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Madhya Pradesh High Court · body

2009 DIGILAW 7 (MP)

NARESH BILWAR v. STATE OF M P

2009-01-05

PRAKASH SHRIVASTAVA

body2009
Judgment ( 1. ) THIS writ petition is directed against the order dated 25. 2. 2008 passed by the District Magistrate / Collector in respect of extemment of the petitioner from district Narsinghpur and its adjoining districts chhindwara, Seoni, Jabalpur, Damoh, Sagar, Raisen and Hoshangabad for a period of one year under section 5 of the MP. Rajya Suraksha Adhiniyam, 1998, ( for short the State Security Act) and the order dated 13. 5. 2008 passed by the commissioner rejecting the appeal against the order of extemment. ( 2. ) THE petitioner is a resident of Gotegaon, district Narsinghpur. The superintendent of Police, Narsinghpur, vide memo dated 14. 9. 2005 had sent a report to the District Magistrate in respect of extemment of the petitioner for a period of one kear Tte statement of only one witness was recorded in pursuance to the report and that witness stated that he did not know anything about the petitioner. Thereafter, a show cause notice dated 3. 1. 2006 was issued which was replied by the petitioner on 14. 9. 2005. the Collector then passed the order of extemment dated 25. 2. 2008 which was challenged by the petitioner in appeal before the Commissioner and the commissioner by the order dated 13. 5. 2008 dismissed the appeal. Aggrieved with these orders the petitioner filed the present writ petition. ( 3. ) LEARNED counsel appearing for the petitioner submitted that the proceedings remained pending before the Collector for more than 2 years which shows that the extemment was not warranted and the order has been passed without proper application of mind. He further submitted that the order of extemment has been passed on the basis of old and stale cases in which the petitioner was already acquitted. ( 4. ) LEARNED counsel appearing for the respondents submitted that the impugned orders have rightly been passed since there were as many as 16 cases registered against the petitioner, a list of which is filed herewith as Annexure R/l. He further submitted that the order has been passed after following the due process and considering the relevant material. ( 5. ) I have heard learned counsel for the parties and perused the record. ( 6. ) THE State Security Act has been framed with an object to provide for the security of the State, maintenance of public order and other matters connected therewith. ( 5. ) I have heard learned counsel for the parties and perused the record. ( 6. ) THE State Security Act has been framed with an object to provide for the security of the State, maintenance of public order and other matters connected therewith. Section 5 of the Act contains the conditions on which the order of externment can be passed by the District Magistrate and there need to be proper application of mind by the District Magistrate in respect of the conditions mentioned in section 5 of the Act which forms the basis for passing the order of externment. ( 7. ) THE District Magistrate has passed the impugned order under section 5 of the State Security Act which reads as under : 5. Removal of persons about to commit offence -Whenever it appears to the District Magistrate - (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property; or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission. of an offence involving force or violation or an offence punishable under Chapter XII*. of an offence involving force or violation or an offence punishable under Chapter XII*. XVI or XVII or under section 506 or 509 of the Indian Penal Code, 1860 (45 of 1860) or in the abetment of any such offence, and when in the opinion of the District Magistrate witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property; or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant; the District magistrate, may by an order in writing duly served on him or by beat of drum or otherwise as the District Magistrate thinks fit, direct such person or immigrant -a) so as to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease; or b) to remove himself outside the district or any part thereof or such area and any district or districts, or any part thereof, contiguous thereto by such route within such time as the district Magistrate may specify and not to enter or return to the said district or part thereof or such area and such contiguous districts, or part thereof, as the case may be, from which he was directed to remove himself. ( 8. ) FIRST challenge to the order of externment has been raised by the petitioner on the ground that report of the Superintendent of Police was submitted before the District Magistrate on 14. 9. 2005 whereas the impugned order has been passed on 25. 2. 2008 after a delay of more than 2 years which shows that such an order of externment was not warranted. ( 9. ) THIS court in the matter of Dharmendra Singh V State of MP, 2007 (2)M. P. L. J. 108, while considering the issue of delay in taking the action by the district Magistrate took the view that: 1. . . . . . . . . . . . . . There is no explanation in the return as to why and in what circumstances the order was withheld for more than 2 years and 10 months and what caused the District Magistrate, satna, to withhold the proceedings for more than 2 years and 10 months. . . . . . . . . . . . . . There is no explanation in the return as to why and in what circumstances the order was withheld for more than 2 years and 10 months and what caused the District Magistrate, satna, to withhold the proceedings for more than 2 years and 10 months. Inaction for a period of 2 years and 10 months in a case of extemment clearly suggests that the order of extemment was not warranted during the said period. ( 10. ) COMING to the facts of the case the respondents have produced the original record which shows that the report of the Superintendent of Police dated 14. 9. 2005 : was received by the District Magistrate arid the proceedings were initiated on. 30. 9. 2005. The final order has been passed by the District Magistrate on 25. 2. 2008. Therefore, there is a gap of about 2 years and 5 months between initiation of the proceedings by the District Magistrate and passing of the final order. Though petitioner had taken adjournment on some dates between20. 2. 2006to4. 1. 2007 but even after excluding the said period the order-sheets of the District Magistrate indicate that no urgency was shown in the matter. There is no explanation on record as to why the matter was delayed before the District Magistrate which establishes that the order of extemment was not warranted during the said period. ( 11. ) THE order of extemment has also been challenged on the ground of non-application of mind by referring to in the list of cases relied upon by the District. . . Magistrate and submitting that the order of extemment has been passed on the basis of old and stale cases in which the petitioner was already acquitted. ( 12. ) THIS court in the matter of Sanju @ Sqnjay Ben V. State of M. P. 2005 (4)MPHT 102 , referring to earlier judgments on this point held that: 8. It is also contended by him that old and stale activities cannot be grounds of externment, but in the case at hand, such cases have formed the base. ( 12. ) THIS court in the matter of Sanju @ Sqnjay Ben V. State of M. P. 2005 (4)MPHT 102 , referring to earlier judgments on this point held that: 8. It is also contended by him that old and stale activities cannot be grounds of externment, but in the case at hand, such cases have formed the base. Learned counsel has commended me to the decisions rendered in the cases of Premchand V. Union of India and others, AIR 1981 SC 613 , Ayubkhan V. State of m. P. and another, 1994 (1) Vibh 168, Bala @ tqbal V. Additional collector, Indore, 1995 Cr. LJ. (M?) 12, Nyaju @niyqsmodh. V State of M. P. 2000 (1) JLJ 321 , Jokhu V. District Magistrate, ujjain, 2000 (1) M. P. H. T. 554. 9. In the case of Bala (supra) this Court has laid down as under: "12. Perusal of the said provision establishes that activities on the basis of which an order of externment can be made against any person must be those as existing at the time when the order is proposed to be made. The past activities must be related to the situation existing at the moment when the order is to be passed. 13. Though as many as 8 offences are alleged to have been committedby him starting from the period 23. 6. 1989to 29. 7. 1993. The offences alleged to have been committed by him are under sections 151, 107, 116 (3), 110, 379 and. 324 IPG. and 25 of the arms Act. All these are petty offences which are still being ,. investigated. No details of other offences have been given. 14. Thus, in view of this Court the externment order cannot be sustained on account of old and stale activities alleged to have been committed by the petitioner. 15. Since the mandate of the section is that a person must be involved in the activities committed in the present time, in the instant case there are no activities committed either at the time of the issuance of notice or during the enquiry on the basis of which externment order could have been passed. Thus, on this ground alone the petition deserves to be allowed. 16. Thus, on this ground alone the petition deserves to be allowed. 16. It may also be pointed out that the respondents have failed to give details of the offences and the stage at which the same are pending against the petitioners. " In the case of Niyajur (supra), it has been observed that all opportunities should be given to person whose liberty is likely to be affected by the State. ( 13. ) THIS court in the matter Asafali, s/o Sheikh Mubarak V. State of M. l 2006 (3) MPLJ 592 , held that: 7. Thus, on the basis of such old and stale offences under the indian Penal Code in which the petitioner has been acquitted and also the petty offences under sections 107, 110, 116 (3), 151 of the criminal Procedure Code, the order of externment under section 5 (b) of the Adhiniyam cannot be sustained. See Bala @ Iqbal V. Additional Collector, Indore, 1997 Cr. L. R. MP 72. In case of ayub Khan V. State ofm. P, 1994 (1) VIBHA 168. a Division bench of this Court has observed that the powers of externment are to be exercised sparingly with care and circumspection. They cannot be used for punishing a man for his past deeds. In view of. the aforesaid legal position the petitioners externment under section 5 (b) of the Adhiniyam cannot be sustained and is quashed. ( 14. ) THIS court in the matter of Pappu @ Dinesh Gupta V. State of M. P. an others, 2007 (3) M. P. L. J. 115, has held that: 11. Accordingly, conviction in seven criminal cases under section 4-A of the Public Gambling Act could not have provided material for passing an order of externment in exercise of powers under section 5 (a) of the Rajya Suraksha Adhiniyam; unless the district Magistrate was satisfied on the basis of material before it that the movements or acts of the petitioner were causing or calculated to cause alarm, danger or harm to person or property. 12. The record made available to this Court contains the report of Superintendent of Police and the statement of Manoj kumar Singh, Incharge Police Inspector of Police Station, anooppur. There is no other material on record, wherefrom it may be inferred that the acts of the petitioner were causing or calculated to cause alarm, danger or harm to a person or property. There is no other material on record, wherefrom it may be inferred that the acts of the petitioner were causing or calculated to cause alarm, danger or harm to a person or property. In order to exercise power under section 5 (a) of Rajya Suraksha Adhiniyam, learned District Magistrate was obliged to arrive at a categorical finding that the movements or acts of the petitioner were causing or calculated to cause alarm, danger or harm to person or property. Mere conviction in seven cases under section 4-A of the Public gambling Act by itself is not sufficient to pass an order of externment. it is the reach effect and potentiality of the acts of the petitioner which it supports would cause or calculated to cause alarm, danger or harm to person of property, which could ha provided a basis for externment. I may successfully refer for this preposition to the Supreme Court decision in the case of State of uttar Pradesh V. Kamal Kishore Saini, AIR 1988 SC 208 . ( 15. ) THUS, the powers. of externment are to be exercised sparingly with care and circumspection. The activities on the basis of which an order of extemment is made against any person should be those as existing at the time when the order was proposed to be made. The past activities should have nexus with the situation existing at the time when the order of extemment was passed. The externment order cannot be sustained on the basis of old and stale activities. Mandate of the section is that the person concerned must be involved in the alleged activities in the present time. ( 16. ) THE order of extemment passed by the Collector indicates that while passing the said order he had relied upon 14 cases registered against the petitioner mentioned in the report of the S. P. and 4 cases registered after the submission of the report by the S. P. The State has filed the reply enclosing annexure R/1 giving the position in respect of 16 cases. This chart indicates that cases from s. no. l to 13 were the cases registered prior to Jan. 2004. Out of these cases 11 cases are either closed, compromised or resulted into imposition of fine. Since the cases from s. no. This chart indicates that cases from s. no. l to 13 were the cases registered prior to Jan. 2004. Out of these cases 11 cases are either closed, compromised or resulted into imposition of fine. Since the cases from s. no. l to 13 were the cases registered against the petitioner more than 4 year prior to the passing of the impugned order and when those cases were registered no action was taken, therefore, cases at s. no. l to 13 cannot form basis for passing the impugned order. Case at s. no. 14 was for the period August 2005 also ended with imposition of fine. The case at s. no-15 is of 10. 8. 05 which is under section 41 (2) /110 Cr. P. C. which is not in respect of commission of any offence but is in respect of taking the security for good behaviour from habitual offender. It is also worth noting that the case at item no. 15 was not registered when the superintendent of Police had sent the report dated 14. 9. 2005. The case at s. no. 16 is of 2007 but that had resulted into acquittal of the petitioner. ( 17. ) THUS, these cases could not have formed the basis for passing the impugned order of externment and, therefore, it is found that there was no material before the District Magistrate which could satisfy the conditions mentioned in section 5 of the State Security Act.- ( 18. ) THE fact that the report submitted by the S. P. remained pending before the district Magistrate for about two and half year also indicates that there was no such need or urgency to pass an order under section 5. The District Magistrate while passing the impugned order did not consider the fact that in the list of cases which were sent by the Superintendent of Police includes most of the cases were petty in nature, stale and either closed or resulted in compromise or imposition of penalty. ( 19. ) CONSIDERING the aforesaid analysis, impugned order of externment dated 25. 2. 2008 and the order dated 13. 5. 2008 passed in appeal affirming the order of externment can not be upheld and they are set aside. ( 20. ) THE writ petition is allowed accordingly. Petition allowed.