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1989 DIGILAW 118 (GUJ)

GULAMMAHOMAD NOORMAHOMAD QURESHI v. STATE

1989-07-28

P.R.GOKULAKRISHNAN, R.A.MEHTA

body1989
P. R. GOKULAKRISHNAN, R. A. MEHTA, J. ( 1 ) THIS Special Criminal Application is to issue a writ of mandamus or any. other appropriate writ order or direction to set aside and also to quash the order of externment passed by Respondent No. 2 dated 20-3-1989 and order of confirmation by Respondent No. 3 dated 7-6-1989. ( 2 ) THE petitioner was given a show cause notice. on 30-5-1988 under Sec. 59 of the Bombay Police Act. In the show cause notice the following allegations have been made: It is alleged against you that you are a dangerous and desperate person and indulge in acts involving force and violance. You terrorise the residents of the localities with the help of accomplices known as Capri Hotel near Advance Talkies Near Bhadra Tar Office near Capri Hotel around Municipal Market Navrangpura Swastik Char Rasta areas under Karanj and Navrangpura Police Stations. It is further stated that such activities were being committed since the month of February 1988 and specifically it is stated that the petitioner with the help of his accomplices way-lay rob and extort money from the persons at the point of Rampuri knife and under threats of violence and that he used to purchase eatable goods from the business- men of the areas without payment and when legal dues are demanded he used to beat the persons and threatened to kill the persons with the help of Rampuri knife and razor. There is a further averment in the notice to the effect that the witnesses to the above said incidents are not willing to come forward to depose against him public by reasons of apprehension on their part as regards safety of their person and property. After alleging so the show cause notice states that it is proposed to extern the petitioner for a period of two years not only from the City of Ahmedabad but also from the contiguous districts of Ahmedabad Rural Kheda Gandhinagar and Mehsana. Alleging all these facts of the case the petitioner was asked to show cause as to why he should not be externed for a period of two years from the above said places. Alleging all these facts of the case the petitioner was asked to show cause as to why he should not be externed for a period of two years from the above said places. After getting the reply and also examining the witnesses produced by the petitioner the Deputy Police Commissioner who is the externing authority in this case passed an order of externment on 20 externing the petitioner for a period of two years from Ahmedabad City Ahmedabad Rural Mehsana Kheda and Gandhinagar Districts. ( 3 ) IN the externment order the externing authority has specifically stated that he has considered all the evidence produced before him and that he was satisfied that the petitioner is a dangerous and desperate person and committed the offences punishable under the Indian Penal Code. The externing authority has further stated that the petitioner performed all such activities near Capri Hotel near Advance Talkies near Bhadra Office near Municipal Market near Swastik Char Rasta. The externing authority has further stated that such type of activities were done by the externee from February 1988 in the areas mentioned in the show cause notice. There is a specific finding by the externing authority to the effect that the witnesses are not ready and willing to depose against the petitioner due to risk of their life and property. ( 4 ) AGAINST the order of externment dated 20/03/1989 the petitioner preferred an appeal under Sec. 60 of the Bombay Police Act to the Government of Gujarat. The order of the externing autho- rity was confirmed by the Government after properly applying its mind and-examining the records produced before it. As against these orders the petitioner has come forward with the present Special Criminal Application. ( 5 ) MR. E. E. Saiyed the learned Counsel appearing for the peti- tioner has taken a number of grounds in order to convince us that the order of externment cannot be sustained. ( 6 ) THE first contention raised by Mr. Saiyed is that the person who has recorded the statement is not authorised to record the statement. It is clear from the case that the statement was recorded by the Preventive Crime Branch Inspector. It cannot be said that the recording of the statement by the Crime Branch Inspector is outside the purview of his duty and correctly the Crime Branch Inspector has recorded the statement of the witnesses. Mr. It is clear from the case that the statement was recorded by the Preventive Crime Branch Inspector. It cannot be said that the recording of the statement by the Crime Branch Inspector is outside the purview of his duty and correctly the Crime Branch Inspector has recorded the statement of the witnesses. Mr. Saiyed has also stated that in as much as the offences are alleged have been committed by the petitioner in the areas under the Karanj and Navrangpura Police Stations it is not correct for the Inspector to record statements when especially the offences have taken place in two different localities and in the jurisdiction of two different Police Stations. This argument cannot be countenanced since there is absolutely no prohibition in cases of externment for an Inspector to record statements for the purpose of placing it before the externing authority. Hene this argument of Mr. Saiyed cannot be sustained. ( 7 ) THE next argument advanced by Mr. Saiyed is that it is not correct to state that the witnesses are not willing to depose against the petitioner. The externing authority after properly appreciating the evidence before him and also applying his mind has come to the conclusion that the witnesses are not willing to depose against the petitioner. The affidavit-in-reply filed by the Officer concerned amply bears out as to how he is satisfied with regard to the apprehension in the minds of the witnesses to come openly to give evidence in this case. In the affidavit-in-reply it has been specifically stated: I say that the Police Sub Inspector P. C. B. Ahmedabad City had recorded statements of 7 persons who have given statements against the present petitioner in confidence which disclose three incidents took place in the jurisdiction of Navrangpura Police Station and 4 incidents took place in the jurisdiction of Karanj Police Station I say that from the material placed before me I was fully satisfied that the petitioner is engaged and likely to be engaged in anti-social and criminal activities and I was also satisfied that the witnesses were not willing to come forward to depose in public against the petitioner by reason of apprehension on their part as regard safety of their persons and properties from the petitioner. I was fully satisfied with the criminal and anti-social activities shown in the show cause notice. I was fully satisfied with the criminal and anti-social activities shown in the show cause notice. ( 8 ) THE next argument advanced by Mr. Saiyed is that the statements recorded by the Inspector P. C. B. are not at all verified by the externing authority. The extract we have made from the affidavit- in-reply in paragraph supra clearly establishes that the externing authority has applied its mind and satisfied himself with regard to the anti-social and criminal activities of the petitioner herein. ( 9 ) THE next contention raised by Mr. Saiyed is that in the show cause notice and in the externment order the words the petitioner is perpetrating such activities till today are not there and as such the order of externment is vitiated. We are afraid we are not able to appreciate this argument. It has been clearly stated in the notice under Sec. 59 and also in the externment order that the petitioner is perpe- trating such type of activities since the month of February 1988 and that he is engaged in the commission of such activities in the area and localities mentioned in the show cause notice. This is more than sufficient for the purposes of the notice under Sec. 59 of the Bombay Police Act. ( 10 ) THE next contention of Mr. Saiyed is that the names of the associates of the petitioner have not been given and hence the order of externment is vitiated. Such an argument advanced by the Counsel has only to be stated to be rejected. It is absolutely unnecessary for the authorities concerned to mention the names of the associates in the show cause notice and nowhere it is required to be stated. ( 11 ) THE next contention of Mr. Saiyed is that the petitioner should have been detained only under the provisions of the Prevention of Anti-Social Activities Act and should not have been externed under Sec. 56 of the Bombay Police Act. We are surprised as to how such an argument can be advanced. ( 11 ) THE next contention of Mr. Saiyed is that the petitioner should have been detained only under the provisions of the Prevention of Anti-Social Activities Act and should not have been externed under Sec. 56 of the Bombay Police Act. We are surprised as to how such an argument can be advanced. It is for the authorities concerned to invoke the provisions of the Bombay Police Act and it is too much for the petitioner to contend that if at all he has to be punished he can be detained only under-the provisions of the Prevention of Anti- Social Activities Act and cannot be externed under Sec. 56 of the Bombay Police Act. Assuming for a moment that he is detained under the provisions of the Prevention of Anti-Social Activities Act it will not take time for him to put forth the contention that he should have been externed under the Bombay Police Act instead of detaining him under the provisions of the Prevention of Anti-Social Activities Act. ( 12 ) THE next contention raised by Mr. Saiyed is that there is not even a single incident punishable under the Indian Penal Code anal as such the authorities should not have invoked Sec. 56 of the Bombay Police Act. In paragraph supra we have extracted the activities of the petitioner and they clearly make out offences punishable under the Indian Penal Code. The activities of the petitioner endanger both the person and property of people living in the locality mentioned in the show cause notice. It is also clear from the facts of the case that the witnesses are not willing to come forward to depose against the peti- tioner. The externing authority after properly applying its mind has come to the conclusion that the petitioner is dangerous and desperate person and he is a manace to the society. The relevant criteria of mentioning the area of activity and period of activity have been complied with in this case and necessary inference that has to be drawn by the externing authority has been drawn correctly by the authorities concerned after properly applying their mind. There is absolutely no infirmity or defect in the issuance of the show cause notice under Sec. 59 of the Bombay Police Act nor any defect in the order of externment passed under Sec. 56 of the Bombay Police Act. There is absolutely no infirmity or defect in the issuance of the show cause notice under Sec. 59 of the Bombay Police Act nor any defect in the order of externment passed under Sec. 56 of the Bombay Police Act. The affidavit-in-reply amply bears out the application of mind by the externing authorities concerned and we are satisfied that the order of externment was passed correctly and after proper appreciation of the evidence on record. ( 13 ) FOR all these reasons we do not find any substance in any of the contentions raised by the learned Counsel appearing for the petitioner herein and accordingly this Special Criminal Application is dismissed. Rule is discharged. ( 14 ) MR. E. E. Saiyed the learned Counsel appearing for the appellant states that due to the externment order the son and daughter of the petitioner are not able to attend schools since they have to be with the parents. It is stated by Mr. Saiyed that the petitioners wife is affected with T. B. and as such she is living with the petitioner. Naturally the children are also living with the parents. Mr. Saiyed states that he will be approaching the Government for the purpose of clemency in order to see that the period of externment is reduced. It is always open to him to approach the Government and pray for any clemency. (KMV) Rule discharged. .