Bhagubhai Dullabhabhai Bhandari Vs.
The District Magistrate, Thana & Ors [1956] INSC 38 (8 May 1956)
SINHA, BHUVNESHWAR P.
DAS, SUDHI RANJAN (CJ) JAGANNADHADAS, B.
AIYYAR, T.L. VENKATARAMA IMAM, SYED JAFFER
CITATION: 1956 AIR 585 1956 SCR 533
ACT:
Bombay Police Act, 1951 (Bombay Act XXII of
1951), s. 56Constitutional validity-Order of externment-RestrictionsReasonableness-"
Witness", scope of the word in the sectionWhether ,not applicable to
members of the police force or customs department Constitution of India, Art.
19.
HEADNOTE:
Section 56 of the Bombay Police Act, 1951, is
not unconstitutional and does not contravene the provisions of Art. 19 of the
Constitution. Gurbachan Singh v. State of Bombay ( [1952] S.C.R. 737),
followed.
In order to attract the operation of the
section the Officer concerned should be satisfied that the witnesses are not
willing to come forward to give evidence in public, but it is not necessary to
show that all the witnesses are unwilling to give evidence. The terms of the
section do not justify any restricted meaning being given to the word
"witnesses" and it is applicable to members of the police force and
employees and officers of the Customs Department also. Gurbachan Singh v. State
of Bombay ( [1952] S.C.R. 737), explained.
Under the provisions of s. 56 of the Bombay
Police Act, 1951, an order of experiment was passed against the petitioner by
which he was directed to remove himself outside the limits of Greater Bombay
and not to enter the said area for a period of two years without the prescribed
permission; and subsequently he entered Greater Bombay in order to attend Court
in a case pending against him in which a warrant of arrest had been issued. He
was convicted for committing the breach of the externment order and he
contended that his conviction was in itself an indication of the
unreasonableness of the restriction.
Held, that the restrictions cannot be said to
be unreasonable, as the petitioner could have avoided the prosecution. and the
conviction by obtaining the previous permission of the prescribed authority.
Per JAGANNADHADAS J.-If the matter were res
integra should have felt difficulty in upholding the validity of s. 56(b) of
534 the Bombay Police Act, 1951, in so far as it did not demarcate the
application thereof to the more serious classes of offences falling within the
specified Chapters.
I.should also have felt difficulty in holding
a provision to be reasonable which clothes the executive officers with an authority
to extern a person for so long a period as two years.
ORIGINAL JURISDICTION: Petitions Nos. 439
& 440 of 1955.
Petitions under Article 32 of the
Constitution of India for the enforcement of Fundamental Rights.
H. J. Umrigar and R. A. Govind, for the
petitioner in Petition No. 439 of 1955.
J. B. Dadachanji, for the petitioner in
Petition No. 440 of 1955, M. C. Setalvad, Attorney-General of India, B. Sen and
R. H. Dhebar, for the respondents.
1956. May 8. The judgment of S. R. Das C. J.
and Venkatarama Ayyar, B. P. Sinha and Jafer Imam JJ. was delivered by Sinha J.
Jagannadhadas J. delivered a separate judgment, SINHA J.-These petitions under
article 32 of the Constitution challenge the constitutionality of some of the
provisions of the Bombay Police Act, XXII of 1951, (which hereinafter will, be
referred to as "The Act"), with special reference to section 56, as
also of the orders passed against them externing them under that section of the
Act.
In Petition No. 439 of 1955 Babubhai
Dullabhbhai Bhandari is the petitioner and the District Magistrate of Thana,
the Deputy Superintendent of Police and Sub-Divisional Police Officer, Bhivandi
Division, Bhivandi, District Thana, and the State of Bombay are respondents 1,
2 and 3. The petitioner is a citizen of India and carries on trade in grass at
Bhilad, a railway station on the Western Railway.
On 21st January 1955 the Deputy
Superintendent of Police and Sub-Divisional Police Officer, Bhiwandi Division,
served a notice under section 56 of the Act in the following terms:535 No. Ext.
3/1 of 1955 Office of the S.D.P.O. Bhiwandi, Bhiwandi, dated 21-1-1955.
(I) I, Shri C. V. Bapat, Deputy
Superintendent of Police and Sub-Divisional office Bhiwandi Division, District
Thana, do hereby issue a notice to you, Shri Bhagu Dubai Bhandari alias
Bhagwanbhai Dulla Bhai Jadhav of Bhilad District Thana, that it is proposed
that you should be removed outside the District of Thana and you should not
enter or return to the said district for a period of two years from the date of
the order to be made under section 56 of the Bombay Police Act, 1951 for the
following reasons:
(II) Evidence is forthcoming that your
following activities have caused and are calculated to cause alarm, danger and
harm to person and property in Bhilad and the surrounding areas:(III) You have
been dealing in smuggled foreign liquor and maintained a veil of secrecy by
criminal intimidation and physical violence to the villagers and other right
thinking persons.
(2) Your activities have been in continuation
of your similar activities for the. last five years, given as under:(a) You
criminally assaulted persons with the help of your associates and did violent
acts in order to strike terror into the hearts of the villagers, so that they
should not challenge you or your men.
(b) You have been criminally assaulting and
intimidating Central Excise and Custom officials with the help of your gang, so
as to stop them from looking into your antinational, anti-social and illegal
activities. As a result of your unlawful and dangerous activities you are held
in terrific awe by the Central Excise and Custom Officers and men and villagers
in Bhilad area who are continuously labouring under grave apprehension of
danger to their person and property.
(c) You and your associates were and are
making use of criminal intimidation against the villagers in order to prevent
them from having recourse to legal means.
536 (III) That you and ' your associates are
also understood to be in possession of unlicensed firearms which has been
causing considerable alarm and spreading a feeling of insecurity of life and
property in the mind of villagers from Bhilad and neighbouring villages and
Central Excise and Customs employees.
(IV) The witnesses are not willing to come
forward and to give evidence against you by reason of apprehension of danger
and harm to their person and property.
(V) Now, I Shri C. V. Bapat, Deputy
Superintendent of Police and Sub-Divisional Police Officer, Bhiwandi Division,
District Thana in exercise of the authority conferred upon me under section 59
of the Bombay Police Act, 1951 by the District Magistrate Thana under his
number, MAG. 2/ EX dated 17-1-1955 do hereby direct you to appear before me at
11 a.m. on 27-1-1955 at Dahanu in the office of the Sub-Divisional Police
Office Dahanu for tendering your explanation regarding the said allegation. You
are also entitled to appear before me by advocate for the purpose of tendering
your explanation and examining witnesses, produced by you.
Signed and sealed this day of 21st Jan.
1955..
Sd..........................
Deputy Superintendent of Police &
Sub-Divisional Police Officer, Bhiwandi.
To Shri Bhagu Dubal Bhandari @ Bhagwanbhai
Dullabhai Jadhav of Bhilad, District Thana".
By that notice the petitioner was called upon
to appear before the said police officer on the 27th January 1955 in order to
enable the former to offer such explanation and examine such witnesses as he
may be advised. In pursuance of that notice the petitioner appeared, before the
police officer aforesaid and the hearing of his case took place on different
dates. The petitioner claims to have examined seven "respectable
persons" to testify on his behalf. Ultimately on the 11th July 1955 an
order was passed by the District Magistrate of Thana externing the petitioner
outside the Thana District. The order of 537 externment is Ex. D to the
petition and contains the recitals that after considering the evidence before
him and the explanation offered by the petitioner the District Magistrate of
Thana (the 1st respondent), was satisfied that the petitioner "engages in
giving threats and assaulting Central Excise and Customs Officials men and
residents of Bhilad and surrounding villages and indulges in illicit traffic of
foreign liquor from Daman" and that in his opinion "witnessess are
not willing to come forward to give evidence in public against the said Shri
Bhagubhai Dullabhbhai Bhandari alias Bhagwanbhai Dullabhbhai Jadhav of Bhilad
by reason of apprehension on their part as regards the safety of their person
and property". It is this order which is challenged as illegal and ultra
vires and against which the petitioner has moved this Court for an appropriate
writ, direction or order against the respondents " prohibiting them, their
servants and agents from acting upon or taking any steps in enforcement,
furtherance or pursuance of the said order and from interfering in any manner
with the petitioner's right to reside in Bhilad and carry on his business. The
petitioner had preferred an appeal to the Government against the said order of
externment. But the appeal was dismissed on the 9th September 1955. Against the
said order the petitioner moved the High Court of Judicature at Bombay under
article 226 of the Constitution, but the said application was also dismissed in
limine by the High Court by its order dated the 7th November 1955, The District
Magistrate of Thana, the 1st respondent has sworn to the affidavit filed in
this Court in answer to the petition. He swears that he had passed the externment
order complained against after perusing the police reports and going through
the explanation offered by the petitioner and the statements of the witnesses
produced by him and on hearing his advocate. He further states in the affidavit
that the general nature of the material allegations against the petitioner was
given to him, that the material given to him was clear and by no means vague.
Only the names of the persons who had given the, 538 information against the
petitioner were not disclosed to him inasmuch as those persons were not
prepared to. come out in the open and depose against him in public as
witnesses. He was satisfied that witnesses were unwilling to come forward to
give evidence in public against the petitioner. He also affirms that the
petitioner's movements and acts were not only causing alarm, danger or harm to
personal property of the general public round about Bhilad, but also that his
movements and acts were causing danger and alarm to public servants of the
police force and the Central Excise who were doing very responsible work at
Bhilad which is on the borderline of the Indian territory adjoining Daman area
which is Portuguese territory. He admits that the petitioner was discharged by
'the Judicial Magistrate, First Class, Umbergaon because the witnesses did not
appear and depose against 'him for fear of the petitioner.
In Petition No. 440 of 1955, Kunwar Rameshwar
Singh is the petitioner and the respondents are
1. Shri W. K. Patil, Deputy Commissioner of
Police, Crime Branch (I) C.I.D., Greater Bombay,
2. The Commissioner of Police, Greater
Bombay, and 3. The State of Bombay.
The petitioner is a citizen of India and
claims to be a "social worker" connected with several social
organisations.
He alleges that his main social activity has
been the improvement of the lot of prostitutes and singing girls in certain
quarters' of Bombay On the 2nd November, 1954 the petitioner was served with a
notice under section 56 read with section 59 of the Act (Ex. A to the petition)
setting out the allegations against him and calling upon him to explain those
matters. In pursuance of the said notice the petitioner appeared before the
Superintendent of Police to show cause against the proposed action against him.
Ultimately on the 4th January, 1955 the
Commissioner of Police, the second respondent, passed an order to the effect
that the petitioner should remove himself from the limits of Greater Bombay 539
within seven days. That order is marked Ex. H and is to the following effect.
" Order of Externment
-----------------------(Section 56 of the Bombay Police Act, 1951) Police
Station: Nagpada No. 7/c/43/1955.
Whereas the Commissioner of Police, Greater
Bombay, hasdirected by his order, dated the 13th August, 1954 and 11th December
1954, made under sub-section (2) of section 10 of the Bombay Police Act, 1951
(Bombay Act XXII of 1951) that the powers, functions and duties under the said
Act shall also be exercised by the Deputy Commissioners of Police, Greater
Bombay.
And whereas evidence has been placed before
me, Deputy Commissioner of Police, Crime Branch (1), against the person known
as Kunwar Rameshwar Singh, to the following effect:I. That since October, 1953
in the locality known as Falkland Road, Foras Road, Sukhalaji Street, Bapty
Road, Kamathipura and the areas adjoining thereto in Greater Bombay his
movements and acts are causing alarm and harm to the persons residing in,
carrying 'on business in, or visiting the said locality in that:
(i) He with assistance of his associates some
of them being Sk. Makbool Sk. Hussain, Abdul Rahiman, Suleman alias Sapad,
Ahmad Yusuf alias Ahmed Dalal, Shafi and others, extort Money from women
residing in and carrying on business either as prostitutes or singing girls in
the said locality on threats of assault and of causing bodily injury to them;
(ii) That he-with the assistance of the said
associates assault or threaten with assault the aforesaid women who do not
comply with his demands for money;
(iii) That in order to compel the aforesaid women
to pay him the money demanded by him he also posts his associates at or near
the places of business of the aforesaid women and prevent customers from
entering the rooms of, such women;
70 540 (iv) That he with the assistance of
his associates extort money from shopkeepers, hotel-keepers, merchants and
hawkers carrying on business in the said locality and from rent collectors of
buildings occupied by the aforesaid prostitutes and singing girls -by
assaulting them or threatening them with assault and dislocation of business;
(v) That he causes damage to the property of
the said hotelkeepers and hawkers of the said locality who do not pay him money
demanded by him;
(vi) That he accosts persons visiting the
rooms of singing girls in the said locality for the purpose of entertainment
and demand money from them under threats of assault and of preventing them from
visiting the said locality;
(vii) That he has committed several acts of
the nature mentioned above.
II. That witnesses to the above incidents are
not willing to come forward to give evidence in public against him as they
apprehend that they will be assaulted by him and/or by his associates if they
do so.
And whereas I have heard the said person and
considered the explanation tendered by him and also the evidence given by the
witnesses produced by him and have heard his counsel.
And whereas after considering all the
evidence and explanation detailed above, I am satisfied that:
The Movements and acts of Kunwar Rameshwar
Singh since October, 1953, are causing alarm and harm to the persons residing
in carrying on business in or Visitin the locality known as Falkland Road,
Foras Road Sukhalaji Street, Bapty Road, Kamathipura and the areas adjoining
thereto in Greater Bombay and that he indulges in activities mentioned above.
And whereas in my opinion witnesses are
unwilling to come forward to give evidence in public against the said person by
reason of apprehension on their part as regards the safety of their persons;
Now, therefore, in exercise of the powers
vested in me under section 56 of the said Act, 1, Shri W. K. Patil, Deputy
Commissioner of Police, Crime Branch 541 (1) C.I.D., Greater Bombay himself
hereby direct that the said Kunwar Rameshwar Singh shall remove outside the
limits of Greater Bombay by Central Rly. (route) within seven days from the
date of service of this order and I further direct that he shall not enter the
said area of Greater Bombay for a period of two years from the date of this
order without a permission in writing from the Commissioner of Police Greater
Bombay, or the Government of Bombay.
Sd. W. K. Patil, Dy. Commissioner of Police,
Crime Branch (I) C.I.D. Greater Bombay".
The order quoted above is a self-contained
one and discloses the nature of the allegations against him which he bad been
called upon to explain. The petitioner preferred an appeal to the third
respondent, the State of Bombay. But his appeal was dismissed on the 17th
January 1955. The petitioner challenged the validity of the said order passed
by the respondents by a petition under article 226 of the Constitution to the
Bombay High Court, but it was dismissed on the 14th March 1955 after hearing.
The judgment of the High Court is Exhibit D. The learned Judge of the Bombay
High Court who dealt with the petition has set out briefly the main allegations
of the petitioner and the affidavit in answer to the petition sworn to by the
1st respondent here.
The learned Judge observed in the course of
his judgment that in view of the averments in the petition and those in the
affidavit in reply it was impossible for him to hold that the Deputy
Commissioner of Police knew that witnesses were willing to give evidence
against the petitioner. The petitioner went up on Letters Patent Appeal and a
Division Bench consisting of the Chief Justice and another Judge of the Bombay
High Court dismissed the appeal holding that once the opinion has been formed
by the authority that witnesses were unwilling to give evidence in public
against the petitioner, the court could not go behind that opinion.
They also negatived the plea of want of bona
fides in the 1st respondent who had initiated the proceedings.
542 The petitioner removed himself outside
the limits of Greater Bombay. Having come to know that a warrant of arrest had
been issued Against him in a certain pending case before the Presidency
Magistrate, Fourth Court, at Girgaum, Bombay, on the 6th April 1955, the
petitioner entered Greater Bombay to attend court but he was arrested under the
Act for committing a breach of the externment order. He was prosecuted before
the Presidency Magistrate, Sixth Court at Mazgaon, Bombay, for an offence under
section 142 of the Act. He was convicted by the Magistrate and sentenced to
nine months rigorous imprisonment by a judgment dated the 8th September 1955.
The Magistrate's judgment is Exhibit to the petition. The learned Magistrate
overruled the petitioner's contention that the order of externment passed
against him was illegal, relying chiefly upon the judgments of the High Court
referred to above, upholding the constitutionality of that order. As regards
his defence that he had entered Greater Bombay in obedience to the warrant
issued against him, the learned Magistrate observed that as a matter of fact,
according to the statement of the petitioner's counsel before him he had taken
that step "to -test the validity of the order". Secondly, the learned
Magistrate has rightly pointed out that the petitioner should have obtained the
previous permission of the Police Commissioner before returning to Bombay, as
otherwise the order of externment would be rendered nugatory. The learned
Magistrate also observed in the course of his judgment that no allegations of
mala fides had been made against the police officers who bad initiated the
proceedings against the petitioner.
The petitioner went up in appeal to the High
Court of Bombay which by its judgment dated the 5th October 1955 upheld the
conviction and the sentence. The judgment of the High Court is Exhibit G to the
petition. A Division Bench of the Bombay High Court repelled the contention on
behalf of the appellant that the order of externment was invalid, relying
chiefly upon the previous judgment of that very court upholding the
constitutionality of the very order 543 impugned. Another matter referred to in
the judgment of the High Court is rather significant. On behalf of the
appellant reliance had been placed upon a letter alleged to have been sent to
the petitioner by the Secretary to the Chief Minister granting permission to
him to return to Bombay in order to see the Home Secretary. It was found on
enquiry by the learned Government Pleader who intimated to the court that the
alleged letter had not been signed by the Secretary to the Chief Minister and
that no such letter had actually been sent to him. On that statement being
made, the petitioner's counsel did not press his contention that his return was
after permission. The petitioner moved this Court for special leave to appeal
against the said judgment of the High Court in Petition No. 601 of 1955. One of
the grounds in the petition was that the High Court should have held that the
externment order was illegal and that therefore the petitioner's entry was
lawful. A Constitution Bench of this Court by its order dated the 21st November
1955 dismissed the petition for special leave to appeal.
This completes the statement of the case made
on behalf of the petitioner.
In answer to this petition the first
respondent has sworn to the affidavit filed in this Court. It is necessary to
state in some detail the facts stated in this affidavit which furnish the
background to the whole case against the petitioner. The petitioner is said to
be a native of Balrampur, District Gonda, Uttar Pradesh. After passing his
school examination in 1940, he joined the then Royal Indian Navy in 1942. In
the year 1946 while he was attached to S.
S. Talwar in Bombay, be was "released
from service". In 1947 he joined the B. B. & C. 1. -Railway as a clerk
and was removed from his post in July 1947 for having made baseless allegations
against his superior officer. In 1949 he made an attempt to enter the police
force of Greater Bombay, but that failed as he was found to be unreliable.
Subsequently, in August 1950 he joined the State Transport Department as a
clerk but had again to be removed from that post in April 1951. Later on, the
petitioner obtained accommodation in 544 Bombay on a false representation that
he was a refugee from Pakistan. He was prosecuted and convicted and sentenced
to pay a fine of Rs. 30 or three months rigorous imprisonment in default. His
appeal from that order of conviction and sentence to the High Court of Bombay
was dismissed by a Division Bench in September 1954. On a similar false representation
he had obtained from the Custodian of Evacuee Property two shops in Bombay.
Necessary proceedings had to be taken against him for evicting him from those
shops.
After his removal from Government jobs as
aforesaid, the petitioner "came forward" as a social worker directing
his activities mainly to "the redlight district" in certain quarters
of Greater Bombay inhabited by over 10,000 public women. Along with his
associates he started a no rent campaign and resorted to violence with the help
of so-called volunteers who were themselves bad characters, externees,
drunkards and persons with previous convictions. With the help of associates
like those he moved in the "red light district" and realised money
from his victims by threat and intimidation. Thus by all questionable means the
petitioner started extorting moneys by harassing the inmates of that district
and those who frequented those quarters. The rest of the long affidavit running
into 29 paragraphs is devoted to denying the allegations made by the petitioner
that he had been a victim of police combination against him or that the
procedure laid down by the law had not been followed or that the petitioner had
not a fair and full opportunity of explaining his case to the authorities. The
affidavit further asserts that witnesses who had given their statements -to the
police against the petitioner were not willing to come forward openly to depose
against him and some of those witnesses who did turn up were prevailed upon by
the petitioner to change their original statements made during the preliminary
inquiries. On those averments it was submitted by the 1st respondent that the
proceedings against him were regular and in accordance with the provisions of
545 the Act and that there was no merit in his contentions.
These two petitions were heard along with Petition
No. 272 of 1955 which is being disposed of by a separate judgment.
In that case the order impugned had been
passed under section 57 of the Act. Sections 56 to 59 of the Act are closely
connected. The common arguments addressed to us by Shri Purshotham challenging
the validity of sections 56 to 59 have been dealt with in that judgment and
need not be repeated here. It is only necessary to deal with the provisions of
the section impugned in these two cases, namely, section 56 of the Act, which
is in these terms:"Whenever it shall appear in Greater 'Bombay and other
areas for which a Commissioner has been appointed under section 7 to the
Commissioner and in other area or areas to which the State Government may, by
notification in the Official Gazette, extend the provisions of this section to
the District Magistrate, or the Sub-Divisional Magistrate specially empowered
by the State Government in that behalf (a) that the movements or acts of any
person are causing or calculated to cause alarm, danger or harm to person or
property, or (b) that there are reasonable grounds for believing that such
person is engaged or is about to be engaged in the commission of an. Offence
involving force or violence or an offence punishable under Chapter XII, XVI or
XVII of the Indian Penal Code, or in the abetment of any such offence, and when
in the opinion of such officer witnesses are not willing to come forward to
give evidence in public against such person by reason of apprehension on their
parts as regards the safety of their person or property, or (c) that an
outbreak of epidemic disease is likely to result from the continued residence
of an immigrant, the said officer may, by an order in writing duly served on
him or by beat of drum or otherwise as he thinks fit., direct such person or
immigrant so to conduct himself as shall seem necessary in order to prevent
violence and alarm or the, outbreak or spread of such disease or to remove
himself outside the area Within the local limits of his jurisdiction by 546
such route and within such time as the said officer may prescribe and not to
enter or return to the said area from which he was directed to remove
himself".
In order to attract the operation of the
section quoted above with special, reference to the portions relevant to these
cases, it is necessary (1) that the Commissioner, the District Magistrate or
the Sub Divisional Magistrate specially empowered by the State Government in
that behalf, as the case may be, should be satisfied that the movements or acts
of any person are causing or calculated to, cause alarm, danger or harm to
person or property, or that there are reasonable grounds for believing that
such person is engaged or is about to be engaged in the commission of an
offence involving force of violence or an offence punishable under Chapter-XII,
XVI or XVII, Indian Penal Code, or in the abetment of any such offence, and (2)
that in the opinion of such officer witnesses are not willing to come forward
to give evidence in public against such person by reason of apprehension on
their parts as regards the safety of their person or property. When the officer
concerned is satisfied about these two essential matters, he may direct such
person to remove himself outside the local limits of his jurisdiction and not
to return to the said area for a period not exceeding two years as laid down in
section 58. But before passing such orders the person proceeded against under
section 56 has to be given an opportunity of explaining matters against him by
adducing such evidence as he may tender after he has been informed in writing
as to the "general nature of the material allegations against him".
Such a person is entitled to appear before the officer by an advocate or
attorney for the purpose of tendering his explanation. and evidence.
It has not been contended on behalf of the
petitioners that they had-not been given the opportunity contemplated by
section 59. But grievance was sought to be made of the fact that particulars of
the evidence against the petitioners and of their alleged activities have not
been given to them.
That argument has 547 been dealt with in the
judgment in the other case. It is necessary therefore to deal only with the
particular arguments advanced on behalf of each petitioner peculiar to his
case.
In Petition No. 439 of 1955, it was said that
this Court had laid down in the case of Gurbachan Singh v. State of Bombay(1)
as follows:"The law is certainly an extraordinary, one and has been made
only to meet those exceptional cases where no witnesses for fear of violence to
their person or property are willing to depose publicly against certain bad
characters whose presence-in certain areas constitutes a menace to the safety
of the public residing therein".
The words "no witnesses" have been
emphasized as supporting the argument that unless all the witnesses before the
police are unwilling to give evidence in open court the provisions of section
56 cannot be taken recourse to. In our opinion, it is reading too much into the
observations of this Court quoted above, made by Mukherjea, J. (as he then
was). The learned Judge did not mean to lay down, and we do not understand him
as having laid down, that unless each and every witness is unwilling to give
evidence in open court, the provisions of section 56 are not available to the
police. The words of section 56 quoted above do not lend themselves to that
extreme contention. If such an extreme interpretation were to be put on that
part of section 56, it is not difficult to imagine a situation where it will
become almost impossible to apply that section to any case.
It was next contended on behalf of the
petitioner in this case that the section contemplates witnesses other than
members of the police force and employees and officers of the Customs
Department. It is said that it is the duty of the police force as of the
employees of the Customs Department to brave all danger and to come out in the
open even against desperate criminals to give evidence against them in court
and to subject themselves to cross examination. That is a counsel of perfection
which every member (1) [1952] S.C.R. 787.
71 548 of the police force or every employee
of the Customs Department may not be able to act up to. Furthermore, the terms
of the section do not justify any such restricted meaning being given to the
word "witness". Hence, in our opinion, there is no justification for
the contention that members of the police force and employees and officers of
the Customs Department must always come in the open and give evidence against
criminals or potential criminals. If the officer concerned is satisfied that
witnesses of whatever description they may be, are not willing to come out in
the open, one of the essential conditions of the application of section 56 is
fulfilled and it is no more necessary for them to stop to consider as to which
class of persons those witnesses may come from.
In Petition No. 440 of 1955 the learned
counsel for the petitioner had a more uphill task in view of the fact that this
very order impugned bad been examined in the criminal prosecution against the
petitioner by the Presidency Magistrate and by the High Court on appeal and the
petition for special leave to appeal to this Court had been refused.
But it was argued on behalf of the petitioner
that section 56 itself wag invalid as contravening the provisions of article 19
of the Constitution-an argument which has already been dealt-with by this Court
in Gurbachan Singh v. State of Bombay(1) referred to above. In that case,
Mukherjea, J.
(as he then was) delivered the judgment of
the court after examining the constitutionality of section 27(1) of the City of
Bombay Police Act, (Bombay Act IV of 1902). The operative words of that section
are almost exactly the same as those of section 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 ;bake
the authority of that decision.
Shri Dadachanji, who appeared on behalf of
the petitioner in this case faintly suggested that the petitioner had been
proceeded against under the penal sec(1) [1952] S.C.R. 737.
549 tion of the Act notwithstanding the fact
that he had entered Greater Bombay in order to look after the case pending
against him in which a warrant of arrest had been issued.
But that is a closed chapter so far as the
courts including this Court also are concerned inasmuch as his conviction
stands conformed as a result of the refusal of this Court to grant him -special
leave to appeal from the, judgment of the Bombay High Court. He further
contended that his conviction for his' having entered Greater Bombay itself is
an indication of the unreasonableness of the restriction and of the law under
which the order of externment had been passed against him. But if the
petitioner had only taken the course indicated by the law, namely, of obtaining
the previous permission of the prescribed authority, he could have avoided the
prosecution and the conviction. It must therefore be held that there is no
merit in this contention also.
For the reasons aforesaid it must be held
that section 56 of the Act is not unconstitutional -and that the orders passed
against the petitioners are not invalid. These applications must stand
dismissed.
JAGANNADHADAS J.-In view of the decision of
this Court in Gurbachan Singh v. The State of Bombay(1), I agree that these
petitions should be dismissed.
But I think it right to add that if the
matter were res integra I should have felt difficulty in upholding the validity
of section 56(b) of the Bombay Police Act, 1951 (Bombay Act XXII of 1951) in so
far as it did not demarcate the application thereof to the more serious classes
of offences falling within the specified Chapters, serious either because of
the nature of the offence contemplated or the circumstances under which it is
to be committed and so forth. I should also have felt difficulty in holding a
provision to be reasonable which clothes the executive officers with an
authority to extern a person for so long a (1) [1952] S.C.R. 737.
550 period as two years. it has been said
that there is a power of cancellation at any time vested in the officer
concerned.
Even so, I should have thought that the
vesting of a power to extern, a person out of his home for so long a period
without the obligation to review the order at some stated periodical intervals,
say once in three months or six months, is prima facie unreasonable. Externment
might appear on the surface -not to be as serious an interference with personal
liberty as detention. But in actual practice it may be productive of more
serious injury to the person concerned-or the rest of his family if he is the
earning member. An externed person is virtually thrown on the streets of
another place where be has got to seek his livelihood afresh. He has to start
in a new society with the black-mark -of externment against him and may be
driven thereby to more criminality. On the other hand, in the case of a person
under detention, the State normally takes or is bound to take care of him, and
in appropriate cases provides also for his family.
In view, however, of the previous decision of
this Court which is binding on me, I am prepared to accept the validity of
section 56 of the Bombay Police Act, 1951, and of the orders of externment
passed there under in these two cases.
Petition dismissed.
Back
