NABUKHAN MOHAMMED HUSSEIN KHAN Vs. S. RAMAMURTHI

JUDGEMENT

(1.) BY this petition filed under Article 226 of the Constitution the petitioner is seeking to challenge the validity and/or legality of the externment order No. 307/C/43 of 1969 dated March 3, 1969 passed against him by the Deputy Commissioner of Police, Zone II, Greater Bombay (respondent No. 1) under Section 56 of the Bombay Police Act, 1951.

(2.) IT appears that with a view to initiate externment proceedings - against the petitioner a notice under Section 59 of the said Act was served upon him on October 30, 1968 by the Assistant Commissioner of Police, 'D' Division, Bombay calling upon him to tender his explanation regarding the allegations detailed at the foot of the notice, and for receiving the same and hearing him and his evidence, if any, the Assistant Commissioner fixed the appointment on November 6, 1968 at 11 A.M. at Nagpada Police Station. The allegations detailed at the foot of the notice were as follows: Allegations : - I. Since April, 1968 in the localities of Foras Road, Bachu Shethwadi, Sukhlaji Street, Chikalpada and Nagpada and the areas adjoining thereto, in Greater Bombay, your acts and movements are causing alarm, harm and danger to the residents of the aforesaid localities and areas in that : - (i) You assault the residents of the aforesaid localities and areas suspecting them to be giving information to the police about your illegal activities which are offences falling under Chapter XVI of the Indian Penal Code. (ii) You commit robberies by extorting money from the residents of the aforesaid localities and areas at the point of knife and/or under threats of assault, which are offences falling under Chapter XVII of the Indian Penal Code. (iii) You use criminal force on women and girls in the aforesaid localities and areas with the intention of outraging their modesty which are offences falling under Chapter XVI of the Indian Penal Code. II. Since April 1968, you have committed several acts of the nature mentioned in paras (i), (ii) and (iii) above in the aforesaid localities and areas. III That the witnesses including the complainants in respect of your acts and offences mentioned in paragraphs (i), (ii) and (iii) above are not willing to come forward to give evidence against you in public by reason of apprehension on their part as regards the safety of their person in that they apprehend that they would be assaulted by you if they do so. Pursuant to the aforesaid notice the petitioner submitted a detailed written explanation on November 26, 1968 substantially denying all the aforesaid allegations. During the course of the proceedings before the Assistant Commissioner of Police statements of several persons were recorded and statements of as many as 11 witnesses on the side of the petitioner were also recorded. The petitioner produced character certificates from Shri Ansari, J. P. and Shri Rusi Mehta, another J.P. and Municipal Councillor. Since according to him he was ill during - the material portion of the period covered by the notice the petitioner produced a medical certificate of Dr. H.G. Chinwalla under whose treatment he was and also led the evidence of his brother -in -law Capt. Idnani, an ex -military officer and an ex -Income -tax Officer, with whom he was staying on Bhulabhai Desai Road, during the period of his illness. The proceedings before the Assistant Commissioner of Police were over on or about December 7, 1968 and all the papers and record of the proceedings were sent by him to respondent No. 1, who appointed January 18, 1969 as the day for hearing the petitioner. The petitioner was represented by his advocate before respondent No. 1, who made his submissions on behalf of the petitioner showing cause against the proposed externment order. Eventually on March 3, 1969 respondent No. 1 passed the externment order against the petitioner directing him to remove himself out of the limits of Greater Bombay and Thana District by Central Railway route within two days from the date of the order and the petitioner was further directed not to enter or return to the said areas of Greater Bombay and Thana District for a period of two years from the date of that order without the permission in writing from the Commissioner of Police, Greater Bombay or the Government of Maharashtra. The operative part of this order is preceded by several recitals which show that respondent No. 1 had considered the evidence that had been placed before him against the petitioner in support of the allegations contained in the notice served under Section 59, that he also took into account the explanation tendered by the petitioner and all the evidence furnished by him and that after considering the entire material placed before him he was satisfied about the matters mentioned in paras. I, II and III of the said notice. A copy of the externment order has been annexed as exh. 'D' to the petition.

(3.) DEALING with the first ground of attack, it may be stated that Mr. Nadkarni contended that the impugned order had been passed mala fide by respondent No. 1 and he pressed into service both the factual as well as the legal aspects of the matter before me. According to him, from 1950 onwards the petitioner, for reasons unknown to him, came in the bad books of the police, especially the Nagpada Police Station and between 1950 and 1966 several proceedings by way of criminal prosecutions and preventive measures under special enactments were taken against him but in all these he was acquitted, exonerated or released. Mr. Nadkarni pointed out that admittedly the petitioner had been roped in three Sessions cases (Sessions Case No. 26/1/57 for offences under Sections 302, 324 and 114, Indian Penal Code, Sessions Case No. 262/1962 for acid throwing under Section 326 and Sessions Case No. 276/1965 for offences under Section 394, 326, 307 and 114, Indian Penal Code) but was acquitted in each of them and he had been also arrested on September 1, 1964 by the Nagpada Police Station for alleged offences under Sections 323, 342, 366, 392 and 114, Indian Penal Code but was discharged by the Presidency Magistrate for want of evidence and had been also arrested by the Princess Street Police Station on December 13, 1'366 under O.K. No. 786/1966 but was subsequently acquitted. He further pointed out that on two prior occasions externment proceedings were taken against his client, first in 1951 and on the second occasion in 1961 and the first ended in a mere warning being issued to him on December 13, 1951 while the second were dropped when he applied for a transfer of the proceedings from one particular police officer to another on the ground that the first officer had a bias against him. Similarly on three occasions the petitioner was served with detention orders, twice under the Preventive Detention Act and once under the Defence of India Rules but Mr. Nadkarni pointed out that in respect of detention order served on March 6, 1953, when the petitioner preferred a writ petition to the Supreme Court against it, the order was withdrawn during the pendency of his writ petition, that the second detention order served upon him on October 10, 1961 was set aside by this Court on January 11, 1962 in Cr. Petition No. 1727 of 1961 preferred by him, while in respect of the third detention order served on him under Defence of India Rules in 1965 he was released on January 29, 1966 during the pendency of a habeas corpus petition preferred against that order. According to Mr. Nadkarni, because the police failed to get him convicted or externed or detained successfully in their aforesaid attempts, the present proceedings had been initiated against him and he had been externed and these facts show that the impugned order had been passed by respondent No. 1 in mala fide exercise of the powers vested in him. It is difficult to accept this contention of Mr. Nadkarni for more than one reason. In the first place, though it is true that several proceedings by way of criminal prosecutions and preventive measure were adopted against the petitioner and though in all those proceedings he was either acquitted, exonerated or released, there is no material on record to show what connection those prior proceedings had with respondent No. 1 who has passed the externment order in question. It is possible that the petitioner might have been proceeded against in the aforesaid manner on several occasions between 1950 and 1966 but how and why respondent No. 1 should be actuated with malice or mala fide intention towards the petitioner has nowhere been brought on record. Secondly, it is abundantly clear from the notice which was served upon the petitioner that all the activities on his part which were the subject -matter of enquiry related to the period between April 1968 and October 1968 -in respect of which alleged activities no prosecution nor any preventive measures were adopted previously. Thirdly, respondent No. 1 has made it very clear in his affidavit that he has not taken into consideration, while passing the order in question, any of those prior proceedings adopted against the petitioner between 1950 and 1966 and in fact ho confined his attention to the materials placed before him pertaining to the activities of the petitioner during the period April to October 1968. In view of these facts and circumstances, it is difficult to hold that respondent No. 1 was actuated by any malice or mala fide intention against the petitioner when he considered the relevant material and passed the order.