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2016 DIGILAW 3405 (ALL)

SANJAY JAISWAL v. STATE OF U. P.

2016-10-05

PRABHAT CHANDRA TRIPATHI

body2016
JUDGMENT : 1. Sri Sunil Kumar Mishra holding brief of Sri Shriprakash Dwivedi, learned counsel for the petitioner and Sri L.D. Rajbhar, learned A.G.A. for the State of U.P. are present. 2. By way of this writ petition the petitioner has prayed to issue a writ, order or direction in the nature of certiorari, call for the record of the case and set aside the order dated 30.04.2016 passed by the learned Additional District Magistrate, Mirzapur in case no.10/242 of 2012 (State Vs. Sanjay Jaiswal), under Section 3 (3) of The Uttar Pradesh Control of Goondas Act, 1970, P.S. Chilh, District Mirzapur, whereby order of externment against the petitioner has been passed and also to set aside the order dated 08.08.2016 passed by the learned Divisional Commissioner, Vindhyachal Division, Mirzapur in appeal no.C2016160000358 of 2016 (Sanjay Jaiswal Vs. State of U.P.), under Section 6 of The Uttar Pradesh Control of Goondas Act, 1970, P.S. Chilh, District Mirzapur, whereby the appeal of the petitioner has been dismissed by the learned Divisional Commissioner, Vindhyachal Division, Mirzapur. 3. Learned counsel for the petitioner argued that the petitioner has been enlarged on bail in all the cases which are mentioned in the notice dated 19.01.2012 and the petitioner is facing trial in all of these cases. It has also been argued that on the basis of same cases, he has been implicated in The Uttar Pradesh Gangsters and Anti- Social Activities (Prevention) Act, 1986. He further submits that due to political rivalry, he has been falsely implicated. Learned counsel for the petitioner has submitted that no recovery of spurious country made liquor was made from the possession of the petitioner and whatever recovery was found of the country made spurious liquor that was from the possession of one Vicky Jaiswal. Learned counsel for the petitioner has also submitted that the impugned order of the learned Divisional Commissioner, Vindhyachal Division, Mirzapur has been passed in the absence of the petitioner. 4. Learned A.G.A. has vehemently opposed the contentions of the learned counsel for the petitioner and has submitted that the petitioner has a long trail of criminal history. The externment order of the period of six months dated 30.04.2016 has been passed on the basis of the police report available against the petitioner and more than five months have elapsed. 4. Learned A.G.A. has vehemently opposed the contentions of the learned counsel for the petitioner and has submitted that the petitioner has a long trail of criminal history. The externment order of the period of six months dated 30.04.2016 has been passed on the basis of the police report available against the petitioner and more than five months have elapsed. It has also been argued by the learned A.G.A. that the order dated 30.04.2016 of the learned Additional District Magistrate, Mirzapur was put to challenge in appeal by the petitioner which was dismissed vide order dated 08.08.2016 passed by the learned Divisional Commissioner, Vindhyachal Division, Mirzapur. 5. The Section 2 (a) and (b) of The Uttar Pradesh Control of Goondas Act, 1970 is enumerated in verbatim as follows:- “2. Definitions.?In this Act, unless the context otherwise requires? (a) "District Magistrate" includes an Additional District Magistrate specially empowered by the State Government in that behalf; (b) 'Goonda' means a person who? (i) either by himself or as a member or leader of a gang, habitually commits or attempts to commit, or abets the commission of an offence punishable under Section 153 or Section 153B or Section 294 of the Indian Penal Code or Chapter XV, Chapter XVI, Chapter XVII or Chapter XXII of the said Code; or (ii) has been convicted for an offence punishable under the Supression of Immoral Traffic in Women and Girls Act, 1956; or (iii) has been convicted not less than thrice for an offence punishable under the U.P. Excise Act, 1910 or the Public Gambling Act, 1967 or Section 25, Section 27 or Section 29 of the Arms Act, 1959; or (iv) is generally reputed to be a person who is desperate and dangerous to the community; or (v) has been habitually passing indecent remarks or teasing women or girls; or (vi) is a tout; Explanation.? 'Tout' means a person who? 'Tout' means a person who? (a) accepts or obtains, or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means any public servant or member of Government, Parliament or of State Legislature, to do or forbear to do anything or to show favour or disfavour to any person or to render or attempt to render any service or disservice to any person, with the Central or State Government, Parliament or State Legislature, any local authority, Corporation, Government Company or public servant; or (b) procures, in consideration of any remuneration moving from any legal practitioner interested in any legal business, or proposes to any legal practitioner or to any person interested in legal business to procure, in consideration of any remuneration moving from either of them, the employment of legal practitioner in such business; or (c) for the purposes mentioned in explanation (a) or (b), frequents the precincts of civil, criminal or revenue Courts, revenue or other offices, residential colonies or residences or vicinity of the aforesaid or railway or bus stations, landing stages, lodging places or other places of public resort; or (vii) is a house-grabber. [Explanation.?'House-grabber' means a person who takes or attempts to take or aids or abets in taking unauthorised possession or having law-fully entered unlawfully remains in possession, of a building including land, garden, garages or out-house appurtenant to a building.]” The Section 3 of The Uttar Pradesh Control of Goondas Act, 1970 is enumerated in verbatim as follows:- “3. Externment, etc. of Goondas.?Where it appears to the District Magistrate,? (a) that any person is a Goonda; and (b)(i) that his movements or acts in the district or any part thereof are causing, or are calculated to cause alarm, danger or harm to persons or property; or (ii) that there are reasonable grounds for believing that he is engaged or about to engage, in the district or any part thereof, in the commission of an offence referred to in Sub-clauses (i) to (iii) of Clause (b) of Section 2, or in the abetment of any such offence; and (c) that witnesses are not willing to come forward to give evidence against him by reason of apprehension on their part as regards the safety of their person or property? the District Magistrate shall by notice in writing inform him of the general nature of the material allegations against him in respect of Clauses (a), (b) and (c) and give him a reasonable opportunity of tendering an explanation regarding them. (2) The person against whom an order under this section is proposed to be made shall have the right to consult and be defended by a counsel of his choice and shall be given a reasonable opportunity of examining himself, if he so desires, and also of examining any other witnesses that he may wish to produce in support of his explanation, unless for reasons to be recorded in writing the District Magistrate is of opinion that the request is made for the purpose of vexation or delay. (3) Thereupon the District Magistrate on being satisfied that the conditions specified in Clauses (a), (b) and (c) of Sub-section (1) exist may by order in writing? (a) direct him to remove himself outside the area within the limits of his local jurisdiction or such area and any district or districts or any part thereof, contiguous thereto, by such route, if any, and within such time as may be specified in the order and to desist from entering the said area or the area and such contiguous district or districts or part thereof, as the came may be from which he was directed to remove himself until the expiry of such period not exceeding six months as may be specified in the said order; (b) (i) require such person to notify his movements or to report himself, or to do both, in such manner, at such time and to such authority or person as may be specified in the order; (ii) prohibit or restrict possession or use by him of any such article as may be specified in the order; (iii) direct him otherwise to conduct himself in such manner as may be specified in the order, until the expiry of such period, not exceeding six months as may be specified in the order.” 6. ave heard the learned counsel for the petitioner and the learned A.G.A. and also gone through the judgement of this Court in Jainendra @ Chhotu Singh son of Sri Devendra Singh Vs. ave heard the learned counsel for the petitioner and the learned A.G.A. and also gone through the judgement of this Court in Jainendra @ Chhotu Singh son of Sri Devendra Singh Vs. State of Uttar Pradesh through Principal Secretary (Home), Government of Uttar Pradesh, Additional District Collector/Additional District Magistrate (Protocol), Superintendent of Police and Station House Officer, MANU/UP/1761/2006 decided on 21.12.2006. 7. On careful perusal of the impugned order dated 30.04.2016 of the learned Additional District Magistrate, Mirzapur in case no.10/242 of 2012 (State Vs. Sanjay Jaiswal), under Section 3 (3) of The Uttar Pradesh Control of Goondas Act, 1970, P.S. Chilh, District Mirzapur, it is evident that on the report dated 13.01.2012 of the Superintendent of Police, District Mirzapur the present proceedings were initiated against the petitioner. The Superintendent of Police, District Mirzapur after enclosing the report of the Station Officer, P.S. Chilh, District Mirzapur has enumerated therein; that the petitioner Sanjay Jaiswal has been charged in the following offences:- “(i) Crime No.608 of 2010, under Sections 328, 304, 373, 372 I.P.C. and Section 60 Excise Act (ii) Crime No.609 of 2010, under Sections 328, 304, 373, 372 I.P.C. and Section 60 Excise Act. (iii) Crime No.610 of 2010, under Sections 328, 304, 373, 372 I.P.C., Section 60 Excise Act and 3(2) 5 SC/ST Act. (iv) Crime No.611 of 2010, under Sections 328, 304, 373, 372 I.P.C., Section 60 Excise Act and 3(2) 5 SC/ST Act and (v) Crime No.648 of 2010, under Section 3(1) of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.” 8. It has also been mentioned in the aforementioned report of the Superintendent of Police, District Mirzapur that the general reputation of the petitioner Sanjay Jaiswal is of a criminal and Goonda and he habitually commits offences punishable in Chapter XVI, XVII and XXII of the Indian Penal Code. Due to criminal activities of the petitioner Sanjay Jaiswal spell of fear is looming large in the general public. Due to this aura of fear nobody could muster courage to register a criminal case or could produce evidence against him. People of the local area are feeling unsafe, insecure and helpless due to criminal activities of the petitioner Sanjay Jaiswal. 9. Due to this aura of fear nobody could muster courage to register a criminal case or could produce evidence against him. People of the local area are feeling unsafe, insecure and helpless due to criminal activities of the petitioner Sanjay Jaiswal. 9. The petitioner has contested before the learned Additional District Magistrate, Mirzapur where he has contended that he has been falsely implicated due to the political rivalry of the election of Village Pradhan in the year 2010 and there is no trail of criminal history against him. 10. Learned Additional District Magistrate, Mirzapur after hearing the learned counsel for both the parties and perusal of the records has passed a speaking and detailed order dated 30.04.2016 which is also under challenge by way of this petition. 11.Moreover, impugned order dated 30.04.2016 passed by the learned Additional District Magistrate, Mirzapur was put to challenge by the petitioner in appeal no.C2016160000358 of 2016 (Sanjay Jaiswal Vs. State of U.P.), under Section 6 of The Uttar Pradesh Control of Goondas Act, 1970, P.S. Chilh, District Mirzapur before the learned Divisional Commissioner, Vindhyachal Division, Mirzapur. 12. In the memo of appeal, the petitioner has averred that in the election of Village Pradhan of the year 2010 several persons died due to excessive consumption of the alcohol but because of political rivalry, the petitioner was roped-in due to groupism and enmity. Again this matter was put to contest before the learned Divisional Commissioner, Vindhyachal Division, Mirzapur, who has clearly mentioned that as per report dated 23.06.2016 of the Superintendent of Police, Mirzapur, in the year 2010 several persons of local area/region died due to sale of spurious country made liquor by the petitioner and due to this a spell of fear gripped the local area. The petitioner is a person of criminal nature and does not bear a good reputation. 13. A huge quantity of spurious country made liquor was recovered from the possession of the petitioner. 14. The order of the learned Divisional Commissioner, Vindhyachal Division, Mirzapur has been passed on the basis of the police report and information. The impugned order 08.08.2016 of the learned Divisional Commissioner, Vindhyachal Division, Mirzapur is a detailed and speaking-one. 15. I have perused the impugned orders dated 30.04.2016 and 08.08.2016 passed by the learned Additional District Magistrate, Mirzapur and the learned Divisional Commissioner, Vindhyachal Division, Mirzapur respectively. 16. The impugned order 08.08.2016 of the learned Divisional Commissioner, Vindhyachal Division, Mirzapur is a detailed and speaking-one. 15. I have perused the impugned orders dated 30.04.2016 and 08.08.2016 passed by the learned Additional District Magistrate, Mirzapur and the learned Divisional Commissioner, Vindhyachal Division, Mirzapur respectively. 16. The aforementioned impugned orders do not suffer from any illegality, perversity or impropriety. The writ petition lacks merit and is liable to be dismissed. Dismissed.