Madhya Pradesh High Court
Sheikh Aslam vs The State Of Madhya Pradesh on 15 February, 2018
HIGH COURT OF MADHYA PRADESH : JABALPUR
Writ Petition No.17334/2017
Sheikh Aslam
-Versus-
State of M.P. & others
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Single Bench: Hon'ble Shri Justice Vijay Kumar Shukla
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Shri D.K. Jain, Advocate for the petitioner.
Shri Shivendra Pandey, Govt. Advocate for the State.
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Whether approved for
reporting ?
Law laid down
Significant paragraph Nos.
ORDER
( Jabalpur, dt.15.02.2018) In the instant petition filed under Article 226 of the Constitution of India the petitioner has challenged the legality and validity of the order passed by the District Magistrate, Narsinghpur dated 14-08-2017 under the provisions of Section 5(a) and (b) of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 [hereinafter referred to as `the Act 1990'] whereby the petitioner has been externed from the District Narsingpur and its contiguous districts - Chhindwara, Seoni, Jabalpur, Damoh, Sagar, Raisen and Hoshangabad for a period of one year. Besides, the petitioner has also challenged the order dated 11-10-2017 passed in Case/000/Zila 2 Badar/2016-17 by the Commissioner, Jabalpur Division, Jabalpur whereby the appeal preferred by the petitioner has been dismissed.
2. On filing a report of the Superintendent of Police, Narsinghpur on 14-8-2017 the District Magistrate, Narsinghpur (respondent No.4) has issued a notice to show cause to the petitioner. The petitioner filed reply and submitted that the cases which have been mentioned in the list are old and stale cases. It is submitted by him that except two cases, i.e. at Sr.Nos.4 and 5, all the cases are pertaining to M.P. Excise Act. It is further submitted by him that in Sr.Nos.4 and 5 the cases were registered, as the petitioner had participated in a Chakajam in the protest of some accident. However, both the cases mentioned at Sr. Nos.4 and 5 are of the year 2010. It is also contended by him that the cases shown in the list are not covered under the provisions of Section 5(b) of the Act 1990.
3. Being aggrieved by the aforesaid orders the present writ petition has been filed by the petitioner.
4. Per contra, counsel for the State submitted that the impugned order has been passed taking into consideration the report of the Superintendent of Police. The petitioner was served a show 3 cause notice and the District Magistrate has passed the order of externment after recording his satisfaction in accordance with law.
5. Before adverting to the contentions of the counsel for the petitioner as discussed earlier and examining them on the anvil of the law prevailing in the field of externment, it is apt to refer the provisions of the Adhiniyam, 1990. Section 5 of the Act under which the order of externment has been passed is quoted hereinbelow:-
"5. Removal of persons about to commit offence.- whenever it appears to the District Magistrate
(a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property; or
(b) that there are reasonably grounds for believing that such person is engaged or i s a b o u t t o b e e n g a g e d i n t h e commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI, or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 (45 of 1860) or in the abetment of any such offence, and when in the opinion of the District Magistrate witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property; or
(c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant;
the District Magistrate, may by an order in writing duly served on him or by beat of drum or otherwise as the District Magistrate thinks fit, direct such person or immigrant
(a) so as to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease; or 4
(b) to remove himself outside the district or any part thereof or such area and any district or districts or any part thereof, contiguous thereto by such route within such time as the District Magistrate may specify and not to enter or return to the said district of part thereof or such area and such contiguous districts, or part thereof, as the case may be, from which he was directed to remove himself."
6. A plain reading of Section 5 (b) of the Act quoted above, would show that for passing an order of externment against a person, two conditions must be satisfied:-
(i) There are reasonable grounds for believing that a person is engaged or is about to be engaged in commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI, or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 or in the abetment of any such offence; and
(ii) In the opinion of the District Magistrate, witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property.
7. At this stage, I think it condign to survey the authorities on the legal issues canvassed on behalf of the petitioner.
8. Division Bench of this Court in the case of Ashok Kumar Patel vs. State of M.P. & others, 2009(4) MPLJ 434 after considering Section 5 of the Act held thus:
5
"8. The expression is engaged or is about to be engaged" in the commission of offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 or in the abetment of any such offence, shows that the commission of the offence or the abetment of such offence by the person must have a very close proximity to the date on which the order is proposed to be passed under Section 5(b) of the Act of 1990. Hence, if a person was engaged in the commission of offence or in abetment of an offence of the type mentioned in section 5 (b), several years or several months back, thee cannot be any reasonable ground for believing that the person is engaged or is about to be engaged in the commission of such offence."
9. In the case of Ramgopal Raghuvanshi vs. State of M.P. and others, 2014(4) MPLJ 654 this Court after considering the earlier judgments in respect of Section 5 of the Act held that the order of externment cannot be passed on the basis of old and stale cases. A co-ordinate Bench of this Court at Indore in the case of Bhim @ Vipul vs. Home Department, (W.P. No.4329/2015, decided on 14-09-2015) has also considered the judgments rendered in the cases of Ashok Kumar (supra) and Ramgopal Ragjhuvanshi (supra) and held that the expression "engaged or is to be engaged" used in Section 5(b)(i) shows that commission of offence or the abetment of such offence by the person must have 6 close proximity to the date on which the order is proposed to be passed under Section 5(b) of the Act.
10. In the case of Sanju @ Sanjay Ben Vs. State of M.P. and others, 2005 (4) MPHT 102 while considering the provisions of the Adhiniyam, 1990, the court held that the provision is not punitive in its nature and a person cannot be externed for his past acts. Although past activities of a person may afford a guide as to his behaviour in future, they must be reviewed in the context of the time when the order is proposed to be made. The past activities must be related to the situation existing at the moment when the order is to be passed. In the present case from the facts it is noted that the same cases were being repeatedly considered by the authority and on earlier occasions, he found that the same material cannot formed a basis for passing an order of externment but by the impugned order is passed on the basis of most of the same cases which are old and stale which has already been held by this Court in number of cases as discussed above that the old and stale activities cannot be grounds of externment.
11. In the light of the aforesaid authoritative pronouncement of judgments, the contentions of the petitioner have to be examined 7 on the anvil of facts of the present case and the law as discussed above.
12. The respondent No.3, District Magistrate, Narsinghpur has referred list of criminal cases registered against the petitioner as under :
Sr. Crime Number/Offence Date of incident No.
01. Crime No.04/2009 under section 01-01-2009 34 of the Excise Act.
02. Crime No.193/2009 under 07-04-2009 section 34 of the Excise Act.
03. Crime No.608/2009 under 06-12-2009 section 34 of the Excise Act.
04. Crime No.161/2010 under 13-03-2010 sections 147 and 341 of the Indian Penal Code.
05. Crime No.162/2010 under 13-03-2010 sections 147, 148, 341, 427 and 435 of the Indian Penal Code.
06. Crime No.545/2010 under 25-08-2010 section 34 of the Excise Act.
07. Crime No.665/2010 under 28-09-2010 section 34 of the Excise Act.
08. Crime No.269/2011 under 09-05-2011 section 34 of the Excise Act.
09. Crime No.804/2011 under 23-12-2011 section 34 of the Excise Act.
10. Crime No.333/2012 under 18-05-2012 section 34 of the Excise Act.
11. Crime No.699/2013 under 16-06-2013 section 34 of the Excise Act.
12. Crime No.820/2014 under 01-10-2014 section 34 of the Excise Act.
13. Crime No.615/2015 under 06-08-2015 section 34 of the Excise Act.
14. Crime No.695/2015 under 03-09-2015 section 34 of the Excise Act.8
15. Crime No.924/2015 under 11-11-2015 section 13 of the Gambling Act.
16. Crime No.422/2016 under 26-04-2016 section 34 of the Excise Act.
17. Crime No.435/2016 under 28-04-2016 section 34 of the Excise Act.
13. From a bare perusal of the record, it is clear that the alleged cases relate to the years 2009 to 2016. Except cases mentioned at Sr. No.4 - Crime No.161/2010 and at Sr. No.5 - Crime No.162/2010 all the cases are instituted under the M.P. Excise Act.
14. At a cursory look of Section 5(b) of the Act 1990 it is graphically clear that there has to be reasonable ground for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII or under Section 506 of 509 of the Indian Penal Code, 1860 (45 of 1860) or in the abetment of any such offence.
15. From the chart shown in the order of externment, the offence mentioned at Sr. Nos.1 to 3 and Sr. Nos.6 to 17, do not pertain to the offences involving force or violence or an offence punishable under Chapter XII, XVI or XVII or under Section 506 of 509 of the Indian Penal Code, 1860 (45 of 1860). The cases which have been registered against the petitioner are under the M.P. Excise 9 Act. Two cases mentioned at Sr. Nos.4 and 5 are of the year 2010, which have been shown to be pending against the petitioner. The impugned order of externment has been passed in August, 2017 on the basis of the report submitted by the Superintendent of Police, Narsinghpur on 29-04-2016. Thus, the cases mentioned at Sr. Nos.4 and 5 are old and stale cases and the same could not have been a basis for passing an order of externment.
16. This Court in the cases of Meena Sonkar vs. State of M.P. and others, 2017(2) MPLJ 565; Anek alias Anil Nageshwar vs. State of Madhya Pradesh & four others [W.P. No.9297/2017, decided on 8-8-2017]; Jahangeer Alvi vs. State of M.P. and others, 2017(3) MPLJ 667; and also in the case of Istfaq Mohammad vs. State of M.P. and others, [W.P. No.22357/2017, decided on 25-01-2018] held as under:
"The second requirement is also necessitated to pass an order of externment that on account of the activities of a person, who is externed, the witnesses amongst public are not coming forth to depose in the criminal cases against him either under apprehension of person or property. But in the order impugned existence of such material is not on record, more so, no such finding has been recorded by the competent authority to record satisfaction. Therefore, the order impugned do not fulfill the second requirement of Section 5(b) of the Adhiniyam."10
In the present case, there is no subjective satisfaction of the authority regarding second requirement.
17. Under the provision of Section 5 of the Act, if a detention order has to be passed, there has to be sufficient material for passing the order as fundamental right of freedom of a person is involved. The order passed by the appellate Authority is nothing but repetition of the order passed by the District Magistrate without any application of mind.
18. In the aforesaid circumstances, the impugned order of externment and affirmation thereof in the appeal are unsustainable having been found in violation of the requirements of the Act 1990 and the judgments passed by this Court which have been noted hereinbefore.
19. Accordingly, the writ petition is allowed. The impugned orders dated 14-8-2017 (Annexure-P/1) and 11-10-2017 (Annexure-P/2) are quashed and set aside. No order as to costs.
(Vijay Kumar Shukla) Judge ac.
Digitally signed by AJAY KUMAR CHATURVEDI Date: 2018.02.16 18:30:57 +05'30' 11