Babubhai Mahmandbhai Shaikh Vs. State of Gujarat and anr. - Court Judgment

P.R. Gokulakrishnan, C.J.

1. This special criminal application is to quash the externrnent notice and consequent orders of externrnent, and in appeal which are at Annexures 'A', 'B' and 'C' to the special criminal application. The petitioner herein was externed from Ahmedabad City (Rural) Area, Gandhinagar, Kaira and Mehsana Districts, by the externrnent order dated 4th August, 1988, for a period of two years. The said order was confirmed in appeal, by the State Government in its Home Department. It is as against these orders, the present Special Criminal Application has been filed.

2, Show cause notice was issued under Section 59 of the Bombay Police Act by the Police Superintendent, (J) Division, Ahmedabad City, directing the petitioner to show cause against the allegations on 1-7-1987 at 16.30 hours. The notice further states that the authority concerned will be hearing the petitioner and his witnesses on the said date. In the show cause notice the following allegations were made: -

'It is alleged against you that you are dangerous and headstrong person. You are committing crime of force and violation. You are doing such acts in Paldi Museum, Kagdi-wad Road, Madalpur village, Paldi Village, Paldi Sanskar Kendra, behind V. S. Hospital area which is within the jurisdiction of Ellis Bridge Police Station. You are committing such activities in above area in following manner:

1. You are showing 'Rampuri' knife to innocent people in above area and persons passing through such area and you are robbing money and gold ornaments from them.

2. You and your accomplices are demanding money from merchants and merchants selling eatables and you are not paying money for eatables i.e. you are taking eatables and you are beating persons who are demanding money from you and. you are threatening to kill them.

You are committing such crimes as mentioned in paragraphs 1 and 2, as above and witnesses of such incidences are apprehensive and reluctant to give public statement against, you on account of fear of life and property.

Therefore it is determined to extern you for 2 years and it is also determined to extern you from the area of Ahmedabad City Police Commissioner jurisdiction Ahmedabad (Rural), Gandhinagar, Kaira, and Mehsana Districts. If you are not externed from adjacent Districts, you are likely to indulge in this nefarious activities with aid of your accomplices and agents.'

3. Mr. G. D. Bhatt, learned Additional Public Prosecutor pointed out that the translation of the show cause notice is defective since in the Gujarati version the period and place have been specifically mentioned in the allegations referred in the show cause notice. After reading the Gujarati version by my learned Brother Justice Chauhan it is clear that the show cause notice mentioned the period and place. Mr. V. M. Trivedi, learned counsel appearing for the petitioner has to accept that in the general allegation there is a mention to the effect that the petitioner has indulged in such activities from August 1986 onwards. He has also seen that in the allegation No. 2 in the show cause notice there are words 'residing in the aforesaid localities' find place in the Gujarati version. If these particulars were to be there in that translation, the argument as if the place and time of the occurrence have not been given cannot have any substance. Hence we proceed on the basis that in the allegations, the area and specific period have been given and with these allegations the petitioner was asked to show cause for the same. In response to the notice the petitioner has given his explanation and submitted his written submission as late as, 6-6-1988. On 4-8-1988, the externment order': was passed. Before passing this externment order the authorities concerned have examined 19, witnesses produced by the petitioner.

4. Mr. Trivedi, the learned counsel appearing for the petitioner, raised various contentions for the purpose of quashing the order of externment. Firstly, he stated that the petitioner has been taken under the Prevention of Anti-Social Activities (PASA) Act; 1985 on 22-6-1987 and while he was in detention, notice was served on him on 24-6-1987. After quashing of the said detention order, the petitioner was released on 10-12-1987. According to Mr. Trivedi inasmuch as the notice was served while he was in detention, there; was no application of mind by the authorities concerned; Before they passed the order of externment, the authorities concerned ought to have come to the conclusion that there is a prognosis on the part of the petitioner to continue the offence and if he is not externed, he will perpetrate the same mischief in the society and thereby create fear in the mind of people, in respect of their person and property. In this connection, we can usefully refer to the provisions of Section 56 of the Bombay Police Act. It is clear from this section that whenever it shall appear to the authorities concerned that there are reasonable grounds for believing that a 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 of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer, witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regard the safety of their person or property, the authorities concerned in order to prevent violence and alarm, remove the person concerned outside the area within the local limits of his jurisdiction or such area and any district or districts, or any part thereof, contiguous thereto. We have only given the gist of Section 56, which is relevant for the purpose of disposal of this case. Section 59 of the Act deals with hearing to be given before order under Section 55, 56 or 57 is passed. Hence, it is clear that if the officer concerned entertains reasonable grounds for believing that such a person is engaged or is about to be engaged in the commission of the offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code and when in the opinion of such officer, 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, he can proceed with the passing of the externment order. In the decision in the case of Rajendrakumar v. State of Gujarat, reported in AIR 1988 SC 1255 : (1988 Cri LJ 1775), the Supreme Court has correctly enunciated the principle as to when the grounds become illusory and stale and has held that the delay will become relevant only when the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention. In the decision in the case of Pandharinath v. State of Maharashtra, reported in AIR 1973 SC 630: (1973 Cri LJ 612), the Supreme Court, in respect of such externment orders, has correctly observed:

'There is a brand of lawless element in society which it is impossible to bring to book by established methods of judicial trial because in such trials there can be no conviction without legal evidence. And legal evidence is impossible to obtain, because out of fear of reprisals witnesses are unwilling to depose in public. That explains why Section 59 of the Act imposes but a limited obligation on the authorities to inform the proposed externee 'of the general nature of the material allegations against him'. That obligation fixes the limits of the correlative right of the proposed externee. He is entitled, before an order of externment is passed under Section 56, to know the material allegations against him and the general nature of those allegations. He is not entitled to be informed of specific particulars relating to the material allegations.'

5. In yet another judgment of the Supreme Court, in the case of State of Gujarat v. Mehbubkhan, reported in AIR 1968 SC 1468 : (1969 Cri LJ 26), the Supreme Court has specifically held that it is sufficient if the notice under Section 59 contains general nature of the material allegations. Keeping these principles in mind, we can usefully refer to the notice issued in this case and the allegations made therein. Mr. Trivedi, learned counsel appearing for the petitioner states that the externee was under detention at the time when the externment order was served and as such the subjective satisfaction regarding the activities of the petitioner formed by the externing authority reveals non-application of mind. The mere fact that the externee was under detention at the time the notice was served cannot ipso facto make the order of detention invalid on the ground of non-application of mind. There is a specific averment in the affidavit-in-reply that the externing authority has applied its mind with regard to the circumstances and factual I allegations and got convinced before he passed the order of externment. Reading of Section 56(b) clearly makes out the fact that a reasoable ground for believing that such a person is engaged or is about to be engaged in the commission of such offences is enough for the purpose of arriving at a subjective satisfaction to extern the party concerned. The only satisfaction, apart from the reasonable belief, the officer has to arrive at is that witnesses are not willing to come forward to give evidence in the public against such a person by reason of apprehension on their part as regards the safety of the person or property. In the show cause notice, it has been clearly averred that the petitioner is a dangerous and a headstrong person and the witnesses for such incidents committed by the petitioner are apprehensive and reluctant to give public statement against the petitioner on account of fear of life and property. In the externment order, which is Annexure 'B' to the special criminal application, the externing authority has formed the subjective satisfaction regarding the ingredients necessary to form such a satisfaction and has definitely held that he is convinced that the petitioner is a very dangerous and violent person and he is indulging in offences punishable under the provisions of the Indian Penal Code, Once such a satisfaction is arrived at, the fact that the petitioner was under detention in pursuance of the order passed under the provisions of the Prevention of Anti-Social Activities Act, 1985 at the time when the notice was served has no relevance and irrespective of such detention, the authorities concerned can form the subjective satisfaction for the purpose of taking action under Section 56 of the Bombay Police Act. The facts reveal that such satisfaction was arrived at by the authorities concerned and hence we find that there is absolutely no substance in the argument advanced by Mr. Trivedi to the effect that there is no application of mind by the authorities inasmuch as the externee was, under detention when the notice of externment was served. In this case the detention was only for a short period i.e. from 20-6-1987 to 10-12-1987 and subsequent to that necessary proceedings were taken for the purpose of externing the petitioner. Mr. Trivedi, the learned counsel appearing for the petitioner, stated that the very same persons were examined, both for detention under the Prevention of Anti-Social Activities Act, 1985 and also for the purpose of externing the petitioner herein under the Bombay Police Act. Hence according to the learned counsel, that it is not correct to say that the witnesses are afraid to give evidence against the externee. Except the bare statement and assumption made by the learned counsel for the petitioner we do not find any material for the purpose of coming to the conclusion that the authorities concerned based their subjective satisfaction on the very same evidence, which they considered for detaining the petitioner under the Prevention of Anti-Social Activities Act, 1985. Even assuming such a thing has happened, it cannot be spelt out that the witnesses, who were examined for Prevention of Anti-Social Activities Act, are prepared to come forward in the open Court to substantiate the allegations against the petitioner herein. The subjective satisfaction arrived at by the authorities concerned clearly makes out that the witnesses are not prepared to come forward to give evidence out of fear to their person and property and that the petitioner is a head-strong person.

6. Mr. Trivedi also contended, though vaguely, that time and area have not been given. Various decisions rendered by this High Court have clearly held that if the time or area is not given, the order of externment becomes vitiated. The facts revealed in this case amply makes out that the authorities concerned have specifically mentioned the area and time, during which the violent acts were committed by the petitioner herein. Hence, we do not find any substance in the argument of Mr. Trivedi in this respect.

7. Mr. Trivedi pointing out the averment in the affidavit-in-reply filed by Mr. V. V. Rabari, Deputy Commissioner of Police, Crime Branch, Ahmedabad City wherein he has stated while explaining to the allegations of delay, that statements of 10 persons taken by the Inspector of Police Ellis Bridge Police Station were studied by him, stated that the petitioner did not have an opportunity to get the statements of these 10 witnesses studied by the externing authority and as such there is a failure of natural justice and hence the order of externment is vitiated. This argument has absolutely no substance. In the affidavit-in-reply, the Dy. Commissioner of Police has stated 'I have taken time in studying the depositions of 19 witnesses which were examined by the petitioner in reply to the show cause notice, the statements of 10 persons taken by the Police Inspector, Ellis Bridge Police Station on giving promise to them that their names and addresses will not be disclosed'. The basis of the externment under Section 56 of the Bombay, Police Act is because of the fact that the witnesses are not willing to depose against the externee due to fear of their person and property. The perusal of the statements of 10 persons examined by the Police Inspector, Ellis Bridge Police Station cannot be revealed to the petitioner herein. The evidence of witnesses produced by the petitioner who are 19 in number was taken into consideration. Hence the argument of Mr. Trivedi, the learned counsel appearing for the petitioner in this respect has to be rejected.

8. Mr. Trivedi, reading the decision in the case of Harji Hira v. E. N. Rension, reported in (1969) 10 Guj LR 283, contended that the appellate authority has relied upon certain instances which were not brought to the notice of the petitioner herein and as such, the externment order is vitiated. He points out the observation of the appellate authority, which is to the following effect:

'It may be true that he is a merchant, but I cannot accept that the merchant cannot indulge in such activity because against the appellant 8 prohibition cases and Indian Penal Code cases are registered against him continuously between 1983 and 1987, which shows his criminal activities.'

9. We are afraid, we are not able to appreciate this submission made by Mr. Trivedi. Such an observation was made in response to the averments made by the petitioner on the ground that he is a merchant and he cannot be accused for such activities enumerated in the show cause notice. In that context, the appellate authority has made mention with regard to certain activities of the petitioner herein. As far as the subjective satisfaction of the externing authority is concerned, we do not find anything on record to show that some other material, apart from those contained in the show cause notice, influenced the mind of the externing authority to arrive at the conclusion to the effect that the petitioner has to be externed for a period of two years. In the decision in the case of Harji Hira v. E. N. Rension Reported in (1969) 10 Guj LR 283, the Division Bench of this High Court was dealing with a case where the place of occurrence was mentioned vaguely. It is stated therein, after mentioning certain particular places, that the petitioner was committing such offences in the round about areas. The Bench of this High Court, considering the facts of that case, found that even though in the notice there is no mention with regard to the round about areas in respect of a particular activity mentioned therein as 1, 2, 3 and 4, the externing authority has taken into consideration the activities in the ground about areas and has passed the order of externment and as such, the order of externment cannot be sustained. While finding so, the Bench held :

None of these allegations contained any reference to the areas round about these specified areas though a reference to the round about areas was made in the general allegations. The petitioner was, therefore, not called upon to meet any allegation in regard to the areas round about the areas specified in clauses 1 to 4.'

10. The Bench in that case also held:

'No opportunity to show cause against any allegations relating to the round about areas within the limits of Kalupur and Ellis Bridge Polie Station was afforded to the petitioner and yet the externment order was passed on the basis that the petitioner was engaged in the commission of certain types of acts in the round about areas. The externment order must, therefore, be held to be invalid.'

We do not think that this case has any bearing to the facts of the present case.

11. Lastly, Mr. Trivedi contended that there is a delay in passing the externment order. The externment order was passed on 4-8-1988. On 1-3-1988, the hearing of case before Supdt. of Police was over in this case. On 6-6-1988, the petitioner submitted the written submissions arid made oral arguments before externing authority. Taking facts into consideration, it is clear that there is no much delay in passing the externment order, which is dated 4-8-1988. The Deputy Commissioner of Police, who is the externing authority in this case, has given cogent and acceptable reasons given for this negligible delay. Considering the nature of the case, examination of 19 witnesses by the petitioner herein and also the various other duties the externing authority has to perform, we do not find that the delay, on the facts and circumstances of this case, will be of help to the petitioner herein for the purpose of quashing the externment order. As we have observed already, there is no delay which can be considered as a vitiating circumstance on the facts and circumstances of the case, which we have discussed above.

12. Thus, from the foregoing discussion, we do not find any merits in any of the submissions made by Mr. Trivedi and accordingly this Special Criminal Application is dismissed. Rule is discharged.