VAGHARI DHANABHAI BHALABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) A Full Bench of this Court in SARJUBHAIYA MATHURBHAIYA KAHAR V. DR. COMMISSIONER OF POLICE VADODARA AND ANR. REPORTED IN 25(1) G.L.R. 538 had occasion to consider the validity of secs. 56 59 and 60 of the Bombay Police Act. 1951. There was no occasion in that case to consider the validity of Sec. 57 of that Act which provision also enables externment orders to be passed. But whatever has been said by the Full Bench as to the circumspection under which alone the power of externment could be exercised is equally valid in the case of exercise of power under Sec. 57 of the Act. It is the basic right of a citizen to be free. That is infringed by the action taken for externment. whether it be under Sec. 56 or under Sec. 57 of the Bombay Police Act. There is no freedom which is on such a high pedestal as that of the right of a citizen to move about freely. If such freedom is taken away not as a result of a trial for any offence but by executive satisfaction that would operate as a serious inroad into the fundamental right of the citizen. but nevertheless under certain circumstances such action may be called for. Courts have held that those who come within the purview of Sec. 56 or Sec. 57 form a class by themselves and therefore in their case. more than normally reasonable restraint may be justifiable. Even so it cannot be assumed that every person against whom the executive initiates action under sec. 56 or sec. 57 is presumed to have conducted himself in a highly objectionable manner.

(2.) We preface this judgment with these observations because it may appear. on a plain reading of Sec. 57 of the Bombay Police Act. that the satisfaction required on the part of the concerned authority to justify an order under Sec. 57 is on the one hand of the fact of conviction for an offence under certain provisions of the Indian Penal Code or twice for certain offences under certain provisions of the Bombay Prohibition Act 1949 within a period of three years or other specified Acts mentioned in Sec. 57 (b) or conviction under Sec. 65 or Sec. 68 of the Bombay Prohibition Act 1949 within a period of three years and other specified Act as mentioned in clause (c) of Sec. 57 and on the other hand the satisfaction that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted. Sec. 65 of the Bombay Prohibition Act 1949 deals with illegal import or export manufacture bottling sale or purchase etc. of any intoxicant and using or keeping or having in possession any materials still utensils implement or apparatus for the purpose of manufacturing any intoxicant. Sec. 68 makes it an offence to keep open and keep or use any place as a common drinking house or having the care management or control of such a drinking house. There are also other provisions of the Bombay Prohibition Act the contravention of which would be offences inviting the application of Sec. 57 of the Bombay Police Act.

(3.) The sale of liquor by a person or illicit manufacture or consumption of liquor may not by itself be objectionable to such a degree as to invite the extreme measure of externing a person from an area for a fairly long time. Such externment would be justified only if there is absolute need for imposing such severe restraint on the freedom of a person. That will depend upon justification of such imposition or restraint. May be a person has turned out to be a nuisance of such a degree that he can no longer be allowed to move about freely in the area in which he normally operates without serious harm to the public in some manner or other. Mere commission of an offence under the Bombay Prohibition Act may not necessarily have any impact on public order or may not injure public interest as for instance in the case of a person consuming liquor in a prohibited area within the precincts of his own home without giving any cause for alarm or concern to any one even the members of his family. May be he commits an offence but that does not mean that the offence committed by him has any impact upon the public of a degree which justifies his removal from his usual abode to a place outside his District as a preventive measure. Preventive action would not be called for in such a case though punitive action may be justified.