheet against the accused within 60 days and the failure to do so has entitled the accused for bail under Section 167 of the Code. 13. It cannot, therefore, be said that the minimum sentence of imprisonment provided for the said offence is not less than 10 years. Therefore, the investigating agency was required to submit charge-sheet against the accused within 60 days and the failure to do so has entitled the accused for bail under Section 167 of the Code. 13. It may be pointed out that the slackness, particularly after the middle of November, 2003 and lack of expediency in investigating the case, resulted in non-filing of the charge-sheet against the accused whereby irrespective of the merits of the case the accused has acquired one indefeasible and absolute right of being released on bail and bail cannot be denied to him. However, keeping in view the nature of the offences allegedly committed by the accused, he should be released subject to adequate conditions so that it is ensured that he does not tamper with prosecution evidence and does not abscond with a view to evade trial. 14. In view of the above discussion, this application is allowed and the accused is ordered to be released on bail on his furnishing a personal bond in the sum of Rs. 1 lac with two sureties, each in the like amount, one of which must be a local surety i.e. a permanent resident of Himachal Pradesh. The bail, however, is subject to the further conditions that the accused shall not leave Shimla town save and except with the prior permission of the Sessions Judge, Shimla, shall not tamper with the prosecution evidence in any manner whatsoever, shall not indulge in the commission of any offence, shall surrender his passport if any to the Officer-In charge of Police Station West Shimla and shall not intentionally or deliberately act in a manner which may tend to delay the investigation/trial of the case.