JUDGMENT
H.K. Rathod, J.
1. Heard Mr. Tirmizi, learned Advocate appearing on behalf of the petitioner and Mr. H.L. Jani, learned A.P.P. for respondents.
2. Both the present matters are pertaining to the petitioner-Megha Naranbhai Harijan who has been Ordered to be externed vide Order dated 24-2-2000 passed by the externing authority which Order was confirmed by the appellate authority vide Order dated 17th July, 2000.
3. In Special Cri. Application No. 539 of 2001, the petitioner extreme has challenged the impugned Order of internment dated 24-2-2000 as confirmed by the appellate authority vide Order dated 17th July, 2001.
4. In Special Cri. Application No. 552 of 2001, the petitioner extreme has challenged the impugned Order passed by the Sub-Divisional Magistrate, Palitana Under Section 62(1)(2) of the Bombay Police Act dated 20th April, 2000 which has been passed by the Sub-Divisional Magistrate, Palitana on the ground that the petitioner-extreme has committed breach of the conditions of the Order of internment dated 24th February, 2000 bearing Case No. 7 of 1999. Since the petitioner is common in both the petitions and since the petitions are arising out of the common set of facts, both the petitions are disposed of by this common judgment.
5. In Special Cri. Application No. 539 of 2001, the Sub-Divisional Magistrate, Palitana has served a show-cause notice to the petitioner in respect of the internment Case No. 7 of 1999 Under Section 59B of the Bombay Police Act whereby the petitioner was called upon to show-cause as to why he should not be extended from the District of Bhavnagar, Amreli, Rajkot, Surendranagar, Ahmedabad and Junagadh. Said show-cause notice was replied by the petitioner vide his reply dated 10th February, 2001, and thereafter, the concerned authority has passed Order of internment extending the petitioner for a period of two years from the District of Bhavnagar, Amreli, Surendranagar, Rajkot, Junagadh and Ahmedabad by Order dated 24-2-2000 which Order was confirmed by the appellate authority vide Order dated 17th July, 2000. Therefore, said Orders are under challenge in Special Cri. Application No. 539 of 2001.
6. Special Criminal Application No. 552 of 2001 is arising out of the Order passed by the learned Sub-Divisional Magistrate, Palitana Under Section 62 of the Bombay Police Act on the ground that the petitioner has committed breach of the Order of externment and was caught in the area of Bhavnagar from where he was Ordered to be externed, and therefore, considering the statements given by the petitioner before the P.I., Botad and also considering that the petitioner has entered in the limits of the area from where he was externed without prior permission, the concerned authority has directed that the petitioner shall be kept in custody upto 23-2-2002 in District Jail at Bhuj and subsequently was transferred to the Central Prisons, Sabarmati, Ahmedabad.
7. Learned Advocate Mr. Tirmizi has challenged the impugned Order of externment on the ground that in show-cause notice, no reasons have been assigned by the externing authority as to why the petitioner has been externed from the adjoining districts. He has submitted that in the show-cause notice, there was no reference about Rajkot District but in the Order of externment, the petitioner has also been externed from the Rajkot District, and therefore, it amounts to non-application of mind on the part of the concerned authority. According to him, the impugned Order of externment is a non-speaking Order. He has also submitted that the statements of the secret witnesses though recorded by the concerned authority prior to the issuance of the show-cause notice, copies of such statements were not supplied to the petitioner externee and no reference has been made in the show-cause notice and in the Order of externment also, no such reference was made but in the Orders passed by the appellate authority, reference thereof was made. According to him, in the Order passed by the appellate authority, it was mentioned that there are five unregistered offences against the petitioner as mentioned in the show-cause notice but in reality, no such unregistered offences have been mentioned in the show-cause notice. In view of these, learned Advocate Mr. Tirmizi has submitted that the material which was considered against the petitioner for externing him has not been furnished to him to enable him to make an effective representation and the copies of the statement of the secret witnesses were not supplied to the petitioner and this has resulted into violation of the mandatory provisions of Section 59 of the Bombay Police Act.
8. Learned A.P.P. Mr. H.L. Jani appearing on behalf of the respondents has submitted that the concerned authority has rightly considered three registered offences as well as various other activities which were carried out by the petitioner which were adversely affecting the public peace. He has submitted that the concerned authority was right in passing the impugned Order of externment after considering the reply given by the petitioner to the show-cause notice, and therefore, there is no non-application of mind on the part of the concerned authority. He has further submitted that the impugned Order of externment cannot be termed as ‘non-speaking Order’ since the reasons have been given for externing the petitioner from the adjoining districts. He has also submitted that there is reasoned Order passed by the concerned authority and the statements of the secret witnesses have been rightly considered because looking to the statements of the secret witnesses, activities of the petitioner were adversely affecting the public peace. Therefore, according to him, the Orders impugned herein does not require any interference by this Court.
9. I have heard the learned Advocates appearing on behalf of the respective parties. In the present petition, one contention which has been raised by the learned Advocate Mr. Tirmizi that statement of secret witnesses which have been recorded by the concerned authority and the same has been relied by the respondent No. 1 at the time of passing the externment Order but this fact has not been disclosed by the respondent No. 1 in show-cause notice, no statements were supplied to the present petitioner in spite of the demand made by the petitioner, and therefore, according to Mr. Tirmizi, effective reasonable opportunity which required to be given by the respondent No. 1 before passing the externment Order as per Section 59 is not given to the petitioner, and therefore, the Order of externment is required to be set aside.
10. The relevant provision of Section 59(1) of the Bombay Police Act, 1951 which is relevant to the facts of the present case, are quoted as under:
Section 59 Hearing to be given before Order Under Sections 55, 56 or 57 is passed:
(1) Before an Order Under Sections 55, 56 or 57 is passed against any person, the officer acting under any of the said Sections or any officer above the rank of an Inspector authorised by that officer shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. If such person makes an application for the examination of any witness produced by him, the authority or officer concerned shall grant such application; and examine such witness, unless for reasons to be recorded in writing, the authority or officer is of opinion that such application is made for the purpose of vexation or delay. Any written statement put in by such person shall be filed with the record of the case. Such person shall be entitled to appear before the officer proceeding under this Section by an Advocate or Attorney for the purpose of tendering his explanation and examining the witnesses produced by him.
(2) ….
While reading Sub-section referred to above, it is important to note that it is the duty of the respondent No. 1 to give reasonable opportunity to the petitioner before passing the externment Order against the petitioner. The language which has been used in a particular Section is provided that the officer shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. Therefore, this is a reasonable opportunity of tendering explanation given by the petitioner which requires to be satisfied before passing the externment Order against the present petitioner.
11. In the present case, there is no dispute on record that in show-cause notice, no such material is referred by the respondent No. 1 that statement of the secret witnesses were recorded and obtained by the concerned authority. This fact has not been disclosed in the show-cause notice which has been served to the petitioner. In light of this undisputed fact, the view taken by the Division Bench of this Court in case of Rambhai Khimchand v. State of Gujarat reported 1990 (2) GLH 625, this Court has made observations in Para 9 are as under.
9. As far as the present case is concerned, it cannot be said that unsubstantial or non-existent ground has been taken into consideration, but a ground which is germane for the purpose of externing a particular person has been taken into consideration by the externing authority without putting the externee on notice as regards that ground. If that be so, the Court cannot substitute objective judicial test for the subjective satisfaction of the executive authority and come to the conclusion that the executive authority, de hors the said ground which has not been put on notice to the externee was able to arrive at a decision for the purpose of externing the person concerned in that particular case. Thus, it is clear that reference to a particular instance such as persons of status and means have shifted from the locality so that they may not become the victim of such tort committed by the petitioner herein is a clear instance to show that the activities of the petitioner concerned have reached that degree of harm to the society that the interest of the society or even of that particular locality required that this individual who has become a public menace should be externed from the locality. This particular instance has not been put on notice to the externee though it finds place in the externment Order Natural justice requires that the person affected should have notice of the relevant materials on which the authority concerned bases its conclusion. The fact that the persons with status and means have shifted from their place so that they may not become victim of such torts by the externee concerned is one of the essential and relevant circumstance of externing a person. This essential circumstance on which the externing authority relied was not put on notice to the externee. As we have stated already, this circumstance finds place in the Order of externment. The failure on the part of the externing authority to put on notice to the externee regarding this particular circumstance, in our opinion, clearly vitiates the Order of externment and offers the principle of fair play and justice. For all these reasons, the Order of externment is quashed and set aside. Rule is made absolute.
12. In a decision rendered by the Bombay High Court in case of Mehmood Babu Kawal @ Dawarya Shaikh v. Assistant Commissioner of Police City Station Pune reported in 1991 Cri. LR (Mah.) 359, wherein the the Bombay High Court has made following relevant observations:
2. With the assistance of the learned Counsel of both the parties, we have gone through the show-cause notice dated 9th January, 1990 issued Under Section 56B of the Bombay Police Act as well as the Order of Externment passed Under Section 56 of the said Act. On perusal of the show-cause notice and the Order of externment, we find that the Order of externment specifically catalogued three criminal cases under Prohibition Act registered and pending against the externee. The said cases were not referred to at all in the show-cause notice. A perusal of the impugned Order further shows that the Externing Authority has in fact taken into consideration the fact that the petitioner deals in the sale of liquor and has been involved in offences under the Prohibition Act which is clear from his satisfaction recorded below the catalogue. He has stated that after considering the entire evidence placed before him and the reply advanced, he was satisfied that the proposed externee deserves to be externed. It is thus apparent that material extraneous to the show-cause notice was taken into consideration at the time of passing of the Order of Externment, and therefore, the Order of Externment is vitiated having been passed against the principles of natural justice. On this ground alone, the impugned Order is liable to be set aside. We further find that in the show-cause notice about 5 incidents of criminal acts of the proposed externee were cited but the date and the time of the incidents had been mentioned without reference to the locality where the alleged incident had taken place. A general nature of material particulars is necessary to be given to the proposed externee so as to offer him adequate opportunity to show-cause against the allegations. In the instant case, since various localities of Pune City are allegedly affected by the prejudicial activities of the proposed externee, it was necessary to give general particulars of the area where the alleged incidents had taken place. For all these reasons, stated above, we find that the Order of externment is vitiated and has to be set aside.
13. In one more decision rendered by this Court in case of Aswin Chandulal Cri. LR (Guj.) 517 : 1989 (2) GLR 1429, wherein this Court has in Para 9 made following relevant observations:
9. Shri has also stated in his affidavit that the Inspector, Police Station, Vadodara, had recorded statements of 11 persons in confidence. He further stated that he had applied mind on the relevant material of the case produced before him, which includes the statement of the persons recorded by the police. It is not stated in the notice that the statements of the witnesses were recorded by the police. If at all any such statements would have been recorded and intended to be relied upon, such statements would have been recorded and intended to be relied upon, at least, reference of the statements, without disclosing the names, with the time and place of such alleged illegal activities of the petitioner should have been made in the notice so that the petitioner could have got an opportunity to explain the said circumstances or lead evidence. Without giving him an opportunity or even letting the petitioner know that statements were recorded, the Deputy Commissioner of Police has relied on statements of 11 persons. It is true that general allegations are only required to be made in the notice, but when statements are relied upon for the externment Order at least, the person to be affected by such Order should be given an opportunity to explain atleast the general nature of allegations in the statements. The petitioner was, therefore, deprived of the opportunity to explain the circumstances, which weighed considerably with the externing authority, and therefore, also the Order vitiates.
14. I have considered the observations made by the Division Bench of this Court as well as the Bombay High Court. The material question is that before passing the externment Order, show-cause notice is necessary and the same has been considered to be as mandatory then it is the duty of the respondent No. 1 to give effective and reasonable opportunity to the petitioner referring all the materials taken into consideration by the respondent No. 1. If any material is left out and not disclosed in the show-cause notice and the same is considered in the externment Order, then it amounts to not giving an effective and reasonable opportunity for tendering explanation against the show-cause notice and the real purpose an object of Section 59(1) as enacted by the legislature will be frustrated. If any material which has been taken into account by the respondent No. 1 while passing the externment Order, in that case, it ought to have been disclosed to the petitioner in the show-cause notice so that the petitioner can effectively represent his case against the adverse material which has been collected and considered by the respondent No. 1. Therefore, according to my opinion, the respondent No. 1 has not given an effective reasonable opportunity to the petitioner and the Order of externment which has been passed by the respondent No. 1 against the petitioner is in fact passed in violation of principles of natural justice, and therefore, the Order of externment dated 24th February, 2000 and the Order of the appellate authority dated 17th July, 2000 deserve to be quashed and set aside.
15. In Special Cri. Application No. 552 of 2001, Order passed by the concerned authority namely Sub-Divisional Magistrate, Palitana Under Section 62(1)(2) of the Bombay Police Act has been challenged whereby the petitioner has been directed to be kept in custody at Bhuj jail upto 23-2-2002 on the ground that the petitioner has committed breach of the Order of externment, and therefore, learned Advocate Mr. Tirmizi has submitted that looking to the provisions of Section 62 of the Act, the concerned authority is not having such power and no such power is invested with the concerned authority. In the instant case, the authority has arrested the petitioner for breach of the externment Order and has placed him in Bhuj Jail for a total period of externment upto 23-2-2002, and therefore, according to him, the said Order is without jurisdiction and in gross misreading of the provisions of law.
16. Considering the contentions raised by the learned Advocates before this Court, it is very much clear that the externing authority is empowered to take action Under Section 62 of the Bombay Police Act against the externee on externment and the provisions of Section 62 of the Act reads as under:
Section 62. Procedure on failure of person to leave the area and his entry therein after removal: (1) If a person to whom a direction has been issued Under Section 55 (56, 57 or 57A), to remove himself from (any area, district or part thereof or from any specified area):
(i)fails to remove himself as directed, or (ii) having so removed himself except with the permission in writing of the authority making the Order (as provided in Sub-section (2) (enters the area, district or part thereof or the specified area within the period specified in the Orders the authority concerned may cause him to be arrested and removed in police custody to such place outside the area, district or part thereof or outside the specified area, and as the case may be, as the said authority may in each case prescribe.
(2) The authority making an Order Under Sections 55, 56, 57 or 57A may in writing permit any person in respect of whom such Order has been made to enter or return to the area, including any contiguous districts or part thereof [or to the specified area or areas,] from which he was directed to remove himself, for such temporary period and subject to such conditions as may be specified in such permission and may require him to enter into a bond with or without surety for the due observance of the conditions imposed. The authority aforesaid may at any time revoke any such permission. Any person who with such permission enters or returns, [or such area, district or part thereof or to such specified area] shall observe the conditions imposed, and at the expiry of the temporary period for which he was permitted to enter or return, or on the earlier revocation of such permission shall remove himself outside such area, or me area any contiguous district or part thereof, [or outside such specified area or areas], and shall not enter therein or return thereto within the unexpired residue to the period specified in the original Order made Under Section 55 [56, 57 or 57A] without a fresh permission. If such person fails to observe any of the conditions imposed, or to remove himself accordingly, no having so removed himself enters or returns to the area, or the area and any contiguous district or parts thereof [or to the specified area or areas], without fresh permission, the authority concerned may cause him to be arrested and removed in police custody to such place [outside the areas and district or part thereof or outside the specified area or areas, as the case may be], as that authority may in each case prescribe.
The authority has power under these provisions to keep the breaching externee arrested and remove under the police custody to a place outside the area. The Section does not in any manner invest the externing authority with the power of continuing the breaching externee in custody even after removal from the area. In view of these provisions, it would be erroneous to read and interpret said provisions to empower the externing authority to send breaching externee to jail as has been done in the instant case. If such an interpretation is accepted, it would amount to making the provisions of Section 142 of the Act redundant which would provide for punishment for breach of the Order of externment. Learned Advocate Mr. Tirmizi has relied upon the decision of this Court in case of Rameshji P. Thakore v. State of Gujarat . Relevant observations made in Para 6(1) to 6(7) are reproduced as under:
6.1 Likewise, such interpretation of Section 62(2) of the Bombay Police Act would render provisions of Section 167 of Criminal Procedure Code nugatory.
6.2 Sending a man to prison for a period of two years without trial as has been done is more harsh than provisions for preventive detention, where law provides detention upto six months, one year or two years as the case may be. There also, checks and guards are provided by law to protect the liberty of detenu against possible misuse. The law-makers could not be taken to have intended such interpretation while incorporating Section 62(2) of the Bombay Police Act.
6.3 The interpretation adopted while passing the impugned Order is against the basic principles of natural justice and criminal jurisprudence. The Order could not have been passed without affording opportunity to the externee of being heard. A plain reading of the impugned Order indicates clear breach of this canon of criminal jurisprudence.
6.4 It is also brought to the notice of the Court that an offence is registered against the petitioner Under Section 142 of the Bombay Police Act for breach of the externment Order. Thus, for the act of breach of externment Order, proceedings are initiated. The petitioner would be dealt with in accordance with law and will be punished, therefore if found guilty. As such, the impugned Order of putting the petitioner in jail for two years can be said to be an Order of punishment without adjudication, and therefore, it requires to be quashed by allowing mis petition.
6.5 One more adverse effect of me impugned Order, if sustained, would be that the petitioner would be punished twice, for the same act of committing breach of externment Order, if ultimately he is convicted in proceedings Under Section 142 of the Bombay Police Act. This also cannot be permitted to happen.
7. For the reasons stated above, the impugned Order directing the externee to be kept in Porbandar Jail for a period of two years from January 26, 2000 is without authority or jurisdiction.
17. Therefore, in view of the facts of the present case and also in view of the principles laid down by this Court in the decision , Special Criminal Application No. 552 of 2001 is also required to be allowed.
18. For the reasons recorded hereinabove, Special Criminal Application No. 539 and 552 of 2001 are allowed and Rule is made absolute in both the petitions. The impugned Order of externment dated 24-2-2000 and the Order of appellate authority dated 17-7-2001 and the Order Under Section 62 dated 20th April, 2000 are hereby quashed and set aside. It is hereby Ordered that the petitioner Shri Megha Naranbhai Harijan who has been kept in the custody at Sabarmati Central Jail is hereby Ordered to be released immediately if he is not required in any other case. Rule is made absolute accordingly in both the petitions.