HANSRAJ KANJI MARU Vs. DY COMMISSIONER OF POLICE

JUDGEMENT

(1.) THIS petition under Articles 226 and 227 of the Constitution of India prays for the issuance of a writ of certiorari or a writ in the nature of mandamus quashing the order of externment dated 24-1-1998 and the order passed in Appeal by the State Government dated 23-2-1998.

(2.) SHOW cause notice under Section 59 of the Bombay Police Act, 1951 was issued to the Petitioner on 9th May, 1997 asking him to appear before the Asstt. Police Commissioner, Vakola Section, Mumbai on 19th May, 1997 in answer to the allegations contained in the notice. Briefly the allegations were that from the month of September, 1996 till date (leaving the period of police custody) petitioner and his associates are causing fear, danger and risk to the inhabitants of Kalina, Santacruz (East) Station, Golibar, Prabhat colony, Hanuman Tekadi, Mumbai of Vakola Police Station and the life and property of the general public or there is a possibility to cause the same in future and there are much trustworthy reasons against them. It is further stated that the petitioner and his associates are involved in the offences of violence and force as mentioned in Sections 12, 16 and 17 of the I. P. C. or there is possibility of involving in such offences in future and on account of fear and terror no witness would be coming forward openly to give evidence against the petitioner. The gist of allegations also included general particulars of the statements which had been recorded. It was also stated that Vakola Police Station had raided the petitioners matka and gambling dens over and over again which are run by the petitioner clandestinely with the result the following offences had been registered against the petitioner in the Vakola Police Station. Offence No. (LAC)Act/section 1. 1133/96 gambling Act, under Sections 4,5 2.1254/96 "" "" 3.144/97 "" "" 4.316/97 "" "" The show cause notice further states that the witnesses suffered at the hands of the petitioner and there is possibility of fear, danger and loss of their life, prestige and property. Hence they are afraid of coming out to give statements against the petitioner. The petitioner appeared before the Assistant Commissioner of Police and submitted a detailed reply. In this reply he had stated that the witnesses whose statements have been recorded in camera are in fact non-existent. It is also stated that the externment proceedings have been taken mala fide as actually the police is interested in clearing the area of gambling activities. It is stated that the petitioner was not indulging in any anti-social activities. He is not running any matka business. The cases registered against him for gambling are pending in Courts and they will take their own course. It is also stated that the petitioner is a highly respected member of the community. He is an income-tax payee. He is a social worker and therefore the Deputy Commissioner of Police has acted in a high handed manner and has manipulated the issue of show cause notice against him. Apart from this, the petitioner has submitted for the consideration of the enquiry officer certificates from the respectable members of the locality. One such certificate has been issued by the Corporator of the locality which is dated 19th May, 1997. Sworn affidavits had also been filed by individuals stating that the allegations which have been made by the witnesses in the incamera statements are totally false. It is stated that no such activities as alleged in the show cause notice are being carried on by the petitioner. Counsel submits that in respect of the aforesaid material the enquiry officer submitted findings against the petitioner. It is submitted that the aforesaid findings are based on no evidence. Statements made by the witnesses in incamera cannot be relied upon. It is further stated that the notice on the basis of which the impugned order has been passed was vague. The externment order is said to be vitiated on account of mala fides and having been based on extraneous circumstances. It is vehemently submitted by the Counsel for the petitioner that a perusal of the externment order would show that the same has been passed on the basis of the four cases which have been registered against the petitioner for gambling. As the Respondents had failed to secure conviction of the petitioner under the Bombay Prevention of Gambling Act, these proceedings have been initiated against him. Counsel further submits that no opportunity of hearing was given to him at the time when the order of externment was passed. In any event, submits the Counsel, the order is vitiated on account of gross and unexplained delay between the issuance of the notice and the passing of the externment order. Furthermore it is submitted by the Counsel that the externment order in fact suffers from the vice of excessive punishment. The maximum period for which a person can be externed is 2 years. Under the impugned order the maximum period of externment has been imposed. Furthermore, the alleged criminal activities of the petitioner were restricted to the areas which are mentioned in the show cause notice. However, the impugned order has directed the petitioner to remove himself from Bombay as well as Thane Districts. Relying on the aforesaid facts Counsel submits that the impugned order of externment is vitiated and liable to be set aside.

(3.) ON the facts of this case it must be seen that definite allegations have been made against the petitioner in the show cause notice. The allegations which have been made against the petitioner are serious ranging from hooliganism, matka operations, robbery, use of unlawful force, unlawful use of fire arms i. e. revolver, molestation of women and generating fear generally within the locality. It is also true that four cases under the Bombay Prevention of Gambling Act have been registered against him. From this it would not be possible to conclude that the issuance of the show cause notice or the externment order have been actuated by motives other than what is stated in the show cause notice. In answer to the submissions made by the Counsel. Mr. Sonawane, Counsel for the petitioner, Mr. Mhaispurkar, learned APP, submits that the orders have been passed strictly in accordance with law. Counsel further submits that a perusal of the externment order would show that the competent authority had come to the conclusions on the basis of the evidence that the petitioner is guilty of the commission of various offences like gambling, intimidation, assault, threats of dire consequences, molestation at the point of deadly weapons such as swords, choppers. The Competent Authority, therefore, came to the conclusion that the petitioner has created a terror in the minds of residents and women in the areas mentioned in the show cause notice. These conclusions have been reached by the Competent Authority after taking into consideration the written submissions presented by the Advocate for the petitioner to the enquiry officer on 15th Jan, 1998. It is categorically noted that the witnesses were not coming forward to depose against the petitioner. Learned APP has relied on a judgment of the Supreme Court reported in AIR 1973 SC 630 (Pandharinath Shridhar Rangnekar v/s. Dy. Commissioner of Police ). Counsel submits that the very same submissions which have been made in this case were also made in the said case. The submissions in that case were as follows: "5.Learned Counsel appearing on behalf of the appellant has raised the following points: (i)The allegation that witnesses were not willing to come forward to depose against the appellant in public is falsified by the very record of the present proceedings. (ii)The particulars contained in the notice issued under Section 59 of the Act are so vague that the appellant could not possibly meet the allegations made against him and thus he was denied reasonable opportunity to defend himself. (iii)The externing authority must pass a reasoned order or else the right of appeal would become illusory. (iv)The State Government also ought to have given reasons in support of the order dismissing the appeal. Its failure to state reasons shows non-application of mind; and (v)The order of externment imposes unreasonable restrictions on the personal liberty of the appellant in that, whereas his activities are alleged to be restricted to an area within the jurisdiction of the Vile Parle Police Station, the order of externment not only extends to the whole District of Greater Bombay but to the District of Thane also. " After examining the arguments, the Supreme Court had come to the conclusion that there was no connection between the criminal cases and the incidents referred to in the externment order. Similar, states learned APP, is the situation here. The cases registered against the petitioner under the Gambling Act have no relevance. Although the same have been mentioned in the externment order, they are not the foundation of the said order. Similarly the second point was rejected by the Supreme Court for the reasons which are identical to the facts in this case. A perusal of the record also shows that sufficient opportunity was given to the petitioner to represent his case. In fact, in their anxiety to give sufficient opportunity, a little longer time had been taken in passing the order of externment. It is this very opportunity which is taken advantage of by the learned Counsel for the Petitioner to state that the externment order is vitiated on account of unnecessary delay. As noticed earlier, the affidavits in support of the petitioner were not given till August, 1997. The written submissions were also not submitted until Jan, 1998. Thus it can hardly be said that there is any delay in passing the impugned order. In any event it cannot be said that any prejudice has been caused to the petitioner. The submission of the Counsel with regard to the externment from Thane District has also been taken care of in paragraphs 18, 19 and 20 of the said judgment which are as follows : "18.That is why, on similar facts, the Bombay High Court has consistently repelled challenges made to externment orders on the ground that they extended not only to the District of Greater Bombay but to the district of Thane as well. In Criminal Application No.1427 of 1968 a Division Bench (Kotval, C. J. and Kamat, J.) observed in their judgment of March 17, 1968 :- " In the present case the area of activity of the externee was undoubtedly stated to be Santacruz, but Santacruz is a fairly wide area. Moreover, it is very intimately connected with the surrounding area of Thana district. It is common knowledge that Thana town in the surrounding area is also an area where large industries have grown contiguous with the industrial area of Greater Bombay and that the entire industrial area is connected together by several means of communication including suburban trains of which there are several during each day, by taxis plying to and from Greater Bombay and by bus services operating between Greater Bombay and several parts of Thana District. Therefore, the police could reasonably have thought that it would not be sufficient to ask the petitioner to keep off only from the area of Greater Bombay which has an equally busy and highly industrialised area contiguous to it. Therefore, the order was extended to Thana District. " 19.A similar view was taken by Palekar and Gatne, JJ. in Criminal Applns. Nos. 30 and 93 of 1970 decided on 23-2-1970 (Bom.) by Tulzapurkar, J. in 73 Bom LR 442 at pp. 453-454 and by Bhasme and Kania, JJ. in Criminal Application No.149 of 1972 decided on 3-3-1972 (Bom. ). As against the judgment last mentioned the externee had filed special leave petition No.487 of 1972 in this Court, one of the grounds stated therein being that the externment order was void because the externee was asked to remove himself not only out of the district of Greater Bombay but from the limits of Thana district as well. The petition was dismissed by this Court (Palekar and Dwivedi, JJ.) on 20-9-1972. 20.These judgments of the Bombay High Court have taken the view that the districts of Greater Bombay and Thana form, soto say, a single unit. Palekar, J. observes in his judgment in Criminal Applns. Nos. 30 and 93 of 1970 (Bom.): " It may be that the area of operation may be in a particular locality, but if the externment is limited to that area, then it might be impossible to prevent the externee from visiting that area every day. Any part in Bombay is easily connected by transport with any other part of Greater Bombay, and also the Thana District, and if, for example, an externee is externed outside the limits of Greater Bombay, then he should not take more than 15 minutes to reach Kurla from a place like Thana if the latter is excluded from externment. The very object of externment is to make it as difficult as possible to the externee to return to the field of his activities. " Tulzapurkar, J. expressed the same view by saying that "the contiguous area of Thana district is intimately connected with the industrial area of Greater Bombay with cheaper and quicker means of transport and communication. " According to Bhasme, J. who delivered the judgment of the Bench in Criminal Appln. No.149 of 1972 (Bom.) "by reason of the means of communication and proximity, the districts of Greater Bombay and Thane are for all practical purposes one local area or one district. " Deshmukh, J. in the judgment under appeal, says that. " Greater Bombay and Thana districts are intimately connected by several communications. " In matters of local colour and conditions the view so consistently expressed by the learned Judges of the High Court must, in our opinion, be accepted as correct. " With regard to the period of externment I do not find any justification in interfering with the orders passed by the competent authorities. The period for which the externment is to last is within the jurisdiction of the competent authorities under the Bombay Police Act. This Court while exercising its powers under Articles 226 and 227 of the Constitution of India normally would not be justified in imposing its own opinion on the quantum of punishment for the opinion of the competent authority.