Manubhai Sudhabhai Sodha vs The State of Gujarat and Another

P.R. Gokulakrishnan, C.J.—This Special Criminal Application is to quash and set aside the order passed by the respondent No. 2, which is

Annexure ''D'' to the Special Criminal Application and also the notice Annexure ''B'' to the Special Criminal Application. There is a further prayer

to quash the order of the respondent No. 1, who confirmed the externment order passed by the respondent No. 2. On 27-1-1987, the Deputy

Police Commissioner, Surat City, who is the respondent No. 2, issued notice u/s 56 of the Bombay Police Act, alleging the following charges

against the petitioner herein :

(1) On 19-7-1985, at 00.20 hours, there was exchange of stone-throwing between the Hindus and Muslims crowds, consisting of about 100 to

200 persons and you were leading the Hindus. You, along with your associates (1) Laxman alias Lati Atmaram Bharaiya, (2) Devji Prema

Kathiyawadi, and (3) Dahya Prema Kathiyawadi, all residents of Navsari Bazar, Malekwadi, Surat, incited about 100 Hindus, all residents of

Malekwadi, in the name of religion and instigated them to throw stones. The police came to know about that incident and the local police and the

S. R. P. reached the place of incident. Head Constable Bhavani Shankar Yadav of S.R.P. Group No. 11 fired one round in the air from his 303

rifle to dispers both the groups and dispersed them. If the police should not have reached the place, the communal tension would have been caused

in Surat City. You are communal minded and take, leading part in communal riots.

For the above incident, an offence, Crime Register No. 287 of 1985 of Athwa Lines Police Station, Under Sections 147, 148, 149, 188, 336 IPC

and Section 135 of the B.P. Act is registered. You were absconding after committing the said offence. The Police arrested you at 11-00 a.m. on

2-8-1985 and after that, the charge-sheet was submitted in the Court and the case is pending trial in the court.

(2) Mahmad Hanif Shaikh Ibrahim, Muslim, resident of Rudarpura, Momnawad, Surat, had attended the marriage in his locality on 17-3-1986 and

had returned to his home at Rudarpura, Momnawad, at 2-30, and himself and his friends were sitting in the rickshaw GRV 215, which was of the

ownership of his mother''s sister''s son and at that time, you and Sabbir Mohyuddin alias Val, resident of Gopipura, Momnawad, and other two

persons, went there armed with deadly weapons and told them in loud voice as to why they were moving in a rickshaw at night and were indulging

in dadagiri and you inflicted a blow of sword on the knee of Mohmadbhai and caused him injuries. Two occupants of the rickshaw were caused

injury by hockey stick by Sabbir Mohyuddin alias Val. The glasses of the rickshaws No. GRV-215 and GTT 2856, which were lying on the road

were broken and damage to the extent of Rs. 3,000/- was caused to the rickshaws.

For the above incident, an offence, namely Crime Register No. 59/86 of Athwa Lines Police Station under Sections 324, 323, 427 and 114 of the

Indian Penal Code and Section 135 of the B.P. Act, is registered at 7-15 hours on 17-3-1986 against yourself and your associates, and for that

offence, you were arrested at 10-45 hours on 18-7-1986 and the chargesheet is submitted and the case is pending trial in the court.

(3) You were standing in a public place at Navsari Bazaar, Malekwari at 20-10 hours on 30-1-1986 with a knife having a blade of 10"" length, in

violation of the Notification issued by the Deputy Commissioner of Police, Surat, prohibiting the carrying of the arms, which was in force from 23-

1-1986 to 5-2-1986 and, therefore, you were arrested by the Police. Athwa Lines Police Station Crime Register No. 58 of 1986 is registered for

the offence u/s 135 of the B.P. Act against you and chargesheet is submitted in the Court and the case is pending trial in the Court.

(4) You are addict to taking liquor and tease ladies and girls under the influence of drink. At 23-00 hours on 30-5-1985 at Malekwadi, you had

teased the brother''s wife of the witness, under the influence of drink and for that, the witness told you not to behave like that and, therefore,

yourself and your associates, with the abetment of your brother Kishoresinh, had caused injuries by fist and kick to the witness and, therefore, the

witness filed non-cognizable complaint No. 255 of 1985 u/s 323 read with Section 114 of I.P.C. at Athwa Lines Polke Station.

Because of that incident, the police enquired of you and you were found under the influence of drink at Malekwadi and the Police registered

Athwa Lines Police Station Crime Register No. 774 of 1985 u/s 66(1)(b) and Section 85(1)(3) of the Bombay Prohibition Act and as evidence

was available against you, chargesheet is submitted in the Court and the case is pending trial in the Court.

(5) You move in public under the influence of drink and you speak in loud voice and abuse the persons passing by and to the ladies and girls, who

pass by and create an atmosphere of terror. On 18-7-1986, at 13-30, at Navsari Bazaar near Putli, you behaved in the manner as stated above,

and caused traffic jam at the place and had behaved in a disorderly manner under the influence of drink and, therefore, an offence, namely Athwa

Lines Police Station Crime Register No. 1041 of 1986, u/s 66(1)(b) and Section 85(1)(3) of the Bombay Prohibition Act, is registered against you

and on investigation since evidence is available, chargesheet is submitted against you and the case is pending trial in the court.

(6) You behave as a ruffian, you move with open weapons, along with your associates in the public. You threaten the poor people and you take

omelet, fruit, and biscuit from the larries under threats and you also take snacks from the hotels and if anybody would not give you the articles free

of charge, you point out knife and put them in fear and take the articles from them and sometimes, even cause damage and because of that,

ordinary people live in constant fear of the damage to their life or property. Unarmed Police Head Constable Suresh Yashwant, buckle No. 1027

and Unarmed Police Constable Gnaneshwar Vasant Chaudhary, buckle No. 1413 have supported this fact in their statements. Certain other

persons, on taking them into confidence and on the assurance that their names will not be disclosed, have stated certain facts, which are as follows

:

(1) Witness No. 1 states in her confidential statement that about 21/2 to 3 months prior to 17-6-1986, she was proceeding from Navsari Bazaar

to Wadi Falia and at that time, at 20.30 hours, you stopped her, pointed out a Rampuri knife and extorted Rs. 50/- and because of your fear, the

witness did not file complaint before the police;

(2) Witness No. 2 states in his confidential statement that you go to the restaurant of the witness often and order for tea or could drinks and do not

make payment for them and in case price is demanded, you give threats to commit murder. Two moths prior to 13-6-1986, you had taken Thums

Up in the restaurant of the witness and did not make payment for that and the witness demanded the price, even then, you did not pay for that. At

that time, you were under the influence of drink and had threatened the witness that in case he demanded money next time, all the glasses of the

shop would be broken and because of the fear, the witness did not insist for the payment and also did not file complaint before the police;

(3) Witness No. 3 has stated in his statement that he vends fruits by keeping them in his lorry and you, along with your associates, commit robbery

of the fruits from his lorry twice or thrice in a month and do not pay for that and in case money is demanded, you point out knife or pen knife and

the witness does not complain because of your fear;

(4) Witness No. 4 states in his statement that you had taken a leading part in the disturbances in 1985 and had taken omelet and bread twice at the

larry stall of the witness and when the witness demanded money, you had pointed out Rampuri knife and abused and had threatened to break the

glasses of the larry and because of your fear, the witness did not file complaint before the Police;

(5) Witness No. 5 states in his statement that about four months prior to 17-6-1986, you were drunk and you, along with your associates, went to

Maharaja cinema from Navsari Bazaar in the rickshaw of the witness and when the rickshaw fare was demanded, you threatened the witness to

cause hurt and abused him. You were under the influence of drink at that time and because of your fear, the witness did not file complaint.

(6) Witness No. 6 has stated in his statement that about four months prior to 17-6-1986, at about 7-00 p.m., you went to the garage of the

witness situated at Navsari Bazaar and pointed out knife and demanded Rs. 50/- and robbed him and had threatened to break his shop, if a

complaint would be filed before the police and because of your fear, the complaint was not filed.

(7) Witness No. 7 has stated in his statement that about eight months prior to 17-6-1986, you had taken betel-hut, cigarette, matchbox etc. from

the larry of the witness, did not pay the price even though demanded, and abused the witness and had broken the glasses of the larry and had

thrown the materials on the road and the witness did not file complaint before the Police because of your fear.

(8) Because of your ''Gundagiri'' and your habit of moving around with deadly weapons, like knife, in public and causing injuries to innocent

persons with the knife and taking into consideration such incidents, your name is included in Category ''D'' in the list of the persons used to do

knifing, at Serial No. 355 in the list No. PCB/1265/86, which is published on 8-10-1986.

(9) Because of your criminal activities, giving threats, moving with deadly weapons, committing robbery, violent attitude and the head-strong

activities, you are notorious as a Gunda in the Surat City. Because of the above said activities at Serial Nos. (1) to (7), threat and danger is caused

to the person and property of the people. Because of you, people live under the fear of damage to their person and property and because of that,

happiness of the people is lost, Because of your dangerous nature, no member of the Public is willing to file complaint against you before the police

and because of that, your anti-social activities increase day by day and because of your such activities, the atmosphere of fear is caused in Surat

City.

With these averments the notice directs the petitioner to show cause as to why he should not be externed from the territory under the jurisdiction of

the Police Commissioner, Surat City and also from its adjoining territories of Surat Rural, Bharuch, and Valsad Districts. It is also stated in the

notice that there is possibility of the petitioner continuing his activities through his associates and agents with the help of speedy vehicles.

On 23-2-1987 the petitioner gave his explanation denying everyone of the charges. While denying the charges the petitioner has not stated that he

was handicapped in giving his explanation owing to the vagueness both in respect of time and place of occurrence. No doubt in para 12 of his

explanation the petitioner has stated that the statements of the complainants do not indicate time and place and the charges therein are made

without any base and hence they are false, fabricated and concocted. Reading the explanation it is clear that the petitioner was not handicapped in

giving the explanation to the charges levelled since he understood the charges levelled against him and has given explanation for the same. The

general averment to the effect that the statements of the complainants do not indicate time and place seems to have been made to draw support

from decisions which have indicated that the failure to give the time and place of occurrance in externment notice will vitiate the proceedings. We

will advert to the correctness or otherwise of such an averment in our succeeding paragraph.

After giving an opportunity for the petitioner to examine his witness and advance his argument, the Deputy Commissioner of Police, Surat City

(Administration) externed the petitioner for a period of 2 years from the territory of Surat City, Surat Rural, Bharuch and Valsad Districts stating

that if he is not externed from the adjoining districts there is possibility of the petitioner with his associates and agents to continue his activities and

commit such acts. Against the said order the petitioner took the matter in appeal to the State Government in its Home Department and the Home

Department by its order confirmed the externment order passed by the Deputy Commissioner of Police, Surat City except modifying to the effect

that the externment order will operate only in respect of the Surat District. Aggrieved by these orders of externment, the petitioner has now come

forward with the present special criminal application.

Mr. Kapadia, learned counsel appearing for the petitioner put forth three contentions before us and they are to the following effect :

After the proposal was sent by the Inspector of Police for taking action against the petitioner for the purpose of externing him under the Bombay

Police Act, the authorities concerned have taken more than 71/2 months in issuing the show cause notice. In para 10A of his petition the petitioner

has alleged as follows :

It is submitted that along with the show cause notice, list of statements of witnesses were provided to the petitioner and looking to the statements

of the Unarmed Police Constable, Buckle No. 1413 Shri Nganeshwar Vasant Chaudhary and Suresh Yeshwant, Unarmed Head Constable

Buckle No. 1027 dated 17-8-86 it is clear that the proposing authority had proposed the externment of the petitioner on or about 17-6-1986.

However, the show cause notice was issued on 27-1-1987 i.e., almost nearly after a delay of 71/2 months and there is no reasonable explanation

why in issuing the show cause notice, 71/2 months were taken by the proposing authority and the externing authority. There is no reasonable

explanation for the same and that vitiates the subjective satisfaction of the externing authority.

The second point taken by Mr. Kapadia is that the witnesses are coming forward to give complaint and it is false to state that out of fear created

by the dangerous activity of the petitioner, no witness/complainants are coming forward to give evidence against the petitioner herein. In respect of

this submission the petitioner has averred in para 10(c) of the petition which is as under :

10(c). The petitioner submits that looking to the FIRs given, the latest case against the petitioner is dated 17-3-1986 wherein the complainant and

the witnesses have come forward to file complaint against the petitioner, and therefore, it cannot be said that the witnesses are not coming forward

to depose against the petitioner, nor can it be said that the complainant is not coming forward to complain against the petitioner. And, therefore, the

apprehension shown by the externing authority that the people are living in constant fear of injury to their person and property, and therefore, they

do not come forward to depose against the petitioner is unwarranted in the facts and the circumstances of the case.

The third point urged by Mr. Kapadia is that in the show cause notice the period of activity and the area of activity are not given for many of the

instances alleged in the show cause notice and as such the externment order is vitiated. Mr. Kapadia further states that if there is no particulars

regarding the time and place of occurrence even in respect of a single incident, the externment order has to be quashed.

As regards the first submission made by Mr. Kapadia, learned counsel appearing for the petitioner, the correctness of it can be exemined by

adverting to the facts and circumstances of the present case. On 26-6-1986 the Police Inspector of Athwa Lines Police Station, Surat submitted

the proposal for externment of the petitioner. On 30-12-1986 the Superintendent of Police forwarded it to the Deputy Commissioner of Police for

issuing show cause notice. On 27-1-1987 the show cause notice was issued. Mr. Kapadia pointed out that from the date on which the proposal

was sent, there is absolutely no valid explanation as to why the Superintendent of Police took so much time in forwarding the proposal to the

externing authority. Along with the Additional Reply-Affidavit filed by the Superintendent of Police Mr. M.D. Antani, Annexure ''C'' is attached to

show the reason for the delay in forwarding the proposal. It has to be noted that the externment orders passed under the Bombay Police Act is not

like the detention orders wherein after coming to know of a specific incident the immediate action is taken for detention. As far as the externment

orders are concerned, such orders are passed after taking into consideration series of events of high-handed behaviour of the externee and also the

fear in the mind of the public, witnesses and complainants in not coming forward to give evidence openly. Hence the subjective satisfaction of the

externing authority after properly getting information regarding the continued behaviour of the externee, and also the prognosis that if such a person

is not externed he will continue to perpetrate the same behaviour in future, is necessary for issuing a notice and also passing the order thereof.

In this case the Superintendent of Police forwarded the proposal on 30-12-1986 after getting the proposal from the Police Inspector on 26-6-

1986. Annexure ''C'' to the application sufficiently explains the various verifications made by the Superintendent of Police before he forwarded the

proposal. It is unnecessary for us to elaborately state all those things mentioned in the Annexure ''C'' except stating that the reasons given are

sufficient to explain the delay alleged by the learned counsel appearing for the petitioner herein.

In support of his contention Mr. Kapadia brought to our notice the decision rendered in special criminal application No. 995/86 and No. 959/86

dated 22-6-1987. In this decision the Bench had occasion to consider the legality of the detention order in Conservation of Foreign Exchange and

Prevention of Smuggling Activities Act (COFEPOSA). On the facts of that case it is clear that the authority concerned came to the definite

conclusion regarding the involvement of the detenu as early as December 1985. In spite of that the order of detention was not passed till 26-6-

1986. Further, the proposal for detention of detenu was initiated only on 27-3-1986, even though definite involvement of the detenu was very clear

as early as December 1985. Thus, at every stage i.e. during the stage of proposal, during the stage of notice and during the stage of passing the

detention order there were delays in that particular case. The learned Judges of this High Court after observing that there was absolutely no

affidavit by the authorities who are responsible for such delay found that the delay vitiated the detention order. Both on the ground that the said

judgment is in respect of a detention act and on the ground that the learned Judges found there was unexplained delay in sending the proposal and

passing the detention order, we do not think that the said decision will be of any help to the facts and circumstances of the present case. As

correctly put forth by Mr. G.D. Bhatt, learned Assistant Public Prosecutor, there is no time bound programme as in detention laws for the purpose

of externing u/s 56 of the Bombay Police Act. In para 3 of the Additional Affidavit-in-reply, Shri H.R. Gehlot, Deputy Commissioner of Police has

clearly explained the delay, which, in our opinion, is reasonable and acceptable. The main thrust of Mr. Kapadia''s argument is that the delay is

significant before issuing the show cause notice. We have already discussed the reasons for such a delay in paragraph supra.

In the case of Rajendrakumar Natvarlal Shah Vs. State of Gujarat and Others, the Supreme Court has also laid down as to when the delay will go

to the root of vitiating the detention orders. In that connection the Supreme Court has observed (at page SC 1260; AIR 1988):

Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be

drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign

Exchange, and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Article 22(5) of the

Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite

obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering

who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the

Courts should not merely on account of delay in making of an order of detention assume that such delay if not satisfactorily explained, must

necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such

subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are ''stale''

or illusory or that there is no real nexux between the grounds and the impugned order of detention. The decisions to the contrary by the Delhi High

Court in Anil Kumar Bhasin Vs. Union of India (UOI) and Others, , Bhupinder Singh v. Union of India (1985) 28 Delhi LT 493, Anwar Esmail

Aibani v. Union of India (Crl. W. No. 375/85 dated 11-12-1986) : (reported in (1987) 3 IJ Rep 383), Surinder Pal Singh v. M.L. Vadhawan,

(Crl. W. No. 444/86 dated 9-3-1987) (1987 (2) Cri 449) and Ramesh Lal v. Delhi Administration (Cr. W. No. 43/84 dated 16-4-1984) and

other cases taking the same view do not lay down good law and are accordingly overruled.

In the case of Dayabhai Prembhai v. Commissioner of Police reported in 1988 (2) GLR 36 a Bench of this High Court had occasion to consider

the delay between the proposal and issuance of the show cause notice. In that connection the Bench, after satisfying itself with regard to the

reasons given for such delay observed that it is for the authorities concerned to be doubly sure about the facts before it comes to the conclusion for

issuing the show cause notice and that the delay alleged in the case, on the facts and circumstances of the case, cannot be considered as fatal.

Thus, from the foregoing observations made by the Supreme Court and this Court and also from the facts and circumstances of this case that

reasonable explanation has been given by the authorities concerned, which we have extracted in paragraph supra and as such we do not think

there is any substance in the contention that such a delay vitiates the order of externment. In a case of externment, as we have observed already,

the authorities concerned have to take into consideration series of incidents and then it can come to the conclusion that the person concerned is a

dangerous and strong-headed person who has to be externed in the interest of the public. It is not like the detention cases where a single incident

of violation will result in the order of detention. In cases of externment the subjective satisfaction of the authorities concerned is necessary after

proper application of the mind and verification of various facts. Hence there is bound to be some delay before issuance of the notice since the

proposal have to be made after observing various acts, conduct, and the activities of the externee concerned and is likelihood of continuing such

activities if he is not externed.

As regards the argument of Mr. Kapadia, learned counsel appearing for the petitioner that the witnesses and complainants are coming forward to

give evidence and as such there is no need for externment, Mr. G.D. Bhatt, learned Government Public Prosecutor pointed out para 5 of the

Additional affidavit-in-reply by Shri H.R. Gehlot, Deputy Commissioner of Police, Surat City, wherein the said submissions of Mr. Kapadia are

refuted. It is clear from the facts of this case that the witnesses are not coming forward to depose against the petitioner in all the incidents in which

he is involved. It is revealed from the statements of the witnesses that though they were harassed by the petitioner, they were not willing to come

forward to give evidence in public against him or to lodge complaint against him by reason of apprehension on their part as regards safety of their

person and property. We have no reason to disbelieve these factual aspects of the case and accordingly we do not find any substance in the

second contention raised by Mr. Kapadia, learned counsel appearing for the petitioner.

Finally, Mr. Kapadia contended that there is vagueness in the charges made against the externee and that the notice given for externment does not

spell out the area and the time where such acts of violence were committed by the petitioner herein. We have already in paragraph supra, extracted

all the charges levelled against the petitioner herein for the purpose of externment. If the show-cause notice is read as a whole, it contains

necessary averments and instances for the petitioner to meet such charges. It is pertinent to note in the explanation given by the petitioner for the

charges, he has not stated that he was handicapped because of the fact that in certain instances place or time have not been given. On the other

hand, explanation was offered by the petitioner for the charges mentioned in the show cause notice. Reading the show cause notice, it is clear that

the charges 1 to 5 clearly give necessary particulars of place and time of occurrence in order to enable the petitioner to meet such allegations. The

charge No. 6 alleges the ruffianism and the petitioner moving in public with dangerous weapons along with his associates and thereby threatening

poor people with dire consequences. For this charge No. 6, as many as the report of 7 complainants are extracted. In that charge No. 6 in respect

of the averments regarding complainant No. 1 period and area is given; for complainant No. 2 though exact place is not given the period is given.

For complainant No. 3 the activity of the petitioner was mentioned without area or time; for complainant No. 4 though period was given, the area

was not mentioned; for complainant Nos. 5 and 6 both area and period have been mentioned; and complainant No. 7 though the period was

given, the place was not given. Thus it is seen that in respect of the activities of the petitioner herein the main charges are definite and clear in order

to enable the petitioner to offer his explanation. Even with regard to the various instances in charge No. 6, most of them give both the place and

period of offence. With regard to some of the incidents in Charge No. 6, the failure to give either the place or the time of occurrence, in our

opinion cannot vitiate the externment order on the facts and circumstances of the present case. Further, the petitioner, as we have observed

already, was able to give his explanation and was not handicapped owing to the fact that some instances in charge No. 6 either do not mention the

place or time. The cumulative effect of all the charges read as a whole, in our opinion, does not leave any vagueness in the activities alleged to have

been committed by the petitioner herein. The dangerous and menacing activities of the petitioner are well brought out by the incidents referred in

the charges. Simply because a fraction of the particular charge wherein various instances are enumerated, the place or the time is not given for a

few instances, the externment order cannot become vitiated.

In the case of State of Gujarat and Another etc. Vs. Mehboob Khan Usman Khan etc., the Supreme Court held that the notice u/s 59 of the Act

should inform the person in writing of the general nature of the material allegations against him and it need not contain particulars. The Supreme

Court has also held that the allegation that during certain period the externee had taken some eatables without payment, from places of public

entertainment is not vague even though the place of public entertainment is not given. Applying the abovesaid principles and also from the facts

which we have extracted regarding the averments in the charges, we do not think there is any vagueness which will vitiate the order of externment.

From the foregoing discussion we do not find any merits in any of the contentions raised by Mr. Kapadia, learned counsel appearing for the

petitioner and as such the special criminal application is dismissed. Rule is discharged.