IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 Bail Appl..No. 829 of 2010 CRIME NO.73 OF 2007 OF CBCID, KOZHIKODE PETITIONER: ACCUSED NO.3 (ACCUSED IN CUSTODY) ----------------------------------------------------------------- SUBAIR @ SUBEER, S/O.ISSA, AGED 39 YEARS CHERIYANDINTAKATH, KARUVANCHAL, P.O.NADUVIL VILLAGE, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.C.A.JOSEPH RESPONDENTS: COMPLAINANT - STATE ---------------------------------- 1. DETECTIVE INSPECTOR, CBCID HW III, KOZHIKODE. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON 05/03/2010 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 829 OF 2010 ------------------------------------------------------ Dated this the 5th day of March, 2010 O R D E R This application for bail under Section 439 of the Code of Criminal Procedure is filed by Subair alias Subeer, accused No.3 in Crime No.73 of 2007, CBCID, Kozhikode. The crime was originally registered as Crime No.279 of 2005 of Kasaba Police Station, Kozhikode. Later, the case was transferred to CB CID in the year 2007. 2. The offences alleged against the accused persons (Mohammad Rafeeq, Shafeeq and Subair) are under Sections 4 and 20 of the Indian Telegraph Act, 1885 and Sections 3 and 6 of the Wireless Telegraphy Act, 1933. 3. The Crime was registered on the basis of an intimation sent by the A.D.E.T. (Vigilance Telecom Monitoring), Department of Telecommunications, Ministry of Communications and I.T., Channai to the Sub Inspector of Police, Kasaba Police Station, Kozhikode. B.A. NO. 829 OF 2010 :: 2 :: The allegation made in the petition was that an illegal telecom set up at M/s Smart Tech, Faura Complex, Mavoor Road, Calicut was being misused for illegal operations for receiving international telephone calls and distributing those calls to various places in Kerala/ India. It was alleged that the illegal set up bypassed the authorised channel of international long distance operators causing huge loss to the telecom operators and to the Government and corresponding wrongful gain to the owners. It was alleged that the set up without a monitoring mechanism posed a threat to the national security. 4. Investigation revealed that the first accused Mohammad Rafeeq took on rent room No.305 in Foura Complex in Mavoor Road, Kozhikode for setting up the unauthorised telephone exchange. Shafeeq (accused No. 2) who is a friend of accused No.1 took on lease a portion of a house called ‘Meghalaya’ situated behind Foura Complex and accused No.3 (petitioner- Subair) who is a friend of accused No.2 took a telephone connection from Reliance and got an internet connection from VSNL. The accused persons set up the necessary equipments and gadgets in the aforesaid premises. They were running a parallel telephone exchange therein. They received calls from abroad and distributed the same to different parts of India. B.A. NO. 829 OF 2010 :: 3 :: The accused caused huge loss to the Government and wrongful gain to them. According to the prosecution, the loss sustained by the Government would be about Rs.94,00,000/- (ninety four lakhs). 5. It is alleged that the petitioner absconded. He went abroad. He surfaced recently and he was arrested on 15-1-2010. The petitioner was remanded to judicial custody by the Chief Judicial Magistrate, Kozhikode. The Court of Session, Kozhikode dismissed the application for bail filed by the petitioner, as per the order dated 29th January 2010. 6. The petitioner made himself scarce from 2005 to 2010. If the petitioner is released on bail, it is likely that he would abscond. The second accused is not arrested so far. The chances of the petitioner tampering with the evidence and intimidating and influencing the witnesses also cannot be ruled out, as held by the learned Sessions Judge. The offence alleged against the accused is grave in nature. It is necessary to file the charge sheet without delay and to complete the trial. In these circumstances, I am not inclined to grant bail to the petitioner. B.A. NO. 829 OF 2010 :: 4 :: 7. The Indian Telegraph Act was enacted in 1885 and the Indian Wireless Telegraphy Act was enacted in 1933. Section 20 of the Indian Telegraph Act provides that if any person establishes, maintains or works a telegraph within India in contravention of the provisions of Section 4 or otherwise than as permitted by rules made under that section, he shall be punished, if the telegraph is a wireless telegraph, with imprisonment which may extend to three years, or with fine, or with both, and , in any other case, with a fine which may extend to one thousand rupees. Sub section (2) of Section 20 provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898, offences under Section 20 in respect of a wireless telegraph shall, for the purposes of the said Code, be bailable and non-cognizable. Sub section (3) of Section 20 provides for forfeiture to the Government of the telegraph in respect of which the offence was committed. Forfeiture would be on conviction of the offender. 8. In the Statement of Objects and Reasons to the Indian Wireless Telegraphy Act, 1933, it is stated thus: B.A. NO. 829 OF 2010 :: 5 :: “An important source of revenue to the Indian State Broadcasting Service is the fees on licenses for wireless apparatus. These licenses are issued under the Indian Telegraph Act which, however, only gives power to control establishment, maintenance and working of such apparatus in British India. The detection of unlicensed apparatus and the successful prosecution of offenders is therefore difficult in practice as it is first necessary to locate unlicensed apparatus and then to prove that it has actually been established, maintained and worked. It is believed that the revenue lost at present owing to the use of unlicensed wireless apparatus is considerable, thus adversely affecting the financial position of the Indian State Broadcasting Service. It is now proposed to remedy this state of affairs by legislation to prohibit the possession without license of wireless apparatus as distinct from the establishment, maintenance and working of such apparatus, and the present Bill has been drafted with this object.” 9. Sub section (1A) of Section 6, which was inserted by Act 31 of 1949, provides that whoever possesses any wireless transmitter in contravention of the provisions of Section 3 shall be punished with imprisonment which may extend to three years, or with B.A. NO. 829 OF 2010 :: 6 :: fine which may extend to one thousand rupees, or with both. Section 10 of the Indian Wireless Telegraphy Act provides for the rule making power of the Central Government. Sub section (3) of Section 10 states that in making a rule under the Section, the Central Government may direct that a breach of it shall be punishable with fine which may extend one hundred rupees. 10. Even while enacting the Indian Wireless Telegraphy Act 1933, it was noticed that there was revenue loss to the Government due to the setting up of unlicensed wireless apparatus. Advancement of technology has made commission of offences easier. The offenders make unlawful gain and cause huge loss to the Government. Setting up of unauthorised telephone exchanges, as allegedly done by the accused in the present case, would also cause threat to the safety and security of the nation. There is no provision in the Indian Telegraph Act or in the Indian Wireless Telegraphy Act to recover from the offenders the loss sustained by the Government. The punishment provided under these Acts does not appear to be adequate, in the present day scenario. Offences under Section 20 of the Indian Telegraph Act is bailable also. To my mind, to cope up with the present day violations and offences and to B.A. NO. 829 OF 2010 :: 7 :: effectively deal with the offenders, adequate stringent provisions are required in the aforesaid Acts. The attention of the Central Government is drawn, on these aspects. For the aforesaid reasons, the Bail Application is dismissed. The Registry will forward copy of this judgment to the (1) Secretary, Ministry of Law, Justice and Company Affairs, New Delhi; (2) Secretary, Ministry of Home Affairs, New Delhi and (3) Secretary, Ministry of Telecommunications, New Delhi. (K.T.SANKARAN) Judge ahz/