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PETITIONER: STATE OF MAHARASHTRA & ANR.

       Vs.

RESPONDENT: SALEM HASAN KHAN

DATE OF JUDGMENT09/03/1989

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) PANDIAN, S.R. (J)

CITATION:  1989 AIR 1304            1989 SCR  (1) 970  1989 SCC  (2) 316        JT 1989 (2)    96  1989 SCALE  (1)700

ACT:     Bombay  Police Act: Sections 56 and 60--Externment  pro- ceedings-Not necessary for State Government to give  reasons while  making externment order or disposing of an appeal  in respect of such order-Reasoned order would cause  harassment and frustrate purpose of externment proceedings.

HEADNOTE:     An  externment order was passed against  the  respondent under section 56 of the Bombay Police Act on the ground that he was found to be frequently engaged in illegal business of narcotics and was also involved in several cases of riot and criminal intimidation. The respondent filed an appeal  under section 60 of the Act and while the appeal was pending moved the High Court with a writ application. The State Government dismissed the appeal by a short order.     Before the High Court it was urged that since the  State Government  omitted to give reasons in support of the  order of  dismissal of the appeal, the same was-vitiated  in  Law. The  High Court agreed with the petitioner and  allowed  the writ  application  quasing the appellate order as  well  the initial externment order.     Allowing  the appeal by the State to the extent of  cor- recting the error of law only, it was,     HELD:  (1) The High Court was in error in  quashing  the order of externment as confirmed by the State Government  in appeal,  on the ground that the State Government omitted  to give reasons.     (2) A full and complete disclosure of particulars, as is requisite  in an open prosecution, will frustrate  the  very purpose  of  an externment proceeding. There is a  brand  of lawless elements in society which it is impossible to  bring to book by established methods of judicial trial because  in such  trials there can be no conviction without  legal  evi- dence.  And legal evidence is impossible to obtain,  because out of fear of reprisal witnesses are unwilling to depose in public. [972C-E, G] 971     (3)  If the authorities were to discuss the evidence  in the  case, it would be easy to fix the identity of the  wit- nesses  who were unwilling to depose in public  against  the

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proposed externee. A reasoned order containing a  discussion would probably spark off another round of harassment. [972G]     Pandarinath Sridhar Rangnekar v. Deputy Commissioner  of Police, [1973] 3 SCR 63, followed.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 205 of 1989.     From  the  judgment  and Order dated  24.2.1987  of  the Bombay High Court in Crl. W.P.No. 67 of 1986. A.M. Khanwilkar for the Appellant.     Syed  Ali Ahmad, Tanweer Ahmad, Mohan Pandey and Ms.  J. Ahmed for the Respondent. The Judgment of the Court was delivered by SHARMA, J. 1. Special leave granted.     2.  The respondent was served with an  externment  order passed under Section 56 of the Bombay Police Act  (hereinaf- ter  referred  to  as the Act) directing him  to  leave  the districts of Aurangabad and Jalna for a period of two years. The  order  stated that from 11.5.1980  the  respondent  was found  to be frequently engaged in illegal business of  nar- cotics  and since he was involved in several cases  of  riot and  criminal  intimidation causing physical  hurts  to  the residents  of the locality on account of his suspicion  that they  were  supplying information to the  police  about  his illegal  activities,  witnesses  were not  willing  to  come forward  and  depose against him. He filed an  appeal  under Section  60 of the Act and while the appeal was  pending  he moved  the Bombay High Court with a writ  application  under Article 226 of the Constitution. During the pendency of  the writ  application  the State Government dismissed,  the  re- spondent’s  appeal  by a short order.. The  writ  petitioner thereafter challenged the appellate order also in the  pend- ing writ case.     3.  At  the time of the final hearing of the  writ  case before the High Court, four points were raised on behalf  of the petitioner. As the 972 first  point, it was urged that since the  State  Government omitted to give reasons in support of the order of dismissal of the appeal, the same was vitiated in law. The High  Court agreed with the petitioner and allowed the writ  application quashing the appellate order as well as the initial  extern- ment  order on this ground alone without going to the  other questions.  The  State Government has  challenged  the  High Court judgment in the present appeal.     4.  On behalf of the appellant reliance has been  placed on the decision of this Court in Pandarinath Sridhar Rangne- kar v. Deputy Commissioner of Police, [1973] 3 SCR 63 where- in  a  similar plea was taken by the appellant  before  this Court. It was contended that the failure on the part of  the State  Government  indicated non-application  of  mind.  The appellant  had also urged that the allegations contained  in the  show cause notice were too vague in absence of  details to  afford  him reasonable opportunity  to  defend  himself. Rejecting  the  argument, this Court held that  a  full  and complete  disclosure of particulars, as is requisite  in  an open  prosecution,  will frustrate the very  purpose  of  an externment proceeding. There is a brand of lawless  elements in society which it is impossible to bring to book by estab- lished  methods  of judicial trial because  in  such  trials there can be no conviction without legal evidence. And legal evidence  is  impossible to obtain, because out of  fear  of

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reprisal witnesses are unwilling to depose in public.  While dealing  with the contention that the State  Government  was under  a duty to give reasons in support of its  order  dis- missing the appeal, the point was rejected in the  following terms:--               "Precisely  for the reason for which the  pro-               posed externee is only entitled to be informed               of the general nature of the material  allega-               tions, neither the externing authority nor the               State  Government  in appeal can be  asked  to               write  a  reasoned order in the  nature  of  a               judgment." As observed, if the authorities were to discuss the evidence in  the  case, it would be easy to fix the identity  of  the witnesses who were unwilling to depose in public against the proposed externee. A reasoned order containing a  discussion would  probably  spark off another round of  harassment.  We are, therefore, of the view that the High Court was in error in  quashing the order as confirmed by the state  Government in appeal.     5. The externment order was made several years back  and the  learned counsel for the appellant rightly  stated  that although the 973 impugned order need not be revived now, it was necessary  to correct  the  error in the High Court’s judgment  as  it  is likely to prejudice’ other similar cases. Accordingly in the circumstances we set aside the impugned judgment but make it clear  that  the  externment order  shall  not  be  enforced against the respondent any further, the appeal is according- ly allowed to this extent. R.S.S.                                          Appeal   al- lowed. 974