SINHA J.: - (1.) JUDGMENT of S. R. Das C. J. and Venkatarama Ayyar, Sinha and Imam JJ. was delivered by
(2.) THIS petition under article 32 of the Constitution challenges the vires of certain provisions of the Bombay Police Act, XXII of 1951, which hereinafter will be referred to as 'The Act' with particular reference to section 57 under which the externment order dated the 8/11/1954 was passed against the petitioner by the first respondent, the Deputy Commissioner of Police, Crime Branch (1), C.I.D., Greater Bombay. The second respondent is the State of Bombay. The petitioner, who claims to be a citizen of India, was born in Bombay and had been, before the order of externment in question, residing in one of the quarters of the City of Bombay. He keeps bullock carts for carrying on his business of transport and cows for selling milk. The petitioner alleges that the Prohibition Police of the City instituted twelve prohibition cases agast him which all ended either in his discharge or acquittal. An 'externment order' was passed against him in August 1950. That order was set aside by the Government in December 1950, on appeal by the petitioner. In December 1953 an order of detention was passed against him under the Preventive Detention Act, 1950, and he was detained in the Thana District prison. He moved the High court of Bombay under article 226 of the Constitution against the said order of detention.- He was released from detention before the said petition was actually heard by the High court. Thereafter, the petitioner along with others was charged with possession of liquor. The case went on for about two years when he was ultimately discharged by the Presidency Magistrate on the 24/02/1955 as the prosecution witnesses were not present on the date fixed for hearing of the case. On the night of the 9/10/1954 the petitioner was arrested along with his companions a little after midnight by members of the police force designated 'Ghost Squad', which was a special wing of the Crime Branch of the C.I.D., on the allegation made by the police that they were seen running away on the sight of a police van and that they were chased and arrested and were found in possession of knives and other weapons. In October 1954 the petitioner was served with a notice under section 57 read with section 59 of the Act. It is convenient at this stage to set out the said notice in extenso, which is Exhibit A to the petition filed in this court:- 'Notice under section 59 of the Bombay Police Act, 1951. Name, address & age: Hari alias Dada Khemu Gawali, Hindu aged about 37 years.' Occupation: Bullock cart owner. Residence: Room No. 45, 1st floor, Haji Kassam Chawl, Lamington Road. Under section 59 of the Bombay Police Act, 1951 (Bombay Act XXII of 1951), you are hereby informed that the following allegations are made against you in proceedings against you under section 57 of the said Act. In order to give you opportunity of tendering your explanation regarding the said allegations, I have appointed 11 a.m. on 25/10/1954 to receive your explanation and to hear you and your witnesses, if any, in regard to the said allegations. I, N. P. Paranjapye, Superintendent, C.B.I., C.I.D., therefore require you to appear before me at H. P. 0. Annexe I (place) on the said date viz. 25/10/1954 at 11 a.m. for the said purpose and to pass a bond in the sum of Rs. 500.00 with' one surety in like amount for your attendance during the inquiry of the said proceedings. Should you fail to appear before me and to pass the bond as directed above, I shall proceed with the inquiry in your absence. Take note: Allegations:- 1. That you have been convicted of offences as per particulars mentioned below:- JUDGEMENT_559_AIR(SC)_1956Html1.htm 2. That you were arrested on 29/3/1948 in connection with Nagpada P.S.C.R. No. 273 of 1948 u/s 143, 147, 148, 149, 353, Indian Penal Code wherein you along with one Ramchandra Ishwarbhai and others committed rioting and criminal assault on a public servant, viz. a police constable No. 4459/D to deter him from the execution of his lawful duties but you were discharged in the said case due to lack of sufficient evidence. 3. That you were again arrested on 2/5/1948 in connection with Nagpada P.S.C.R. No. 353 u/s 143, 144, 146, 147, 148, 149, 324, Indian Penal Code wherein you along with one Rajaram Khemu Gawli and 7 others committed rioting armed with deadly weapons, viz., lathis, sodawater bottles etc. and caused hurt to one Gopal Khemu Gawli but you were discharged in the said case for want of sufficient evidence. 4. That you were again arrested on 3/6/1949 in connection with Nagpada P.S.C.R. No. 336 of 1949 u/s 143, 147, 149, 225, 225-B, 332, Indian Penal Code wherein you along with one Shri Vithal Baloo and others committed rioting, assaulted a public servant, viz. a police officer (Shri S. K. Kothare) to deter him from the lawful discharge of his duties and made 3 persons in the lawful custody of the police to escape, but were discharged in the said case for want of sufficient evidence. 5. That now you have been arrested on 9/10/1954 at about 12-50 a.m. in the company of 7 others, viz. (1)Amir Masud (2) Francis Sherao & China (3) Antoo Narayan (4) Abdul Wahab Abdul Gafoor (5) Laxman Rama (6) Narayan Tukaram and (7) Rajaram Vishnoo out of whom persons mentioned at Nos. 1 and 6 are, previous convicts and that at the time of arrest you and persons mentioned at Nos. 1, 2, 3 and 4 were, armed with deadly weapons to wit, clasp knives, iron bar and a lathi, and thus you were reasonably suspected to be out to commit an offence either against property or person; And that you are likely again to engage yourself in the commission of a similar offence falling either under Ch. XVI or XVII of the Indian Penal Code. Sd. N. P. Paranjapye Superintendent of Police, Crime Branch (I), C.I.D. L.T.I. of Hari Dada Khemu Gawli. The petitioner appeared before the Superintendent on the 8/11/1954 with his counsel and filed a long petition containing allegations running into 16 paragraphs showing cause against the order of externment proposed to be passed against him. That petition is Ex. B. The petitioner accepted the correctness of the allegation contained in the first paragraph of Ex. A set out above, but denied the truth of the other allegations made therein against him which he characterised as based on 'old prejudice and suspicion'. As regards his conviction referred to in the first paragraph aforesaid, he stated:- 'I had unfortunately a conviction in 1938 when was a mere youth. I have lived a clean and honourable life ever since.' Then he goes on to make reference to the other cases charged against him and claimed that he had been 'discharged in those cases for want of sufficient evidence'. The first respondent aforesaid ultimately passed the order of externment which is Exhibit C to the petition, on the 8/11/1954. After reciting the previous conviction which was for offences under Ch. XVI, Indian Penal Code and that the petitioner was likely again to engage in the commission of similar offences and saying that he was satisfied about the matters contained in the previous notice, the first respondent directed the petitioner under section 57 of the Act to remove himself outside the limits of Greater Bombay within two days from the date of the final order in the case pending against him, as noted in the order, for a period of two years from the date of the order, and not to enter or return to the said area of Greater Bombay without the permission in writing of the Commissioner of Police, Greater Bombay, or the Government of Bombay. The petitioner preferred an appeal to the government of Bombay against the said order of externment. But the appeal was dismissed. Substantially on those allegations this court has been moved under article 32 of the Constitution. The first respondent has sworn to the affidavit filed in this court to the effect that the petitioner has been fully heard by the authorities before the order impugned in this case was passed. It is further stated in the affidavit that in the previous case in which the petitioner had been convicted be bad been found guilty along with his brother Rajaram of having caused the death of a person who had given evidence against them in a previous trial. The first respondent further stated in the affidavit that the material examined by him before passing the order impugned showed that since 1948 the petitioner had been resorting to violence and was concerned in a number of cases involving acts of violence, namely:- 1. In March 1948 a police constable was assaulted. Though the petitioner was one of the persons concerned with the crime, he was not charge-sheeted because sufficient evidence was not forthcoming against him. 2. In April 1948 the petitioner's brother had charged him and eight others with having thrown sodawater bottles and used lathis. The Presidency Magistrate, 17th court, Mazgaon, Bombay, had to adjourn the case several times for recording evidence of witnesses who remained absent and ultimately the court refused to grant further adjournment for the production of witnesses and the case ended in a discharge for want of evidence. 3. In May 1949 the police had arrested three persons including Rajaram aforesaid, the petitioner's brother for being concerned in sale of illicit liquor. While those arrested persons were being taken to the police lorry for being taken to the police station, the petitioner and other persons forcibly rescued those arrested persons from the custody of the police. But the case ultimately failed in August 1950 because the witnesses failed to turn up to give evidence against the accused including the petitioner. 4. At about 12-50 a.m. on 9/10/1954, the Special Squad, Crime Branch, C.I.D., Bombay, while proceeding on their rounds noticed the petitioner and seven others armed with an iron bar and lathi. On seeing the police van, they started running away and were chased and arrested by the police force. On arrest the petitioner and his other associates were found carrying 'clasp knives'. The petitioner and three of the seven arrested persons were found smelling of alcohol. The -petitioner was placed on his trial for offences under the Bombay Prohibition Act and the Bombay Police Act. He was acquitted by the learned trial Judge because of discrepancies in the evidence of some of the prosecution witnesses. The respondent further averred that after examining all the material against him in the light of his previous conviction under S. 304/109 and 324/109, Indian Penal Code, he was satisfied that the petitioner. was likely again to engage in the commission of offences similar to those for which he had been previously convicted. Accordingly he passed the order of externment against the petitioner, as set out above.
(3.) IN support of the petition which was heard -along with Petitions Nos. 439 and 440 of 1955 (in which the orders impugned had been passed under section 56 of the Act and which are being disposed of by a separate judgment) the leading argument by Shri Purshotham raised the contentions,(1) that section 57 of the Act contravened clauses (d) and (e) of article 19(1) of the Constitution and that the provisions of that section imposed unreasonable restrictions on the petitioner's fundamental rights of free movement and residence; and (2) that the order passed under section 57 against the petitioner is illegal inasmuch as it is based on vague allegations and inadmissible material, for example, on orders of discharge or acquittal. Each of the two broad grounds has been elaborated and several points have been sought to be made under each one of those heads. It has been contended that the police have been vested with unlimited powers in the sense that any person whom they suspect or against whom they have their own reasons to proceed can be asked to remove, not only from any particular area, like Greater Bombay, but from the entire State of Bombay. Even if one order does not ask a person to remove himself out of the entire State, each authority within its respective local jurisdiction can ask a particular person to go out of that area, so that that person may find himself wholly displaced without any place to go to. Unlike the law relating to preventive detention, there is no provision for an Advisory Board which could examine the reasonableness of the order proposed to be passed or already passed, so that there is no check on the exercise of power by the police authorities under the-Act, however flagrant the abuse of the power may have been. It is also contended that the provisions as regards hearing by the police authorities and appeal to the State government are illusory. The police is both the prosecutor and the judge and the remedy provided by the Act is a mere eye-wash. It is also pointed out that all kinds of offences have been clubbed together which have no rational connection with one another. Reliance was placed on certain observations made by this court in a number of decisions,, viz., Chintaman Rao v. The State of Madhya Pradesh(1); The State of Madras V. V. G. Row(2); Thakur Raghubir Singh v. court of Wards, Ajmer(3); Messrs Dwarka Prasad Laxmi Narain v. State of U. P.(4); and Ebrahim Vazir Mavat v. State of Bombay(5). Section 57 of the Act which is particularly impugned in this case is in these terms:'Removal of persons convicted of certain offences. If a ,person has been convicted(a) of an offence under Ch. XII, XVI or XVII of the Indian Penal Code, or (b) twice of an offence under section 9 of the Bombay Beggars Act, 1945, or under the Bombay Prevention of Prostitution Act, 1923, or (c) thrice of an offence within a period of three years under section 4 or 12-A of the Bombay Prevention of Gambling Act, 1887, or under the Bombay Prohibition Act, 1949, the Commissioner, the District Magistrate or the Sub Divisional Magistrate specially empowered by the State government in this behalf, if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted, may direct such person to remove himself outside the area within the local limits of his jurisdiction, by such route and within such time as the said officer may prescribe, and not to enter or return to the area from which he was directed to remove himself. Explanation-For the purpose of this section Can offence similar to that for which a person was convicted' shall mean(i) in the case of a person convicted of an offence mentioned in clause (a), an offence falling under any of the Ch. of the Indian Penal Code mentioned in that clause, and (ii) in the case of a person convicted of an offence mentioned in clauses (b) and (c), an offence falling under the provisions of the Acts mentioned respectively in the said clause&'. In order to attract the provisions of this section, two essential conditions must be fulfilled, viz.; (1) that there should have been a previous conviction under Ch. XII, XVI or XVII, Indian Penal Code, or two previous convictions under the Acts mentioned in clause (b), or three previous convictions within a period of three years under the Acts mentioned in clause (c); and (2) that the authority named should have reason to believe that a person coming within the purview of any of the clauses (a), (b) and (c) is likely again to engage himself in the commission of an offence similar to that for which he had been previously convicted; that is to say, for an offence falling under any of the three Ch. mentioned in clause (a), or if he had been twice convicted under the Beggars Act, or the Prevention of Prostitution Act, or thrice convicted under the Prevention of Gambling Act or the Prohibition Act; so that, a previous conviction for 'offences relating to coin and government stamps' has been equated with one for 'offences affecting the human body' (chapter XVI) or 'offences against property' (chapter XVII) of the Indian Penal Code. I Ch. XII contains S. 230 to 263(A). Ch. XVI contains section 299 to section 377 and Ch. XVII contains section 378 to section 462 of the Code. In other words, one convicted for counterfeiting coin may in terms of the impugned section 57 be said to have engaged himself in the commission of a similar offence if he is likely to use criminal force or to commit theft or extortion or robbery or dacoity or criminal misappropriation of property or criminal breach of trust. It has therefore been rightly pointed out on behalf of the petitioner that the range of the offences referred to in clause (a) of section 57 is very wide indeed and that it is difficult to point out any rational basis for clubbing them together. A person convicted under Ch. XII, Indian Penal Code of counterfeiting Indian Coin or government stamps may rightly be called the enemy of public finance and revenue, but is far removed from a person who may be convicted of murder or other offences against human body or against private property. But the legislature in its wisdom has clubbed all those offences together and it is not for this court to question that wisdom provided the provisions of the Act do not impose unreasonable restrictions on right to freedom. Conviction under the Bombay Beggars Act and the Bombay Prevention of Prostitution Act have been clubbed together under clause (b). and similarly previous convictions under the Bombay Prevention of Gambling Act and Bombay Prohibition Act have been clubbed together. So the previous convictions under the three clauses aforesaid have been placed in three different categories.;