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Balbir Singh Vs. State of Punjab and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1983CriLJ1722
AppellantBalbir Singh
RespondentState of Punjab and anr.
Cases ReferredState of Guiarat v. Chamanlal Manjibhai Soni
Excerpt:
.....desh nahin hai- khalistan zinda bad' your above activities are prejudicial to the security of the state. state of jammu and kashmir 1979 scc (cri) 999 :air 1979 sc 1925. it has been observed that 'vagueness' is a relative term and varies according to the circum-'stances of each case but if the statement of facts contains any ground of detention which is such that it is not possible for the detenu to clearly understand what exactly is the allegation against him, and he is thereby prevented from making an effective representation such a vague ground is sufficient to justify violation of article 22(5) of the constitution of india. he was proclaiming that they would take revenge against hindus as well as the police. he assured the gathering that he had made arrangements of better arms from..........of the order of detention constituted grounds of detention. if such allegations were irrelevant or vague the detenu was entitled to be released. dealing with the allegation that the detenu was a diehard naxalite. the supreme court observed as follows fat p. 1932 of air:-the grounds of detention begin with the statement that the detenu is a 'diehard naxalite'. dr. singhvi described a naxalite as a 'votary of change by resort to violence' and urged that as the meaning ascribed to the expression by the daily press (marxist exclamation: the capitalist pressl). many may not agree with dr. singhvi, some think of naxalites as blood-thirsty monsters: one compare them to joan of arc. it all depends on the class to which one belongs, one's political hues and ideological perceptions. at one stage.....
Judgment:
ORDER

Pritpal Singh, J.

1. Jarnail Singh has been detained in pursuance of the detention order dated 15-4-1983 (Annexure P/l) of the District Magistrate. Amritsar passed under Section 3(2) read with Section 3(3) of the National Security Act. 1980 (hereinafter called the Act). This order (Annexure P/l) was approved by the State Government on 22-4-1983 (Annexure P/2). The petitioner Balbir Singh brother of the detenu has prayed for the quashing of the order of detention in this criminal writ petition. The rules under which the detenu is being pain Rs. 5 as allowance are also sought to be quashed.

2. The order of detention of the detenu is based on the grounds mentioned in Annexure P/3 in the following terms:-

You are an ardent extremist and belong to group of Sant Jarnail Singh Bhindranwala and extend help to them to enable that group to carry on illegal and violent activities. On the night between 15/16-3-1983 a police Nakabandi was held on Mananwala Drain Bridge on Sher Shah Suri Rd. under the command of Shri A.P. Pandey S. P. Detective. Amritsar At about 4.45 a. m. a ieep No. DHE or DLE 2237 came from Amritsar side carrying the extremists namely Gurmukh Singh and his party. When Shri A.P. Pandey came forward to check the jeep, a person from the jeep fired and also threw a hand grenade and they escaped from the spot along with their jeep. In order to fulfil this object when accused Gurmukh Singh, the driver of jeep of Bhai Amrik Singh, Joginder Singh of village Rode and Anokh Singh alias Anokhe after causing the iniuries to Shri A.P. Pandey. S.P. Detective. Amritsar on Mananwala Drain Bridge came to your Behak on 16-3-1983 at 5.30 a. m. along with the dead body of Sh. Hardey Singh in a military colour ieep, you harboured them and provided them the shelter, food, clothes and also arranged their transport in injured condition in the Mini Bus of S.G.P.C, Amritsar to Guru Nanak Niwas where they used to hide themselves in the past. At that time Gurmukh Singh was armed with a stengun and 38 bore pistol (revolver). Anokh Singh @ Anokhe was armed with carbine whereas Joginder Singh of village Rode was armed with stengun and having a khaki jhola containing 10/15 hand-grenades. In this manner you helped the accused mentioned above with intention to destroy the evidence of crime to save themselves from arrest and legal punishment and also assisted them in their escape. All the above mentioned accused were on their mission to do away with Sh. D. R. Bhatti. SSP, Ludhiana and Sh. D. S. Mangat. DIG of Police and to create public disorder. In this connection FIR No. 132 dated 16-3-1983 Under Sections 307/148/149 IPC. 25/54/59 Arms Act. and 4/5 Explosives Act and case FIR No. 134 dated 20-3-1983 Under Section 212 IPC P. S. Jandiala were registered.

On 24-3-1983 you were produced in the court of Shri A. K. Sharma Judicial Magistrate Ist Class. Amritsar. When you were brought out of court, so many Akalis gathered there and you started addressing them and said that Khalistan is to be created separately from India and we are giving sacrifices for that purpose. You also exhorted the audience to join the force known as 'Sir Maru Volunteer Force to the maximum so that the Govt. may be toppled. You also raised the slogans 'Khalistan Zinda Baad - Bomb Dhamake Karange Te Khalistan Lal Marange - Khalistan Laina Hai - Bharat Sada Desh Nahin Hai- Khalistan Zinda Bad' Your above activities are prejudicial to the security of the State. In this connection case FIR No. 201 dated 24-3-83 Under Sections 124A. 153A and 9 of Security of State Act P. s. Civil Lines, was registered.

The provisions of Section 3 of the Act authorise detention of a person with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. It is contended by the learned Counsel for the petitioner that the grounds on which the detenu has been detained are not covered by Section 3 of the Act and they are also vague and irrelevant. It is therefore, submitted that the order of detention is vitiated.

3. In order to understand the objection of the learned Counsel the meaning of the term 'public order' is to be understood as distinguished from the term 'law and order It has been observed by the Supreme Court in Pushkar Mukher-jee v. State of West Bengal. : 1970CriLJ852 that contravention of any law always affects order but. before it can be said to affect public order it must affect the community or the public at large. In this connection a line of demarcation must be drawn between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals, and only in a secondary sense public interest, A Division Bench of Allahabad High Court has held in Awadh Kumar Shukla v. Supdt. of Central Jail 1983 Cri LJ 192 (at p. 201) as under:-

The ratio of public order and law and order much depends upon the impact of the Act. If the impact of the act is confined to individual only it may be a matter of law and order while if the act will have any impact upon a large section of the community the act will fall within the realm of the public order. It is the question of degree and the extent of the impact of the act upon the society which is vital. Public order embraced more of the community than law and order. One of the vital factors is to consider the effect of the act on the even- tempo of the life of the community. In its quality the act within the orbit of law and order may not differ from the act within the orbit of public order and it is always the matter of potentiality and similar acts in different contexts affect public order on the one hand and law and order on the other hand. Each case has to be considered in the light of the individual facts and circumstances with an eye to the impact of the act.

Thus the test for determining whether the acts are connected with 'public order or law and order' is the impact upon the local community. Where the acts have the effect to disturb the even tempo of the life of the community or that specified locality those acts relate to public order and not to law and order.

4. As to when a ground for detention is to be considered vague or irrelevant, has been considered by the Supreme Court in Mohd Yousuf Rather v. State of Jammu and Kashmir 1979 SCC (Cri) 999 : AIR 1979 SC 1925. It has been observed that 'vagueness' is a relative term and varies according to the circum-' stances of each case but if the statement of facts contains any ground of detention which is such that it is not possible for the detenu to clearly understand what exactly is the allegation against him, and he is thereby prevented from making an effective representation such a vague ground is sufficient to justify violation of Article 22(5) of the Constitution of India. In view of the Supreme Court, a ground is said to be 'irrelevant' when it has no connection with the satisfaction of the authority making the order of detention under the appropriate law. Even if one of the grounds of detention is irrelevant that is sufficient to vitiate the order. The reason is that it is not possible to assess in what manner and to what extent that irrelevant ground operated in the mind of the appropriate authority and contributed to provide the satisfaction that it was necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of the public order.

4A. One of the grounds for detention of the detenu in the instant case is that on the night between 15th and 16th of March. 1983. Gurmukh Singh and his party fully armed with stenguns. carbine, hand grenades pistol and revolver were proceeding in a ieep on a mission to kill the Senior Superintendent of Police Ludhiana and Shri J. S. Mangat, DIG of Police. They were intercepted by a police party headed by Shri A.P. Pandey, S. P. Detective at about. 4.45 a. m. on Mananwala Drain Bridge and when Shri Pandey came ' forward to check the jeep he was fired at and a hand grenade was also thrown at him which caused him serious injuries. The party in the jeep escaped after eluding the police party and took shelter in the farm-house of the detenu. The latter actively helped them in their escape from the police.

5. The contention of the learned petitioner's counsel is that the act of the detenu in giving shelter to the aforesaid criminals and to help them in escaping from the police was not related to 'public order', though it can be said to pertain to 'law and order' It is said that on these allegations the detenu could not be detained tinder the Act. This plea seems to have no merit. It cannot be doubted that the activities of the persons travelling in the ieep with a mission to kill police officers is a matter relating to 'public order'. The impact of such an activity upon the local community would certainly be to disturb the even tempo of the life of the community. The alleged activity of the detenu aiding the said group of criminals is a definite link in the chain of events. His giving shelter to them and to assist them in escaping from the police is a part of the whole scheme the effect of which is to disturb the even tempo of the life of the community. It. therefore cannot be accepted that the part taken by the detenu was only a law and order' problem whereas the activities of the persons to whom he gave shelter and helped in eluding the police alone are preiudicial to the maintenance of public order Such a demarcation is not justified. The detenu was as much guilty of creating a 'public order' problem as his associates who actually caused injuries to Shri A.P. Pandey, S. P. The mission of all of them including the detenu was to kill the police officers in order to spread disharmony in the life of the community. I am. therefore, unable to accept the contention of the learned Counsel that this ground not related to 'public order'.

6. It is next contended by the learned petitioner's counsel that the first ground of detention contains some vague allegations which prevented the petitioner from making an effective representation. I find merit in this plea. The grounds of detention begin with the statement that the detenu is an ardent extremist belonging to group of Sant Jarnail Singh Bhindranwala and extends help to that group to carry on illegal and violent activities. It is not explained as to what is meant by an 'ardent extremist'. Further, no light has been thrown as to who are the members of the group of Sant Jarnail Singh Bhindranwala to which the detenu is alleged to belong.

7. The learned Counsel for the State has contended that the aforementioned statement in the grounds of detention is merely a preliminary statement or introductory section of the paragraph and that the grounds for detention are mentioned thereafter.

8. It is not possible to agree with this submission. A similar situation arose in the case of Mohd. Yousuf Rather AIR 1979 SC 1925 (supra). In that case the grounds of detention began with the statement that the detenu was a diehard naxalite and was notorious for activities which were proving prejudicial to the maintenance of public order. A similar objection was taken on behalf of the detenu that this statement was vague and violated Article 22(5) of the Constitution of India. On behalf of the State it was submitted that this statement was only a preamble of the grounds to follow and that the vagueness of the preamble could not possibly justify the argument that the grounds of detention were also vague. This contention was repelled by the Supreme Court holding that it was impossible to agree with the submission that the aforesaid factual allegations can be said to be merely introductory or as constituting background. It was explained that the preamble is merely recital in terms of the provisions of law under which the detenu was being detained and a distinction was made between preamble meaning thereby the recital in terms of statutory provisions and the 'grounds' meaning thereby the conclusions of fact which led to the passing of the order of detention. It. was held that no distinction could be made between 'introductory facts', 'background facts' and 'grounds' as such because all allegations which led to the passing of the order of detention constituted grounds of detention. If such allegations were irrelevant or vague the detenu was entitled to be released. Dealing with the allegation that the detenu was a diehard naxalite. the Supreme Court observed as follows fat p. 1932 of AIR:-

The grounds of detention begin with the statement that the detenu is a 'diehard Naxalite'. Dr. Singhvi described a Naxalite as a 'votary of change by resort to violence' and urged that as the meaning ascribed to the expression by the daily press (Marxist Exclamation: The Capitalist Pressl). Many may not agree with Dr. Singhvi, Some think of Naxalites as blood-thirsty monsters: one compare them to Joan of Arc. It all depends on the class to which one belongs, one's political hues and ideological perceptions. At one stage of the argument Dr. Singhvi himself described a Naxalite as an 'ideological revolutionary. The detenu himself apparently thought that it meant no more than that he was a believer in the Marxist-Leninst ideology and so he affirmatively declared that he was a firm believer in that ideology and was proud of that fact. Though he did urge that the expression Naxalite connoted a person who sought change through violent means. Dr. Singhvi had ultimately to confess that the expression 'Naxalite' was as definite or as vague as all words describing ideologies, such as democracy etc., were. It is enough to say that it is just a label which can be as misleading as any other and is perhaps used occasionally for that very purpose.

In the light of the abovementioned pronouncement of the Supreme Court, the allegation made against the detenu that he is an ardent extremist and belongs to group of Sant, Jarnail Singh and extends help to that group to carry on illegal and violent activities must be considered vague in several respects. As mentioned above the term 'ardent extremist' is just a label which has not been explained. It is not stated as to who constituted the group of Sant Jarnail Singh Bhindran-wala which carry on illegal and violent activities. This part of the allegations against the detenu is undoubtedly very vague and is sufficient to vitiate the detention.

9. But even if the aforesaid statement in the grounds of detention is left out of consideration on the pretext that it is in the nature of a preamble, the detention order is unsustainable in view of the fact that the allegations made in second para of the grounds of detention are irrelevant because the activity of the detenu mentioned in that paragraph had no potentiality of being preiudicial to the security of the State. In nutshell this ground of detention is that on 24-3-1983 the detenu was produced in the Court of Judicial Magistrate. Amritsar and when he was brought out of the Court he started addressing a number of Akalis gathered there saying that Khalistan is to be created separately from India. He also exhorted the audience to join the force known as 'Sir Maru Volunteer Force in order to topple the Government. He further shouted some anti-national slogans. From this conduct, the conclusion drawn is that the activities of the detenu are prejudicial to the security of the State. With this conclusion it is not possible to agree. In the petition it has been alleged that the detenu was taken to the said Court in a closed police jeep which was parked in front of the Court-room. After the detenu was remanded by the Magistrate, he was immediately put in the jeep and was brought to Police Lines from where he was shifted to Jandiala. In the return filed by the District Magistrate, Amritsar these facts were not specifically denied. It is admitted that the detenu was brought in a jeep under proper police escort when he was produced in Court, It is. however, reiterated that some Akalis had gathered outside the Court room where the detenu had raised slogans and had addressed them, The facts which have not been controverted are that the detenu was taken to the Court in a closed jeep under proper police escort and after the order of remand was passed by the Judicial Magistrate he was whisked away in the jeep first to the Police Lines, Amritsar and then to Jandiala, When he was brought out of the court room a number of Akalis, it is alleged ware present. The detenu addressed them as mentioned above and raised antinational slogans. So far as the delivering of speech by the detenu is concerned. It is impossible to accept the allegation because it is unbelievable that in a stringent police escort he would have been allowed to deliver any formal speech to the Akalis gathered outside the Court room The allegation that he shouted anti-national slogans in the presence of the Akalis outside the Court room is. however, to be accepted on its face value. But shouting slogans howsoever objectionable and anti-national by a detenu in police escort cannot be said to have any potentiality to prejudice the security of the State A Division Bench of the Madhya Pradesh High Court in Mohd. Anwar v. District Magistrate. Sehore 1973 Cri LJ 1387 took the view that the Court is only to see whether the acts relied on are by their nature capable of producing the result which the detaining authority said they do. If the instances quoted are capable of producing the effect which the authority says they had. the satisfaction of the authority is not open to challenge. In the instant case the act of the detenu relied upon is certainly incapable of producing the effect which the authority envisages because it is not possible for me to accept that the shouting of the anti-national slogans by the detenu while in police custody when he was being removed from the Court-room to Police Lines. Amritsar could have affected adversely in any mariner security of the State. In this connection the learned Counsel for the State places reliance on Fitrat. Raza Khan v. State of U.P. : 1982CriLJ338 . This authority, in my opinion does not help his case at all. In that case the detenu was found addressing a Muslim assembly in Moradabad and was inciting them with communal feelings against Hindus and was saying that during the previous riots Hindus had committed great atrocities against Muslims. He was proclaiming that they would take revenge against Hindus as well as the police. He assured the gathering that he had made arrangements of better arms from outside. He said that money was needed to purchase them and he asked the gathering to assist him in this work. When a police party headed by a Sub-Inspector tried to prevent him from acting in a manner prejudicial to maintenance of public order and attempted to arrest him, he fired a pistol at the police party with an intention to kill them. He, however was arrested at the spot and his personal search revealed a 12 bore country-made pistol with an empty cartridge and two live cartridges. It is under these circumstances that it was held that the activity of the detenu showed his propensities to instigate the members of the Muslim community to communal violence which was prejudicial to the maintenance of the public order. In the instant case the circumstances are quite different. The instance quoted in the order of detention had no potentiality to prejudice national security and was therefore quite irrelevant to serve as a ground of detention of the detenu.

10. In my conclusion although one of the grounds contained in the grounds of detention related to public order upon which a detention could be ordered under Section 3 of the Act. but there are other allegations in these grounds which are either vague or irrelevant on which no detention could be ordered. The learned Counsel for the State submitted that even if one of the grounds is relevant the detention order should not be upset. In support of this contention he referred to the State of Guiarat v. Chamanlal Manjibhai Soni : 1981CriLJ1042 . That case related to Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. Section 5A of that Act reads as follows:-

Grounds of detention severable:--Where a person has been detained in pursuance of an order of detention under Sub-section (1) of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly-

(a) Such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are:-

(i) vague.

(ii) non-existent.

(iii) not relevant,

(iv) not connecter or not proximately connected with such person or

(v) invalid for any other reason whatsoever and it is not therefore possible to hold that Government or officer making such order would have been satisfied as provided in Sub-section (1) of Section 3 with reference to the remaining ground or grounds and made the order of detention.

(b) The Government of officer making the order of detention shall be deemed to have made the order of detention under the said Sub-section (1) alter being satisfied as provided in that sub-section with reference to the remaining ground or wounds.

In view of the existence of this section in the statute-book it was held by the Supreme Court that where there are a number of grounds of detention covering various activities of the detenu each activity is a separate ground by itself and if one of the grounds is irrelevant vague or not specific then that will not vitiate the order of detention. It is manifest that this ruling is not applicable to the present case. There is no such provision in the National Security Act similar to Section 5A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. On the contrary, it is held in the case of Mohd. Yousuf Rather AIR 1979 SC 19251 (supra) that even if one of the grounds of detention is irrelevant or vague that is sufficient to vitiate the order of detention the reason being that it is not possible to assess in what manner and to what extent that irrelevant or vague ground operated in the mind of the appropriate authority and contributed to provide the satisfaction that it was necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The argument of the State counsel is, therefore unacceptable. On account of the introduction of aforesaid vague and irrelevant allegations the impugned order is certainly vitiated.

11. The learned Counsel for the petitioner did not press the prayer for quashing the rules of detention which provide Rs. 5 per day as allowance for the detenu. This prayer of the petitioner is therefore, disallowed.

12. For the reasons mentioned above, I am of the view that the impugned order of detention of the detenu is unsustainable and liable to be quashed. The result is that this order is quashed and the detenu is ordered to be released forthwith if he is not wanted in connection with any other case.


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