G.T.NANAVATI, J. - (1.) The Deputy Commissioner of Police, Surat City, by an order dated 5-12-1988, has externed the petitioner from Surat City and the contiguous districts of Surat (Rural), Valsad and Bharuch for a period of two years from the date of the order. That order is challenged by the petitioner on various grounds but we need not mention all of them as this petition deserves to be allowed on the ground that in this case the Deputy Commissioner of Police had exercised his power under Section 56 of the Bombay Police Act on extraneous considerations and not for the purpose for which he could have exercised that power. In the notice given to the petitioner containing the substance of charges levelled against him, it is stated that the petitioner is involved in commission of offences punishable under Chapters 16 and 17 of the Indian Penal Code, but as a result of the fear of the petitioner neither the victims nor the witnesses come forward to make complaints against him. It is further stated therein that the petitioner is running a liquor-den and in the year 1988, four offences were registered against him under the Bombay Prohibition Act, and that activity is damaging the person and property of people of Surat. In the order of externment also, after referring to the petitioner's acts, which would amount to offences punishable under Chapters 16 and 17 of the Indian Penal Code, the Deputy Commissioner of Police has in paragraph 3 thereof referred to his bootlegging activity. The relevant part of paragraph 3 of the order reads as under : "3. You keep in your custody illicit country liquor and sell it, and you are running liquor (sic.) and for which in the year 1988 four offences were registered against you, and actions are taken under Section 93 of the Prohibition Act The register regarding the same, is enclosed with the show cause notice. Your activities regarding committing breach of Prohibition Act is damaging the person and property of people. Over and above, in order to increase your activities of breach of Prohibition Act, and in order to get cooperation, and no body comes in the way of your all these activities, you want to impress people, you are committing offence of using force and violence, which proved from the statements of the above witnesses."
(2.) Relying upon the reference made to the bootlegging activity in the notice and in the order, it is contended by the learned advocate for the petitioner that in this case the Deputy Commissioner of Police, Surat City, has exercised the power under Section 56(b) of the Bombay Police Act not really for the purpose of preventing the petitioner from committing offences punishable under Chapters 16 and 17 of the Indian Penal Code but with a view to prevent him from carrying on his bootlegging activity. He further submitted that this amounts to exercising the power mala fide and for that reason the order of externment deserves to be set aside. As there was other material to show that the petitioner was involved in commission of acts amounting to offences punishable under Chapters 16 and 17 of the Indian Penal Code, we would have possibly rejected the contention of the petitioner. However, in his reply affidavit, the Deputy Commissioner of Police has clearly stated in paragraph that, "I was fully satisfied after considering the relevant materials that it was necessary to pass the order of externment against the petitioner to prevent the petitioner's bootlegging activities." It is, therefore, not possible to accept the contention of the learned Additional Public Prosecutor that the order of externment was really passed in this case not with a view to prevent the petitioner from carrying on his bootlegging activity but with a view to prevent him from committing acts involving use of force and violence which would amount to offences punishable under Chapters 16 and 17 of the Code. From the reply affidavit filed by the Deputy Commissioner, it becomes clear that power under Section 56 has been exercised in this case not for the purpose for which such power could have been exercised but for an extraneous consideration, viz. to prevent the petitioner from carrying on his bootlegging activity. As the power of externment has not been exercised by the Deputy Commissioner in this case bonafide, but for an ulterior object, the order passed by him will have to be quashed and set aside. Rule made absolute. ;