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Madhya Pradesh High Court · body

2012 DIGILAW 150 (MP)

Preetam Sahu v. State Of M. P.

2012-02-02

K.K.TRIVEDI

body2012
JUDGMENT ( 1. ) THE grievance of the petitioner in this petition filed under Article 226 of the Constitution of India is that by the order dated 4-8-2011, the respondent No. 2, Collector, has directed the petitioner to leave the area of Districts Raisen, Vidisha, Sagar, Bhopal, Hoshangabad, Sehore and Narsinghpur within 48 hours from the date of receipt of order and not to enter in the said area for a period of one year without the permission of the competent authority. It is further directed by this order that in case of breach of the order aforesaid, action be taken against the petitioner under section 14 of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as 'Act'). It is contended that in response to the show cause notice issued, petitioner has filed his detailed reply pointing out the fact that the petitioner was not involved in any such activities on account of which such order of externment can be issued against him. No conduct of the petitioner was thereafter 2007 to indicate that the petitioner was involved in any such illegal activities, which has caused fear in the mind of people living in the society or that the peace in the area was likely to be disturbed. However, without considering such pleas raised by the petitioner, relying on the statement of certain persons recorded behind the back of the petitioner, the order impugned was passed. THE petitioner preferred an appeal under the provisions of section 9 of the Act aforesaid but without considering the grounds raised in the appeal, the same was dismissed by order dated 5-10-2011, therefore, the petitioner was required to approach this Court by way of filing this writ petition. It is, thus, contended that order passed against the petitioner is per se illegal and is liable to be quashed. ( 2. ) THAT no return has been filed by the respondent State but to assist the Court, record in original was called. After perusal of record, it is contended by the learned Government Advocate that there were reports against the petitioner and after considering the reports, action was initiated against the petitioner in the year 2008. Full opportunity of defence was granted to the petitioner. The reports submitted against the petitioner indicated that till the year 2007, there were cases registered against him involving the petitioner in the offences of Public Gambling Act. Full opportunity of defence was granted to the petitioner. The reports submitted against the petitioner indicated that till the year 2007, there were cases registered against him involving the petitioner in the offences of Public Gambling Act. The petitioner is keeping a shop and while doing the business, the petitioner was also involved in such gambling continuously and the offences were registered against him, of which the trial was conducted. It was further stated that on such action, the petitioner was sentenced with the fine under the aforesaid Gambling Act but he has not improved his behaviour. Thus, because of such reasons, on making a proposal against the petitioner by the police authorities, the statement of witnesses were recorded and after recording the statement, authorities came to the conclusion that because of the illegal activities of the petitioner, the atmosphere in the society was being polluted, therefore, show cause notice was issued to the petitioner and his reply was obtained which was not found satisfactory. In view of this, it is contended that if the order was passed against the petitioner, nothing wrong was committed by the competent authority. It is further contended that the appeal of the petitioner was considered and after examining the record, the Appellate Authority came to the conclusion that no wrong was committed by the authorities while passing order against the petitioner and, therefore, the appeal of the petitioner was dismissed. ( 3. ) HEARD learned Counsel for the parties at length and perused the original record. ( 4. ) UNDISPUTEDLY the report was given against the petitioner in the year 2008 on the basis of which the proceedings were initiated on 8-7-2008. The report submitted by the Superintendent of Police indicates that the petitioner was involved in committing offence of section 4-A of the Gambling Act and he was imposed with the fine under the said Act by the Court. The report further said that the petitioner continued to remain involved in the same offences and thereby was creating unrest in the society. However, when the statements of witnesses were recorded, it was nowhere said that even after the submission of the report, further offences were registered against the petitioner and it was found that he continued to remain involved in the offences under the Gambling Act. However, when the statements of witnesses were recorded, it was nowhere said that even after the submission of the report, further offences were registered against the petitioner and it was found that he continued to remain involved in the offences under the Gambling Act. No independent witness was examined to indicate that because of said activities of the petitioner, there was unrest in the society. The provisions of section 6(c) of the Act prescribe that if a person has been convicted thrice of an offence within a period of three years under section 3 or 4 or 4-A of the Public Gambling Act in its application to the State of Madhya Pradesh, the District Magistrate may, if he has 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, direct such person by an order, to remove himself outside the district or part thereof or such area or any district or districts or any part thereof, contiguous thereto by such route and within such time as the District Magistrate may order and not to enter or return to the District or part thereof or such area or such contiguous district or part thereof, as the case may be, from which he was directed to remove himself. However, this section has two parts, First is with respect to the involvement of a person and his conviction thrice of an offence within a period of three years and the other part is that the District Magistrate may, 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. For the first part, there was sufficient material available on record to indicate that the petitioner was convicted more than thrice within a period of three years for the offence under section 4-A of the Gambling Act. However, for the purposes of recording the satisfaction of the authorities, i.e. the District Magistrate that the petitioner is likely again to engage -himself in the commission of an offence similar to the aforesaid offence, it was necessary to record the evidence of the independent witnesses. However, for the purposes of recording the satisfaction of the authorities, i.e. the District Magistrate that the petitioner is likely again to engage -himself in the commission of an offence similar to the aforesaid offence, it was necessary to record the evidence of the independent witnesses. As is seen from the record, the respondent No. 2 has recorded the statements of only three persons namely, (i) Shriniwas Sharma, Head Constable of Police Station, Badi; (ii) H. L. Thakur, Station House Officer, Bamhori, who was earlier Station House Officer of Police Station, Badi; and (iii) Surendra Kumar Tiwari, Police Station Incharge, Badi. The statements of these witnesses are examined. ( 5. ) THE fact which was proved was only this much that certain challans were filed against the petitioner for offence under section 4-A of the Gambling Act and fine was imposed by the Court. However, even on the date of statement, it was nowhere said in the statement categorically by these persons that the petitioner was still involved in the commission of offence under section 4-A of the Gambling Act or that there were certain other cases registered against him continuously. THE first statement of witness Shriniwas Sharma was recorded on 18-5-2009, the other statement of witness H. L. Tiwari was recorded on 4-9-2010 but the said person was not the Police Station Incharge at the relevant time and he was not in a position to state whether the petitioner was still involved in commission of such offence of Gambling Act. THE only person Surendra Kumar Tiwari, who could state about such fact, was examined on 24-2-2011 but even he could not state that there were any offences committed by the petitioner after 2007 and cases were registered against the petitioner under the Gambling Act after the said year so as to indicate that still the petitioner was continuously involved in such offence. No other witnesses were examined nor any independent evidence was recorded in that respect. THErefore, it could not be said that there was sufficient material to hold that the District Magistrate was satisfied that the petitioner is continuously involved in commission of offence similar to that for which he was convicted. No other witnesses were examined nor any independent evidence was recorded in that respect. THErefore, it could not be said that there was sufficient material to hold that the District Magistrate was satisfied that the petitioner is continuously involved in commission of offence similar to that for which he was convicted. How could it be inferred when neither there was any evidence nor a proof nor even registration of a single crime against the petitioner after the date of show cause notice issued way back in the year 2008. Thus, the finding reached by the respondent No. 2 with respect to his satisfaction could not be said to be justified. ( 6. ) THE other aspect is that when the appeal was preferred by the petitioner under the statutory provisions of section 9 of the Act, the Appellate Authority was required to examine each and every ground raised by the petitioner in his memo of appeal. THE copy of memo of appeal is available on record as Annexure P-5. THE petitioner has very categorically contended that he was not involved in any such activities after the year 2007, It was categorically pointed out that when the show cause notice was received by the petitioner, he stated that all such offences were committed by the petitioner earlier. It further appears that show cause was issued to the petitioner only on 26-2-2011, i.e. after recording of the evidence and when the petitioner refuted such allegations made in the show cause, he was not offered an opportunity of cross-examining those witnesses, who were examined by the respondent No. 2. Nothing is available on record to indicate that after filing of the reply of show cause the petitioner was granted an opportunity of defence in appropriate manner by permitting cross-examination of those witnesses who were examined behind the back of the petitioner. After recording the order-sheet dated 23-5-2011 when the petitioner was directed to produce the defence witness, on three dates the case was adjourned because the Presiding Officer was not available. Only on 30-6-2011 the fact is recorded that the petitioner was present, he was heard and thereafter the order was passed on 4-8-2011. This indicates that virtually opportunity of defence was not granted to the petitioner. Only on 30-6-2011 the fact is recorded that the petitioner was present, he was heard and thereafter the order was passed on 4-8-2011. This indicates that virtually opportunity of defence was not granted to the petitioner. With the show cause the petitioner has filed the certificate of the Sarpanch of the Gram Panchayat where he is residing and it was said that the petitioner was living peacefully and was doing his grocery business. Thus, if this is how the respondent No. 2 came to the conclusion that the petitioner was still involved in the case of gambling and this was refuted and a specific ground was raised in his memo of appeal that the petitioner was not involved in any such offence after 2007 and no case was registered against him in the year 2008, 2009, 2010 or 2011, the Appellate Authority was required to examine such a ground and was required to record its finding. THE order passed by the Appellate Authority (Annexure P-1) lacks every such consideration. THE appeal of the petitioner was not properly decided. THE intention of providing statutory appeal under the statutory act is not to decide such appeal cursorily. THE intention is to consider each and every ground raised in memo of appeal, record a finding on the said grounds and then either to accept or to reject the said ground. If this is not done, the statutory appeal would become illusionary. ( 7. ) VARIOUS aspects have to be considered if such orders of restraint are to be issued because Article 21 of the Constitution of India gives a constitutional right to every citizen to live freely in India. Of course such a right can be restrained or curtailed in the given circumstances when it is found by the competent authority that such a freedom is being misused, causing hinderance in the right to live freely in respect of other citizens. If such restraints are to be put or such restraining power is required to be exercised, germane reasons are required to be given. If such restraints are to be put or such restraining power is required to be exercised, germane reasons are required to be given. The Apex Court in case of Ashadevi wife of Gopal Ghermal Mehta vs. K. Shivraj, Additional Chief Secretary to the Government of Gujarat and another, (1979) 1 5CC 222 has categorically held in paragraph 6 of the report as follows : "It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order. XX XX XX It is true that the detention order in that case was ultimately set aside on other grounds but the observations are quite significant. These observations were approved by this Court in Suresh Mahato vs. The District Magistrate, Burdwan. The principle that could be clearly deduced from the above observations is that if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal. After all the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order." ( 8. ) SOMEWHAT same principles are applicable if this Court is required to examine the subjective satisfaction, which is the pre-requisite on the part of authority imposing a restriction on a citizen. As has been stated hereinabove, involvement of the petitioner in the similar offence continuously after the show cause has not been proved. ) SOMEWHAT same principles are applicable if this Court is required to examine the subjective satisfaction, which is the pre-requisite on the part of authority imposing a restriction on a citizen. As has been stated hereinabove, involvement of the petitioner in the similar offence continuously after the show cause has not been proved. There is no material evidence available on record to indicate that the petitioner was involved in such an offence, which was causing any fear in the mind of members of the society. No independent evidence has been produced or obtained in that respect except the statement of witnesses, who were examined prior to issuance of show cause notice to the petitioner. There was lack of grant of opportunity to cross-examination of those witnesses also. Accordingly, the orders of the respondents cannot be given the stamp of approval by this Court. ( 9. ) CONSEQUENTLY, the writ petition is hereby allowed. The impugned orders dated 4-8-2011 and 5-10-2011 are hereby quashed. The petitioner be allowed to remain peacefully at his place of residence. However, it will be open to the respondents-authorities to keep a watch on the activities of the petitioner and in case it is found that he has resorted to the same criminal activities, they will be free to take action against the petitioner in accordance to law. ( 10. ) THE writ petition is allowed to the extent indicated hereinabove but with no order as to cost. Petition allowed.