Madhya Pradesh High Court
Pappu @ Dinesh Gupta vs State Of M.P. And Ors. on 19 March, 2007
Equivalent citations: 2007(3)MPHT168
ORDER Abhay M. Naik, J.
1. This petition has been preferred against the order of externment dated 2-8-2006 (Annexure P-2), passed by the learned District Magistrate, Anooppur, as modified by the learned Commissioner Rewa Division in appeal vide order dated 31-10-2006 (Annexure P-1).
2. Short facts relevant for the purposes of the petition are that the petitioner is a grain merchant. He was served with the show-cause notice dated 29-6-2006 (Annexure P-3) issued under Sections 8(1) read with Section 5 (a) and 3 (a) of M.P. Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as 'Rajya Suraksha Adhiniyam'). In the notice, it was mentioned that the petitioner was involved in criminal activities and was leading a team of criminals engaged in gambling. Such criminal activities were causing financial and mental harassment to the poor population of the area. However, no one was coming forward to make a complaint or for giving evidence on account of terror of the petitioner. Particulars of criminal cases against the petitioner were given in the notice which go to show that the petitioner was convicted in seven criminal cases registered under Section 4 (a) of the Public Gambling Act during the period from 1990 to 2005. A solitary case under Sections 41(2) and 110 of Cr.PC was also registered against the petitioner. Copy of the show-cause notice is on record as Annexure P-3. Reply to the said notice vide Annexure P-4 was submitted by the petitioner. He stated that he is a small merchant of rice. He is a law abiding person with no involvement in gambling. He did not instigate others to play gambling. It has been categorically stated that he was caught in gambling in the year 1999 by Police Station, Anooppur, and was prosecuted under Section 13 of the Public Gambling Act. Thereafter, false cases under Public Gambling Act were prepared against the petitioner from time to time. Since there was a provision for imposing fine not exceeding Rs. 500/-, and the petitioner made efforts to attend the cases on various dates and further could not afford the expenses of litigation, he used to admit the offence and pay the fine.
3. Learned District Magistrate, Anooppur vide its order contained in Annexure P-2 found that the case under Section 5 (a) of the Rajya Suraksha Adhiniyam is made out against the petitioner. Accordingly, an order of externment against the petitioner has been made removing him from District Anooppur and other districts, i.e., Shahdol, Sidhi, Umariya, Katni, Rewa, Satna and Dindori for a period of one year. Learned District Magistrate in exercise of powers under Section 3, further ordered that during the period of externment, the petitioner would visit Police Station daily at 12:00 A.M. for recording his presence in the Police Station in whose area he would reside.
4. Aggrieved by this, petitioner preferred an appeal before the learned Commissioner Rewa Division. Learned Appellate Authority found that the order of externment, contained in Annexure P-2 with respect to the districts non-contiguous to Anooppur, was not sustainable in law. Accordingly, the order of externment was made effective, merely, with respect to the District Anooppur and its contiguous districts of Umariya, Shahdol and Dindori.
5. Aggrieved by the aforesaid, the present petition has been preferred mainly on the ground that the order of externment could not have been issued on the basis of past criminal records of the petitioner and there was no sufficient material before the learned District Magistrate Anooppur to pass an order of externment against the petitioner directing him thereby for removal from the aforesaid districts.
6. Respondents submitted their return and justified the order of externment on the basis of the material on record. It has been submitted by the respondents that the District Magistrate Anooppur after satisfying himself on the basis of material on record, has passed the order of externment which does not suffer from any legal infirmity.
7. Shri Arvind Shrivastava, learned Counsel for the petitioner and Shri Vinod Mehta, learned Govt. Advocate for respondents/State, made their extensive submissions in support of their rival stands.
8. Shri Mehta, learned Govt. Advocate, has also made available the original record of the Court of District Magistrate, Anooppur, which, too, has been perused and considered by this Court. Superintendent of Police Anooppur, vide his report dated 26-5-2006, informed about the criminal record of the petitioner for a period from 1999 to 2005. These particulars are also mentioned in the show-cause notice marked as Annexure P-3.
9. It may be seen from the details provided by the Superintendent of Police that the petitioner was convicted for offence under Section 4(a) of the Public Gambling Act in seven cases during the period from 1999 to 2005. His conviction was under Section 4(a) of the Public Gambling Act, and not under Section 3 or 4 of the said Act. Although, the order of externment has been passed in exercise of the power under Section 5 (a), yet it would be appropriate to look into the Scheme of the Act. Section 5 (a) empowers the District Magistrate to direct a person to remove himself outside the district and/or other contiguous districts, if, it appears to the former that movements or acts of such a person are causing or calculated to cause alarm, danger or harm to person or property. Clause (c) of Section 6 empowers the District Magistrate to direct for removal, if, a person has been convicted thrice of an offence within a period of three years under Section 3 or 4 of the Public Gambling Act in the application to State of Madhya Pradesh. Conviction of a proposed externee under Section 4(a) could not have been made a basis despite conviction for any number of times prior to amendment in Section 6(c) of the said Act.
10. This Court finds it proper to mention at this juncture that the Rajya Suraksha Adhiniyam has been amended and the conviction for three times within a period of three years under Section 4(a) of the Public Gambling Act has also been made a ground of externment vide Notification in the Extra-ordinary Gazette of Madhya Pradesh dated 5-9-2006. Thus, obviously, the legislature did not intend to keep the conviction under Section 4(a) of the Public Gambling Act as a basis of externment. It was only the conviction for three times within a period of three years under Section 3 or 4 of the Public Gambling Act, which could have provided a basis for externment under Section 6 (c) of Rajya Suraksha Adhiniyam. Amendment in Section 6 of Rajya Suraksha Adhiniyam would, obviously, operate in prospective manner.
11. Accordingly, conviction in seven criminal cases under Section 4(a) of the Public Gambling Act could not have provided material of passing an order of externment in exercise of powers under Section 5 (a) of the Rajya Suraksha Adhiniyam; unless the District Magistrate was satisfied on the basis of material before it that the movements or acts of the petitioner were causing or calculated to cause alarm, danger or harm to person or property.
12. The record made available to this Court contains the report of Superintendent of Police and the statement of Manoj Kumar Singh, Incharge Police Inspector of Police Station Anooppur. There is no other material on record, wherefrom it may be inferred that the acts of the petitioner were causing or calculated to cause alarm, danger or harm to a person or property. In order to exercise power under Section 5 (a) of Rajya Suraksha Adhiniyam, learned District Magistrate was obliged to arrive at a categorical finding that the movements or acts of the petitioner were causing or calculated to cause alarm, danger or harm to person or property. Mere conviction in seven cases under Section 4(a) of the Public Gambling Act by itself is not sufficient to pass an order of externment. It is the reach effect and potentiality of the acts of the petitioner which it supports would cause or calculated to cause alarm, danger or harm to person or property, which could have provided a basis for externment. I may successfully refer for this preposition to the Supreme Court decision in the case of State of Uttar Pradesh v. Kamal Kishore Saini .
13. Learned Commissioner Rewa Division, as an Appellate Authority, has nowhere found that the movements or acts of the petitioner were causing or calculated to cause alarm, danger or harm to person or property. He has, merely, found that the petitioner was convicted with fine in all seven cases registered under Public Gambling Act. He has further found that one more prosecution is pending against the petitioner which confirms the criminal background of the petitioner. No doubt that the past conduct or antecedent history of a person can appropriately be taken into account in making an order of externment. However, the criminal background of a person by itself is not sufficient to empower the authorities to pass order of externment, unless it is found that the criminal background of the proposed externee is causing or calculated to cause alarm, danger or harm to person or property. Learned Appellate Authority has not given any such finding in the impugned order. In the absence of any such finding, impugned orders are not sustainable in law and, hence, set aside.
14. In the result, the petition stands allowed. The impugned orders contained in Annexures P-1 and P-2 are, hereby, quashed. No order as to costs.