Haji Samiuddin vs State

P.K. Bhasin, J.—These bail applications are moved by the petitioners u/s 439 of Code of Criminal Procedure in a case arising out of FIR

No. 607/2001 for the offences under Sections 3/9 of Official Secrets Act, 1923 read with Section 120B of I.P.C. As both the applications were

heard together and common point was urged by the learned Counsel for the petitioners I propose to dispose of both the applications by this

common order.

Factual matrix necessary for the disposal of these bail applications is that on an information received by the police officials to the effect that the

petitioner Samiuddin Haji in conspiracy with his brother-in-law and some other persons had been unauthorizedly collecting and

transmitting/communicating secret documents to some unknown Pak Agents for a purpose prejudicial to the safety, security and interest of India

petitioner Saimuddin was arrested on 25-12-2001. At that time from his possession 25 documents pertaining to Indian Army were recovered.

Pursuant to his disclosure statement a map pertaining to Jawahar Tunnel in J & K was also recovered. It was to be passed over to someone in

Pakistan. At the instance of Saimuddin petitioner Hanfi was arrested and from his possession also certain secret documents relating to the Indian

Military were recovered. The said documents seized are alleged to be defense related documents containing the information which can be useful to

the enemy country and the disclosure of which may affect sovereignty, security and integrity of the State.

The petitioners were charge-sheeted on the completion of the investigation and the Court of learned CMM charged them under Sections 3/9 of

the Official Secrets Act, 1923 read with Section 120B IPC.

On the conclusion of the trial when the case was at the stage of final arguments, CMM committed the case to the Court of Sessions in view of

one notification dated 21-6-06 issued by the Government of India whereby an earlier notification of 1998 under which the CMM was allegedly

made competent to try the cases under the Official Secrets Act was rescinded. Now a de novo trial of the petitioners-accused is to take place in

the Court of Sessions.

Learned Counsel for the petitioners submitted that petitioner Samiuddin was arrested on 25-12-2001 and the petitioner Mohd. Islam Hanfi was

arrested on 1-1-2002 and since then both of them are in custody. The complaint against them was filed in Court sometime in March, 2002 and the

learned CMM went on with the trial and concluded it also but instead of disposing of the case finally the learned CMM vide order dated 17-10-

2006 ordered the commitment of the case to the Court of Sessions and now a de novo trial will have to take place which will again consume same

period which had already been consumed in the Court of CMM and so in these circumstances the petitioners should not be made to suffer by

keeping them in custody endlessly. Learned Counsel also placed reliance on one order dated 19-09-2007 passed by a learned Single Judge of this

Court in bail application No. 426/2007 in which case also the accused was being tried for an offence u/s 3 of the Official Secrets Act, 1923 in the

Court of CMM and his case was also committed to the Court of Sessions because of the issuance of the above-referred notification dated 21.6.

06 and de novo trial had commenced and taking note all the facts including the de novo trial the accused was granted bail.

These bail applications have been very strongly opposed on behalf of the State on the ground that the petitioners are involved in the commission

of very serious offence affecting the security of the country. However, learned APP contended that prosecution would ensure that its evidence is

concluded within six months from the date when the de novo trial commences in the Sessions Court.

In my view, considering the nature of allegations leveled against the petitioners and their gravity it is not a fit case for releasing the petitioners on

bail despite the fact that de novo trial has now to take place. Under almost similar circumstances Hon''ble Supreme Court has vide order dated

30th October, 2007 rejected bail to an accused whose case under the Official Secrets Act had also been transferred to the Court of Sessions

because of the above referred notification dated 21-6-2006. The accused of that case was in custody since the year 2000 but still the Hon''ble

Supreme Court did not consider it to be a good ground for releasing him on bail even after about seven years of his arrest. That was also a case

u/s 3 of the Official Secrets Act, 1923. The said order dated 30-10-2007 was passed in SLP(Crl.) No. 3658/2006 ""D.S. Chandrawat v. State"".

The petitioners cannot claim parity with the accused of the case relied upon by learned Counsel for the petitioners in which learned Single Judge

of this Court granted bail to him in a case under the Official Secrets Act since in that order it was observed that the main document recovered from

the possession of the accused was a telephone directory, pertaining to the Army Officers and because of transfers and postings of the Army

Officers that telephone directory which was recovered in the year 2000, had lost significance in the year 2003 when the accused was arrested.

That is, however, not the situation here and facts are entirely different.

I, Therefore, dismiss these two bail applications. However, the trial Court is directed to dispose of the matter as expeditiously as possible and

preferably within six months by taking up the case on day to day basis.