ANUGARH NARAIN SINGH Vs. COMMISSIONER ALLD DIVISION AND

JUDGEMENT

(1.) THE petitioner is a student of Allahabad University and holds a Degree of Law, and at the time the petition was filed studying in M. A. (Previous). A notice under section 3 (1) of the U.P. Control of Goondas Act, 1970 was sent to the petitioner calling upon to appear before the Additional District Magistrate and to submit his explanation to the notice. The petitioner did not put in appearance. Petitioner's case is that the show cause notice was not served on him. On the contrary, from the final order passed by the Additional District Magistrate dated 30th June, 1975, it appears that repeated attempt was made to serve the show cause notice on the petitioner, but he avoided its service. As a result, service was effected by affixation. The Additional District Magistrate on a consideration of the report confirmed the notice under section 3, and directed the petitioner to remove himself outside Allahabad district for a period of six months. The petitioner was also directed to intimate the next place of his residence to the nearest police station where he chose to reside, and also to the Sub-Inspector, Colonelganj. A copy of the order was directed to be published in one of the news papers for information. An appeal was preferred by the petitioner to the Commissioner under section 6 of the Act. The appeal was dismissed by an order dated August 21, 1975. Counsel for the petitioner has contended that the order passed by the Additional District Magistrate suffers. From an infirmity as it does not record the satisfaction of the Magistrate to the effect that the witnesses were not willing to come forward to give evidence against the petitioner by reason of apprehension on their part as regards the safety of their person or property. Support for this contention is sought in the provisions of section 3 (1) (c) and section 3 (3) of the Act. It will be convenient to extract the relevant provisions of section 3(1) and section 3 (3) of the Act : -

(2.) IT will be seen that before an order under section 3 can be passed, a person has to be a Goonda as defined in section 2 (b) of the Act. Apart from being a Goonda, he must satisfy the requirements of section 3 (1) (b) also, that is, his movements or acts in the district or any part thereof should cause or be calculated to cause alarm, danger or harm to persons or property. Apart from these, section 3 (c) also requires that the witnesses should not be willing to come forward to give evidence against him by reason of apprehension on their part as regards the safety of their person or property. Section 3 (3), which has already been extracted above, insists that the District Magistrate should be satisfied that the conditions specified in clause (a), (b) and (c) of sub-section 1 exist. It is only in case all these conditions exist that the District Magistrate can proceed to pass an order of the nature specified in clause (a) and (b) of that subsection.

(3.) IT is apparent that the Additional District Magistrate has not recorded his satisfaction that witnesses were not willing to come forward to give evidence against the petitioner by reason of apprehension on their part as regards the safety of their person or property. The Standing counsel, however, urged that in substance such a satisfaction has been recorded in the order. He has taken me through the show cause notice issued under section 3 which is Annexure T to the counter affidavit. A perusal of this notice undoubtedly shows that in the show cause notice after setting out the various cases in which the petitioner was involved, a recital was made that the witnesses were not willing to come forward on account of fear. The recital in the notice of the conditions set cut in section 3 (1) (c) cannot, however, be a substitute for the satisfaction required by the statute to be incorporated in the final order. The present order cannot be read as containing any such satisfaction. I am fortified in the view that I take by a decision of Gulati, J. in the case of Ejaz Ahmed alias Munnoo v. District Magistrate (1). The learned counsel then contended that such a satisfaction has been recorded by the Commissioner in his appellate order. In particular, he relies upon the following passage in the appellate order : -