JUDGMENT
Ar. Lakshmanan, C.J.
1.
Heard Shri D.V.Ramana Murthy, learned counsel for the petitioner, learned Advocate General as Amicus Curiae and also the learned Government Pleader for Home.
2. This Writ petition is filed challenging the constitutionality of Section 26 of the Hyderabad City Police Act, 1348 Fasli (hereinafter referred to as ‘the Act’) and the orders issued by the Commissioner of Police, Hyderabad, the 1st Respondent herein dated 15.2.2001 in his proceedings SB (1) No.10/Ext/S-1/2001 against the petitioner.
3. In view of the nature of questions involved in the Writ Petition, this Court, by order dated 28.2.2001 requested the learned Advocate General to appear in the matter.
4. According to the Writ Petitioner, the Prohibition and Excise staff of Charminar and Police of Chatrinaka started booking false cases against him under the Excise Act alleging that he is transporting/possessing I.D.Liquor. It appears, thereafter number of cases have been registered against the petitioner by the Prohibition and Excise Authorities and Police. According to the Petitioner he is not convicted in any case so far. As the matter stood thus, the first respondent served the impugned proceedings dated 15.2.2001 proposing to order externment of the petitioner from the limits of Hyderabad city for a period of six months as contemplated under Section 26 clauses (1) and (7) of the Act. The relevant provisions of Section 26 of the Hyderabad City Police Act 1348 Fasli viz., sub-clauses (1), (2), (3), (7) and (9) are reproduced hereunder:
26. Dispersal of gangs or assembly of persons:–(1) Whenever it appears to the Commissioner of City Police, Hyderabad—-(a) that the movements or acts of any person residing in the City of Hyderabad are causing or likely to cause danger, alarm or harm to the life or property of any person or that there are reasonable grounds to believe that such person is engaged or is about to be engaged in the commission of an offence necessitating the use of force or violence or an offence punishable under Chapters XII, XVI & XVII of the Indian Penal Code or is about to abet such offences and when in opinion of the Commissioner of City Police Hyderabad no witness is willing to give evidence in public against such person by reason of apprehension of harm to his life and property; or
(b) that an outbreak of an epidemic disease is likely to result from the continued residence of an immigrant; he may, by order in writing to be served on such person or by beat of drum or otherwise as the Commissioner of City Police, Hyderabad think fit, direct such person or immigrant to conduct himself in such manner as shall be necessary to prevent violence and alarm or the outbreak or spread of such disease or shall require such person to remove himself to such place or places and by such route or routes and within such time as the Commissioner or City Police, Hyderabad may prescribe.
(2)The Commissioner of City Police, Hyderabad may direct any person who has been twice convicted under Section 69 of this Act or any person who has been thrice
convicted within a period of 3 years under Section 4 or Section 13 of the Gambling Act, 1319 Fasli as amended to remove as aforesaid.
(3) The Commissioner of City Police, Hyderabad may also direct any person who not having been born within the City Police Limits, has been more than twice convicted of offence under Chapters XII, XVI and XVII of the Penal Code to remove himself in like manner from the City of Hyderabad or not to enter the City Police limits.
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(7) Before an order under sub-section (1), (2) or (3) is passed against any person, the Commissioner of City Police, Hyderabad or any officer authorised by him not below the rank of an Assistant Commissioner of Police shall inform such person in writing of the general nature of the allegations against him and give him sufficient opportunity of explaining those allegations.
If such person makes an application for the examination of any witness produced by him, the Commissioner of city Police, Hyderabad or such officer shall grant such application and examine such witness unless for reasons to be recorded in writing he is of the opinion that such application is made merely for the purpose of vexation or delay. Written statements put in by such person shall be filed with the relevant record. Such person shall be entitled to appear before the Commissioner
of City Police, Hyderabad or the said officer by a pleader or attorney for the purpose of explaining the allegations against him and for the purpose of examination of witnesses produced by him.
(9) Any person aggrieved by an order made by the Commissioner of City Police, Hyderabad under sub-sections (1), (2) or (3) may appeal to the Government within thirty days from the date when such order is made.
5. It is vehemently contended by Mr. Ramana Murthy, learned counsel for the petitio
ner that before an order under sub-sections (1), (2) or (3) of Section 26 of the
Act is passed, the Commissioner of Police, Hyderabad or any officer authorised
by him not below the rank of an Assistant Commissioner of Police shall inform such person in writing about the general nature of the allegations levelled against him and give him sufficient opportunity for explaining those allegations. If such person makes an application for examination of any witnesses produced by him, the Commissioner of Police, Hyderabad or such officer shall grant such application and examine such witnesses unless, for reasons to be recorded in writing, he is of the opinion that such application is made merely for the purpose of vexation or delay. It is further contended that the aforesaid provisions are obsolete draconian laws, which were framed in Fasli 1348 during the regime of Nizam under the advice of the Britishers obviously to suppress the Freedom struggle against the Britishers and also the revolt against the Nizam Rule by those who were craving for democracy.It is also contended that at that time there was no proper conception of Fundamental Rights of individual citizens and/or principles of natural justice. It is further contended that in the impugned order, the Commissioner of Police stated that the petitioner may submit his written representation and produce witnesses, if any, on his behalf, before the Assistant Commissioner of Police, Chatrinaka i.e., the 2nd respondent herein. According to the petitioner this procedure is not in conformity with the one that is contemplated in Sec.26 (7) of the Act as the order dated 15.2.2001 was issued and signed by the Commissioner of Police himself, but not by any officer authorised by him as contemplated in the 1st Para of sub-section (7) of Section 26 of the Act. As per sub-section (7), such order could have been given even by an Assistant Commissioner of Police authorised by the Commissioner if he so desires. Therefore, it is submitted that the impugned order is null and void ab intio as it violates the procedure as contemplated under Section 26 clause (7) of the Act.
6. A counter-affidavit has been filed by the Deputy Commissioner of Police, South
Zone, Hyderabad, the second respondent herein. In the counter-affidavit the alle
gation of the petitioner that all the cases are false cases booked only for the
purpose of statistics of the Excise Station taking advantage of the petitioner’s
poverty and helplessness is denied. It is stated therein that the petitioner was booked by the Police Chatrinaka on 16.7.1999 as his movements were suspicious. Hence he was booked under Sec.110 Cr.P.C. and was bound over for keeping good behaviour vide Cr.No.191/99 of the said Police Station.It is also stated that the petitioner was having some dispute with his tenant and beat her with hands and trespassed into her house on 29.9.1999, which resulted in registering another case against him. But later, both the complainant and the petitioner compromised in the Lok Adalat on 30.12.2000. According to the 2nd respondent, 16 cases are booked against the petitioner out of which, 14 cases are under trial and there are number of complaints against the petitioner alleging that he is threatening the Panch Witnesses who have come forward to give evidence against him. It is also stated that as the activities of the petitioner have become dangerous and harmful to the public, the Commissioner of Police, Hyderabad City served a show cause notice on him on 16.2.2001 directing him to show cause as to why there should not be an order removing him from the limits of Hyderabad City. As the activities of the petitioner in selling of ‘Gudamba’ (illicit country liquor) are harmful for the general public he was served with the impugned notice of externment. It is also stated that although the Hyderabad City Police Act was framed during the Nizam period, the same is in force and very much applicable as on this day. It is also contended that as per Section 26 of the Act, the Commissioner of Police Hyderabad served a show-cause notice on the petitioner proposing his externment from the limits of City. It is further contended that as the activities of the petitioner have become dangerous and harmful to the public, the Commissioner of Police identified him as a fit person for externment and accordingly a show-cause notice dated 15.2.2001 was issued on him.
7. We have perused the provisions of Section 26 of the Act. In our opinion, the Com
missioner of Police, Hyderabad City can authorise an officer not below the rank
of Assistant Commissioner of Police to give sufficient opportunity to the propos
ed externee calling for his explanation regarding allegations levelled against h
im. In this particular case the Commissioner of Police, Hyderabad himself has i
ssued a show-cause notice to the petitioner and gave him the opportunity to submit his written representation and also produce witnesses if any against the proposed externment order before the Assistant Commissioner of Police, within the stipulated time as laid down in sub-section (7) of Section 26 of the Act. As per Section 26(1) of the Act, if movements or acts of a person residing in the City of Hyderabad are causing or likely to cause danger, alarm or harm to the life or property of any person and in the opinion of the Commissioner of Police, Hyderabad no witness is willing to give evidence in public against such person by reason of apprehension of harm to his life and property, such person can be externed for a considerable time. As the petitioner is involved in a number of cases and his movements/acts have become dangerous and harmful to the general public, the Commissioner of police issued the impugned show-cause notice on the ground that the petitioner is a fit person to be externed. It is also submitted that the impugned proceeding is only a show cause notice enabling the petitioner to submit his explanation to the competent authority. As per the provisions of the Act, every opportunity is being afforded to the petitioner to submit his explanation and further he is reserved with a liberty to make an application for examination of any witnesses produced by him and he is also entitled to appear before the competent authority by a Pleader or Attorney for the purpose of explaining the allegations levelled against him and for the purpose of examination of witnesses produced by him. Further, if the petitioner is aggrieved by any order passed by the competent authority, under sub-section (9) of Section 26 of the Act, he can prefer an appeal before the Government against the said order within 30 days from the date of the order. Therefore, it is submitted that the present Writ Petition filed by the petitioner is premature and not maintainable and it is liable to be dismissed in limini.
8. While issuing show-cause notice, the 1st respondent enclosed the grounds for proposed externment of the petitioner from the limits of Hyderabad City under Section 26(1) of the Act. It is contended by the learned counsel for the petitioner that the issuance of the impugned show-cause notice virtually deprived the petitioner of the benefits of Fundamental Rights guaranteed under the Constitution of India. We are unable to accept such a contention. An identical provision viz., Section 27 of the City of Bombay Police Act similar to Section 26 of the Hyderabad City Police Act 1348 Fasli came up for consideration before the Honourable Supreme Court and the Supreme Court in a decision reported in GURUBACHAN SINGH v. STATE OF BOMBAY1 has categorically held that the restrictions imposed upon the rights of free movements of the citizens are reasonable and come within the purview of Clause (5) of Article 19 of the Constitution and accordingly upheld the provisions of the Bombay Police Act. So far as the procedure to be followed is concerned, the Honourable Supreme Court observed that it is true that the suspected person is not allowed to cross-examine the witnesses who deposed against him and on whose evidence proceedings were started but by this itself it would not make the procedure unreasonable having regard to the avowed intention of the Legislature in making the enactment. The Supreme Court further held that the object would be wholly defeated if a right to confront or cross-examine the witnesses is given to the suspect. It is submitted that there can be no doubt that the provisions of sub-clauses (1) and (7) of Section 26 of the Act were made in the interests of general public to protect them against the dangerous and bad charactered persons whose presence in the particular locality may jeopardise the peace and safety of the citizens.
9. The learned Advocate General who appeared as Amicus Curiae in this case competently assisted us with erudition and submitted that Section 26 of the Hyderabad City Police Act is similar to Section 56 of the Bombay City Police Act, which replaced an earlier Section, viz., Section 27 of the City of Bombay Police Act. He further submitted that the Supreme Court upheld the constitutionality of Section 27 of the City of Bombay Police Act in Gurubachan Singh’s case. Following that judgment, Section 56 of the Bombay City Police Act was once again upheld in BHAGUBHAI v. DIST.MAGISTRATE2 by another Constitution Bench of the Supreme Court. On the basis of these decisions of the Supreme Court, the learned Advocate General submits that the Andhra Pradesh High Court has all these years been proceeding on the assumption that Section 26 of the Hyderabad City Police Act is a valid piece of Legislation.
10. The Apex Court in Gurubachan Singh’s case (1 supra) while dealing with Section 27 of the City of Bombay Police Act, observed at para 7:
“The second point urged by the learned counsel raises the question as to whether
S.27(1) of the City of Bombay Police Act has imposed restrictions upon the fundamental right of a citizen which is guaranteed under Art.19(1)(d) of the Constitution and being in conflict with this fundamental right is void and inoperative under Art.13(1) of the Constitution. There can be no doubt that the provision of S.27(1) of the Bombay Act was made in the interest of the general public and to protect them against dangerous and bad characters whose presence in a particular locality may jeopardise the peace and safety of the citizens. The question, therefore, is whether the restrictions that this law imposes upon the rights of free movement of a Citizen, come within the purview of clause 5 of Art.19 of the Constitution; or in other words whether the restrictions are reasonable? It is perfectly true that the determination of the question as to whether the restrictions imposed by a legislative enactment upon the fundamental rights of a citizen enunciated in Art.19 (1)(d) of the Constitution are reasonable or not within the meaning of clause 5 of the Article would depend as much upon the procedural part of the law as upon its substantive part; and the Court has got to look in each case to the circumstances under which and the manner in which the restrictions have been imposed. The maximum duration of the externment order made under Sec.27(1) of the Bombay Act is a period of two years and the Commissioner of Police can always permit the externee to enter the prohibited area even before the expiration of that period. Having regard to the class of cases to which this sub-section applies and the menace, which an externment order passed under it is intended to avert, it is difficult to say that this provision is unreasonable. The Commissioner of Police can in a proper case cancel the externment order any moment he likes, if, in his opinion, the return of the externee to the area from which he was removed ceases to be attended with any danger to the community.”
11. In Bhagubhai’s case (2 supra) another Constitution Bench of the Supreme Court dealing with Section 56 of the Bombay City Police Act, observed at para 13 as follows:
“But it was argued on behalf of the petitioner that S.56 itself was invalid as contravening the provisions of Article 19 of the Constitution – an argument which has already been dealt with by this Court in 1952 SC 221 (AIR V 39(B) referred to above.
In that case, Mukherjea, J (as he then was) delivered the judgment of the court after examining the constitutionality of S.27(1), City of Bombay Police Act, (Bom.IV of 1992). The operative word of that section are almost exactly the same as those of S.56 of the Act. It is not therefore necessary to re-examine the constitutionality of those very provisions in this case. It is enough to point out that no attempt was made in this Court to shake the authority of that decision.”
12. As already noticed above, the Writ Petition is filed challenging the issuance of a show-cause notice under Section 26 of the Hyderabad City Police Act. In view of the above pronouncements of the Supreme Court, we are of the considered opinion that the provision for externment can lawfully be made in public interest.
13. For the foregoing reasons, we hold that challenge made by the petitioner in the Writ Petition to Section 26 is unsubstantial in law and deserves to be rejected in toto. However, we observe that it would be open to the petitioner to reply to the impugned show-cause notice issued by the Commissioner of Police, the 1st respondent herein and satisfy the said Authority that the proposed order need not be passed at all.
14. The Writ Petition is disposed of accordingly reserving liberty to the petitioner to submit his explanation to the show-cause notice in accordance with law. 15 days time is given to the petitioner to submit his explanation to the impugned show-cause notice from the date of receipt of this order. There will be no order as to costs.