--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 3523 / 2011 Dr. SHAHID QURESHI S/O FAZAL HUSSAIN Vs. STATE OF M.P. AND ANOTHER * * * * * O R D E R ( 10/11/2011) The petitioner before this Court has filed this present writ petition being aggrieved by the order of externment dt. 4/1/2011 as well as the order passed by the Commissioner, Ujjain Division, Ujjain, rejecting the appeal of the petitioner. The contention of the petitioner is that he is a resident of Ujjain and a report was submitted by the Superintendent of Police for initiating action under the MP Rajya Suraksha Adhiniyam, 1990 to the District Magistrate and thereafter a show cause notice was issued on 6/1/2010. Petitioner has further stated that he submitted a reply to the show cause notice and also informed the authorities that no offence was registered against the petitioner after 2009 and in 2009 an offence u/S. 323 of the --- 2 --- Indian Penal Code was registered against him. Learned counsel for the petitioner has also argued before this Court that the District Magistrate without recording any evidence and without considering the reply of the petitioner has passed an order of externment and the appeal preferred by the petitioner has been dismissed in a mechanical manner by the Commissioner, Ujjain. He has prayed for quashing of the order of externment as well as the order passed by the appellate authority. Learned counsel for the petitioner has also brought to the notice of this court certain documents filed along with the rejoinder and his contention is that the petitioner has also completed more than 10 months and his father is critically ill and admitted in the Hospital. He has also drawn the attention of this court towards the fact that there is no other male member in t he family to look after his father. He has prayed for quashing of the order dt. 4/1/2011 as well as the order passed by the Commissioner, Ujjain Division, Ujjain. A reply has been filed in the matter and the stand of the State Government is that the petitioner is a habitual --- 3 --- criminal and therefore on the basis of the report subitted by the Superintendent of Police, dt. 21/1/09 proceedings were initiated under the provisions of the MP Rajya Suraksha Adhiniyam, 1990. It has also been stated that since 1999, ten cases were registered against the petitioner and the respondents have enclosed a list of cases Annexure R/2. Contention of the respondents is that the petitioner is a threat to communal harmony and therefore action has rightly been initiated against him. Heard learned counsel for the parties at length and perused the record. In the present case, it is an admitted fact that a show cause notice was issued on 6/1/10 directing the petitioner to submit a reply. Petitioner did submit a reply and informed the authorities that after 2009 no case of whatsoever kind has been registered against the petitioner. The petitioner has also brought to the notice of this court that earlier also proceedings were initiated under the MP Rajya Suraksha Adhiniyam, 1990 and the proceedings were dropped by an order dt. 7/7/2007 by the District Magistrate. In the present --- 4 --- case, the list of criminal cases registered against the petitioner filed along with the return includes list of certain cases registered against the petitioner, after issuance of show cause notice. The show cause notice was issued, as stated earlier on 6/1/10 and the list includes cases registered on 3/5/11 and 1/7/11 that too for offences u/Ss. 323, 506 and 294 of the Indian Penal Code. The offences registered against the petitioner prior to issuance of show cause notice are offences registered upto 2009 and the offences registered in the year 2009 is again an offence registered u/Ss. 323, 294, 506 r/w. Sec. 34 of the Indian Penal Code. One more offence registered on 19/10/2007 is again u/S. 293, 323 and 506 of the Indian Penal Code. The other offences are prior to 2004. Section 4 and 5 of the M.P. Rajya Suraksha Adhiniyam, 1990 reads as under : 4. Dispersal of gangs and bodies of persons.- Whenever it appears to the District Magistrate that the movement or encampment of any gang or body of persons in the district is causing or is calculated to cause danger or alarm or reasonable suspicion that unlawful designs are --- 5 --- entertained by such gang or body, or by members thereof the District Magistrate, may by an order addressed to the persons appearing to be the leaders or chiefmen of such gang or body and published by beat of rumor otherwise, as the District Magistrate thinks fit, direct the members of such gang or body, - (a) to conduct themselves in such manner as may be necessary in order t o prevent violence and alarm; or (b) to disperse and eacn of them to remove himself outside the district or any part thereof or such area, and any district or districts, or any part thereof contiguous thereto with such time as the District Magistrate may specify, and not to enter the said district or part thereof or such area and such contiguous districts, or part thereof, as the case may be or not to return to the place from which each of them was directed t o remove himself. 5. Removal of persons about to commit offence. -- Whenever it appears to the District Magistrate- (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 reasonably 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 --- 6 --- offence punishable under Chapter XII, XVI or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 (45 of 1860) or in the abatement of any such offence, and when in the opinion of the District Magistrate witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part 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 immigrant; the District Magistrate may, by an order in writing duty served on him or by beat of drum or otherwise as the District Magistrate thinks fit, direct such person or immigrant – (a) so as to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease; or (b) to remove himself outside the district or any part thereof or such area and any district or districts or any part thereof, contiguous thereto by such route within such time as the District Magistrate may specify and not to enter or return to the said district or part thereof or such area and such contiguous districts, or part thereof, as the case may be, from which he was directed to remove himself. --- 7 --- The aforesaid statutory provision of law empowers the District Magistrate to pass an order of externment in case he is of the opinion that a person is likely to commit an offence or is engaged in commission of certain offences. In the present case, no opinion has been formed by the District Magistrate as required u/Ss. 4 and 5 of the MP Rajya Suraksha Adhiniyam, 1990. This Court in the case of Dharmendra Singh Vs. State of MP & ors., 2007 (1) JLJ 274 in paragraphs 6 and 7 has held as under : 6. It is not the case of the respondents that apart from the cases wherein the petitioner was acquitted there was sufficient material which formed basis of satisfaction of the authority to pass the order of externment. Hon'ble Supreme Court of India in the case of Dharamdas Shamlal Agrawal Vs. The Police Commissioner and another reported as 1989 (2) Crimes 53 has held : “From the above decisions it emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfactionof the detaining authority one way or the other and --- 8 --- influenced its mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. It is clear to our mind that in the case on hand, at the time when the detaining authority passed the detention order this vital fact, namely, the acquittal of the detenue in cases Nos. mentioned at serial Nos. 2 and 3 have not been brought to its notice and on the other hand they were withheld and the detaining authority was given to understand that the trial of those cases were pending. The explanation given by the learned counsel for the respondents, as we have already pointed out, cannot be accepted for a moment. The result is that the non- placing of the material fact namely the acquittal of detenu in the abovesaid two cases resulting in non-application of mind of the detaining authority to the said fact has vitiated the requisite subjective satisfaction, rendering the impugned detention order invalid.”. 7. Learned Government Advocate has made available the original record of the case of externment. It also depicts in favour of the petitioner. On 14/2/2003, the prosecution examined its witnesses and disclosed that no further evidence would be produced. Case was reserved for consideration. Thereafter, no order was passed for more than 2 years and 10 months and again a report from SP, Satna dated 12/9/2005, was placed on record. Prior to it, the earlier report of the SP, Satna, --- 9 --- dated 2/7/2002 was already on record. There is no material in the file as to how, when and why the second report was requisitioned. Similarly, it is not clear from the file as to who did requisition the second report. Thus, the contention of the learned counsel for the petitioner is strengthened that on the basis of the earlier report dated 2/7/2002 there was no sufficient material to form an opinion against the petitioner that he was liable to be externed and the material available on record was insufficient for the subjective satisfaction. There is no explanation in the return as to why and in what circumstances the ordr was withheld for more than 2 years and 10 months and what caused the District Magistrate, Satna to withheld the proceedings for more than 2 years and 10 months. Inaction for a period of 2 years and 10 months in a case of externment clearly suggests that the order of externment was not warranted during the said period. It being not the case of the respondents that subsequent events or the record of the petitioner (after exclusion of the cases of acquittal) has provided a basis to form an opinion about subjective satisfaction with regard to externment of the petitioner, this Court in view of the Supreme Court's decision (supra) holds that the authorities have failed to make application of mind to the attending facts and circumstances and the same coupled with the non- consideration of effect of acquittal in so many cases has vitiated the --- 10 --- subjective satisfaction about externment of the petitioner rendering the externment order invalid. Consecuently, the impugned orders contained in Annexure P/9 and P/10 are not liable to be sustained. Keeping in view the judgment delivered by this court in the aforesaid case as well as the fact that one offence was registered in the year 2004 and thereafter an offence u/Ss. 323, 294 and 506 of the Indian Penal Code was registered in the year 2009 and also Keeping in view that the petitioner has already completed about 11 months of externment, in the peculiar facts and circumstances of the case, the order of externment dt. 4/1/2011 as well as the order passed by the Commissioner, Ujjain Division, Ujjain are hereby set aside. The writ petition stands allowed. No order as to costs. (S. C. SHARMA) J U D G E KR