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Madhya Pradesh High Court · body

2007 DIGILAW 723 (MP)

Abdul Mannan v. State of M. P.

2007-07-12

SHANTANU KEMKAR

body2007
JUDGMENT 1. With consent heard finally. Through this petition under Article 226 of the Constitution of India the petitioner has challenged the order dated 2.8.2006 (Annexure P-3) passed by the District Magistrate Anuppur externing the petitioner for a period of one year with effect from 2.8.2006 from districts Anuppur, Shahdol, Sidhi, Umaria, Katni, Rewa, Satna and Dindori in exercise of powers under section 5 (a) of the M.P. Rajya Suraksha Adhiniyam, 1990 (for short 'Adhiniyam') and requiring him to notify his movements and to report himself to the police stations where he will stay during the period of his externment by exercising powers under section 3 of the Adhiniyam. 2. On being noticed the State filed its reply and raised preliminary objection that the petitioner has got an alternative remedy of appeal provided under section 9 of the Adhiniyam and having not availed the same, the petition be not entertained. 3. The contention of the learned counsel for the petitioner is that the impugned order of externment being without jurisdiction inasmuch as the order of externment could have been passed externing the petitioner only to the contiguous districts of district Anuppur but by the impugned order he has been externed from districts Sidhi, Katni, Rewa and Satna which are not contiguous districts of district Anuppur, this being so the order is without jurisdiction, and as such the petition without availing the alternative remedy can be entertained. 4. A perusal of the impugned order of externment shows that the petitioner has been externed not only from the Anuppur and its contiguous districts but also the districts like Sidhi, Katni, Rewa and Satna which are admittedly not contiguous districts of district Anuppur. In the circumstances, the order of the petitioner's externment from the aforesaid district is beyond jurisdiction. Hence the preliminary objection raised by the respondents is rejected. 5. In the return, the State has tried to justify the impugned order on the ground that the petitioner was found to be indulged in the activity of speculation and gambling. Considering his activities and his conviction under the Public Gambling Act, 1867 the impugned order has rightly been passed. 6. On a perusal of the record and the impugned order, I find that the petitioner's externment order has been passed invoking section 5 (a) of the Adhiniyam. Considering his activities and his conviction under the Public Gambling Act, 1867 the impugned order has rightly been passed. 6. On a perusal of the record and the impugned order, I find that the petitioner's externment order has been passed invoking section 5 (a) of the Adhiniyam. For passing an externment order there must be a clear and present danger based upon credible material which makes the movements and acts of a person in question alarming or dangerous or fraught with violence. There must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in the locality or any part thereof is hazardous to the community and its safety. A stringent test must be applied in order to avoid easy possibility of abuse of this power to the detriment of the fundamental freedom. Natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of Articles 14, 19 & 21 of the Constitution. See Ayub Khan v. State of M.P. and another [1994 . (1) Vidhi Bhasvar 168]. 7. In order to pass a restriction order under section 3 of the Adhiniyam there should be satisfaction that the person is acting or is likely to act in a manner prejudicial to the security of the State or the maintenance of public order and to prevent him it is necessary in the interest of the general public to pass restriction order. 8. A close scrutiny of the impugned order shows that there is not satisfaction by the District Magistrate in regard to the fulfillment of requirement of sections 5 (a) & 3 of the Adhiniyam. The reasons assigned by the District Magistrate to extern the petitioner and to pass a restriction order against him are not satisfying the basic requirement of the said provisions. It is also worth noting that the show cause notice issued to the petitioner was not for the proposed action under section 6 (c) of the Adhiniyam, in the circumstances, the justification tried to be made by the respondents in the return on the ground that the petitioner has been convicted for Public Gambling Act, 1867 is in-consequential and cannot be looked into for want of show cause notice to that effect. 9. 9. In view of the aforesaid, the impugned order dated 2.8.2006 (Annexure P-3) passed by the District Magistrate, Anuppur deserves to be and is hereby quashed. 10. The petition is allowed.