INTIYAZALI SALIMUDDIN SAIYED v. DEPUTY POLICE COMMISSIONER BARODA
1985-06-22
P.R.GOKULAKRISHNAN, S.B.MAJMUDAR
body1985
DigiLaw.ai
P. R. GOKULAKRISHNAN, C. J. ( 1 ) THE petitioner has prayed for issuance of a writ of certiorari for quashing and setting aside the orders dated June 22 1984 and January 3 1985 passed by the respondents and they are Annexures B and C respectively to the main petition. ( 2 ) THE short facts of the case are that the petitioner has been externed under 23 Section 57 (c) of the Bombay Police Act 1951 from the areas of Baroda City Baroda (Rural) Kaira Panchmahals and Broach Districts. This is because of the fact that the petitioner committed offence punishable under Section 12-A of the Gambling Act and was convicted for four times with a fine of Rs. 15/- Rs. 20/- Rs. 30/- and Rs. 50/- on 2 7 11 and 1-10-81 respectively. The authorities concerned felt that the petitioner will again indulge in such offence and will continue the offending activities and will create an atmosphere of terror and danger amongst the citizens. Having these facts in view the authorities concerned on 21 issued a notice under Section 57 (c) of the Bombay Police Act 1951 read with Section 59 alleging as under : You are doing and encouraging gambling activity by playing rummy under Section 12 of the Prevention of Gambling Act in Makarpura Police Station area. In spite of the fact that during the period of three years you have been convicted as follows under Section 12 of the Gambling Act and still you are not leaving the gambling activity and you are continuing the said activity and this anti-social has created terrorism in the society and atmosphere of danger and terror. 1 Makarpura Police Station G. R. No. 104/80 Gambling Section 12-A dated 2 T. R. C. Rs. 15/- fine or 7 days imprisonment in default. 2 Makarpura Police Station G. R. No. 61/81 Gambling Section 12-A dated 7 TRC Rs. 20/- fine or 7 days imprisonment in default. ( 3 ) MAKARPURA Police Station G. H. No. 123/80 Gambling Section 12-A dated 11 T. R. C. Rs. 30/- fine or 5 day imprisonment in default. 4 Makarpura Police Station G. R. No. 15/81 Gambling Section 12-A dated 1 T. R. C. Rs. 50/- fine or 5 days imprisonment in default.
20/- fine or 7 days imprisonment in default. ( 3 ) MAKARPURA Police Station G. H. No. 123/80 Gambling Section 12-A dated 11 T. R. C. Rs. 30/- fine or 5 day imprisonment in default. 4 Makarpura Police Station G. R. No. 15/81 Gambling Section 12-A dated 1 T. R. C. Rs. 50/- fine or 5 days imprisonment in default. 3 It is also mentioned in this notice that the authorities propose to extern the petitioner for a period of two years from the areas of Baroda City Baroda (Rural) Kaira Panchmahals and Broach Districts or else the petitioner may continue his gambling activity both at Baroda City and its contiguous area with the help of his associates. After receiving the reply from the petitioner herein the externment order was passed on 22-6-84 mentioning the convictions referred to above and also stating that the Deputy Police Commissioner Baroda City is satisfied that the petitioner will again indulge into such offence and continue his offending activities and create an atmosphere of terror and danger amongst the citizens. Against this order of externment the petitioner herein preferred an appeal to the Government under Section 60 of the Act and the Government by its order dated 3-1-1985 confirmed the order of externment passed by the Deputy Police Commissioner Baroda City. It is against this order of the Deputy Police Commissioner Baroda City and also the appellate order of the Government dated June 22 1984 and January 3 1985 respectively that the petitioner is before us. ( 4 ) S. K. Bukhari the learned Counsel appearing for the petitioner submitted that mere conviction of the petitioner as provided under Section 57 (c) of the Act is itself not enough for externing him. According to the learned Counsel for the petitioner there must be some thing more to spell out that he will continue in such type of activities in spite of the convictions. Secondly the learned Counsel argued that there is no point made out to extern him from the contiguous area of Baroda City and hence the externment of the petitioner from the places mentioned in the externment order cannot be sustained. For 24 this proposition the learned Counsel cited the decision reported in 14 G. L. R. 384 Finally Mr.
Secondly the learned Counsel argued that there is no point made out to extern him from the contiguous area of Baroda City and hence the externment of the petitioner from the places mentioned in the externment order cannot be sustained. For 24 this proposition the learned Counsel cited the decision reported in 14 G. L. R. 384 Finally Mr. S. K. Bukhari the learned Counsel for the petitioner submitted that the order of externment is for two years that it will work out a very great hardship upon the petitioner and his family and that this Court may sympathetically consider and reduce the externment period. ( 5 ) WE have carefully considered all these points advanced by the learned Counsel for the petitioner. In reply Mr. D. K. Trivedi the learned Addl. Public Prosecutor submitted that there is enough material for the authorities concerned to spell out that the petitioner will continue in the activities punishable under the Gambling Act and that for such subjective satisfaction apart from having enough material on record it has been spelt out in the notice issued for offence committed under Section 57 (c) of the Act. The learned Addl. Public Prosecutor further submitted that the decision reported in 14 GLR 384 and also the decision reported in Special Criminal Application No. 201/84 which were cited by the learned Counsel for the petitioner for the proposition that the mere allegation that conviction is enough for externing a particular person cannot be sustained can be distinguished. Coming to the facts of the present case the notice issued by the authority concerned under Section 57 (c) read with Section 59 clearly states that the petitioner was convicted for an offence punishable under Section 12-A of the Gambling. Act for more than three occasions that he has continued the said activity and this anti-social activity of the petitioner has created terrorism in the society and that the citizens feel that they are in danger and terror. In the notice it is further stated that it is proposed to extern the petitioner for a period of two ears from the areas of Baroda City Baroda (Rural) Kaira Panchmahals and Broach Districts since the petitioner will continue his gambling activities in those areas with the help of his associates.
In the notice it is further stated that it is proposed to extern the petitioner for a period of two ears from the areas of Baroda City Baroda (Rural) Kaira Panchmahals and Broach Districts since the petitioner will continue his gambling activities in those areas with the help of his associates. Thus it is clear from the notice that the authorities concerned have not only mentioned the conviction imposed upon the petitioner under Section 12 of the Gambling Act but have also subjectively satisfied themselves that the petitioner is continuing the said activities and that this anti-social element may create terror and danger in the mind of the citizens. In respect of the externment of the petitioner from the surrounding area there is a clear averment in the notice that the petitioner will continue such gambling activities in those areas with the help of his associates. In this connection we can refer to the Section of the Bombay Police Act which deals with the case of the present nature. Section 57 (c) of the Act reads as follows :"if a person has been convicted : thrice of an offence within a period of three years under any of the provisions of the (Bombay Prohibition Act 1949 or under Section 4 or 12-A of the Bombay Prevention of Gambling Act 1887 or under Section 4 or 12-A of that Act as in force in the Saurashtra area or the Kutch area of the (State of Bombay) or under Section 4 of the Gambling Act or Section 3 of the Public Gambling Act 1867 as in force in the Vidarbha region of the State of Bombay the Commissioner the District Magistrate or the Sub-Divisional Magistrate empowered by the State Government in this behalf if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted may direct such person to remove himself outside the area within the local limits of his jurisdiction (or such area and any dis 25 trict or districts or any part thereof contiguous thereto) by such route and within such time as the said officer may prescribe and not to enter or return to the area (or the area and such contiguous districts or part thereof as the case may be) from which he was directed to remove himself".
( 6 ) IT is clear from this Clause (c) of Section 57 that apart from the conviction the authority empowered by the State Government must have reason to believe that such person is likely again to engage himself in the commission of offence similar to that for which he was convicted. That belief the authority must form and this is the subjective satisfaction of the authorities concerned which must be made known to the persons externed. In the decision rendered in Special Criminal Application No. 201 of 1984 the averment to the effect:". . . and this has created amongst peace loving citizens terrorism and atmosphere of danger and terror; and therefore you are a menace to the said society"has not been mentioned but in the present externment order such averment has been made. The then learned Chief Justice sitting with R. C. Mankad J. held that unless the authority is satisfied that the person to be externed will be menace to the society and grave consequence will follow the person concerned cannot be externed. As far as the present case on hand is concerned we have already noticed that there is not only the allegation with regard to the conviction of the petitioner but the authorities have also got themselves satisfied that they have reason to believe that the petitioner is likely again to engage himself in the commission of offence similar to that for which he was convicted. Hence we are of the opinion that the decision mentioned above can be easily distinguished and the first point raised by the learned Counsel for the petitioner cannot be sustained. ( 7 ) AS regards the second point regarding the externment of the petitioner from the contiguous areas we are afraid we are not able to appreciate this point also. There is a clear mention in the notice as stated above that the petitioner is likely to continue this type of activity in the surrounding area with the help of his associates. In 14 GLR 384 a Full Bench of this High Court had an occasion to consider Sections 56 59 and 60 of the Bombay Police Act. No doubt it has been said in that decision that the power of externment cannot be exercised mechanically or blindly; it can be exercised only if there is any valid ground justifying it.
In 14 GLR 384 a Full Bench of this High Court had an occasion to consider Sections 56 59 and 60 of the Bombay Police Act. No doubt it has been said in that decision that the power of externment cannot be exercised mechanically or blindly; it can be exercised only if there is any valid ground justifying it. That ground would be nothing else than the general nature of material allegations which must be set out in show cause notice and must also find peace in externment order. If the order of externment suffers from a lacuna the Court should not be over anxious to sustain the order by supplying the lacuna. It has been further observed in Full Bench judgment that the ground which would be really nothing else than the general nature of allegations must be set out in the show cause notice and it must also find peace in the order of externment. Finally the Full Bench allowed the petition made the rule absolute by issuing a writ quashing and setting aside the order of externment in so far as it externs the petitioner from the Sub-Divisions of Gondal and Morvi. As far as the present case on hand is concerned specific ground has been put in regarding the necessity to extern the petitioner from the surrounding places and further ground also has been put in to the effect that he will continue to indulge in such activities if not externed both in the show cause notice and in the order of externment. Hence the 26 decision reported in 14 GLR 384 cannot be pressed into service in favour of the petitioner herein. ( 8 ) THE facts narrated above clearly establish that not only the procedure of Section 59 has been followed but the print that has to be spelt out to sustain the order under Section 57 (c) of the Bombay Police Act 1951 has been established beyond any reasonable doubt in the present case. ( 9 ) THE last point urged by the learned Counsel for the petitioner for reducing the period of externment in the above view cannot be granted as the petitioner had ample remedy to reenter the places from which he has been externed by approaching appropriate authorities for the same. Hence this plea also cannot be sustained.
( 9 ) THE last point urged by the learned Counsel for the petitioner for reducing the period of externment in the above view cannot be granted as the petitioner had ample remedy to reenter the places from which he has been externed by approaching appropriate authorities for the same. Hence this plea also cannot be sustained. ( 10 ) FOR the foregoing reasons we are of the view that there is absolutely no merit in this petition and accordingly the rule is discharged. Rule discharged. .