Gujarat High Court
Aswin Chandulal Jaishwal vs Dy. Commissioner Of Police And Anr. on 2 March, 1989
Equivalent citations: (1989)2GLR1429
JUDGMENT P.M. Chauhan, J.
1. The petitioner has challenged the externment order dated March 9, 1988, passed by the Deputy Commissioner of Police, Vadodara and the order dated May 21, 1988 in appeal by the Government of Gujarat, contending mainly that the externing authority did not apply mind, relied on extraneous matters, did not give sufficient opportunity to explain the circumstances, etc.
2. The Superintendent of Police. Yadodara, by notice dated December 16, 1986, under Section 59 of the Bombay Police Act, called upon the petitioner to show cause as to why he should not be externed from the limits of Vadodara City. Vadodara Rural, and contiguous Districts of Kheda, Panchmahal and Bharuch. for a period of two years, as, according to the Superintendent of Police, the petitioner is a dangerous, fanatic and strong-headed person, committing offences involving force and violence from June 1986 to the date of the notice in Vadi Maru Falia, within the jurisdiction of the Vadi Police Station, Vadodara. It was also alleged in the notice that the petitioner usually keeps illicit liquor in his possession and sells liquor and intoxicating drugs and drinks and in order to carry on the business of prohibited articles without any restraint, he quarrels with the innocent people passing by under false excuses and causes them hurt and by pointing out knife, threatens them to commit murder and thereby create an atmosphere of fear and terror and caused disturbance to public order. It is also alleged in the notice that he suspects people passing by as the informants of police or alleges against them that because of their movement, his customers for liquor go away and under that excuse, stops people passing by the place of liquor den at Vadi Maru Falia, and by pointing out knife, threatens them to commit murder. The third allegation is that the petitioner compels the drivers of the vehicles to transport liquor and in case of refusal, he gets excited, quarrels with them and pointing out the knife, threatens them to commit murder and thereby creates an atmosphere of fear and terror in the society and causes disturbance in that locality. The notice further proceeds on to state that such movement of the petitioner in that locality causes fear and threat to the safety of the lives and properties of the people and because of his such unsocial activities, other people are also likely to follow and indulge in such activities and accordingly, the petitioner himself is a threat to the culture, the social order and to the society at large. It is specifically stated that the action was taken against the petitioner under the existing ordinary laws and even then, the petitioner does not give up his illegal activities. It is also stated that in case such unsocial activities continue, then, in further, the results may be drastic and it is likely that serious offences may take place. It is alleged that the petitioner indulges in activities, which affect the public order and there are reasons to believe that the petitioner, commits offences punishable under Chapter XVI of the Indian Penal Code and the victims of his such offences are afraid of complaining or giving evidence in public, because of the fear of the person and property, against the petitioner. In order to extern the petitioner from the contiguous Districts, it is also stated in the notice that in case he is not externed from those Districts, the petitioner is likely to carry on his activities through his agents or companions.
3. The petitioner examined various witnesses and also asserted that he is working in a mill and did not indulge in such activities. The papers were then submitted by the Supenniendent of Police to the Deputy Commissioner of Police. Vadodara. The Deputy Commissioner of Police, Vadodara passed the externment order under Section 56 of the Bombay Police Act, virtually on the same grounds The Deputy Commissioner of Police, in his order, practically extracted the allegations in his notice and then stated that, on overall consideration of the facts and circumstances placed before him, he came to the conclusion that the witnesses, who are victims of such incidents, are not willing to come forward to complain or give evidence in public against the petitioner because of the reasonable apprehension of damage to their person and property and after stating that fact, the Deputy Commissioner of Police passed the order under Section 56 of the Bombay Police Act.
4. In Sandhi Mamad Kala v. State of Gujarat, reported in [1973] XIV GLR 384, Full Bench of this Court considered the provisions of Sections 56 and 59. While considering the relevant provisions of the Bombay Police Act for externment, the Full Bench observed that the functions discharged by the externing authority are essentially matters, which have to be administratively determined for the purpose of taking preventive action, that the function is administrative and not quasi judicial, and that the externing authority is not required to give reasons in support of the order. It is however observed that:
Even where an order is made by a statutory authority which is based on its subjective satisfaction, the Court can examine the validity of the satisfaction by considering whether the statutory authority has mis-directed itself in point of law or takes into account some wholly irrelevant or extraneous consideration or omitted to take into account a relevant consideration or whether the satisfaction is based on a mis-construction of a statute or whether there was no material at all before the statutory authority on the basis of which it could have come to the satisfaction so that the satisfaction reached by it is no satisfaction at all or is otherwise colourable. Now, how is the Court going to ensure that the exercise of administrative power involving civil consequences to a person is a legitimate exercise of power not vitiated by any of these infirmities, unless the statutory authority exercising the power discloses the grounds on which the exercise of the power is based?
It is further observed that:
But it would not be possible for the person affected to protect himself by challenging the exercise of the power, unless the knows what is the ground on which the power is exercised. We are, therefore, of the view that where an administrative power is exercised by a statutory authority and the exercise of such power involves civil consequences to a person, the statutory authority must disclose the grounds on which the exercise of the power is based. We must again make it clear that when we speak of grounds in this context, we mean grounds as distinguished from reasons.
The Full Bench further observed:
Similarly, in case of an externment order it would be sufficient to indicate the general nature of the material allegations on which the externing authority has come to a conclusion that the case falls within a particular part of Section 56 and preventive action under that part should be taken by it.
In that particular case, the allegations were clear in the show cause notice and 8 acts alleged to have been committed by the extemee. which formed the basis of the allegations against him, were set out and it was also stated That the victims of those acts and other witnesses were not willing to come forward to give evidence in public against the extemee It is, therefore, clear that even though no details of the allegations are required to be given, the grounds on which action for externmeni was proposed are required to be stated in the notice.
5. The Supreme Court in The State of Gujarat v. Mehbubkhan, reported in AIR 1968 SC 1468: [1969 GLR 188 (SC)], has also observed that in the notice issued under Section 59, the general nature of the material allegations are required to be made against the person proposed to be externed and such person may tender explanation of general nature to the notice. It is also observed:
It may be open to him to take a defence, of the action being taken, due to mala fides, malice, or mistaken identity, or he may be able to tender proof of his general good conduct, or alibi, during the period covered by the notice and the like.
6. In view of the law laid down by the Full Bench of this Court and by the Supreme Court on the extemment proceedings, we may consider the notice under Section 59 and the extemment order by the Deputy Commissioner of Police passed under Section 56 of the Bombay Police Act.
7. The notice under Section 59 of the Bombay Police Act suffers from serious infirmity and similarly the order by the Deputy Commissioner. The purpose and intent of serving the notice to the person intended to be externed is to give him a reasonable opportunity of tendering an explanation regarding the allegations made against such person. It is not an idle formality. In the notice, it is stated that penal action was taken against the petitioner under ordinary laws, but even then he has not discontinued his activities. It is not stated as to how many cases were filed against him or which penal actions were taken against the petitioner. It appears from the notice that the main allegation against the petitioner is that he is carrying on his bootlegging activities in that particular pocket within the Vadi Police Station. His activities are not spread in other parts of the City. If at all any cases were filed, either under the Prohibition Act or under Chapter XVI of the Indian Penal Code, that fact should have been stated in the notice. In absence of any such allegations, the notice should be termed as vague and that has deprived of the reasonable opportunity of tendering the explanation.
8. The order passed by the externing authority suffers from the various infirmities, including the one discussed above. As stated above the Deputy Commissioner of Police has virtually relied on the contents in the notice and then has reached the conclusion to extern the petitioner. If at all ans penal action would have been taken against the petitioner, cither under the Prohibition Act or under Chapter XVI of the Indian Penal Code, at least the reference of the cases should have been made in the notice and the Deputy Commissioner of Police should have considered them to extern the petitioner. Shri V.K. Gupta, Deputy Commissioner of Police, has not explained in his affidavit the contention by the petitioner in the petition regarding this aspect. As such, he avoided to explain this contention of the petitioner. If at all any such penal action would have been taken against the petitioner. that fact should have been explained by Shri Gupta in his affidavit. The allegation that penal action were taken against the petitioner but the petitioner has not improved, has two other implications so far as the externment order is concerned. It implies that extraneous matter is relied on by the Deputy Commissioner of Police, without even considering the allegations in such cases and giving the petitioner an opportunity to explain those circumstances. It clearly indicates non-application of mind by the externing authority.
9. Shri Gupta has also stated in his affidavit that the Inspector, Vadi Police Station, Vadodara, had recorded statements of 11 persons in confidence. He further stated that he had applied mind on the relevant material of the case produced before him, which includes the statement of the persons recorded by the Police. It is not stated in the notice that the statements of the witnesses were recorded by the Police. If at all any such statements would have been recorded and intended to be relied upon, at least, reference of the statements, without disclosing the names, with the time and place of such alleged illegal activities of the petitioner should have been made in the notice so that the petitioner could have got an opportunity to explain the said circumstances or lead evidence. Without giving him an opportunity or even letting the petitioner know that statements were recorded, the Deputy Commissioner of Police has relied on statements of 11 persons. 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 least the general nature of allegations in the statements. The petitioner was deprived of the opportunity to explain the circumstances, which weighed considerably with the externing authority and, therefore, also the order vitiates.
10. If at all the allegations against the petitioner are That he is indulging in bootlegging activities, action can be contemplated only under Section 57 of the Bombay Police Act. If the Police could not secure conviction of the petitioner under the Bombay Prohibition Act to enable to take exicrnmeni proceedings under Section 57 of the Bombay Police Act, alternative cannot be sought by taking action under Section 56 of the Bombay Police Act. As discussed above, it appears that the activities of the petitioner as a bootlegger are required to be stopped. Considering the notice, it transpires that the anti-social activity of bootlegging is required to be controlled and the petitioner is sought to be removed from the harm's way for that purpose so that social culture and the social order may not be affected and other persons also may not follow the petitioner in indulging in such business.
11. We have observed that even no material allegation of general nature "based on any particular instance and stating the time and place at which such incident had occurred, is stated either in the notice or in the order. For all these reasons, we allow the Special Criminal Application and set aside the extemment order. Rule is made absolute.