JUDGMENT
P.R. Gokulakrishnan, C.J.
1. This petition is to quash and set aside the order of externment dated 31-1-1987, which is Annexure ‘A’ to the petition. In this case, the order of externment was passed as early as on 31-1-1987. In the year 1985, the petitioner herein was detained under the provisions of PASA. The said order of detention, according to the petitioner, was set aside by this Court by order dated 18-3-1986. Subsequent to this order releasing the petitioner from detention, the order of externment was passed on 31-1-1987, externing the petitioner for a period of two years from Baroda City, Baroda Rural, Kheda, Bharuch and Panchmahals districts. The said order of externment was challenged by the petitioner before respondent No. 2 herein and the respondent No. 2, the State Government, has confirmed the said order by order dated 8-5-1987. On 22-5-1987, there was another order of detention under PASA by the Commissioner of Police, Baroda City. The said order of detention was challenged by the petitioner in Special Criminal Application No. 588 of 1987. The said petition was withdrawn by the petitioner at that stage, as the petitioner was made known that the order of externment was kept in abeyance and the respondent No. 1 wants to implement the order of detention against the petitioner. Hence the petitioner challenged the order of detention in Special Criminal Application No, 932 of 1987 and this Court was pleased to set aside the order of detention on 1-4-1988. After the detention order was set aside, the respondent No. 1 herein wants to implement the order of externment dated 31-1-1987. Hence the petitioner has come forward with the present Special Criminal Application, challenging the externment order dated 31-1-1987 on various grounds.
2. The petitioner states that the order of externment has to be quashed on the ground of mala fide and arbitrariness. According to the petitioner, respondent No. 1 is harassing the petitioner by passing detention orders and also externment order. It is the say of the petitioner that respondent No. 1 wants to see the petitioner behind the bars some how or the other. Further, according to the petitioner, the externment order is sought to be executed after the lapse of one year and three months. Thus, according to the petitioner, the respondent No. 1 due to mala fide intention passed the order of externment, just to see that the freedom of the petitioner is curtailed.
3. The petitioner further submits that there is inordinate delay in passing the externment order. In spite of the fact that Superintendent of Police has sent papers, after examining the witnesses and hearing the arguments to the externing authority on 18-8-1986, the externment order was passed by the externing authority only on 31-1-1987. Thus, there is a delay of five months which definitely vitiates the order of externment.
4. The petitioner further submits that there is absolutely no material for externing the petitioner and the order of externment has been passed mechanically, without any particulars or material.
5. With the abovesaid allegations in the main petition, the petitioner has come forward with the present petition.
6. As early as on 8-4-1985, a notice was issued to the petitioner herein, calling upon him to explain as to why he should not be externed for a period of two years from the area of the jurisdiction of Baroda City Police Commissioner and its adjoining area, namely, Baroda (Rural), Kheda, Panchmahals and Bharuch districts. In this notice, it has been stated that the petitioner is a fanatic, obstinate and headstrong person and is indulging in bullying various persons. It has also been stated that he was doing the acts mentioned in the notice from January 1985 within the area of M.G. Road, Kalamandir Corner, Gadiyali Pole, Mehta Pole, Mangal Bazar and Bajwada situated within the limit of City and Wady Police Stations. The allegations are:
(1) On M. G. Road, he purchases vessels, papers, lungi etc. and gets his clothes stitched. He does not pay the amount of those things to the merchants. On demanding money by the merchants he becomes angry and gives abuses to them. Sometime he beats them by inflicting slap blows. He threatens them to kill by showing knife. In this way, he disorders the situation by creating the atmosphere of fear and terror in the society;
(2) He demands money from innocent persons residing within the area of M. G. Road and Mehta Pole. When they refused to give money, he becomes angry upon them and abuses them and threatens them to kill by showing knife and takes away money from their pockets. In this way he disorders the situation by creating the atmosphere of fear, terror in the society;
(3) He demands money from innocent persons residing in the area of M.G. Road and Gadiyali Pole. On refusing to give money by them, he becomes angry upon them and abuses them by inflicting slap blows and damages their properties. He also threatens them to kill by showing knife. In this way, he disorders the situation by creating the atmosphere of fear and terror in the society; and
(4) In the area of Mangal Bazar, Kalamandir Corner and Bajwada he keeps the bags of illicit liquor in lorry for sale and moving in intoxicated state. When the citizens reprimand him he becomes angry upon them and beats them and threatens them to kill by showing knife. In this way he disorders the situation by creating the atmosphere of fear and terror in the society;
Thus from the notice, it is clear that there is a specific allegation against the petitioner to the effect that the activities of the petitioner are dangerous to the persons and property of the area and the petitioner is an anti-social element. It has been specifically mentioned that the petitioner is a dangerous and fearful person to the society and as such steps have been taken to extern him from the abovesaid places. The explanation was submitted by the petitioner for such allegations mentioned in the notice. The externing authority after taking into consideration the evidence produced by the petitioner herein and after affording sufficient opportunity to the petitioner herein to defend himself, passed the externment order as early as on 31-1-1987. The externment order clearly states that it is for a period of two years and that the externment is from the area of jurisdiction of Baroda City Police Commissioner and adjoining Baroda Rural area and Kheda, Panchamahals and Bharuch districts. The petitioner preferred an appeal to the Government of Gujarat in its Home Department and the Home Department, hearing the appeal under Section 60 of the Bombay Police Act, dismissed the appeal. In the meanwhile, there was a detention order dated 22-5-1987 and the same was set aside on 1-4-1988. In May 1988, when the externment order is sought to be enforced, the petitioner has come forward with the present petition.
7. Mr. B.C. Dave learned Counsel appearing for the petitioner contended that there is a delay in serving the order of externment. The externment order was passed on 31-1-1987 and the same was served on 2-3-1987. It is seen from the facts of the case that the petitioner was not present at the time of passing of the externment order and naturally the same has to be served upon the petitioner and it took one month and two days for the said purpose. Inasmuch as the petitioner was not present before the externing authority at the time of passing of the externment order, there is a delay in serving the externment order and the said delay of one month and two days in our opinion cannot be considered as fatal.
8. Mr. B.C. Dave then next further argued that after the detention order was revoked on 1-4-1988 the externment order passed as early as 31- 1-1987 is sought to be executed and hence there is inordinate delay in executing the externment order. Even here we do not find any merit. Until 1-4-1988 the petitioner was under detention. There is absolutely no stay or setting aside of the externment order passed as early as on 31-1-1987. No doubt, it is stated that the externing authority has kept the order of externment in abeyance. In our opinion, there is no question of keeping the order of externment in abeyance and the order automatically takes effect and once the detention order goes the person externed has to be sent out of jurisdiction which has to be spelt out in the externment order. Thus, there is no question of keeping the externment order in abeyance; nor of executing the externment order. Mr. Dave submitted that there must be an execution of the externment order immediately. In support of this contention, Mr. Dave cited the judgment of the Supreme Court in the case of Shaikh Nizamuddin v. State of West Bengal . This decision deals with the Maintenance of Internal Security Act, 1971. In enforcing such type of Act, it is necessary that the order of detention must be executed, since the person who is detained under this Act has to be taken into custody. As far as the externment order is concerned there is no question of taking a person into custody but the person who has been externed must automatically get out of the area from which he has been externed. There is no question of any execution of such order. In the abovesaid decision also, the Supreme Court has observed as under:
It would be reasonable to assume that if the District Magistrate was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude in securing the arrest of the petitioner immediately after making of the order of detention, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities. Of course, when we say this, we must not be understood to mean that whenever there is delay in arresting the detenu pursuant to the order of detention, the subjective satisfaction of the detaining authority must be held to be not genuine or colourable. Each case must depend on its own peculiar fact, and circumstances. The detaining authority may have a reasonable explanation for the delay and that might be sufficient to dispel the inference that its satisfaction was not genuine.
Apart from the fact that this decision will not have any application to the cases of externment, the question of delay in arresting a person also will depend upon the facts and circumstances of each case. We are afraid that this case cannot have any application to the facts of the present case.
9. Mr. Dave next contended that the order was passed with mala fide intention. To substantiate the same the petitioner has stated that respondent No. 1 is very particular in seeing that the petitioner is behind the bars and that is why he has invoked the provisions of PASA and also the Bombay Police Act for externing the petitioner. Reading the allegations regarding mala fides in the petition, we do not think that there are particulars to spell out any mala fides on the part of the respondent No. 1 herein. If really the respondent No. 1 wants to put the petitioner behind the bars, he would not have resorted to the order of externment. The failure in substantiating the detention order by the authorities concerned will not in any way affect the order of externment, if it otherwise held to be legal and valid.
10. Mr. Dave next contended that there is delay in passing the order of externment after the Superintendent of Police has sent the papers subsequent to the recording of the evidence and arguments. The Superintendent of Police sent the papers to the externing authority on 18-8-1986. The externing authority passed the order on 31-1-1987. Thus, there is a delay of nearly five months in passing the exterment order. In the affidavit-in-reply filed by the externing authority, it has been specifically stated as follows:
On 18-8-1986 the petitioner had remained absent and ultimately the Superintendent of Police had recommended to extern the petitioner from the Baroda City, Baroda Rural, Kheda, Panchmahals and Bharuch districts and submitted the report with the record of the case to my office for final decision. I say that Superintendent of Police had informed the petitioner to remain present before the Dy. Commissioner on 28-8-1986. I say that on 28-8-1986 the petitioner remained absent. I adjourned the case. On 30-9-1986, the Advocate asked for the adjournment on the ground that petitioner is out of station. The case was adjourned to 6-10-1986. On 6-10-1986 neither the petitioner nor his Advocate remained present. Further notice was issued on the petitioner and the case was adjourned to 29-1-1987. Again on 29-1-87, the petitioner remained absent and nobody had filed any application on behalf of the petitioner for adjournment. I say that from the record, I was satisfied that the petitioner was in the habit of remaining absent without any execuse and though several opportunities were given to the petitioner, the petitioner did not avail of these opportunities. I say that after perusing the record and the case, I was fully satisfied that the activities of the petitioner are found to be prejudicial to the maintenance of public order and these are reasonable grounds for believing that the petitioner engaged or was about to engage in the commission of the offence involving force and violence and in the offences under Chapter 16 and 17 of the I.P.C. I say that the material further reveal that the witnesses were not willing to come forward to give evidence in public against the petitioner by reason of apprehension of threat to safety of their person and property. In view of the above circumstances it was necessary to pass the order of externment against the petitioner under Section 56(b) of the Bombay Police Act, 1951.
With these observations, the externing authority has passed the externment order. The explanation offered above clearly spells out the reason for passing the externment order after the delay of five months. When especially the petitioner was afforded an apportunity and that the petitioner himself has taken adjournment for explaining his case, it is too much on the part of the petitioner to submit that there is a delay in passing the externment order. We are convinced that the explanation offered by the externing authority is genuine and as such the argument that there is a delay in passing the externment order cannot be sustained.
11. Finally, Mr. Dave contended that there is no material to show that the witnesses were not coming forward to depose against the petitioner. As a matter of fact, learned Counsel appearing for the petitioner submitted that the petitioner was tried in Criminal Court on various occasions and the witnesses do appear and depose against the petitioner herein. It is not the case of the petitioner that the witnesses were ready to depose in respect of the allegations made in the notice issued to the petitioner. The continuing offence committed by the petitioner led to the passing of the detention order and subsequently externment order by the authorities concerned. Mr. B.D. Desai, Addl. Public Prosecutor, from the record submitted that the authorities concerned after proper verification and investigation, got themselves satisfied and made a report against the petitioner herein for the purpose of externing him from Baroda and the adjoining Districts. When such facts stare at the face of the petitioner, it is too much for him to say that there are no material for externing the petitioner. In this connection, Mr. Dave cited the decision in the case of Prem Chand v. Union of India . This is a decision wherein the Supreme Court has held that the exercise of powers by the Police must be bona fide and should not be on vague allegations and secret hearings. It has also been observed that the investigation/prosecution should not use stock witnesses in order to see that the person is convicted. We do not think that this decision will have any application to the present facts of the case, since the records reveal that the authorities concerned have taken action for externing the petitioner on proper apprisal of the activities perpetrated by the petitioner herein and also on relevant materials that were available before them.
12. The show cause notice mentioned as many as four allegations which are very clear and to the point to show that the activities of he petitioner endangers person and property and squarely comes under the purview of Section 56 of the Bombay Police Act. The area of the petitioner’s activity and the period during which such activities are perpetrated by the petitioner are given clearly and cogently in the show cause notice and they have also been adverted to in the externment order. Those allegations in the show cause notice have been extracted in paragraphs supra. Thus, it is clear that the petitioner has been externed by the authorities concerned after proper deliberations and discussions and after affording sufficient opportunity to the petitioner to substantiate his defence.
From the foregoing discussion, we do not find any merits in any of the contentions raised by the. petitioner herein and as such this petition is dismissed. Rule is discharged.