criminal appellate jurisdiction criminal appeal number. 178179 and 228 of 1975.  from the judgment and order dated 10-4-1975 of the
punjab and haryana high companyrt in criminal appeal number 40 of
1972 . frank anthony herjinder singh and s.n. singh for
appellant number 1 in crl. a.178/75 and appellants in crl. 179/75 and appellants number. 1-2 in crl. a.228/75. k. sen and herjinder singh for appellant number 2 in crl. a.178/75. l. kohli rameshwar nath and miss manju malhotra for
appellant number 3 in crl. a. number 228/75. p. sharma and miss kusum chaudhury for the
respondents in all the appeals. the judgment of the companyrt was delivered by
goswami j.--these appeals under the supreme companyrt
 enlargement of criminal appellate jurisdiction  act 1976
are directed against the judgment and order of the high
court of punjab and haryana companyvicting five of the appel-
lants  satbir singh paramjit singh harbhajan singh shiv
narain and m.p. singh  under section 302/120b indian penal
code and sentencing them to imprisonment for life. satbir
singh was also companyvicted on the sole testimony of puran
singh under section 364 ipc and sentenced to rigorous im-
prisonment for seven years and fine. the remaining eight
appellants  ajit singh darshan singh arjan singh baghal
singh tara singh dial singh bachan singh and malook
singh  were companyvicted under section 364 ipc and sentenced to
seven years rigorous imprisonment and fine. they had all
earlier been acquitted by the additional sessions judge
amritsar. this case throws a lurid light on smuggling activities
at the international india-pakistan border near amritsar. amongst the appellants  hereinafter to be described as
the accused  m.p. singh was an inspector of the border
security force  bsf  shiv narain was a sub-inspector  bsf
and harbhajan singh was a companystable  bsf . accused ajit
singh is the father of the two accused satbir singh and
paramjit singh. ajit singh is alleged to be a big smuggler
indulging in his smuggling activities at the india-pakistan
border with his two sons and the other accused persons
namely darshan singh arian singh baghal singh tara
singh dial singh bachan singh and malook singh. it is
alleged that inspector m.p. singh s.i. shiv narain and
constable harbhajan singh along with other bsf personnel
were companyniving at the smuggling activities of ajit singh and
party and were reaping their illegal harvest. shingara singh and his son hardip singh and kartar singh
are the three deceased whose murders form the subject matter
of this case. while the dead bodies of hardip singh and
kartar singh were found that of shingara singh was number
available. puran singh  pw 3  son of shingara singh  deceased  was
a member of the gang of smugglers headed by accused ajit
singh and in the companyrse of smuggling activities there was a
quarrel with regard to the sharing of money to the extent of
rs. 15000/- which was said to be his due and which ajit
singh and party were number paying. a few months prior to july
6 1970 the date of occurrence when accused satbir singh
jasbir singh and ten or twelve labourers along with puran
singh smuggled 15 jackets of gold each weighing 1000 tolas
from pakistan into indian territory with the companynivance of
inspector m.p. singh and s.i. shiv narain  bsf  puran singh
succeeded in slipping away under the companyer of darkness with
two jackets of gold. the gold with which puran singh fled
away was then worth about rs. 5 to 6 lakhs. may 20 1970 a report was lodged by shingara singh
deceased at police station gharinda alleging that his son
puran singh  pw 3  who had been carrying on smuggling activ-
ities with the sons of accused ajit singh was taken away by
accused satbir singh and some others  number before us  on may
6 1970 in a car. he did number then suspect anything. but
number he had a firm suspicion that satbir singh jasbir singh
and paramjit singh sons of ajit singh of village burj
rajinder singh and makhan singh had abducted his son puran
singh over a dispute about .the smuggled gold and they had
kept him companycealed at some unknumbern place with the intention
to kill him. on receipt of this report a case under section
364 ipc was registered by s.i. baldev. singh  pw 63  at
police station gharinda  ex. p.p.y. . july 7 1970 a report was sent to police station
gharinda by accused shiv narain s.i.  bsf  about an en-
counter of bsf with smugglers on the mid-night of july 6
1970 on the border of india pakistan at border pillar number
100 near amritsar that two sikh young men fall dead to the
fire opened by the border security force of the indian side. july 17 1970 the first information report  ex. ppz r
of the present case was registered by police station gha-
rinda on the report dated july 12 1970  ex. p.p.z.  of

s.p. surjit singh  pw 64  which inter alia disclosed
i heard a rumour on 8th july 1970 on my
return from casual leave that three persons
namely shingara singh son of inder singh
kartar singh son of mangal singh and hardip
singh son of shingara singh jats residents
of ranike police station gharinda had been
abducted forcibly by ajit singh of burj and
his sons residents of village burj police
station gharinda and party from near crystal
chowk amritsar and that they had been shown
killed in an encounter in companynivance with
border security force and pak rangers. this report of d.s.p. surjit singh has discounted the en-
counter story as a fib but yet it companytinued to be the de-
fence of the accused. according to the trial companyrt the
encounter version appears to be true. were the three persons shingara singh hardip singh and
kartar singh killed in an encounter with the bsf or mur-
dered in pursuance of a companyspiracy .to abduct and murder ? while the first part of the question need number even be
proved the second part must needs be proved to the hilt. the prosecution case further is that puran singh after
having been taken away from his village was taken to the
haveli of ajit singh where he was asked about the gold which
he had stolen away. puran singh informed the accused persons
that he had delivered the gold to his brother hardip
singh. it is alleged that puran singh was afterwards taken
to the border and left with accused m.p. singh and accused
shiv narain who later on handed over him to shaffi and
yakub two pakistan smugglers and the latter took him to
village dial  pakistan . puran singh was brought to the
indian side of the border on the night intervening 6th and
7th july 1970 but was again taken back to pakistan where-
from he companyld manage to escape and cross over to the indian
side of border only on numberember 6 1970 to figure as an eye
witness to the murder of his father. it is alleged that on july 6 1970 shingara singh
hardip singh and kartar singh  all deceased  along.with
harnam singh  pw 5  went. to amritsar. shingara singh and
hardip singh had gone to attend companyrt kartar singh to
sell his vegetables and harnam singh to attend to his wife
smt. piaro who was a patient in the v.j. hospital. after
being free from their work at about 1.00 p.m. the three
deceased along with harnam singh  pw 5  went towards the

j. hospital. when they had reached crystal chowk on way to
the vijay hospital a big vehicle and a car came from the
side of the railway station in which accused ajit singh
jasbir singh  absconder  accused satbir singh satara
 absconder  accused paramjit singh accused baghal singh
accused tara singh accused arian singh accused bachan
singh accused darshan singh pritu.  pritam singh
 acquitted  accused malook singh and accused dial singh
with two other jetsons in police uniforms  pamma and malki-
at  were travelling. these persons were armed with guns and
revolvers. the accused came out of the vehicle and physi-
cally lifted shingara singh hardip singh and kartar singh
and whisked them away in the said vehicles. it is alleged
that the deceased persons were first taken to the haveii of
ajit singh in village burj where they were belaboured and
later on blindfolded and tied removed to the indo-pakistan
border where on that night some goods were to be exchanged
between the accused with balkar singh  pw 4  and the pakis-
tani smugglers. accused m.p. singh was also present there. at about mid-night all of them including accused shiv narain
and accused harbhajan singh moved near pillar number 100. this
party handed over 1-1/4 maunds of silver to yakub and
shaffi pakistani smugglers and received gold in return
hardip singh and kartar singh were brought by accused satbir
singh and others towards indian side of the border but
shingara singh
was left behind with the pakistani smugglers. balkar singh
 pw 4  then enquired as to why shingara singh had been
handed over to pakistanis. at that moment accused shiv
narain fired two shots with very light pistol. accused
harbhajan singh accused m.p. singh accused paramjit
singh and accused satbir singh also fired shots at hardip
singh and kartar singh from a distance of 25 yards who then
dropped dead. accused jasbir singh  absconder  came there
and untied their hands and removed the cloth companyering their
eyes. a rifle was placed near the dead body of hatdip singh
and a kitpan was placed near the dead body of kartar singh. balkar singh  pw 4  also heard the sound of a fire shot in
pakistan territory when ajit singh  accused  said that
shingara singh had also been killed. according to the prosecution to justify the killing of
hardip singh and kartar singh accused m.p. singh accused
shiv narain and accused harbhajan singh with other officials
of bsf manipulated an encounter story and got a false case
registered at police station gharinda on july 7 1970  ex. p. o/1  on a ruqa having been sent by s.i. shiv narain
 accused  falsely alleging inter alia that on a secret
information having been received by inspector m.p. singh
 accused  that some smugglers would bring some goods from
pakistan to india they companyducted an. ambush behind burj
 border pillar  number 100 on the night intervening 6th and 7th
july 1970 and during the process in defence the naka
party fired which resulted in killing of two persons who
were subsequently identified as hardip singh and kartar
singh. the accused persons were charged under section 364/120b
ipc for abducting puran singh. they were also charged under
section 364/120b ipc for abducting shingara singh hardip
singh and kartar singh. they were further charged under
section 302/102b ipc for causing the death of kartar singh
and hardip singh. they were also charged under section 109
ipc for abetting the murder of shingara singh which offence
was companymitted in companysequence of the abetment. the prosecution examined 68 witnesses. the accused
denied the charges and the bsf accused suggested a motive
for the prosecution by alleging animus against the d.s.p. surjit singh  pw 64 . according to them kartar singh and
hardip singh were killed as a result of an encounter with
smugglers on the border. the sessions judge giving his reasons for number accepting
the evidence of the eye witnesses and other material evi-
dence acquitted all the accused. the high companyrt on appeal
confirmed the acquittal of two accused namely pritam singh
and mehar singh but companyvicted the appellants as mentioned
above. with regard to the charge under section 302/120b ipc the
case will depend upon the evidence of puran singh  pw 3  and
the extrajudicial companyfession by the accused shiv narain
and harbhajan 14--240sci/77
singh before r.k. kapur  pw 41 . with regard to the charge
under section 364 ipc the prosecution rests upon hamare
singh  pw 5  and also upon the evidence of gurdial singh  pw

inspector gurmukh singh  pw 11  and companystable amrik
singh  pw 46  with regard to the roznamcha entry  ex. pp. a . we may also numbere here that puran singh  pw 3  and
balkar singh  pw 4  were the two eye witnesses to the murder
and balkar singh  pw 4  was disbelieved both by the sessions
judge and the high companyrt. harnam singh  pw 5  is an eye-
witness to abduction. we should also numbere that gutdip singh
 pw 14  atma singh  pw 27  and mohinder singh  pw 28  who
were witnesses with regard to the charge of abduction were
also disbelieved both by the sessions judge and the high
court. harnam singh  pw 5  who is the eye-witness to abduc-
tion was disbelieved by the sessions judge but partly be-
lieved by the high companyrt. in the above state of the evidence mr. sharma appearing
on behalf of the state rests his case on the evidence of
puran singh  pw 3  and the extra-judicial companyfession made by
the accused shiv narain and harbhajan singh before r.k.
kapur  pw 41  with regard to the murder charge under sec-
tion 302/120b ipc. he also relies upon the roznamcha and
the recoveries. we will therefore first examine the reasons given by the
sessions judge for acquitting the accused. after narrating
the facts deposed to by puran singh  pw 3  the sessions
judge held that the story on the face of it appears to be
false. according to puran singh  pw 3  the accused took
him away to ajit singhs haveli and then to the indo-paki-
stan border only with a view t9 recover the gold which he
had earlier managed to steal away. the sessions judge took
numbere of the fact that puran singh had told the accused that
the gold was lying with his brother hardip singh. it was
therefore inconceivable that this clue with regard to the
gold would number be pursued by the accused and hardip singh
would be left out and puran singh alone would be taken away. this witness even after he had seen the murder of his
father shingara singh on july 6 1970 stayed in pakistan
for about four months without disclosing this fact to any-
body number did he companymunicate about it to any of his rela-
tions. although this witness said that he crossed from
pakistan to india only on numberember 6 1970 after the mur-
der and was arrested and interrogated by s.i. jai ram  pw
58  and was also prosecuted for crossing the border there
is numberevidence from any police officer number even from s.i. jai ram  pw 58 . numberdocumentary evidence which would have
been available if his statement was true was produced in
the case. apart from that this witness stated that he was
arrested by s.i. jai ram and he narrated the entire occur-
rence to him. s.i. jai ram does number support him. on the
other hand he had earlier stated before the companymitting
magistrate that he did number tell anything about the said
murders to s.i. jai ram. the sessions judge also numbere several discrepancies in
his evidence and finally came to the companyclusion that he was
number actually present at the time of the murders number was he
abducted by the accused as alleged. the high companyrt does number appear to have closely companysid-
ered the treasons given by the sessions judge for disbeliev-
ing the testimony of puran singh. it is difficult to appre-
ciate how the high companyrt can say that the statement of
this witness seems to be quite natural in view of the
infirmities pointed out by the sessions judge. after exam-
ining the entire discussion of the evidence of this witness
by the high companyrt we are number satisfied that the high companyrt
was right in relying upon the testimony of this witness. it is pointed out that the high companyrt was number companyrect in
observing that it is number disputed that he  puran singh  is
being tried for having companye to indian territory on numberember
6 1970 and the moment he entered the indian territory he
was taken into custody and his statement was recorded by the
police. on the other hand the sessions judge found just to
the companytrary and there is numberreference in the judgment of
the high companyrt to the discussion by the sessions judge with
regard to this aspect. we have next to see the reasons given by the sessions judge
for disbelieving the testimony of harnam singh  pw 5 . this
witness gave evidence about the abduction of the three
deceased from the crystal chowk near v.j. hospital amrit-
sar. the witness is a near relation of the deceased and he
admitted that when the three deceased were abducted he
suspected that the accused might inflict injuries on their
person. even so he did number go for police assistance number did
he inform even mangal singh  pw 17  father of the
deceased .kartar singh about the occurrence although the
latter was residing with him in the same house. he also did
number- ask the relations of the deceased to lodge any report
with the police. crystal chowk is a busy companymercial area
where there are shops and some residential houses and the
shops were open at the time of the incident. even so this
witness stated that there were numbershops or bazar near the
place of occurrence. this witness named five accused persons
including two absconders and stated that he knew them by
names about one year prior to the occurrence. since he had
named accused paramjit singh and accused satbir singh in the
committing companyrt he was asked there to identify these two
accused. he however wrongly pointed towards accused m.p. singh as paramjit singh and accused pritam singh as satbir
singh. accused m.p. singh was number even alleged to be present
at amritsar at the time of abduction. although this witness
stated that he informed kabal singh  pw 6  brother of
shingara singh kabal singh did number companyroborate him on this
point. further harnam singh  pw 5  states about abduction of the
three deceased from crystal chowk. the high companyrt accepts
his evidence as being companyroborated by witnesses regarding
his presence at amritsar with the three deceased persons. it is difficult to see how because his presence at amritsar
is proved the further fact about the abduction of the three
deceased from crystal chowk is also established. there is
numbercorroboration whatsoever of this part of the story. if
the high companyrt has to look for companyroboration of the evidence
of harnam singh even about his presence at amritsar on its
own reasoning the principal part of the prosecution case
about abduction depending upon his sole testimony cannumber be
held to be established. the
high companyrt also seeks to find companyroboration of this part of
the case from roznamcha of july 6 1970  ex. p.p. a  wherein
a certain information from an undisclosed source was re-
ceived at 2.00 p.m. by gurdial singh  pw 10  to the effect
that there was some fight between some smugglers near
crystal chowk or some legislator had been abducted. this
information is hearsay in absence of the informant. the. name of the informant is number even disclosed. apart from
this this roznamcha does number companyroborate harnam singh  pw
5  with regard to his statement that the three deceased
persons were abducted by the accused from crystal chowk. the high companyrt did number fail to observe that the reasons
given by the witness for his belated examination by the
police as padding obviously at the instance of the po-
lice. even so the high companyrt explained away the fact of
harnam singhs number reporting to the police in a very unusu-
al way. the high companyrt observed firstly that it was
natural for the witness number to be involved in the dispute of
smugglers and secondly that there was numberuse informing the
police as numberpetty police officer would take action against
the international smugglers. the high companyrt went on to
record that it appears in the present day administration
that numberpetty police officer is likely to take responsibil-
ity in the matter of prosecuting international smugglers
without having the blessings of the highest police officer
in the district and even above. witnesses like harnam
singh were therefore according to the high companyrt help-
less. we cannumber companymend this line of approach in a crimi-
nal case in order to find jurisdiction for companyviction on
shaky testimony by making a virtue of the inalertness of
the police administration. the witness cannumber be relied
upon by resort to a kind of special pleading in his aid. we
find that the high companyrt has number given any companyent reason for
taking a different view with regarding to the appreciation
of evidence of this witness by the sessions judge. about recovery of fire-arms and gold at the instance of
some of the accused the case rested on the evidence of the
police officers alone. the other search witnesses were
declared hostile on account of their number supporting the
prosecution. the sessions judge did number feel it safe to act
upon the testimony of police witnesses including inspector
bachan singh  pw 68  in the matter of disclosure statement
as well as of recovery of the fire-arms and of gold in
absence of companyroboration by independent witnesses. the high
court held that there was numberreason to disbelieve the
police witnesses. but when both the sessions judge and the
high companyrt seem to be in agreement in finding that there
was padding by the police in respect of evidence produced
in the case it companyld number be said that the sessions judge
was so grievously in error that companytrary appreciation of the
evidence was companypelling under the circumstances. there is also the evidence with regard to extra-judicial
confessions said to have been made by the accused shiv
narain and harbhajan singh before r.k. kapur  pw 41  the
commandant of the border security force. the sessions judge
has companysidered that evidence as inadmissible under section
24 of the evidence act. the high companyrt differing from the opinion of the ses-
sions judge held the extra-judicial companyfession as admissi-
ble in evidence since according to the high companyrt it
cannumber be held that he  kapur  gave any threat inducement
or promise to the accused. the high companyrt observed
.lm10
when this  warning  was companyveyed to the ac-
cused by shri handa d.s.p. the accused still stuck
to the encounter versions and made their statements
in writing supporting the encounter version. the
said threat of shri kapur p.w. did number work and the
accused stuck to their old story it was on
19th july 1970 that shiv narain and harbhajan
singh were questioned separately when he told them
that they should companye out with the truth
otherwise .they would them selves be responsible
for their actions and if they had done anything
wrong they would go to jail. instead of giving
them any promise of help he in fact told them that
if they were in the wrong they would go to
jail  from the statement of this witness
which i have gone through minutely it is difficult
to hold that he gave any inducement threat or
promise to the accused persons and that the ac-
cused persons made the companyfessions in pursuance
thereof. section 24 of the indian evidence act provides that a
confession made by an accused person is irrelevant in a
criminal proceeding if the making of the companyfession appears
to the companyrt to have been caused by any inducement threat
or promise having reference to the charge against the
accused person proceeding from a person in authority and
sufficient in the opinion of the companyrt to give the accused
person grounds which would appear to. him reasonable for
supposing that by making it he would gain any advantage or
avoid any evil of a temporal nature in reference to the
proceedings against him. indeed mr. kapur was a person in authority being the
commandant of the rank of a senior superintendent of police
and the companyfessing accused were his subordinates. apart
from this it appears from his evidence- that the oral
confessional statements were number readily forthcoming from
the accused persons but they had to be interrogated on
several occasions. he further advised d.s.p. handa to
interrogate them with a warning that they should state the
truth otherwise they would number be supported by me. mr.
kapur further admitted in his cross-examination that he did
tell mr. handa on telephone on 10th july 1970 that he
should give a warning to border security force people to
come out with truth otherwise they themselves would be
responsible for their actions. mr. kapur also himself
enquired from m.p. singh and shiv narain accused about the
matter on 19th july 1970 telling them that number that the
case has been registered they should state the truth. in deciding whether a particular companyfession attracts the
frown of section 24 of the evidence act the question has
to be companysidered
from the point of view of the companyfessing accused as to how
the inducement threat or promise proceeding from a person
in authority would operate in his mind. it is true that mr. kapur in his evidence denied
having held out to the accused any inducement threat or
promise. we however find. that on july 1-7 1970 the
police gave a go by to the encounter story and the present
case was registered against the accused. two days after on
july 19 1970 mr. kapur having already failed to get any
confessional statement from the accused through other agen-
cy took upon himself to question accused shiv narain and
harbhajan singh separately and this time he succeeded in
securing companyfessional statements. when the two accused were
questioned. separately after several abortive attempts to
secure companyfessions can it be said that there was numberin-
ducement threat or promise of some kind proceeding from. mr. kapur to have made any impact on their minds resulting
in the companyfessions ? mr. kapur having stated to the accused
on july 19 1970 that number that the case has been regis-
tered they should state the truth it is difficult to hold
that by this statement he would number generate in the minds of
the accused some hope and assurance that if they told the
truth they would receive his support which he had earli-
er companyveyed to them through d.s.p. handa. it is true that
in the companyrse of cross-examination mr. kapur stated that he
had told the accused that if they had done anything wrong
they would go to jail. but having regard to the effect of
the totality of the evidence of this witness we are unable
to hold that the companyfessions made by the accused before mr.
kapur on july 19 1970 were free from the taint of infirmi-
ty within the mischief of section 24 of the evidence act. we are therefore clearly of opinion that the extra-judi-
cial companyfessions by the two accused shiv narain and harbha-
jan singh have to be companypletely excluded from companysideration
being hit by section 24 of the evidence act. similarly number much can be made of abscondence of certain
accused when other material evidence companynecting the accused
with the crime has failed in this case. a serious infirmity in the judgment of the high companyrt is
that it has number at all companysidered the reasons given by the
sessions judge for acquitting the accused. the high companyrt
has given its own reasons for companyvicting the appellants but
that is number enumbergh in an appeal against acquittal. as a practical proposition in an appeal against acquit-
tal it is always necessary that the .reasons given by the
trial companyrt for recording an acquittal should be examined by
the high companyrt. if the companyclusions of the trial companyrt are
number based upon any evidence or they are such as numberreasona-
ble body of men properly instructed in law can reach on
the evidence or they are so palpably wrong as to shock the
sense of justice the high companyrt will be justified in taking
a companytrary view by giving its own reasons. it is number enumbergh
that it is just possible for the high companyrt to take a company-
trary view. while interfering with acquittal the judg-
ment of the high companyrt should demonstrate clearly
the unworthiness of the companyclusions of the trial companyrt
having regard to all the relevant evidence in record. we
are unable to say in these appeals that the high companyrt has
followed these salutary principles in dealing with an appeal
against acquittal. we may also observe that the high companyrt need number have
mentioned the fact that the sessions judge was suspended on
account of companyruption charges. if we may say so it was
absolutely unnecessary to refer to this in disposing of the
appeal. we are clearly of opinion that this was number a fit case
where the high companyrt should have interfered with the acquit-
tal of any of the appellants. the appeals are allowed.


original jurisdiction writ petition  criminal  number 403
of 1988.  under article 32 of the companystitution of india
dr. y.s. chitale yatin n. oza p.h. parekh and sunil
dogra for the petitioner. pg number1083

s. poti mrs. h. wahi and m.n. shroff for the
respondents. the judgment of the companyrt was delivered by
dutt j. in this writ petition the petitioner has
challenged the legality of the order of his detention dated
august 3 1988 passed by the companymissioner of police
ahmedabad city under sub-section  2  of section 3 of the
gujarat prevention of anti-social activities act 1985
hereinafter referred to as the act. the grounds on which the impugned order of detention has
been made run into seven pages. the relevant portions of
which are extracted below
in pursuance to section 9 1  of the gujarat prevention
of anti-social activities act 1985 shri piyush kantilal
shah is hereby informed the grounds of detention as under
you are indulging into anti-social activities by
hoarding illegal foreign liquor and also selling it through
yourself and through your servants near navrangpura
municipal bus-stand and navrang high school ahmedabad that
the cases have been registered against you under bombay
prohibition act 1949 and in which you have been arrested. sr. police stn. c.r. sections qty. seized result
number number

navrangpura 62/88 prohibition 21795 pending. navrangpura 114/88 act-66 b  ml ltr. pending
65 a  foreign investi-
 e  81 liquor. gation
proh. act 139750
66 b  ml. ltr. 65 a  e  foreign
116 b  and liquor. 98.
carefully companysidering the companyplaint identification
marks on your face and charge-sheet it appears that you are
a prohibition bootlegger and you are indulging into sale of
foreign liquor in the aforesaid areas and you companytinue your
anti-social activities. in the aforesaid area you your
servants and associates indulge into use of force and
violence and also beat innumberent citizens by which an
atmosphere of fear is created and by indulging into such
pg number1084
activities you are causing hindrance to maintenance of
public order. you also show dangerous weapons to the citizens and also
create an atmosphere of fear and you are carrying on illegal
liquor business. because of your fear citizens residing
nearby are number in a position to speak anything against you
and also do number file companyplaint against you. because of your
activities and your associates the people of the aforesaid
area feel insecurity of their life and property and all
these activities are causing hindrance to public order. to substantiate that you are indulging into anti-social
activities and that your activities are against the public
order certain persons residing in the aforesaid area who
are peace loving have also given statements and the companyy of
the aforesaid statements are given to you. taking into companysideration all that has been stated
aforesaid i am fully satisfied that you are prohibition
bootlegger and by indulging into use of force and violence
you companytinue to indulge into illegal sale of liquor and you
create an atmosphere of fear and terror by beating innumberent
citizens. that action against you has been taken under
ordinary law and you have been released on bail. after being
released on bail you have companytinued your illegal anti-
social activities and therefore if once again actions are
taken under ordinary law against you there are
possibilities of your being released on bail and your
continuing anti-social activities and since it is necessary
to prevent you immediately for maintenance of public order
and since there is numberother alternative as a last resort i
order to detain you under the aforesaid act. it appears from the grounds extracted above and it is
also number disputed that the petitioner has been prosecuted in
two criminal cases. in fir relating to case number 62/88 the
offence alleged to have been companymitted by the petitioner is
that he was caught red-handed possessing english wines with
foreign marks without any legal pass or permission to do so
on april 13 1988. in the second case being case number 114/88
the offence as alleged to have been companymitted by the
pg number1085
petitioner and as recorded in the fir is that he was caught
while shifting 296 bottles of foreign liquors in an
ambassador car without any pass permit or licence. it is
number disputed that in one of these two cases the petitioner
has been acquitted and the other is pending but the
petitioner has number been companyvicted by any companyrt. in the grounds of detention it is alleged that the
petitioner is a prohibition bootlegger and that by
indulging in use of force and violence and by illegal sale
of liquor the petitioner creates an atmosphere of fear and
terror by beating innumberent citizens. it is also alleged that
the petitioner is indulging in anti-social activities and
that the activities are against public order. the statements of five persons who have been described
as witnesses number. 1 to 5 have been recorded before the
order of detention was passed. the companyies of their
statements have been given to the petitioner but their
names have number been disclosed to the petitioner and it is
number disputed before us that in view of section 9 2  of the
act the detaining authority is entitled number to disclose the
names of the detenu. at this stage it may be stated that the representation
of the petitioner is pending before the advisory board. the
question that has been raised on behalf of the respondents
is whether in view of the pendency of the representation
before the advisory board the writ petition is maintainable
under article 32 of the companystitution. the question need number
detain us long for it has already been decided by this
court in prabhu dayal deorah v. the district magistrate
kamrup 1974 1 scc 103. in paragraph 16 of the report
mathew j. speaking for himself and mukherjee j. observed
inter alia as follows
we think that the fact that the advisory board would
have to companysider the representations of the petitioners
where they have also raised the companytention that the grounds
are vague would number in any way prevent this companyrt from
exercising its jurisdiction under article 32 of the
constitution. the detenu has a right under article 22 5  of
the companystitution to be afforded the earliest opportunity of
making a representation against the order of detention. that
constitutional right includes within its companypass the right
to be furnished with adequate particulars of the grounds of
the detention order. and if their companystitutional right is
violated they have every right to companye to this companyrt under
pg number1086
article 32 companyplaining that their detention is bad as
violating their fundamental right. as to what the advisory
board might do in the exercise of its jurisdiction is number
the companycern of this companyrt. in the above observation this companyrt has specifically
laid down that even though a representation is pending
before the advisory board the writ petition under article
32 of the companystitution is maintainable before this companyrt. in
the circumstances we may proceed to dispose of the writ
petition on merits. in the detention order the petitioner has been named as
piyush kantilal shah. according to the petitioner he is
piyush kantilal mehta and number piyush kantilal shah. it is
alleged by the petitioner that the detaining authority has
deliberately and mala fide detained him with a view to
saving one piyush kantilal shah. in order to substantiate
that his name is number piyush kantilal shah but piyush
kantilal mehta the petitioner has filed certain income tax
challans returns a driving licence and some other
documents wherein his name appears as piyush kantilal mehta. it is submitted by the petitioner that as he has been
deliberately and wrongly described as piyush kantilal shah
in the order of detention the same is illegal and should be
quashed on this ground alone. in his companynter-affidavit the companymissioner of police
ahmedabad city who is the detaining authority has averred
that the petitioner has made false attempts to show that he
is number piyush kantilal shah but piyush kantilal mehta. it
is pointed out that even at the time of the service of the
order of detention the petitioner had himself signed as
piyush kantilal shah in the presence of the police
inspector navrangpura police station ahmedabad city. it is
submitted that the petitioner is trying to mislead this
court by making a false attempt of changing his surname. we
do number find any reason why we should number accept the
statement of the companymissioner of police as made in his
affidavit. it is number disputed that the petitioner has signed
his name as piyush kantilal shah when the order of detention
was served upon him. it is however alleged by the
petitioner that he was forced to sign as piyush kantilal
shah. it is difficult for us to believe that the detaining
authority will force the petitioner to sign his name as
piyush kantilal shah if really his name is piyush kantilal
mehta. it may be that he has anumberher name as piyush kantilal
mehta but we are satisfied that the petitioner is also
knumbern as piyush kantilal shah inasmuch as he himself had
signed his name as piyush kantilal shah. pg number 1087
in the grounds of detention the relevant portions of
which have been extracted above it has been alleged that
the petitioner is a prohibition bootlegger and indulged in
the sale of foreign liquor in the area in question and
continues his anti-social activities. a bootlegger has been
defined in section 2 b  of the act as follows
2 b . bootlegger means a person who distills
manufactures stores transports imports exports sells or
distributes any liquor intoxicating drug or other
intoxicant in companytravention of any provision of the bombay
prohibition act 1949 and the rules and orders made
thereunder or of any other law for the time being in force
or who knumberingly expends or applies any money or supplies
any animal vehicle vessel or other companyveyance or any
receptacle or any other material whatsoever in furtherance
or support of the doing of any of the things described above
by or through any other person or who abets in any other
manner the doing of any such thing. number we may refer to section 3 of the act providing for
making orders detaining certain persons. section 3 reads as
follows
3.  1  the state government may if satisfied with
respect to any person that with a view to preventing him
from acting in any manner prejudicial to the maintenance of
public order it is necessary so to do make an order
directing that such person be detained. if having regard to the circumstances prevailing or
likely to prevail in any area within the local limits of the
jurisdiction of a district magistrate or a companymissioner of
police the state government is satisfied that it is
necessary so to do it may by order in writting direct
that the district magistrate or the companymissioner of police
may also if satisfied as provided in sub-section  1
exercise the powers companyferred by the said sub-section. when any order is made under this section by an
authorised officer he shall forthwith report the fact to the
state government together with the grounds on which the
order has been made and such other particulars as in his
opinion have a bearing on the matter and numbersuch order
shall remain in force for more than twelve days after the
pg number1088
making thereof unless in the meantime it has been
approved by the state government. for the purpose of this section a person shall be
deemed to be acting in any manner prejudicial to the
maintenance of public order when such person is engaged in
or is making preparation for engaging in any activities
whether as a bootlegger or dangerous person or drug offender
or immoral traffic offender or property grabber which
affect adversely or are likely to affect adversely the
maintenance of public order. explanation.- for the purpose of this sub-section
public order shall be deemed to have been affected adversely
or shall be deemed likely to be affected adversely inter
alia if any of the activities of any person referred to in
this sub-section directly or indirectly is causing or is
likely to cause any harm danger or alarm or feeling of
insecurity among the general public or any section thereof
or a grave or widespread danger to life property or public
health. under sub-section  1  of section 3 an order of
detention of a person can be passed with a view to
preventing him from acting in any manner prejudicial to the
maintenance of public order. sub-section  4  of section 3
contains a deeming provision. under sub-section  4  a
bootlegger or a dangerous person or a drug offender shall be
deemed to be acting in a manner prejudicial to the
maintenance of public order when the activities of such a
person affect adversely or are likely to affect adversely
the maintenance of public order. in other words although
sub-section  4  companytains a deeming provision such deeming
provision will number be attracted unless the activities of the
person companycerned affect adversely or are likely to affect
adversely the maintenance of public order. it is urged by dr. chitale learned companynsel appearing on
behalf of the petitioner that the grounds of detention are
vague and there is numberhing to show that the activities of
the petitioner either affect or are likely to affect
adversely the maintenance of public order. the learned
counsel submits that it is number enumbergh to allege that the
petitioner is a bootlegger but there must be sufficient
materials to show that the activities of the petitioner
affect or are likely to affect adversely the maintenance of
public order. pg number1089
in the grounds of detention two criminal cases have
been mentioned. it is number disputed that in one of them the
petitioner has been acquitted. in the fir relating to case
number 62/88 the allegations against the petitioner are that
he was caught red-handed with english wines with foreign
marks without any legal pass or permission. in the fir of
the other case being case number 144/88 the offence alleged to
have been companymitted by the petitioner was that the
petitioner was caught while travelling in an ambassador car
with 296 bottles companytaining foreign liquor without any pass
permit or licence. these cases have been mentioned in the
detention order presumably with a view to substantiating
the allegation that the petitioner is a bootlegger. there
can be numberdoubt that the offences that have been alleged to
have been companymitted by the petitioner have numberbearing on the
question of maintenance of public order. it is also alleged in the grounds of detention that the
petitioner his servants and associates indulge in the use
of force and violence and also beat innumberent citizens by
which an atmosphere of fear is created and by indulging in
such activities the petitioner is causing hindrance to the
maintenance of public order. it is further alleged that the
petitioner shows dangerous weapons to the citizens and
thereby create an atmosphere of fear. these allegations are
very general in character without reference to any
particular incident or incidents in support of such
allegations. the detaining authority has sought to
substantiate the said allegations and companynect the activities
of the petitioner with the question of maintenance of public
order by the statements of five witnesses. apart from some
minumber incidents of beating by the petitioner the witnesses
have alleged that the petitioner is high-handed and fierce
by nature his high-handedness and bickering nature have
caused terror to the public of the area he is number afraid of
the policy his activities are anti-social he always keeps
with him a knife and a revolver and he threatens surrounding
people. it is submitted by dr chitale that the allegations which
have been made by the said five witnesses against the
petitioner are also very general in character and do number
involve the question of public order. companynsel submits that
there is a distinction between law and order and public
order . the allegations made against the petitioner may give
rise to a question of law and order but surely they have
numberhing to do with the question of public order. a person
may be very fierce by nature but so long as the public
generally are number affected by his activities or companyduct the
question of maintenance of public order will number arise. in
order that an activity may be said to affect adversely the
pg number1090
maintenance of public order there must be materials to show
that there has been a feeling of insecurity among the
general public. if any act of a person creates panic or fear
in the minds of the members of the public upsetting the even
tempo of life of the companymunity such act must be said to
have a direct bearing on the question of maintenance of
public order. the companymission of an offence will number
necessarily companye within the purview of public order. in this companynection we may refer to a decision of this
court in pushkar mukherjee v. state of west bengal 1969 2
scr 635 where the distinction between law and order and
public order has been clearly laid down. ramaswami j.
speaking for the companyrt observed as follows
does the expression public order take in every kind
of infraction of order or only some categories thereof? it
is manifest that every act of assault or injury to specific
persons does number lead to public disorder. when two people
quarrel and fight and assault each other inside a house or
in a street it may be said that there is disorder but number
public disorder. such cases are dealt with under the powers
vested in the executive authorities under the provisions of
ordinary criminal law but the culprits cannumber be detained on
the ground that they were disturbing public order. the
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 companynection we must
draw a line of demarcation between serious and aggravated
forms of disorder which directly affect the companymunity or
injure the public interest and the relatively minumber breaches
of peace of a purely local significance which primarily
injure specific individuals and only in a secondary sense
public interest. a mere disturbance of law and order leading
to disorder is thus number necessarily sufficient for action
under the preventive detention act but a disturbance which
will affect public order companyes within the scope of the act. in the instant case the detaining authority in our
opinion has failed to substantiate that the alleged anti-
social activities of the petitioner adversely affect or are
likely to affect adversely the maintenance of public order. it is true some incidents of beating by the petitioner had
taken place as alleged by the witnesses. but such
pg number1091
incidents in our view do number have any bearing on the
maintenance of public order. the petitioner may be punished for the alleged offences
committed by him but surely the acts companystituting the
offences cannumber be said to have affected the even tempo of
the life of the companymunity. it may be that the petitioner is
a bootlegger within the meaning of section 2 b  of the act
but merely because he is a bootlegger he cannumber be
preventively detained under the provisions of the act
unless as laid down in sub-section  4  of section 3 of the
act his activities as a bootlegger affect adversely or are
likely to affect adversely the maintenance of public order
we have carefully companysidered the offences alleged against
the petitioner in the order of detention and also the
allegations made by the witnesses and in our opinion these
offences or the allegations cannumber be said to have created
any feeling of insecurity or panic or terror among the
members of the public of the area in question giving rise to
the question of maintenance of public order. the order of
detention cannumber therefore be upheld. companying back to the question of vagueness of the grounds
it is submitted by mr. poti learned companynsel appearing on
behalf of the respondents that the grounds are number vague
and that they are supported by the statements of the
witnesses. in our opinion the statements of the witnesses
are themselves vague and general in character. in pushkar
mukherjees case  supra  one of the grounds was you have
become a menace to the society and there have been
disturbances and companyfusion in the lives of peaceful citizens
of baraset and khardah p.s. areas under 24-paraganas
district and the inhabitants thereof are in companystant dread
or disturbances of public order. it was held by this companyrt
that the ground was extremely vague and gave numberparticulars
to enable the petitioners to make an adequate representation
against the order of detention and it infringed the
constitutional safeguard provided under article 22 5  of the
constitution of india. in the instant case the grounds of
detention are more or less similar to the grounds in pushkar
mukherjees case  supra . the statements of witnesses do
number in our opinion remove the vagueness of the grounds. some other grounds have been urged by dr. chitale with a
view to substantiating the invalidity of the order of
detention.


criminal appellate jurisdiction criminal appeal number
365 of 1974.
appeal by special leave from the judgment and order
dated 24.1.1974 of the patna high companyrt at patna in criminal
appeal number 306/1969. p. singh for the appellants. g. bhagat and u. n. prasad for the respondent. the judgment of the companyrt was delivered by
fazal ali j. this appeal by special leave is directed
against the judgment of the patna high companyrt dated 24.1.1974
and has been preferred by appellants dayanand mandal
bhubneshwar mandal kuldip mandal bhagwat mandal nemo
mandal and udin yadav. the occurrence seems to have arisen
out of an irrigation dispute. according to the prosecution
case the appellants wanted to irrigate the land and when
they were prevented from doing so mainu mandal resisted as
a result of which bhudeo mandal who is number dead gave a bhala
blow to the deceased mainu mandal. so far as the other
appellants are companycerned they are supposed to have been
armed with lathis but they did number cause any injuries either
to the witnesses or to the deceased. the sessions judge had
convicted the accused bhudeo mandal under section 304 part i
of the indian penal companye and sentenced him to undergo
imprisonment for life and the other appellants under section
326/149 of the indian penal companye and sentenced them to 3
years rigorous imprisonment but affirmed the acquittal of
the accused of the individual charges under sections 323 and
325 of the indian penal companye by the sessions judge. we have
gone through the judgment of the high companyrt which while
convicting the appellant under section 326/149 of the indian
penal companye has given numberfinding regarding the companymon object
of the unlawful assembly. even on the prosecution case
itself the occurrence took place as a result of an
irrigation dispute and the appellants were merely acting
under a bona fide claim or belief that they had the right to
irrigate the land. there is numberovert act attributed to any
of the appellants on the deceased and the mere fact that the
appellants were armed with lathis by itself would number prove
that they shared the companymon
object with which bhudeo mandal was inspired. before the
high companyrt companyld have upheld the companyviction of the
appellants under section 326/149 of the indian penal companye
it should have recorded a clear finding as to what was the
object of the unlawful assembly and if so whether the object
was to companymit murder grievous hurt or simple hurt. in these
circumstances we find ourselves in companyplete agreement with
the argument of mr. u.p. singh learned companynsel for the
appellants that there is numbermaterial to support the
conviction of the appellants under section 326/149 of the
indian penal companye. mr. bhagat appearing for the state fairly
conceded that in the circumstances of this case it would number
be possible for him to support the companyviction mainly on the
ground that since the main accused was companyvicted under
section 304 part i the other appellants should also have
been companyvicted under section 304/149 and number under section
326 of the indian penal companye. we should like to point out
that whenever the high companyrt companyvicts any person or persons
of an offence with the aid of section 149 a clear finding
regarding the companymon object of the assembly must be given
and the evidence discussed must show number only the nature of
the companymon object but also that the object was unlawful. before recording a companyviction under section 149 of the
indian penal companye the essential ingredient of section 141
of the indian penal companye must be established. section 149
creates a specific offence and deals with the punishment of
that offence. there is an assembly of five or more persons
having a companymon object and the doing of acts by members is
in prosecution of that object. the emphasis is on companymon
object.


civil appellate jurisdiction civil appeal number 1643 of 1967
appeal by special leave from the judgment and order dated
4th september 1967 of the madhya pradesh high companyrt  indore
bench  at indore in second appeal number 288 of 1967.

v. phadke a if a. g. ratnaparkhi for the appellants. d . v. patel a. t. m. sampath m. m. l. srivastava and e.

agarwala for the respondent. the judgment of the companyrt was delivered by
dwivedi j. the facts of this case fall within a short
compass. the respondent amba lal tribhuwan das is the
owner of the suit accommodation. it is situated in
siyaganj indore. the appellants 2 to 4 are carrying on
business in the name of the first appellant d. n. singhavi
aid s .13. they are the tennants of the accommodation. companyrts below have held that it was being used predominantly
as a shop by them and that a part of it was being used by
them as their residence for the sake of more of efficient
conduct of the business they were carrying on in the shop. the respondent purchased the shop some time in 1953. the
appellant were then carrying on their business in the shop. they attorned to the respondent. on october 10 1964 the
respondent give the requisite numberice to them to vacate. on
numberember 16 1964 he instituted a suit for their ejectment
from the accommodation. it was alleged by him that he
needed the accommodation for companytinuing his business
within the meaning of s. 12  1   f  of the madhya pradesh
accommodation companytrol act 1961  hereinafter called the
act . at the evidence stage he gave evidence that it was
needed for partnership business. there arose two crucial
questions in the case  1  what is the meaning of the
phrase his business in s. 12 1  f ?  2  whether in the
circumstances of the case the business for which he required
the accommodation companyld be said to be his business. the
first question arose because he wanted the accommodation for
continuing the business of a partnership firm of which he
was one partner. there were two other partners. they are
his brothers. the trial companyrt held against the respondent
on the second issue and dismissed the suit. numberview was
expressed on this issue. the respondent filed an appeal
from the judgment. the appeal companyrt reversed the judgment
and decreed the suit for ejectment of the appellants. the
appeal companyrt recorded this filling of fact ambalal
 plaintiff  has stated that the partnership shop was
previously run by his father. it is number run by the brothers
in partnership. this business is thus of the family alone. their shop? is at siyaganj itself where the premises in suit
are situate. on this finding the appeal companyrt reached the
conclusion that the business of the partnership firm of
which he is one partner is his business
within the meaning of s. 12 1  f . as the firms business
was being carried on in a rented premises his need was
found to be genuine. the appellants then filed an appeal in
the madhya pradesh high companyrt from the judgment of the
appeal companyrt. the high companyrt has upheld the judgment of
the appeal companyrt. it is numbereworthy that the appeal companyrt
has simply assumed that the partnership business is his
business. numberreasonings are given in support of the
conclusion. the high companyrt agreed with the appeal companyrt
that the firms business of which the respondent was one
partner is his business. the reasoning of the high companyrt
in support of this companyclusion is summed up in the following
passage in the judgment in the present case what we are
concerned with is whether the landlord can be said to have
the necessity when the need was for the partnership firm. it cannumber be doubted that when a person runs a business in
partnership with others he does it for himself and therefore
his necessity is identified with the necessity of the firm. whether he wants to do business himself or he does it along
with others still remains that he needs it for his
own purpose. it is evident from this passage that the high companyrt like
the appeal companyrt has overlooked the words of s. 12 1  f  in
arriving at its companyclusion. the high companyrt companysidered that
it is an elementary proposition of law that a partnership
business is the business of each and every partner so that
it will be his business. it seems that the high companyrt was
misled by the apparent meaning of this phrase so that the
necessity of examining the scheme of the act and the setting
of clause  f  of s. 12 1  to discover its real meaning was
number felt at all. but this is the first thing on which the
high companyrt should have fixed attention. after all it is a
matter of statutory companystruction. and in such a case all
attempts at companystruction should companyverge on the statute at
hand lest the reasoning should become abstract and
artificial having numbercontact with reality. the high companyrt
has ought support from a decision of the erstwhile nagpur
high companyrt.  rajniklal and company vs. vithal pandurang kawade
and anumberher  1 . here again the high companyrt did number take
care to numberice the similarities and dissimilarities between
the law which fell or companysideration in that case and the law
which falls for companystruction this appeal. with these preliminary companyments we pass on to the real
issue what does his business mean in s. 12 1  f ? the
meaning is to be determined by examining the object of the
act and the setting of the phrase his business. the act
deals with the difficult problem of scarcity of
accommodation and seeks to distribute accommodation in a
fair way amongst those who need. the act professes to companytrol letting and rent of
accommodation and the eviction of tenants therefrom. the
act restricts the power of the landlord to let and to rack-
rent at will. it also restricts his power to eject the
tenant at will. thus the direct and immediate object of the
act is to ensure occupation of accommodation by them who are
in need of it. broadly speaking a companystruction which
fulfils this purpose should be preferred to the alternative
construction which furstrates it. a.i.r. 1952 nagpur 312.
chapter iii companytrols eviction of tenants. section 12 is the
first provision in this chapter. we are number reading the
material portions of s. 12
section 12 1  e  that the accommodation let
for residential purposes is required bonafide
by the landlord for occupation as a residence
for-himself or for any member of his family
it he is the owner thereof or for an
y person
for whose benefit the accommodation is held
and that the landlord or such person has no
other reasonably suitable residential
accommodation of his own in his occupation in
the city or town companycerned
 f  that the accommodation let for number-
residential purposes is required bonafide by
the landlord for the purpose of companytinuing or
starting his business or that of any of his
major sons or unmarried daughters if he is the
owner thereof or of any person for whose
benefit the accommodation is held and that the
landlord or such person has numberother
reasonably suitable number-residential
accommodation of his own in his occupation in
the city or town companycerned
 4  where a landlord has acquired any
accommodation by transfer numbersuit for the
eviction of tenant shall be maintainable under
sub-s.  1  on the ground specified in clause
 e  or clause  f  thereof unless a period of
one year has elapsed from the date of the
acquisition.  5  where an order for the eviction of a
tenant is made on the ground specified in
clause  e  of sub-section  1  the landlord
shall number be entitled to obtain possession
thereof before the expiration of a period of
two months from the date of the order.  6  where an order for the eviction of a
tenant is made on the ground specified in cl.  f  of sub-section  1  the landlord shall number
be entitled to obtain possession thereof-
 a  before the expiration of a period of two
months from the date of the order and
 b  if the accommodation is situated in
indore unless the landlord pays to the
tenant such amount by way of companypensation as
may be equal to

double the amount of the annual standard
rent of the accommodation in the following
cases
 a  where the accommodation has for a period
of ten companyplete years immediatly preceding the
date on which the landlord files a suit for
possession thereof been used for business
purposes or for any other purpose along with
such purposes by the tenant who is being
evicted.  b  where during the aforesaid period of ten
years the tenant carrying on any business in
the accommodation has left it and the tenant
immediatly succeeding has acquired the
business
of his predecessor either through transfer or
inheritance. the amount of the annual standard rent
in other cases. section 17 provides that where after ejecting the tenant
the landlord does number occupy the accommodation within two
months of obtaining possession or transfers or relets it
within two years thereof the rent companytrolling authority
may on an application made in this behalf by the evicted
tenant direct the landlord to put him in possession of the
accommodation or to pay him such companypensation as the rent
controlling authority may think fit. this companypensation
shall be over and above the companypensation which has already
been paid to the tenant under s. 12 6 . in a similar way
section 18 provides that where the landlord has ejected the
tenant for the purpose of repairing of rebuilding the
accommodation and does number companymence the work of repairing or
rebuilding within one month of the date specified in the
order for ejectment or fails to companyplete the work in a
reasonable time or having companypleted the work fails to place
the tenant in occupation of the accommodation the companyrt
may on an application made in this behalf by the tenant. direct the landlord to give possession to the tenant or to
pay to him such companypensation as the companyrt may think fit. section 39 1  requires the landlord to inform the companylector
whenever any accommodation has fallen vacant or is likely to
fall vacant the companylector may then direct him to let or number
to let it in accordance with the provisions of the act. section 39 2  gives preference to certain class of persons
in the matter of letting. it is number necessary to mention
them here. but the first proviso to s. 39 2  is important
for this case. it reads provided that if the landlord
has in the information given under s.  1  stated that
he needs the accommodation for his own occupation the
collector shall if satisfied after due inquiry that
the accommodation so needed is proper direct the landlord
to occupy the same under the proviso the accommodation may
be allotted to the landlord if he makes out a case that he
needs the accommodation for his own occupation. a review of these provisions would show that the act is more
strict with respect to the eviction of tenant from a number-
residential accommodation than from a residential
accommodation. in the case of a residential accommodation
section 12 1   e  provides for the eviction of a tenant
where it is needed for the residence of the landlord or for
any member of his family. but he cannumber sue for eviction of
a tenant from a number-residential accommodation where he needs
it for companytinuing or starting his major married daughters
business. number he can evict a tenant from such accommodation
for companytinuing or starting his brothers business. thus
while
cl.  e  of s. 12 1  is more hospitable to the landlord
cl.  f  thereof is more protective of the tenant. sub-
section  4   5  and  6  of s. 12 also point to this
contrast. while the tenant evicted from a residential
accommodation gets a respite of 14 months the tenant
evicted from a number-residential accommodation gets number only
the said respite but also the prescribed companypensation. in
many cases the burden of companypensation may act as a deterrent
to eviction. having regard to the rigour of cl.  f  of s.
12 1  we think that the phrasehis business should number
receive a wide companystruction as to the class of persons who
may be included in the possessive pronumbern his in the
phrase for it would be against legislative policy. section 39 companytrols the letting of an accommodation
residential as well as number-residential which has fallen
vacant or is likely to fall vacant. the first proviso to
sub-section  2  of s. 39 provides that at the request of the
landlord such accommodation may be allotted to him if he
needs it for his own occupation. as section 39 deals with
a residential as well as a number-residential accommodation. the expression his own occupation in the first proviso
should be amplified to read as his own occupation by way of
residence or business. clauses  e  and  f  of s. 12 1  are
complementary to the first proviso to s. 39 2 . while the
first proviso enables the landlord to obtain possession of a
vacant accommodation for his own occupation by way of
residence or business section 12 1   e  enables him to
obtain a residential by accommodation for his or his
familys residence by ejecting a tenant. similarly s.
12 1   f  enables him to obtain a numberresidential
accommodation for companytinuing or starting his business by
ejecting the tenant. companysidering the companyplimentary nature
of s. 12 1   f  we have little doubt in our mind that the
words for the purpose of companytinuing or starting his
business in the section should be amplified to read as for
the purpose of his own occupation by way of companytinuing or
starting his business. it cannumber be legitimately companyplained
that we are trying to redraft cl.  f . this amplification
is necessarily implied for we think that the legislature
intended to use the phrase for the purpose of companytinuing or
starting his business. as a synumberym for the phrase for his
own occupation in the first proviso to s. 39 2  as
explained earlier. the words in his occupation at the end
of cl.  f  fortify our companystruction. again the word own
in the phrase his own occupation should number be discarded
as redundant. it seems to us that the legislature has
deliberately used it to add emphasis to the possessive force
of the pronumbern his.  see the shorter oxford-dictionary
3rd edn. p. 1409  it companynumberes the idea that the
accommodation is needed directly and substantially for his
occupation. on this companystruction of cl.  f  of s. 12 1  it is necessary
for the respondent to prove that the accommodation is needed
directly and substantially for his occupation for the
purpose of companytinuing or starting his business. the respondent has stated in his evidence that he and his
two brothers are carrying on a partnership business in a
rented shop in
siyaganj. he has further said that he needs the suit
accommodation for that purpose. the appeal companyrt has
believed this evidence and has recorded the finding that the
respondent bonafide requires the accommodation for his
partnership business. but this finding does number fulfil the
conditions of cl.  f  of s. 12 1  as companystrued by us. unfortunately for him the respondent did number lead any
evidence to show that the accommodation was needed directly
and substantially for his occupation by way of business. he
filed the registration certificate showing that the
partnership was registered with the registrar of firms. the
certificate will only prove as to who are the partners of
the firm. numberhing more the respondent did number file the
deed of partnership it would have disclosed whether the
respondent is a mere sleeping partner or a partner who is
entitled to manage the business either solely or with other
partners or that they are the sole managing partners. in his examination he has said that he was a partner in the
firm he has also said there is numberproper accommodation
for carrying on business in indore by the members of his
family in cross-examination he has said in the members
of my family there are two of my brothers nand kishore and
mani lal their wives and children and my mother are
included for our residence and running the shop we need the
disputed shop. numberdoubt he has stated that he needs the
suit accommodation for his residence also. but the lower
courts did number examine the need for residence. before the
appeal companyrt companynsel for the parties had stated that the
suit for eviction of the tenant should be disposed of only
on the basis of s. 12 1   f . the respondent thus. abandoned his case based on s. 12  1   e  which deals with
residential accommodation. so we are companycerned with his
need for business accommodation. the passage in his
statement earlier reproduced would seem to suggest that his
numberion of his business is inclusive of his brothers
business in which he may have numberconcern at all so the
possibility of his brothers separate business being set up
in the suit accommodation is number ruled out. however we do
number ground our judgment on this statement. in his evidence
he has said ale the three brothers and father are the
partners in the shop. there is numberperson from outside. before the partnership my father used to run the shop.  the
father died during pendency of the suit . he also said
we deal in bidi cigarettes matches tobacco and soap. wc also want to have the same business in the disputed
shop. in neither of these two passages number anywhere else
in the evidence he has stated that on the terms of
partnership he is entitled to manage the partnership
business or even that he would also occupy the suit
accommodation along with his partners on obtaining
possession from the appellants. he has also number said that
the other partners have agreed to shift the business. if the deed of partnership i has excluded him expressly or
impliedly from the management of firms business and has
made him a sleeping partner it cannumber be held that the
accommodation is needed directly and substantially for his
occupation by way of business. number he has
power to shift the business. to sum up for the reasons
already given his suit should fail. companynsel have referred us to a large number of decisions. such of them as appear to us to be relevant in this case
will alone be numbericed by us. we shall make numberreference to
the others. in rajniklal and company  supra  the decision turned on the
meaning of the phrase business of his own in cl. 13 3  vi  c  of the c.p. and berar letting of houses and
rent companytrol order 1947. the nagpur high companyrt companyfined
itself to that single phrase and did number refer to the object
and setting of the order. in our case the companyditions of s.
12 1  f  as companystrued by us are apparently different from
those of cl. 13 3  vi  c  of the order. so it is number
helpful in this case. in tansukhdas chhaganlal vs. smt. shambai 1  the nagpur
high companyrt has held that where a tenant carrying on
business in the demised shop companyverts the business into a
partnership business and allows the latter business to be
carried on in the demised premises it would amount to sub-
letting because the partnership was clearly a personality
in law distinct from that of the petitioner himself there
also the high companyrt was companycerned with cl. 13 of the
aforesaid order. this statement of law does number appear to
be universally true. however as pointed out earlier in
respect of rajniklal  supra  it is sufficient for us to my
that this case also is number helpful in this appeal. companymissioner of income-tax west bengal vs. a. w. figgies
and company  2  and dulichand lakshminarayan vs. the
commissioner of income-tax nagpur 3  are companycerned with the
legal character of a firm in the income-tax act. it is held
that a firm is a distinct entity different from its partners
for purposes of assessment. these decisions are based on
particular provisions of that act which are radically
different from the provisions of the act. so these cases
are also number helpful in deciding the present appeal. karsandas ramji vs. karsanji kalyanji 4  and gundalapalli
rangamannar chetty vs. desu rangiah 5  discuss the very
question which fell companysideration in tansukhdas chhaganlal
 supra . it was held on the facts of these cases that the
tenant companyld number be held to have sublet the rented premises
to the partnership firm because they retained possession
over the premises. these cases thus apply the test of occu-
pation by the tenant in finding out whether he has or has
number sub-let. these are all the relevant indians cases cited
before us. sri patel has also relied on three english
cases  1  clift. v. taylor 6  tunstall v. steigamann  7
and gian singh company vs. devraj narar and others.  8  clift
takes the same view as rajniklal  supra . the decision
turned on the meaning of the expression required the
premises for his own occupation in s. 5 3  b  i  of the
landlord and tenant act 1927. there the landlord carried
on a business in a part of the building in

a.i.r. 1954 nagpur 160.  2  1954 s.c.r. 171.  3  1956 s.c. r. 154.  4  a.i.r. 1953 saurashtra 113.

a.i.r. 1954 madras 182.  6  1948 2 a.e.r. 11 3.  7  1962 2 a.e.r. 417.  8  1965 1 a.e.r. 768.
dispute in anumberher part of it the tenant carried on her
business. on the eve of the expiry of her lease she
applied for a new lease. her application was opposed by the
landlord on the ground inter alia that he required the
premises for his own occupation. the facts found were that
he had companyverted his own business into a partnership
business. there were six partners including himself. the
partnership business had extended companysiderably so that there
was scarcity of accommodation. it appeared that the
landlord needed the demised premises for the purpose of his
partnership business. so the issue was whether he needed
the premises for his own occupation. the finding was the
firm and he himself as its senior partner had great need
for less cramped .head office premises and in particular
for the free and full use of the ground floor on street
level as essential to companyvenience of office work for
clients and for display of numberice etc. and indeed it was
necessary for the prosperity of the greatly enlarged and
still growing business with its ramifications into many
allied or companypatible departments or activities. it is
evident from this finding that the landlord was a managing
partner and that he himself along with the firm was to
occupy the demised premises after getting possession. this
decision far from helping sri patel helps the appellants
in view of the companystruction placed by us on clause  f  of s.
12 1 . tunstall  supra  deals with an entirely different
set of facts. there the landlord was carrying on business. she gave numberice to the tenant that she wanted the rented
shop for her own business. the numberice was given under the
landlord and tenant act. 1954. in the meantime she
transferred her business to an incorporated companypany. the
relevant words of s. 31 g  of that act are to occupy the
holding for the purpose of the business to be carried on
by the landlord. it was held that the business of an
incorporated companypany was number the business of the landlord
the companypany being a distinct legal person different from the
landlord. gian singh  supra  was companycerned with the
construction of a particular clause in a companyenant forbidding
the tenant from assigning his tenancy to a third person. it
is claimed by the landlord that the tenant has assigned the
premises to a partnership firm of which he was a partner. on the facts of the case it was held that there was no
assignment. we fail to appreciate how these cases help
sri patel. in some of the cases cited by sri patel own has been
interpreted virtually as otiose. nevertheless what it means
in the act would depend on its own companytext for a word may
take a companyour from its companytext.


criminal appellate jurisdiction criminal appeal number 669
of 1989.
from the judgment and order dated 18.5.1989 of the
designated companyrt poona in crl. bail application number 11 of
1989.

ramaswamy additional solicitor general s.v. tar-
kunde and a.m. khanwilkar for the appellant. r. lalit and v.n. ganpule for the respondent. the judgment of the companyrt was delivered by
fathima beevi j. by the impugned order dated the 18th
may 1989 the designated companyrt pune directed the respondent
to be released on bail. the respondent was accused of having
committed offence under section 3 1  of the terrorist and
disruptive activities  prevention  act 1987  hereinafter
referred to as the act  besides the offences punishable
under sections 148 149 120-b and 302 of the indian penal
code. the respondent was the member of the shiv sena party and
the chief of the thane district unit. in companysequence of the
defeat of the party in mayoral election held on 20th march
1989 the party felt that
there was cross-voting and there were traitors among them. there had been a declaration by the respondent that such
traitors would number be spared. the respondent was arrested in
connection with the murder of one of the companyporators shrid-
har khopkar on 21.4. 1989 on registering crime number 1348/89. in releasing the respondent on bail while investigation
was pending the designated companyrt appears to have been
influenced by the fact that respondent was the leader of
political party. the companyrt assumed that as a leader he
would number be involved in such crimes and that there are
reasonable grounds for believing that the respondent is number
guilty of any offence under the act. having heard both the sides we feel that the whole
approach by the learned judge was misconceived and the order
is unsustainable. we have been taken through the entire
proceedings. we find that the learned judge has number numbericed
the relevant provisions of the act which restrict the powers
of the companyrt in granting bail. the learned judge had also
refused to companysider the materials placed before it for the
purpose of satisfying himself whether there are numberreasona-
ble grounds to believe that the respondent has companymitted the
offence. in the companyrse of the investigation witnesses have
been questioned and their statements have been reduced to
writing. the learned judge refused to companysider the state-
ments recorded in the companyrse of the investigation for the
simple reason that such statements had number been read out in
open companyrt though the companyrt was empowered to peruse the case
diary for the purpose of satisfying itself as to the stage
of investigation and the nature of the evidence that had
been companylected. sub-section  8  of section 20 of the act clearly pro-
vides that unless the companyrt is satisfied for the reasons to
be recorded that there are reasonable grounds to believe
that the respondent is number involved in disruptive activi-
ties bail shall ordinarily be refused. even under the
provisions of sections 437 and 438 of the companye of criminal
procedure the powers of the sessions judge are number unfet-
tered. the salient principles in granting bail in grave
crimes have number been taken numbere of. this companyrt would number ordinarily interfere with the
discretion of the lower companyrt in granting or refusing bail
but in cases where bail has been granted on irrelevant
considerations such as the status or influence of the
person accused and regardless of the nature of the accusa-
tion and relevancy of materials on record this companyrt would
number
hesitate to interfere for the ends of justice. there are numberhard and fast rules regarding grant or
refusal of bail each case has to be companysidered on its own
merits. the matter always calls for judicious exercise of
discretion by the companyrt. where the offence is of serious
nature the companyrt has to decide the question of grant of bail
in the light of such companysiderations as the nature and seri-
ousness of offence character of the evidence circumstances
which are peculiar to the accused a reasonable possibility
of presence of the accused number being secured at the trial
and the reasonable apprehension of witness being tampered
with the larger interest of the public or such similar
other companysiderations. in the present case the learned judge observed that it
is a case of respectable person of a big political organisa-
tion his freedom cannumber be curtailed if he is entitled to
bail. his liberty cannumber be curbed if enlarged on bail and
therefore numberkind of companydition is required to be imposed. the companyrt also observed that being a leader of the big
political organisation one cannumber expect that the respondent
will companymit any offence if enlarged on bail and he cannumber be
called to be a criminal. the learned judge was obsessed by
the fact that the respondent was associated with a political
party and was oblivious of the nature of the allegations
made against him and the relevant materials indicating that
the respondent had been making utterances inciting violence. the respondent gave repeated statements to the press saying
that the traitors life will be made difficult and probably
they will be killed. this was published in marathi daily
navakal on 22.3.89. he repeated his threat and this ap-
peared in an interview given to the reporter of the weekly
magazine lokprabha in its issue of 9.4.1989. in an inter-
view in daily urdu times dated 16.4.1989 the respondent
asserted that he knew the names of the traitors but companyld
number disclose the same. he also asserted that the punishment
for traitors is death and they would be killed and this
decision has number been taken by him in anger. in the backdrop of such assertions it was necessary
for the companyrt to companysider the further materials companylected by
the investigating agency by recording statements of witness-
es.