« {AKA IN THE HIGH COURT OF JUDICATURE OF CHI-IATTISGARH AT BILASPUR .LL&° ~ “72002 writ Petition No? PE’I‘ITEONER : $andeep shouri @ Kake shouri VJ?” s/o 11.13. shouri aged about 32 . ’é” yrs. Resident of Shanti Nagar Vishrampur P.s° vishrampur Distt. Suruja (c.G.) VERSUS RESPONDENTS ‘ ’3"(1) State of chhattisgarh through Secretary Home department Ministry Dau Kalyan singh Bhavan Raipur (C.G.) Ambikapur Distt. Surguj'a (C.Go) Superintendent of Police surguja ’/ Ambikapur’pistt. surguja (Caryn) (2) District Magistrate surguja 3 Q / ) ( / /’ /, PETITEON UNDER ARTICLE 22\/6/227 OF CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT OF MANDAMUS AND CERTIORARI é wt g g HIGH CGUR‘I‘ GF CHEIATTI§GARH g 3ELASF’UE3 KN” Writ Petition Na. 1493' of 2002 la; ihe mamzer cef writ etitien under fwtieies 2§6 & 22’? N uf the Smmtitutim: of Enéia. Sandeep Shouxi@ Kake Shouri Petitioner V€rsus State. of Chhattisgarh 6a Othsrs For petitiener For lesp011d€nt$ Raspondmlts Smt. Hamida Sicidiqmi, Adv. Shri Ranbir Singhi Govt Adv, Date 0f Order 16 431-2003 PRESENT: HQN’ELE $HRE JE§$TEQE R€£§§AEK Chailmlge 1'11 mis Witit p€tition i$ to the omier 0f extemm€nt passed against thé patia‘tmer ou 15612002 by ma District Magistraté Surguja and, the ordm‘ dated 29.6.2002 paSS€d by Tha State Govemlmem rejecting hi3 appeal, 2. In Shom, tha facts giving $186 t6 the péiition are that 0n 25.7.2000 Supm’mt‘sudfsnt of Polica, Suiguja fmwardad a rcpoyt to the District Magistrate, Surguja, for initiating proceedings under Section 5(2Nb} and to take action under Sectjcn 5 of the MPRajya Suraksha Adhmiyam ( 1'11 short, ‘the Adhmiyam’) against the petitieneit On receivmg the leport, the Dim-lief Magistrate on being satisfied that it was :iecessary to initiate the said proceedings, registered the oame 311d hek‘i an enquhy ‘ 237 meorded in the presmlce of the. Disuict Prosecution Ofiicer. 011 a consideration of the material on record, the District Magistrate 011 17.10.2001, till which timE tha enquiry COETjnued, cama to mcord his satisfactiom that pn‘ma faCiE a caSe for suitabk action undsr Section 5 has been madé ou‘x. against ihe patitiomer and accordingly ordel‘cd that a notice to ghow cauSe 1'11 terms of Section 8 (i) of the Adhjniyam be. iSsued to the petitioner. Accordingly such a notice was issued. On receiving the notice, the petitioner filed his Show cauee 31101 statements of 12 witnesses adduced by him Were recmried on vaiicus dates. The enquiiy, which commenced on 11.8.2000 continueo till. 15. 1 ,2000 on which date the order of extermnent was paesed. 3. The order of extemment is assailed inter aka on the ground that it is illegal, arbitreuy and contrary to the material on record. It is submitted that the fact that the petitioner has been acquitted in many of the cases has not been noticed by the Authorities. It was submitted that the petitioner is a laW~ abiding person and the complaints lodged against him were due to ill-Will and hence motivated. It was also stated that the orders impugned are not reasoned orders, and, therefore, cannot be sustained. At any rate, it was submitted that restraining the petitioner from entering all the surrounding districts was too tarsh and needs to be modifled. It. was also submitted that since the order visits the petitioner with punishment, adequate reasons ought to have been recorded by the Authority and the failure to do so is sufficient to Vitiate the order. On the other hand, it was submitted on behalf of the State that the activities of the petitioner were such that the Authority was justified in y@ coming to the conclusien that he was engaged in commission of offence invoiving force or vioknce and a$ tho r€corc1 c1€ar£y indicatEd, tho wimossas were reluctant t0 deposo agaillst him, tho Authority was’ justified 1‘11 taking the action it did. It was submitted that *Lhe action wag a preventive measure for Larger public good aild on the facts and circumstaiices of the case 11o illegality can be said to have been committed by the Authorities in passing the order impugned, To begin with, it may be stated that the proceedings under the Adhiniyam ale preventive in nature and the order of externment cannot be construed to be an order imposing punishment. The said Adhiniyam, as is clear, has been enacted to provide for security of the State, maintenance of public order and certain other matters connected therewith. The provisions are intended for taking preventive actions to counteract activities of anti—social elements and the Adhiniyam confers on the Government the power to take appropriate action so that peace and tranquility is not'disturbed and one manner of maintaining peace and tranquility is by removal of anti—social elements and restriction of their activities. The Adhiniyam arms the Government with power to make a restriction order and appropriate orders dealing with dispersal of anti-social elements and previous convicts and removal of persons about. to commit offences as also removal of persons convicted of certain oiTences for which appropriate actions may be initiated. The action under this provrsion is not to punish, but to prevent certain actions which may be prejudicial to the peace and tranquility in the community, Thus, the contsntion that the action under the provision amounts to a punishment calnlot be accepted. 5. It is 11o doubt true that to some extent the order of externment affectss the tight to movement of a person {‘Witm'n 1 a certairi area) against whom 2m order is passed but then this is preventive aiad not punitive. indeect, a citizen hae a right to move about freely throughout the territory of India, but this tight is not wholly absolute aud the State has the oower to impose reasonable restrictions ou such movement either in the interest of the general public or for the protection of interest of any Schedule Tribe, In the case at hand, the restriction m so far as its prohibits the petitioner’s enuy in certain specified districts may be complete, but it cannot be said that nie order amounts to a total prohibition. of the fundamental right of the petitioner guaranteed under Article 19(1)(d) of the Constitution of India. To repeat, the order of extennnent is not “punishment” but it is a restriction ---— the effect being to restrain the entry and the movement of the concerned person within a specified area. The action of restriction is with theobject of maintaining peace and tranquility and the action is taken against the person only after giving him a due opportunity of hearing. Therefore, it cannot be said that in the case at hand the restriction imposed upon the petitioner is arbiuary or of an excessive nature beyond What was required in the interest of the public as it deprives the petitioner from his fundamental right of movement throughout the territory of India: 6. The contention that the order not being a WEE reaSoned order stands viu'ated callnot 21130 be accepted. As has been obsewed ahove, me order of extermment is not an order imposing puniehment and in such cases it cannot be said that the facts on which ihe action is based should make out a case beyond all reasonable doubts as is required to be macle out before holding a person guilty of an offence. Obviously, such x orders of externment of individuals like preventive detention are largely yrecaum‘onary and to some extent can be said to be based on suspicion which should arise from the material placed on record. An order or extemment cannot be passed on. the ipse dixit of an Authou'ty, but founded on material on record and which is sufficient for arriving at a belief that a person is engaged o about to be engaged in the commission of r offence ......... Thus, a satisfaction or a belief has to be arrived at by the Authority before it takes any action anti this satisfaction or belief is to be based on material piaced before him. In the case at hand, it cannot be said that the Authonity—respondent No.2 herein, has arrived at a particular conclusion without there being any maten'al on record or in a routine or a mechanical manner. The record indicates that a report giving details was received from the Superintendent of Police. Qn receiving the report, the concerned Authority examined the matter, initiated an enquiry in which statements of some witnesses and police oiiicials were recorded and only after the Authority was satisfied that a plima facie case was made out that it decided to issue a notice to the petitioner to show cause why appmptiate action be not taken against him, which is apparent from the order dated 923’ 179.2001 of ths Authority. Frcim a perusal of 1316 said order, it is c16a1~ that the Authoxity arrived at that conclusion. afier appraisal of 1116 facts on record. 1n othér words, his satisfaction has 1366a r€corded. Indeed, neither is it necessary nor d06$ the statum require racording of masons to maka out a casa bayonc‘l masonablo doubt like in a cm‘miual tn‘al bofore passi11g an ordor of extmnmant. 7. In tho roport submitted by the. Suporiniendont of Polico, a rofer€11ce is mado to 16 proceadings that wora initiated against the petitioner during the period November 198? to Juiy 2000. Malay of these were proceediiigs uuder Section 1(37, 1 10, 1 16 {3) and 151 of Cr.P.C,, Criminal Cases under Section 294, 506-Bi 4127/34, 323, 452, éO3—B, 147, 148, 149 and 307. The last proceeding in point of time to which a reference is made on 14.7.2000 was under Section 110 Cr.P.C.. in which a 1eport involving the petitioner has been filed before the Court. Thus, the incidents to which a reference was made took place during the year 1987, 1991 and betWeen 1998 to 2000. Looking from one point of View, it no doubt appears that the incidents are old and the last proceeding was initiated in the year 2000. But, when one looks from another angle, it becomes obvious that there has been a parn'cular course of conduct of the petitioner involving him in various incidents over a long period of tiine. The Cases relate to preventive Sections i.e.107, 110 and 116 of the Criminal Procedure Code on the one hand and cases under Sections 307, 294, 323, 506—B, 452 and 427 IPC on the other. A case is also under Sections 147, 148, 149, 452 and 307. Even if we ignore the period prior 1991, there are five matters oi‘ 1998, 7 ?>§ $16 matters of 1999 ajld one matter of 2000, which was initiated on the basiS of report dated 25.7.2000. Even ignoring i116 earlier Th d imcidents, e incidente of 1998 an 1999 are nine 1'11 number. Th record indicates that many roceedings were initiated e p agains the petioner in the year 1999 and one in 2000 and as t it yer the saemen, which is clear from the riginal record, one ttt o reort dated 18.8.99 and the other rort dated 19.2000 was p ep 7. also lodged agains the petitioner ich appears to be subject t wh mater of invstigation. t e Et is not doubt true and as pointed out by he learned t cunsel that in many of the cases, the ourt acquitted the o C petitioner. But from the orders impugned, it is apparent that in most of these cases the witnesse had freigned ignorance of the s incident and they have resiled from their statement made during the investigation and in one case even the complainant had resiled from his earner stand. In otr words, the complainant he a1so did not sunport the prosecuion but surprisingly, as is clear t from the order of the authority, many of these persons have deposedbefore the Authority pointing out threats against them by the petitioner and his conduct by which the community is disturbed. In this regard, a reference may be made to Annexnres P—St P—4 and P-8 to the writ petition. 9. In the background of the. above facts, relying on the decisions of the MP. High Court in the case of Satish Vs. State of ME. {1991 {2) M‘P.WLND 15) and éynhkhan Va State of MaPa & another (1994 (1) Vidhi Bhaewar 168) learned counsel for the petitioner submitted that no ease for detention has heen ??3 made as th€ incidents are Stak aild that at any rate for a p€1ioc1 of about two years immediately before passiilg of the impugned order the petitioner was not involved in any activity that might warrant action against him under the Adhiniyam. Of co uree it is tale that the repert of Superintendent oi‘ Poiice is \ dated 25—7‘2000 and that the order of externment wae passed 0:1 15—1—2002. But, if the contentions; of the Earned counsel were to be accepted, it would mean that Whatever may be the activities of the pereon proceeded against under the Adhimyam, if he maintaiiis good conduct dining the pendency of the proceedinge no case for action under the Adhiniyam would be made out against him. Then again the question that may arise is whether the conduct of the person against Whom proceedings are initiated spread over a number of years can be the basis for v proceeding against him under the Adhiniyani or Whether the order can be paseed only on the basie ofhis activities f conduct immediately before or during the pendency of the pi‘oceedinga. These questions need to be considered iii the iight of the provisions contained in Section 5 of the Adhiniyam whether acnon can be initiated and order passed Where it appears to be the District Magistrate that there are reasonable grounds for believing that a person is engaged or about to be engaged in the commission of offences involving force, vioience or offences punishable reiating to coin and Government stamps, offences relating to religion or offences aifecting the hummi body or Offences afibcting the life or‘ under Section 506 or 509 {PC or in e the abetment of the aforesaid. offences 10. The aforesaid C0nt6nti011 raiSsd by m6 leaInEd counsel far the petitioner calls for ail answer. HsweVEr, in the contexi; of facts of this ease to consider these questions would be a mere acadermic exercise because on fhe date when the matter was heard the period of externment had practicaHy come to an end a11d by now it has come to an end. In this View of me matter the Comt feels that it would not be appropziate for it to express ally opinion on the said contention and to leave. it open for being considered as and when it is raised before this Court in an appmpm’ate proceeding. With the aforesa_d observation this Virtt petition stands disposed of Consequentlv M W P No 650i200’) also stands disposed of. t. a 11 Sol/- P.C.Naik Judge o