CRM No.M-9200 of 2010 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: 07.02.2011 1. CRM No.M-9200 of 2010 Palwinder Singh @ Satrana ...Petitioner Versus State of Punjab ...Respondent 2. CRM No.M-11154 of 2010 Daljit Singh Bittu ...Petitioner Versus State of Punjab ...Respondent 3. CRM No.M-33497 of 2010 (O&M) Gurdeep Singh @ Raju ...Petitioner Versus State of Punjab ...Respondent 4. CRM No.M-15712 of 2010 Jaspal Singh @ Pali ...Petitioner Versus State of Punjab ...Respondent CRM No.M-9200 of 2010 -2- CORAM: HON'BLE MR. JUSTICE AJAY TEWARI Present: Mr. P.S. Hundal, Sr. Advocate with Mr. Puneet Nangli, Advocate for the petitioner (in CRM No.M-9200 of 2010) Mr. R.S. Bains, Advocate for the petitioner (in CRM No.M-11154 of 2010) Mr. Gursimran Singh, Advocate for the petitioner (in CRM Nos.M-33497 & 15712 of 2010) AJAY TEWARI, J. This order shall dispose of CRM Nos.M-9200, 11154, 33497 and 15712 of 2010 as common questions of law and facts are involved in these cases. These petitions have been filed under Section 439 Cr.P.C. for grant of regular bail to the petitioners in case F.I.R. No.131 dated 27.08.2009 registered under Sections 15, 17, 18, 18-B of the Unlawful Activities (Prevention) Act, 1967 at Police Station Sarabha Nagar, Ludhiana. It is stated that the petitioners have now been in custody for a period ranging from 1 year to 1½ years. The primary allegation against them is that they were engaged in arranging funds for the legal defence of persons accused in terrorist acts. There are some subsidiary allegations also regarding demand of funds from certain persons as also threats being held out to some other persons to resile from their testimony in Court about the involvement of certain other persons in terrorist acts. Section 2(o), 15, 17, 18, 18-B of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the 'Act') is as under:- “2(o). “unlawful activity”, in relation to an individual or CRM No.M-9200 of 2010 -3- association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise.)- i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or iii) which causes or is intended to cause disaffection against India. 15. Terrorist Act - Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country- (a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause-- (i) death of, or injuries to, any person or persons; or (ii) loss of, or damage to, or destruction of, property; or CRM No.M-9200 of 2010 -4- (iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act. Explanation: For the purpose of this section, public functionary means the constitutional authorities and any other functionary notified in the Official Gazette by the Central Government as a public functionary. 17. Punishment for raising funds for terrorist act: Whoever, in India or in a foreign country, directly or indirectly, raises or collects funds or provides funds to any person or persons or attempts to provide funds to any person or persons, knowing that such funds are likely to be used by such person or persons to commit a CRM No.M-9200 of 2010 -5- terrorist act, notwithstanding whether such funds were actually used or not for commission of such act, shall be punishable with imprisonment for a term which shall not be less than five years but which my extend to imprisonment for life, and shall also be liable to fine. 18. Punishment for conspiracy, etc.: Whoever conspires or attempts to commit, or advocates, abets, advises or [incites, directs or knowingly facilitates] the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. 18B. Punishment for recruiting of any person or persons for terrorist act:- Whoever recruits or causes to be recruited any person or persons for commission of a terrorist act shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.” A perusal of the definition clause reveals that the unlawful activities envisaged under the Act relate only to the secession/cession of any part of the territory of India as also to cause disaffection against India. Learned counsel for the petitioners have argued that none of the petitioners can be said to be involved in any of the activities defined under the aforementioned Section. They have further argued that raising CRM No.M-9200 of 2010 -6- funds for the legal defence of persons cannot be termed as raising funds for a terrorist act. They have further argued that one other allegation as has been reflected in a statement under Section 161 Cr.P.C. is the demand of funds for the “Jathebandi” - organisation. As per learned counsel, the organisation in question viz., the Akali Dal Panch Pardhani Party is a legitimate political party and has not been declared either as a unlawful association or as a terrorist organisation. Therefore, demand of funds cannot be brought within the ambit of punishment for raising funds for terrorist acts. Learned Additional Advocate General, Punjab has not denied that the material against the petitioners is that what has been pointed out by learned counsel for the petitioners but has argued that arguments based on these facts are not correct. He has drawn the attention of this Court to the antecedents of the petitioners and their past involvement in cases under the Terrorist And Disruptive Activities Act, 1987 as well as other violent crimes. The affidavit in reply also gives out that these petitioners are in regular touch with persons abroad, some of whom had escaped from India and are wanted for terrorist activities. No doubt these petitioners may be termed as hardliners. The issue is whether a hardliner is liable for incarceration without any possibility of bail. In the considered opinion of this court, the maturity of a democratic polity can safely be tested by its tolerance to dissent and even hardline activities. The question whether the acts complained of would come within the ambit of the Act would be determined after the evidence. Learned Additional Advocate General, Punjab has further CRM No.M-9200 of 2010 -7- argued that in the present case the ends of justice can be met if the learned trial Court is directed to conclude the trial at the earliest rather than to take the expedient of granting bail to these petitioners. However, on the instructions from Inspector Maninder Bedi learned Additional Advocate General, Punjab states that 53 witnesses are to be examined in this case. The examination and cross-examination of witnesses of such large number can not be in the opinion of this Court is concluded within the short time of six months as canvassed by the learned Additional Advocate General, Punjab. In the matter of State of Kerala v. Raneef reported in 2011(1) RCR (Criminal), the Hon'ble Supreme Court has held as follows:- “12(4). In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail.” In the said matter the accused was tried under Section 43-D (5) of Unlawful Activities (Prevention) Act, 1967 and had already spent 66 days in custody and ultimately the bail was allowed to the accused by the Hon'ble Supreme Court. In my considered opinion, it would be in the interest of justice if the petitioners are released on bail to the satisfaction of C.J.M./Duty CRM No.M-9200 of 2010 -8- Magistrate, Ludhiana. Ordered accordingly. Petitions stand disposed of. A photocopy of this order be placed on the files of connected cases. ( AJAY TEWARI ) February 07, 2011. JUDGE ashish