Judgment:
ORDER
Sanjay Yadav, J.
1. Challenge in this petition under Article 226/227 of the-Constitution of India is to an order of externment passed by District Magistrate on 2-5-2008 in a Criminal Case No. 3/2007 and the order dated 24-6-2008 by the Divisional Commissioner, Sagar Division, Sagar whereby the order of externment dated 2-5-2008 has been affirmed. The order of externment has been passed in exercise of power under Section 3 (2) and Sections 5 and 6 of Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (referred to as 'Adhiniyam').
2. The brief facts culled out from the pleadings put forth by the petitioner are that the petitioner is a resident of Sukhchain Ward, Tehsil Deori, District Sagar. The petitioner was served a show-cause notice on 2/4-2-2008 under the Adhiniyam as to why an action be not taken against him under the Adhiniyam and be externed from the territorial limits of District Sagar and its surrounding districts. As many as 23 cases were reported to be registered against the petitioner under Section 4-A of Public Gambling Act, 1867 (for short 'the Act of 1867') read with Section 120-B, IPC and under Sections 107, 110, 116 and 151 of the Criminal Procedure Code and was convicted under Section 4-A of the Act of 1867 on five occasions. The petitioner filed his objection mainly on the ground that the inclusion of the convictions under Section 4-A of Public Gambling Act which was prior to year 2006 could not be taken into consideration, because, the same was substituted in the Adhiniyam in the year 2006 vide the Madhya Pradesh Rajya Suraksha (Sanshodhan) Adhiniyam, 2006 w.e.f. 5-9-2006 and that he was leading a peaceful life along with his family. The petitioner sought an opportunity of hearing. The authority concerned on receiving the reply and being not satisfied with the explanation registered a case and after recording evidences passed an order of externment on 2-5-2008 which was subsequently affirmed in an appeal preferred by the petitioner by the appellate order dated 24-6-2008. These orders which are being challenged in this petition.
3. The legal validity of the impugned orders is questioned on the following grounds:
(i) that the authorities failed to afford reasonable opportunity of hearing as contemplated under Section 8 of the Adhiniyam;
(ii) that none of the ingredients of Section 3(2), 5 or 6 of the Adhiniyam have been attracted;
(iii) that there is lack of objective consideration to the extent that even those cases in which the petitioner has been acquitted taken into consideration;
(iv) that there is no fair trial that none of the residents of Sukhchain Ward where the petitioner resides were examined and the persons who were examined were either police personnel or those who were not the residents of the ward where petitioner resides;
(v) that no cognizance of the offence under Section 4-A of the Act of 1867 could have been taken into consideration because this provision was substituted in the Adhiniyam w.e.f. 5-9-2006 and was not effective from a retrospective date.
4. In furtherance of the aforesaid submission the learned Counsel for the petitioner has placed reliance on the orders passed by this Court in W.P. No. 2969/2002, decided on 4-7-2002, Annexure P-2, Pappu @ Dinesh Gupta v. State of M.P. and Ors. 2007 (3) MPLJ 115 and Jagannath Prasad Wasudeo Prasad v. State ofM.P. and Ors. 1968 MPLJ 402.
5. The learned Govt. Advocate on his turn, placing reliance on the return filed on behalf of the respondent-State has to urge that the order of externment and its confirmation by the Appellate Authority are just and proper. It is contended that the petitioner is a habitual criminal having series of cases in which he was convicted and the cases are still pending against the petitioner. It is stated that the order of externment is in larger public interest and the same has been passed only after affording an opportunity of hearing to the petitioner. Relying upon the chart furnished along with the return as Annexure R-l, it is contended, inter alia that the petitioner was convicted for an offence under Section 4-A of the Act of 1867 for five times between the period from 1997 to 2000 and thereafter also, cases were registered against him under Section 4-A of the Act of 1867 in the year 2007 bearing Crime No. 294/2007 and the cases under Sections 107, 110, 116 and 151 of the Code of Criminal Procedure were also registered against the petitioner, indicating therein the antecedents of the petitioner and the threat to public tranquility. It is further urged that besides cases under the Act of 1867, the cases under Excise Act are also registered against the petitioner. In respect of the applicability of the provision of Section 4-A for the purpose of Section 6, the learned Govt. Advocate contends that since the Section 4-A has been substituted in the enactment of 1990, it was well within the power of Competent Authority to have taken into cognizance the conviction of the petitioner under Section 4-A of the Act of 1867. It is further urged that an opportunity of hearing was afforded to the petitioner by issuing a show-cause notice to him and after receiving the reply further notice was issued to the petitioner to participate in the proceedings initiated after the issue of show-cause notice. The learned Govt. Advocate relies upon the proceedings drawn on respective dates. It is accordingly contended that there being no substance in the petition the same is liable to be dismissed.
6. Heard the learned Counsel for the parties at length and perused the original record of Case No. 03/2007 wherein the externment order was passed.
7. In respect of the submissions put-forth by learned Counsel for the petitioner that there was a denial of fair opportunity of hearing and the entire proceeding was drawn behind the back of the petitioner, the same does not get support from the record which has been produced by the respondents. It is observed from the record that on 3-8-2007 the District Magistrate received a report from the Superintendent of Police, Sagar for initiating action against the petitioner under the provision of Adhiniyam, 1990. The District Magistrate thereafter registered a case with a direction that a show-cause notice be issued to the petitioner. The show-cause notice which was issued, was served on the petitioner's wife and a Vakalatnama was filed on behalf of the petitioner on 30-8-2007, which was the date fixed for the show cause. On 30-8-2007, the matter was posted for 22-9-2007 for recording of the evidence of prosecution witnesses. This order-sheet was duly noted by learned Counsel for the petitioner, however, on 22-9-2007 no one appeared on behalf of the petitioner. Therefore, the matter was posted on 22-11-07 when the prosecution witnesses were examined. Thereafter the matter was posted for 30-11-2007 for recording of evidence of independent witnesses. Thereafter the matter was taken up on 31-1-2008 when the following order-sheet was drawn:
31-1-2008
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8. Consequent thereof notices were sent to the petitioner on 4-2-2008, Annexure P-4 calling upon the petitioner to show cause as to why an externment order be not passed against the petitioner and the matter was posted on 6-3-2008. Subsequently, a reply was filed on 7-3-2008 on behalf of the petitioner, the authority not convinced with the reply passed final order on 2-5-2008 in exercise of power under Section 3(2) and Sections 5 and 6 of the Adhiniyam, 1990, Annexure P-6. Having regard to the aforesaid proceedings adhered to by the District Magistrate, this Court does not find any substance in the claim put-forth by the petitioner that there was no fair trial and that the petitioner was not afforded any opportunity of hearing.
9. Section 8 of Adhiniyam, 1990 makes a provision for hearing to be given before order under Section 3,4,5 or 6 is passed. It stipulates:
'8. Hearing to be given before order under Section 3, 4, 5 or 6 is passed. - (1) Before an order under Section 3, 4, 5 or 6 is passed against any person, the District Magistrate shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them.
(2) If such person makes an application for the examination of any witness produced by him, the District Magistrate shall grant such application and examine such witnesses unless for reason to be recorded in writing, the District Magistrate is of opinion that such application is made for the purpose of vexation or delay.
(3) Any written statement put in by such person shall be filed with the record of the case and such person shall be entitled to appear before the District Magistrate by any legal practitioner for the purpose of tendering his explanation and examining the witnesses produced by him.
(4) The District Magistrate proceeding under Sub-section (1) may, for the purpose of securing the attendance of any person against whom any order is proposed to be made under Section 3, 4, 5 or 6 require such person to appear before him and to execute a security bond with or without sureties for such attendance during the inquiry.
(5) If the person fails to execute the security bond as required or fails to appear before the District Magistrate during the inquiry, it shall be lawful for the District Magistrate to proceed with the enquiry ex parte and thereupon such order, as was proposed to be passed against him, may be passed.
10. Principles of natural justice are based on two basic pillars, namely, (i) Nobody shall be condemned unheard (audi alteram partem), and (ii) Nobody shall be judge of his own cause (nemo debet esse judex in propria sua causa).
11. In the case at hand it is seen that there being an effective compliance of stipulations contained in Section 8 of Adhiniyam, 1990, it cannot be perceived that the petitioner has been deprived of right of hearing and that there was no fair trial. It is the petitioner and his Counsel who have chosen to remain away from the proceeding for the reasons best known to them. Therefore, the first limb of arguments put forth by learned Counsel for the petitioner that the petitioner was not afforded a reasonable opportunity of hearing fails. It is also observed from the record that independent witnesses who were examined were of the same vicinity where the petitioner resides and the contention of the petitioner they were not of the same ward will not be of any consequence unless the petitioner alleges that they were had inimical terms with the petitioner, such allegation is conspicuously missing in the petition.
12. In respect of the arguments put-forth by learned Counsel for the petitioner that till 5-9-2006 an offence committed under Section 4-A of the Act of 1867 was not to be taken into consideration while construing an offence under Section 6 (c) of the Adhiniyam, 1990. It is contended that a substitution in clause (c) of Section 6 in place of words 'Section 3 or 4' by 'Section 3 or 4 or 4-A' came into effect from 5-9-2006 by virtue of Madhya Pradesh Rajya Suraksha (Sanshodhan) Adhiniyam, 2006. Therefore, as contended by the learned Counsel for the petitioner, an offence committed under Section 4-A prior to coming into force of the aforesaid amendment ought not to have been taken into consideration while construing clause (c) of Section 6 of the Adhiniyam, 1990. The learned Counsel for the petitioner places reliance on judgment rendered by Single Bench of this Court in the case of Pappu @ Dinesh Gupta v. State ofM. P. and Ors. 2007 (3) MPLJ 115, wherein Paragraph 10, it is observed:
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 for 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.
13. Penal statutes which create offences or which have the effect of increasing penalties for existing offences will be prospective by reason of constitutional restriction imposed by Article 20 of Constitution of India. Article 20(1) of Constitution of India stipulates:
Article 20. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
14. The question which falls for consideration is as to whether the prohibition of Article 20 of Constitution of India would bar an action to be taken on past conduct and whether such action would tantamount to a retrospective operation of a statute under which an action is taken.
15. In the case of State of Bombay (now Maharashtra) v. Vishnu Ramchandra : 1961CriLJ450 , Their Lordships of the Supreme Court while dealing with the aforesaid proposition in the context of Section 57 of the Bombay Police Act which was in the following terms:
(4) Section 57 of the Bombay Police Act reads as follows:
Removal of persons convicted of certain offences-
If a person has been convicted-
(a) of an offence under Chapter XII, XVI or XVII of the Indian Penal Code (XLV of 1860), or
(b) twice of an offence under Section 9 or 23 of the Bombay Beggars Act, 1945 (Bom. XXIII of 1945), or under the Bombay Prevention of Prostitution Act, 1923 (Bom. XI of 1923), or
(c) thrice of an offence within a period of three years under Section 4 or 12-A of the Bombay Prevention of Gambling Act, 1887 (Bom. IV of 1887), or under the Bombay Prohibition Act, 1949 (Bom. XXV of 1949) the Commissioner, the District Magistrate or the Sub Divisional Magistrate specially empowered by the State Government in this behalf, if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted, may direct such person to remove himself outside the area within the local limits of his jurisdiction, by such route and within such time as the said officer may prescribe and not to enter or return to the area from which he was directed to remove himself.
were pleased to observe in Paragraph 6 of State of Bombay (now Maharashtra) v. Vishnu Ramchandra (supra) that-
penal statutes which create new offences are always prospective. But penal statutes which create disabilities or statutes which create no new punishment but authorize some action based on past conduct may be interpreted retrospectively when there is a clear intendment that they are to be applied to past events.
It was further observed in Paragraphs 7 and 8 that-
an Act designed to protect the public against acts of a harmful character may be construed retrospectively, if the language admits of such an interpretation, even though it may equally have a prospective meaning.
And while observing such, Their Lordships were pleased to hold in Paragraph 12 in the following term:
12. Now, Section 57 of the Bombay Police Act, 1951, does not create a new offence nor makes punishable that which was not an offence. It is designed to protect the public from the activities of undesirable persons to have been convicted of offences of a particular kind. The section only enables the authorities to take note of their convictions and to put them outside the area of their activities, so that the public may be protected against a repetition of such activities. As observed by Phillimore, J., in Rex v. Austin 1913 1 KB 551 at P. 556.
'No man has such a vested right in his past crimes and their consequences as would entitle him to insist that in no future legislation shall any regard whatever be had to his previous history'. An offender who has been punished may be restrained in his acts and conduct by some legislation, which takes note of his antecedents; but so long as the action taken against him is after the Act comes into force, the statute cannot be said to be applied retrospectively. The Act in question was thus not applied retrospectively but prospectively.
16. Similarly in the case of Bashiruddin Ashraf v. The Bihar Subai Sunni Majlis-Awaqf and Anr. : [1965]2SCR205 , Their Lordships of the Supreme Court were pleased to observe in Paragraph 10 in the following terms:
10. ...A statute is not necessarily used retrospectively when the power conferred by it is based on conduct anterior to its enactment, if it is clearly intended that the said power must reach back to that conduct. It would be another matter if there was a vested right which was taken away.
An as observed by Phillimore, J. in Rex v. Austin 1913 1 KB 551 at P. 556 and approved by the Supreme Court in State of Bombay (now Maharashtra) v. Vishnu Ramchandra (supra):
No man has such a vested right in his past crimes and their consequences as would entitle him to insist that in no future legislation shall any regard whatever be had to his previous history.
17. Thus, in the present case, it cannot be said that Section 6 of the Adhiniyam, 1990 as it existed after amendment has been applied retrospectively.
18. There is another aspect of the matter. Section 2 of the Madhya Pradesh Rajya Suraksha (Sanshodhan) Adhiniyam, 2006 is in the following terms:
2. Amendment of Section 6.-In Section 6 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (No. 4 of 1991), in clause (c), for the words and figures 'Section 3 or 4' the words, figures and letter 'Section 3 or 4 or 4-A' shall be substituted.
18. The object and purport of Section 3 or 4 or 4-A has been with the object to authorize the Competent Authority to take action based on past conduct and as has been held by the Supreme Court in the case of Zile Singh v. State of Haryana and Ors. : AIR2004SC5100 , wherein Their Lordships were pleased to observe in Paragraphs 24 and 25 in the following terms:
24. The substitution of one text for the other pre-existing text is one of the known and well-recognised practices employed in Legislative drafting 'Substitution' has to be distinguished from 'supersession' or a mere repeal of an existing provision.
25. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (See Principles of Statutory Interpretation, ibid, p. 565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. v. State of U.P., State of Rajasthan v. Mangilal Pindwal, Koteswar Vittal Kamath v. K. Rangappa Baliga and Co. and A.L.V.R.S.T. Veerappa Chettiar v. Section Michael. In West U.P. Sugar Mills Assn. case, a three Judge Bench of this Court held that the State Government by substituting the new rule in place the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centering around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwal case, this Court upheld the Legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was the distinction between 'supersession' of a rule and 'substitution' of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place.
19. Similarly in the case of Govt, of India and Ors. v. Indian Tobacco Association, (2007) 7 SCC 396, Their Lordships of the Supreme Court were pleased to observe in Paragraph 27 in the following terms:
27. There is another aspect of the matter which may not be lost sight of. Where a statute is passed for the purpose of supplying an obvious omission in a former statute, the subsequent statute relates back to the time when the prior Act was passed. [See Attorney General v. Pougett (1816) 2 Price 381:146 ER130]
20. Having thus considered this Court does not find any substance in the challenge put-forth by the petitioner to the action taken by the respondents taking into consideration the conviction suffered by the petitioner under Section 4-A of the Act of 1867 prior to its substitution in Section 6 of the Adhiniyam, 1990.
In the result the petition fails and is hereby dismissed. However, no costs.