R.L. Gulati, J. - (1.) THE is a petition Under Article 226 of the Constitution.
(2.) THE first Respondent, the DM, Azamgarh, served a notice upon the Petitioner Under Section 3(1) of the U.P. Control of Goondas Ordinance, 1970, which was later on replaced by U.P. Control of Goondas Act, 1970 (U.P. Act No. 8 of 1971). The Petitioner submitted his explanation and led evidence. Thereupon the DM passed at order directing the Petitioner to remove himself outside the distt. within a period of 7 days from the date of the order and not to enter the district before the period of six months. He was also directed to report his time of departure from the district and his full adrenal and destination to the Superintendent of Police Azamgarh and continue to report overly month the full particulars of the place at which he lived outside the District to the DM and the SP, Azamgarh the Petitioner's appeal to the Commr. Gorakhpur Division failed. He has now approached this Court Under Article 26 of the Constitution challenging she order of the DM and of the Commr. Proceeding for the externment of a Goonda are taken Under Section 3 of the Act which reads: * * * (His Lordship then reproduced in extenso Sub -section (1) of Section 3 of the U.P. Control of Goondas Act, 1970 and proceeded on to observe:) A reading of this Section shows that there are two stages of the proceedings taken against a person who is to be dealt with as a Goonda. The first is the notice stage. At this stage the DM can serve a notice upon the person if it appears to him that he is s Goonda and that his movements or acts in the district or any part thereof are causing or are calculated to cause already, danger or harm to persons or properly or that there are reasonable ground for believing that he is engaged or about to engage in the district or any part thereof in the commission of offence of punishable u/Ch. XVI, Ch. XVII or Ch. XXII of the IPC, or under the Suppression of Immoral Traffic in women and Girls Act, 1956 or under the U.P. Excise Act, 1910 or in the abetment of any such offence and that witnesses are not willing to come forward to give evidence against him by reason of apprehension on their part as regards the safety of their person or property. The notice has to be in writing informing the person concerned of the general nature of the materia allegations against him in respect of Clauses (a), (b) and (c). In the instant case the notice recites: (a) that the Petitioner is a Goonda, (b) that he habitually commits offences punishable u/Ch. XVI, Ch. XVII a Ch. XXII of the IPC, (c) His movements and the acts in towns of Saraimir, Phoolpur, Mau and Mohammadapur are causing alarm, danger and harm to the person and property; (d) that the witnesses are not willing to come forward to give evidence against him by reason of apprehension on his part as regards the safety of their person or property.
(3.) THUS the first condition for the issue of a notice appears to fee satisfied. However, the notice does not disclose the nature of the material upon which the allegations contained in the notice are based. However, nothing material turns upon this submission because the Petitioner did not take any such objection before the DM or on appeal before the Commr. and the want of the disclosure of the material in the notice, cannot be said to have prejudiced the Petitioner in any way. But there is and the serious infirmity in the order passed by the DM. Sub -section (3) of Section 3 provides: * * * * (His Lordship then reproduced in extenso Sub -section (3) of Section 3 of the U.P. Control of Goondas Act, 1970 and proceeded on to observe:) It is clear that after, the Petitioner submitted an explanation and evidence had been led, the DM had to record his satisfaction that conditions specified in Clauses (a), (b) and (c) of Sub -section (1) of Section 3 existed and it is only then that he could pass an order for externment etc. Now in the order passed by the DM, he has recorded following findings:) From all these it is proved that Ejaz Ahmad is in the habit of committing offences as mentioned in the Act and as such, he is a Goonda and also that his actions are such as are dangerous to the persons and property. There is no finding that witnesses are not forthcoming to depose against him. It is clear that all the three conditions mast co -exist before an action can be taken against a person under the Act. The absence of satisfaction of the DM about the third condition, namely, that the witnesses are not forthcoming to depose against him because of the fear created by him in the locality is a material omission which vitiates his order. It must be remembered that ordinarily, a person who commits a crime can be put up for trial before the appropriate Court and can be convicted and punished. The mere commission of crime is not enough to treat a person a Goonda and to order his externment. The necessity to take action under the Act arises only where not only a person is a Goonda and is engaged in commission of serious offences, but where witnesses are not forthcoming to depose against him so that it is not possible to secure his conviction in a court of law. Therefore, the existence of this condition is absolutely necessary. The DM has recorded no such finding nor has the Commr. done so. In these circumstances the action taken against the Petitioner cannot be sustained.;