Gujarat High Court
Chanduji @ Khichadi Bhulaji Thakore vs The Deputy Commissioner Of Police, ... on 19 April, 1993
Equivalent citations: (1993)2GLR1608
JUDGMENT G.T. Nanavati, J.
1. By an order dated 10-9-1992 passed under Section 56 of the Bombay Police Act, the Deputy Commissioner of Police, Ahmedabad City, externed the petitioner from the city of Ahmedabad and from the contiguous districts of Ahmedabad (Rural), Gandhinagar, Kheda and Mehsana for a period of two years. In appeal to the State Government, the period of externment has been reduced to one year and the area from which the petitioner has been externed is now confined to Ahmedabad City, Ahmedabad (Rural) and Gandhinagar. In this petition, the petitioner is not only challenging the order of externment but also vires of Sees, 56 and 59 of the Act.
2. It was submitted that in view of the decision of the Supreme Court in Smt. Maneka Gandhi v. Union of India . the decisions of the Supreme Court in Gurbachan's case AIR 1952 SC 22 and Hah Khemu Gawali v. Dy. Commissioner of Police Bombay are required to be reconsidered and it should be held that the said sections are violative of Articles 14, 19(1)(d) and 21 of the Constitution of India. The Supreme Court having upheld the validity of Sections 56, 57 and 59, it is not open to take a different view as pointed at by This Court earlier also in the case of Sarjubhaiya v. Dy. Commissioner of Police 1984 (1) GLR 538 and realising this position, the learned Advocate for the petitioner did not make further submissions. We, therefore, reject the contention raised on behalf of the petitioner with respect to the validity of those two sections.
3. It was next contended that an order under Section 56 can be passed only if the externing authority is satisfied that witnesses are not willing to come forward to give evidence in public against the proposed externment by reason of apprehension on their part as regards the safety of then-person or property. It was submitted that in this case the satisfaction of the externing authority is only as regards the victims of the incident and not other witnesses. Thus, the requirement of Section 56 is not complied with and, therefore, also the order of externment is bad. In support of this contention, the learned Advocate for the petitioner has relied upon the decision of the Supreme Court in Nawabkhan v: State of Gujarat and Spl. Criminal Appln. No. 1303 of 1992 decided on 28-8-1992. In our opinion, this contention is thoroughly misconceived. Both, in the notice and in the order what is stated by the externing authority is that the witnesses to the incidents are not coming forward to give evidence in public against the petitioner. Now, witnesses to the incident do not mean victims of the incident. Furthermore, even the victims can be regarded as witnesses to the incident. It is also not necessary that before an order of externment can be passed, it must be shown that all the witnesses to the incident are not willing to depose against the proposed externee in public. Even if some witnesses are not coming forward to give evidence against the proposed externee, then an order can be passed under Section 56 of the Act provided other requirements are satisfied.
4. In Nawabkhan's case, the Court found as a matter of fact that the opinion formed by the Deputy Commissioner of Police was only as regards the witnesses, who were victims of the incident and not as regards other witnesses. It was in those circumstances observed that the mandatory requirement of Section 56 was not satisfied. Similarly, in Special Criminal Application No. 1303 of 1992 also This Court found that the opinion which was formed by the externing authority was only with respect to the victims of the incidents. Whether factually the statement made in Special Criminal Application No. 1303 of 1992 was correct or not is not for us to consider and the only thing that we can say is that the Court proceeded on that basis and held that if that was the only opinion formed by the externing authority, then that was not compliance with the requirement of Section 56 of the Act. In this case, as we have pointed out above, in terms the externing authority has stated mat the witnesses to the incident arc not coming forward to give evidence against, the petitioner in public. Witnesses to the incident cannot and do not mean victims to the incident only. Therefore, this contention raised on behalf of the petitioner has to be rejected.
5. It was next contended that the material, which was used by the detaining authority, acting under the provisions of the Gujarat Prevention of Anti-Social Activities Act, has been used by the externing authority for the purpose of externing also. This contention is also misconceived. The petitioner was detained under PASA from October, 1991 to 15th February, 1992. Obviously, therefore, the material, which was used for the purpose of passing the order of detention was for the period prior to October 1991. If we peruse the notice of this case, it becomes clear that the material, which was relied upon is of the subsequent period viz., the period starting from February 1992 till the date of the notice. Thus, the contention is founded upon misconception of facts and does not deserve any further consideration.
6. It was lastly urged that the notice, which was issued under Section 59 of the Act, was vague and, therefore, also the order of externment should be regarded as illegal and void. In the notice, it is stated that the petitioner has been committing acts of violence in the areas of Kocharab gam, Nanavati Compound, Paldi Circle, Paid; Municipal Bus-stand, and Tagore Hall It is further stated that all these areas are situated within the jurisdiction of the Ellisbridge Police Station. As pointed out earlier, it is also stated in the grounds that the petitioner has been doing such acts since February, 1992. Thus, in the notice the period and the areas are clearly stated. It is further stated that the petitioner is threatening persons residing and passing through those areas and at the point of knife he robs them. It is further stated that he often travels in those areas in rickshaws and when rickshaw pliers ask for fare, he does not pay the fare and beats them. It is further stated that even innocent persons residing in those areas are frequently beaten by him. Thus, the manner in which the petitioner has been committing acts of violence is also stated in the grounds. What is contended by the learned Advocate for the petitioner is mat this was not sufficient. He submitted that these allegation arc based upon statements of certain persons and, therefore, in order to enable the petitioner to defend himself properly relevant portions of the statements ought to have been supplied to the petitioner. In support of that contention, he firstly relied upon the decision of the Supreme Court in Prem Chand v. Union of India wherein the Supreme Court was concerned with an order of externment passed under the Delhi Police Act. The Supreme Court has observed:
Sections 47 and 50 have to be read strictly. Any Police apprehension is not enough for passing order of externment. Some ground or other is not adequate. There must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence. Likewise, there must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in the locality or any part thereof is hazardous to the community and its safety. A stringent test must be applied in order to avoid easy possibility of abuse of this power to the detriment of the fundamental freedoms. Natural justice must be fairly complied with and vague allegations and secret bearings are gross violations of Arts 14, 19 and 21 of the Constitution.
7. In that case before the matter could be heard on merits, a statement was made on behalf of the State that they had decided to drop police surveillance or any action by way of externment as proposed. It had, therefore, become unnecessary for the Supreme Court to consider the challenge to the notice of externment. But having noticed the police methodology, with sinister potential to human liberty, the Supreme Court though it fit to make certain observations for the purpose of showing its strong disapproval of such practice. After referring to the allegations made against the petitioner in that case, the Supreme Court made the above observations. Thus, the Supreme Court was not called upon to examine either the scope of Section 47 or Section 50 of the Delhi Police Act and to decide if a notice which contains general nature of material allegations should be regarded as bad and the provisions which requires only that much to be stated in the notice is violative of ArticleS 14, 19 and 21 of the Constitution of India.
8. The next case relied upon is of This Court in Aswin Chandu Jal Jaiswal v. Dy. Commissioner of Police 1989 (2) XXX (2) GLR 1429. This Court, after referring to the decision of the Supreme Court in State of Gujarat v. Mehbubkhan AIR 1968 SC 1468 : 1969 GLR 188 (SC), held that the notice in that case was required to be considered according to the law laid down by the Supreme Court in that case and by This Court in Sandhi Mamad Kala v. State of Gujarat 1973 GLR 384, While considering the material in that case, This Court observed that statements of 11 persons were recorded in confidence. As the said statements were intended to be relied upon copies of those statements without disclosing the names, and if thought necessary, without the time and place of such alleged illegal activities, should have been supplied to the petitioner so as to give him an opportunity to explain the said circumstances or to lead evidence. At the same time, it was further observed:
... It is true that general allegations are only required to be made in the notice, but when statements are relied upon for the externment order, at least, the person to be affected by such order should be given an opportunity to explain at lead the general nature of allegations in the statements....
With due respect to the learned Judges, who decided that case, it has to be stated what has been held is inconsistent with the decision of the Supreme Court in Mehbubkhan's case (supra). In the case of Mehbubkhan, the notice read as under:
It is alleged against you that you are a dangerous and desperate person and indulge in acts involving force and violence. You terrorise the residents of the localities known as Rantiawadi, Halimnikhadaki and round about areas under Karanj and Madhavpura Police Stations. Since the month of November, 1963 till today you are engaged in the commission of the following offence in the above localities:
1. You way-lay, rob and extort money from the persons at the point of knife and under threats of violence,
2. You demand money from the persons and on their refusal to pay you beat them.
3. You consume eatables from the place of public entertainment without payment and when legal dues are demanded you beat the person:
You are engaged in several acts as mentioned in paras (1), (2) and (3) above and that the witnesses to the above incidents are not willing to come forward to depose against you in public by reason of apprehension on their part as regards the safety of their person and property.
It is proposed to extern you for a period of two years. It is also proposed to extern you out of the contiguous Districts of Ahmedabad Rural, Kaira and Mehsana as you are likely to operate and indulge in your violent activities from the contiguous Districts also through your associates and agents if not so externed.
The said notice was regarded by This Court as vague. Reversing the judgment of This Court, the Supreme Court held that the said notice did not suffer from any infirmity. The Supreme Court has pointed out that the special provisions regarding externment proceed on the basis that the person dealt with is of such a character as not to permit the ordinary laws of the land being put in motion in the ordinary way, viz., of examining witnesses in open Court who should be cross-examined by the party against whom they were disposing. The Supreme Court, while dealing with the reasoning of This Court has observed as under:
...The reasoning of the learned Judges that the said allegation should have contained all the particular places of public entertainment, or what particular establishment the respondents were supposed to have visited, is not warranted, by the provisions of Section 56. In fact, if we may say so, with respect, there is a slight inconsistency in the reasoning of the learned Judges, because, in the later part of the judgment they say that a party is not entitled to be supplied with particulars of the allegations made against him. We are, therefore, not inclined to accept the above reasoning of the Gujarat High Court....
Then with respect in the notices issued in that case, the Supreme Court observed that the notices referred to the period during which the acts were stated to have been committed as well as the area where they were said to have been committed, and that was regarded as sufficient compliance with the requirement of law. The Supreme Court also observed:
Considering it from the point of view of the party against whom an order of externment is proposed to be passed, it roust be emphasised that when he has to tender an explanation to a notice, under Section 59, he can only give an explanation which can be of a general nature. It may be open to him to take a defence of the action being taken due to mala fides, malice or mistaken identity or be may be able to tender proof of his general good conduct or alibi, during the period covered by the notice and the like. The allegations made in the notices issued under Section 59. as against the respective respondents, in our opinion, contain the general nature of the material allegations made against each of them in respect of which the respondents had been given a reasonable opportunity of tendering an explanation, regarding them.
9. Thus, the notices which were similar to the notice with which we are concerned has been held by the Supreme Court as valid and in conformity with the requirements of law. To say that only general nature of the material particulars is required to be stated in the notice and then to say that the notice should contain particulars as regards each incident is, as pointed out by the Supreme Court, inconsistent in itself. We, therefore, cannot hold that the notice issued in this case was bad in view of the decision of the Court in Aswin Chandulal Jaiswal's case (supra).
10. Reliance was next placed on the decision of This Court in Mahipatsinh J. Jadeja v. State of Gujarat (1992) XXIX GLT 335 wherein also This Court has observed that when Section 59 requires that information regarding general nature of material allegations are to be given to the proposed externee, he should at least be given the particulars of the incidents which would afford him a reasonable opportunity of tendering explanation regarding such allegation. We find that this decision has been given without referring to the Supreme Court decision in Mehbubkhan's case (supra). As pointed out by the Supreme Court itself to take such a view would be inconsistent with the requirement of law. We, therefore, reject the contention raised on behalf of the petitioner that the notice, which was given to the petitioner, was vague and, therefore, the order of externment should be regarded as invalid.
11. As we do not find any substance in any of the contentions raised on behalf of the petitioner, this petition is dismissed. Rule is discharged.