08 May 1956
Supreme Court


Case number: Writ Petition (Civil) 439 of 1955






DATE OF JUDGMENT: 08/05/1956


CITATION:  1956 AIR  585            1956 SCR  533

ACT:        Bombay  Police Act, 1951 (Bombay Act XXII of 1951),  s.  56-        Constitutional  validity-Order  of  externment-Restrictions-        Reasonableness-" Witness", scope of the word in the section-        Whether  ,not applicable to members of the police  force  or        customs department Constitution of India, Art. 19.

HEADNOTE:        Section   56  of  the  Bombay  Police  Act,  1951,  is   not        unconstitutional  and does not contravene the provisions  of        Art. 19 of the Constitution.        Gurbachan  Singh  v. State of Bombay ( [1952]  S.C.R.  737),        followed.        In order to attract the operation of the section the Officer        concerned  should  be satisfied that the witnesses  are  not        willing  to come forward to give evidence in public, but  it        is  not  necessary  to  show  that  all  the  witnesses  are        unwilling to give evidence.  The terms of the section do not        justify  any  restricted  meaning being given  to  the  word        "witnesses"  and it is applicable to members of  the  police        force  and employees and officers of the Customs  Department        also.        Gurbachan  Singh  v. State of Bombay ( [1952]  S.C.R.  737),        explained.        Under  the  provisions of s. 56 of the  Bombay  Police  Act,        1951,  an  order  of  externment  was  passed  against   the        petitioner  by  which  he was  directed  to  remove  himself        outside  the limits of Greater Bombay and not to  enter  the        said  area for a period of two years without the  prescribed        permission;  and subsequently he entered Greater  Bombay  in        order to attend Court in a case pending against him in which        a  warrant of arrest had been issued.  He was convicted  for        committing  the  breach  of  the  externment  order  and  he        contended that his conviction was in itself an indication of        the unreasonableness of the restriction.        Held,   that   the  restrictions  cannot  be  said   to   be        unreasonable,  as  the  petitioner could  have  avoided  the        prosecution.  and the conviction by obtaining  the  previous        permission of the prescribed authority.



      Per  JAGANNADHADAS J.-If the matter were res integra  should        have  felt difficulty in upholding the validity of s.  56(b)        of        534        the  Bombay  Police  Act,  1951, in so far  as  it  did  not        demarcate  the  application  thereof  to  the  more  serious        classes  of offences falling within the specified  Chapters.        I.should also have felt difficulty in holding a provision to        be  reasonable which clothes the executive officers with  an        authority  to  extern a person for so long a period  as  two        years.

JUDGMENT:        ORIGINAL JURISDICTION: Petitions Nos. 439 & 440 of 1955.        Petitions under Article 32 of the Constitution of India  for        the enforcement of Fundamental Rights.        H.   J.  Umrigar  and R. A. Govind, for  the  petitioner  in        Petition No. 439 of 1955.        J.   B.  Dadachanji, for the petitioner in Petition No.  440        of 1955,        M.   C.  Setalvad, Attorney-General of India, B. Sen and  R.        H. Dhebar, for the respondents.        1956.   May  8.  The  judgment  of  S.  R.  Das  C.  J.  and        Venkatarama  Ayyar,  B.  P. Sinha and  Jafer  Imam  JJ.  was        delivered by Sinha J. Jagannadhadas J. delivered a  separate        judgment,        SINHA   J.-These   petitions  under  article   32   of   the        Constitution challenge the constitutionality of some of  the        provisions  of the Bombay Police Act, XXII of  1951,  (which        hereinafter will, be referred to as "The Act"), with special        reference  to  section  56, as also  of  the  orders  passed        against them externing them under that section of the Act.        In Petition No. 439 of 1955 Babubhai Dullabhbhai Bhandari is        the  petitioner  and the District Magistrate of  Thana,  the        Deputy  Superintendent of Police and  Sub-Divisional  Police        Officer,  Bhivandi Division, Bhivandi, District  Thana,  and        the  State  of  Bombay  are respondents  1,  2  and  3.  The        petitioner  is  a citizen of India and carries on  trade  in        grass  at Bhilad, a railway station on the Western  Railway.        On 21st January 1955 the Deputy Superintendent of Police and        Sub-Divisional  Police Officer, Bhiwandi Division, served  a        notice under section 56 of the Act in the following terms:-        535        No. Ext. 3/1 of 1955        Office of the S.D.P.O. Bhiwandi,        Bhiwandi, dated 21-1-1955.        (I) I, Shri C. V. Bapat, Deputy Superintendent of Police and        Sub-Divisional office Bhiwandi Division, District Thana,  do        hereby  issue  a notice to you, Shri  Bhagu  Dubai  Bhandari        alias  Bhagwanbhai  Dulla  Bhai Jadhav  of  Bhilad  District        Thana,  that  it  is proposed that  you  should  be  removed        outside  the District of Thana and you should not  enter  or        return  to the said district for a period of two years  from        the  date  of the order to be made under section 56  of  the        Bombay Police Act, 1951 for the following reasons:        (II)  Evidence is forthcoming that your following activities        have  caused and are calculated to cause alarm,  danger  and        harm  to person and property in Bhilad and  the  surrounding        areas:-        (III)     You  have been dealing in smuggled foreign  liquor        and  maintained a veil of secrecy by  criminal  intimidation        and  physical  violence  to the villagers  and  other  right        thinking persons.



      (2)  Your  activities  have  been in  continuation  of  your        similar  activities  for  the. last  five  years,  given  as        under:-        (a)  You criminally assaulted persons with the help of  your        associates  and did violent acts in order to  strike  terror        into  the hearts of the villagers, so that they  should  not        challenge you or your men.        (b)  You  have been criminally assaulting  and  intimidating        Central  Excise and Custom officials with the help  of  your        gang,  so  as  to stop them from  looking  into  your  anti-        national,  anti-social and illegal activities.  As a  result        of  your unlawful and dangerous activities you are  held  in        terrific  awe by the Central Excise and Custom Officers  and        men  and  villagers  in Bhilad  area  who  are  continuously        labouring under grave apprehension of danger to their per-        son and property.        (c)  You  and  your associates were and are  making  use  of        criminal  intimidation  against the villagers  in  order  to        prevent them from having recourse to legal means.        536        (III)     That you and ’ your associates are also understood        to  be in possession of unlicensed firearms which  has  been        causing  considerable  alarm  and  spreading  a  feeling  of        insecurity  of  life and property in the mind  of  villagers        from Bhilad and neighbouring villages and Central Excise and        Customs employees.        (IV) The  witnesses are not willing to come forward  and  to        give  evidence  against  you by reason  of  apprehension  of        danger and harm to their person and property.        (V)  Now,  I  Shri  C. V. Bapat,  Deputy  Superintendent  of        Police and Sub-Divisional Police Officer, Bhiwandi Division,        District  Thana in exercise of the authority conferred  upon        me  under section 59 of the Bombay Police Act, 1951  by  the        District Magistrate Thana under his number,MAG. 2/ EX  dated        17-1-1955  do  hereby direct you to appear before me  at  11        a.m.  on 27-1-1955 at Dahanu in the office of the  Sub-Divi-        sional  Police Office Dahanu for tendering your  explanation        regarding  the  said allegation.  You are also  entitled  to        appear  before me by advocate for the purpose  of  tendering        your explanation and examining witnesses, produced by you.                  Signed and sealed this day of 21st Jan. 1955..                        Sd..........................                     Deputy Superintendent of Police &                  Sub-Divisional Police Officer, Bhiwandi.             To                  Shri Bhagu Dubal Bhandari @ Bhagwanbhai  Dullabhai        Jadhav of Bhilad, District Thana".        By  that  notice the petitioner was called  upon  to  appear        before  the said police officer on the 27th January 1955  in        order  to  enable the former to offer such  explanation  and        examine  such witnesses as he may be advised.  In  pursuance        of  that notice the petitioner appeared, before  the  police        officer aforesaid and the hearing of his case took place  on        different  dates.   The petitioner claims to  have  examined        seven "respectable persons" to testify on his behalf.  Ulti-        mately  on  the 11th July 1955 an order was  passed  by  the        District  Magistrate  of  Thana  externing  the   petitioner        outside the Thana District.  The order of        537        externment  is  Ex.   D to the  petition  and  contains  the        recitals that after considering the evidence before him  and        the  explanation  offered  by the  petitioner  the  District        Magistrate of Thana (the 1st respondent), was satisfied that        the  petitioner  "engages in giving threats  and  assaulting        Central  Excise and Customs Officials men and  residents  of



      Bhilad  and  surrounding villages and  indulges  in  illicit        traffic  of  foreign  liquor from Daman"  and  that  in  his        opinion "witnessess are not willing to come forward to  give        evidence  in  public against the said  Shri  Bhagubhai  Dul-        labhbhai  Bhandari alias Bhagwanbhai Dullabhbhai  Jadhav  of        Bhilad  by reason of apprehension on their part  as  regards        the safety of their person and property".  It is this  order        which  is challenged as illegal and ultra vires and  against        which the petitioner has moved this Court for an appropriate        writ,   direction  or  order  against  the   respondents   "        prohibiting them, their servants and agents from acting upon        or taking any steps in enforcement, furtherance or pursuance        of  the said order and from interfering in any  manner  with        the petitioner’s right to reside in Bhilad and carry on  his        business.   The  petitioner had preferred an appeal  to  the        Government  against the said order of externment.   But  the        appeal was dismissed on the 9th September 1955.  Against the        said order the petitioner moved the High Court of Judicature        at  Bombay  under article 226 of the Constitution,  but  the        said  application was also dismissed in limine by  the  High        Court by its order dated the 7th November 1955,        The  District  Magistrate of Thana, the 1st  respondent  has        sworn to the affidavit filed in this Court in answer to  the        petition.  He swears that he had passed the externment order        complained  against  after perusing the police  reports  and        going through the explanation offered by the petitioner  and        the  statements  of  the witnesses produced by  him  and  on        hearing  his advocate.  He further states in  the  affidavit        that the general nature of the material allegations  against        the petitioner was given to him, that the material given  to        him was clear and by no means vague.  Only the names of  the        persons who had given the,        538        information against the petitioner were not disclosed to him        inasmuch as those persons were not prepared to. come out  in        the open and depose against him in public as witnesses.   He        was satisfied that witnesses were unwilling to come  forward        to give evidence in public against the petitioner.  He  also        affirms  that the petitioner’s movements and acts  were  not        only  causing alarm, danger or harm to personal property  of        the  general  public round about Bhilad, but also  that  his        movements  and acts were causing danger and alarm to  public        servants of the police force and the Central Excise who were        doing  very  responsible  work at Bhilad  which  is  on  the        borderline  of  the Indian territory  adjoining  Daman  area        which   is  Portuguese  territory.   He  admits   that   the        petitioner was discharged by ’the Judicial Magistrate, First        Class,  Umbergaon because the witnesses did not  appear  and        depose against ’him for fear of the petitioner.        In  Petition No. 440 of 1955, Kunwar Rameshwar Singh is  the        petitioner and the respondents are-        1.   Shri W. K. Patil, Deputy Commissioner of Police,  Crime        Branch (I) C.I.D., Greater Bombay,        2.   The Commissioner of Police, Greater Bombay, and        3.   The State of Bombay.        The  petitioner  is a citizen of India and claims  to  be  a        "social worker" connected with several social organisations.        He  alleges  that  his main social  activity  has  been  the        improvement  of the lot of prostitutes and singing girls  in        certain  quarters’of  Bombay On the 2nd November,  1954  the        petitioner  was served with a notice under section  56  read        with section 59 of the Act (Ex.  A to the petition)  setting        out the allegations against him and calling upon him to  ex-        plain  those matters.  In pursuance of the said  notice  the        petitioner  appeared before the Superintendent of Police  to



      show   cause  against  the  proposed  action  against   him.        Ultimately  on  the 4th January, 1955  the  Commissioner  of        Police, the second respondent, passed an order to the effect        that the petitioner should remove himself from the limits of        Greater Bombay                                    539        within  seven days.  That order is marked Ex.  H and  is  to        the following effect.        "            Order of Externment                     ------------------------                (Section 56 of the Bombay Police Act, 1951)        Police Station: Nagpada            No. 7/c/43/1955.        Whereas  the  Commissioner of Police, Greater  Bombay,  has-        directed by his order, dated the 13th August, 1954 and  11th        December  1954, made under sub-section (2) of section 10  of        the  Bombay Police Act, 1951 (Bombay Act XXII of 1951)  that        the  powers, functions and duties under the said  Act  shall        also  be  exercised by the Deputy Commissioners  of  Police,        Greater Bombay.        And  whereas  evidence  has been placed  before  me,  Deputy        Commissioner of Police, Crime Branch (1), against the person        known as Kunwar Rameshwar Singh, to     the        following        effect:-        I.   That  since  October,  1953 in the  locality  known  as        Falkland  Road,  Foras Road, Sukhalaji Street,  Bapty  Road,        Kamathipura  and  the  areas adjoining  thereto  in  Greater        Bombay his movements and acts are causing alarm and harm  to        the persons residing in, carrying   ’on  business   in,   or        visiting the said locality in that:        (i)  He with assistance of his associates some of them being        Sk.   Makbool  Sk.  Hussain, Abdul  Rahiman,  Suleman  alias        Sapad,  Ahmad  Yusuf alias Ahmed Dalal,  Shafi  and  others,        extort Money from women residing in and carrying on business        either as prostitutes or singing girls in the said  locality        on threats of assault and of causing bodily injury to them;        (ii) That  he-with  the assistance of  the  said  associates        assault or threaten with assault the aforesaid women who  do        not comply with his demands for money;        (iii)     That in order to compel the aforesaid women to pay        him  the money demanded by him he also posts his  associates        at or near the places of business of the aforesaid women and        prevent customers from entering the rooms of, such women;        70        540        (iv) That  he with the assistance of his  associates  extort        money from shopkeepers, hotel-keepers, merchants and hawkers        carrying  on  business in the said locality  and  from  rent        collectors   of   buildings  occupied   by   the   aforesaid        prostitutes  and  singing  girls  -by  assaulting  them   or        threatening them with assault and dislocation of business;        (v)  That  he  causes  damage to the property  of  the  said        hotelkeepers and hawkers of the said locality who do not pay        him money demanded by him;        (vi) That  he accosts persons visiting the rooms of  singing        girls in the said locality for the purpose of  entertainment        and  demand money from them under threats of assault and  of        preventing them from visiting the said locality;        (vii)     That  he has committed several acts of the  nature        mentioned above.        II.  That  witnesses to the above incidents are not  willing        to  come forward to give evidence in public against  him  as        they apprehend that they will be assaulted by him and/or  by        his associates if they do so.        And whereas I have heard the said person and considered  the        explanation  tendered by him and also the evidence given  by



      the witnesses produced by him and have heard his counsel.        And   whereas  after  considering  all  the   evidence   and        explanation   detailed  above,  I  am   satisfied   that:        The   Movements  and acts of Kunwar  Rameshwar  Singh  since        October,  1953,  are causing alarm and harm to  the  persons        residing in carrying on business in or Visitin the  locality        known  as Falkland Road, Foras Road Sukhalaji Street,  Bapty        Road, Kamathipura and the areas adjoining thereto in Greater        Bombay and that he indulges in activities mentioned above.        And  whereas in my opinion witnesses are unwilling  to  come        forward  to give evidence in public against the said  person        by  reason  of  apprehension on their part  as  regards  the        safety of their persons;        Now, therefore, in exercise of the powers vested in me under        section  56  of the said Act, 1, Shri W.  K.  Patil,  Deputy        Commissioner of Police, Crime Branch        541        (1)  C.I.D.,  Greater Bombay himself hereby direct that  the        said Kunwar Rameshwar Singh shall remove outside the  limits        of Greater Bombay by Central Rly. (route) within seven  days        from the date of service of this order and I further  direct        that he shall not enter the said area of Greater Bombay  for        a period of two years from the date of this order without  a        permission  in  writing  from  the  Commissioner  of  Police        Greater Bombay, or the Government of Bombay.                              Sd. W. K. Patil,                        Dy. Commissioner of Police,                  Crime Branch (I) C.I.D. Greater Bombay".        The order quoted above is a self-contained one and discloses        the nature of the allegations against him which he bad  been        called upon to explain.  The petitioner preferred an  appeal        to  the  third  respondent, the State of  Bombay.   But  his        appeal  was  dismissed  on  the  17th  January  1955.    The        petitioner challenged the validity of the said order  passed        by  the respondents by a petition under article 226  of  the        Constitution to the Bombay High Court, but it was  dismissed        on  the 14th March 1955 after hearing.  The judgment of  the        High  Court  is Exhibit D. The learned Judge of  the  Bombay        High  Court who dealt with the petition has set out  briefly        the main allegations of the petitioner and the affidavit  in        answer to the petition sworn to by the 1st respondent  here.        The  learned  Judge observed in the course of  his  judgment        that  in view of the averments in the petition and those  in        the  affidavit  in reply it was impossible for him  to  hold        that  the Deputy Commissioner of Police knew that  witnesses        were  willing to give evidence against the petitioner.   The        petitioner  went up on Letters Patent Appeal and a  Division        Bench  consisting of the Chief Justice and another Judge  of        the Bombay High Court dismissed the appeal holding that once        the opinion has been formed by the authority that  witnesses        were  unwilling  to  give evidence  in  public  against  the        petitioner,  the  court could not go  behind  that  opinion.        They  also negatived the plea of want of bona fides  in  the        1st respondent who had initiated the proceedings.        542        The petitioner removed himself outside the limits of Greater        Bombay.   Having come to know that a warrant of  arrest  had        been issued Against him in a certain pending case before the        Presidency Magistrate, Fourth Court, at Girgaum, Bombay,  on        the 6th April 1955, the petitioner entered Greater Bombay to        attend  court  but  he  was  arrested  under  the  Act   for        committing  a  breach  of  the  externment  order.   He  was        prosecuted before the Presidency Magistrate, Sixth Court  at        Mazgaon,  Bombay,  for an offence under section 142  of  the        Act.   He was convicted by the Magistrate and  sentenced  to



      nine  months rigorous imprisonment by a judgment  dated  the        8th September 1955.  The Magistrate’s judgment is Exhibit to        the   petition.   The  learned  Magistrate   overruled   the        petitioner’s contention that the order of externment  passed        against him was illegal, relying chiefly upon the  judgments        of   the  High  Court  referred  to  above,  upholding   the        constitutionality  of  that order.  As regards  his  defence        that  he  had  entered Greater Bombay in  obedience  to  the        warrant issued against him, the learned Magistrate  observed        that as a matter of fact, according to the statement of  the        petitioner’s  counsel before him he had taken that step  "to        -test  the  validity of the order".  Secondly,  the  learned        Magistrate  has  rightly  pointed out  that  the  petitioner        should  have obtained the previous permission of the  Police        Commissioner  before returning to Bombay, as  otherwise  the        order of externment would be rendered nugatory.  The learned        Magistrate also observed in the course of his judgment  that        no  allegations  of  mala fides had been  made  against  the        police  officers who bad initiated the  proceedings  against        the petitioner.        The petitioner went up in appeal to the High Court of Bombay        which by its judgment dated the 5th October 1955 upheld  the        conviction and the sentence.  The judgment of the High Court        is  Exhibit  G  to the petition.  A Division  Bench  of  the        Bombay  High Court repelled the contention on behalf of  the        appellant that the order of externment was invalid,  relying        chiefly  upon  the  previous judgment  of  that  very  court        upholding the constitutionality of the very order        543        impugned.  Another matter referred to in the judgment of the        High  Court  is  rather  significant.   On  behalf  of   the        appellant reliance had been placed upon a letter alleged  to        have  been  sent to the petitioner by the Secretary  to  the        Chief  Minister  granting  permission to him  to  return  to        Bombay in order to see the Home Secretary.  It was found  on        enquiry  by the learned Government Pleader who intimated  to        the court that the alleged letter had not been signed by the        Secretary to the Chief Minister and that no such letter  had        actually  been sent to him.  On that statement  being  made,        the  petitioner’s counsel did not press his contention  that        his return was after permission.  The petitioner moved  this        Court for special leave to appeal against the said  judgment        of  the High Court in Petition No. 601 of 1955.  One of  the        grounds in the petition was that the High Court should  have        held  that  the  externment  order  was  illegal  and   that        therefore the petitioner’s entry was lawful.  A Constitution        Bench  of  this Court by its order dated the  21st  November        1955  dismissed  the petition for special leave  to  appeal.        This  completes the statement of the case made on behalf  of        the petitioner.        In answer to this petition the first respondent has sworn to        the affidavit filed in this Court.  It is necessary to state        in  some  detail the facts stated in  this  affidavit  which        furnish  the  background  to  the  whole  case  against  the        petitioner.   The  petitioner  is said to  be  a  native  of        Balrampur, District Gonda, Uttar Pradesh.  After passing his        school examination in 1940, he joined the then Royal  Indian        Navy in 1942.  In the year 1946 while he was attached to  S.        S.  Talwar  in Bombay, be was "released from  service".   In        1947 he joined the B. B. & C. 1. -Railway as a clerk and was        removed from his post in July 1947 for having made  baseless        allegations  against his superior officer.  In 1949 he  made        an attempt to enter the police force of Greater Bombay,  but        that failed as he was found to be unreliable.  Subsequently,        in August 1950 he joined the State Transport Department as a



      clerk  but had again to be removed from that post  in  April        1951.  Later on, the petitioner obtained accommodation in        544        Bombay on a false representation that he was a refugee  from        Pakistan.  He was prosecuted and convicted and sentenced  to        pay  a fine of Rs. 30 or three months rigorous  imprisonment        in  default.  His appeal from that order of  conviction  and        sentence  to  the High Court of Bombay was  dismissed  by  a        Division Bench in September 1954.  On a similar false repre-        sentation  he  had obtained from the  Custodian  of  Evacuee        Property two shops in Bombay.  Necessary proceedings had  to        be  taken  against him for evicting him  from  those  shops.        After  his  removal from Government jobs as  aforesaid,  the        petitioner  "came forward" as a social worker directing  his        activities  mainly  to "the redlight  district"  in  certain        quarters  of Greater Bombay inhabited by over 10,000  public        women.   Along  with  his associates  he  started  a  norent        campaign and resorted to violence with the help of so-called        volunteers  who were themselves bad  characters,  externees,        drunkards  and persons with previous convictions.  With  the        help  of  associates like those he moved  in  the  "redlight        district" and realised money from his victims by threat  and        intimidation.  Thus by all questionable means the petitioner        started  extorting moneys by harassing the inmates  of  that        district and those who frequented those quarters.  The  rest        of the long affidavit running into 29 paragraphs is  devoted        to  denying the allegations made by the petitioner  that  he        had been a victim of police combination against him or  that        the procedure laid down by the law had not been followed  or        that  the petitioner had not a fair and full opportunity  of        explaining  his  case  to the  authorities.   The  affidavit        further   asserts  that  witnesses  who  had   given   their        statements  -to the police against the petitioner  were  not        willing  to  come forward openly to depose against  him  and        some of those witnesses who did turn up were prevailed  upon        by  the petitioner to change their original statements  made        during the preliminary inquiries.  On those averments it was        submitted by the 1st respondent that the proceedings against        him were regular and in accordance with the provisions of        545        the Act and that there was no merit in his contentions.        These  two petitions were heard along with Petition No.  272        of  1955 which is being disposed of by a separate  judgment.        In  that  case  the order impugned  had  been  passed  under        section  57  of the Act.  Sections 56 to 59 of the  Act  are        closely connected.  The common arguments addressed to us  by        Shri  Purshotham challenging the validity of sections 56  to        59  have  been dealt with in that judgment and need  not  be        repeated  here.   It  is only necessary  to  deal  with  the        provisions  of  the  section impugned in  these  two  cases,        namely, section 56 of the Act, which is in these terms:-        "Whenever  it  shall  appear in Greater  ’Bombay  and  other        areas  for  which a Commissioner has  been  appointed  under        section 7 to the Commissioner and in other area or areas  to        which  the  State  Government may, by  notification  in  the        Official  Gazette, extend the provisions of this section  to        the  District Magistrate, or the  Sub-Divisional  Magistrate        specially  empowered by the State Government in that  behalf        (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  reasonable  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 offence punishable under Chapter XII, XVI  or        XVII  of  the Indian Penal Code, or in the abetment  of  any



      such  offence,  and  when in the  opinion  of  such  officer        witnesses  are not willing to come forward to give  evidence        in  public against such person by reason of apprehension  on        their  parts  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   an        immigrant, the said officer may, by an order in writing duly        served  on him or by beat of drum or otherwise as he  thinks        fit., direct such person or immigrant so to conduct  himself        as  shall  seem necessary in order to prevent  violence  and        alarm  or  the,  outbreak or spread of such  disease  or  to        remove  himself outside the area Within the local limits  of        his jurisdiction by        546        such  route  and within such time as the  said  officer  may        prescribe  and not to enter or return to the said area  from        which he was directed to remove himself".        In  order  to attract the operation of  the  section  quoted        above  with special, reference to the portions  relevant  to        these cases, it is necessary (1) that the Commissioner,  the        District   Magistrate  or  the  Sub  Divisional   Magistrate        specially empowered by the State Government in that  behalf,        as  the case may be, should be satisfied that the  movements        or  acts of any person are causing or calculated  to,  cause        alarm,  danger or harm to person or property, or that  there        are  reasonable  grounds for believing that such  person  is        engaged  or is about to be engaged in the commission  of  an        offence involving force of violence or an offence punishable        under Chapter-XII, XVI or XVII, Indian Penal Code, or in the        abetment of any such offence, and (2) that in the opinion of        such  officer witnesses are not willing to come  forward  to        give  evidence  in public against such person by  reason  of        apprehension  on their parts as regards the safety of  their        person or property.  When the officer concerned is satisfied        about these two essential matters, he may direct such person        to   remove  himself  outside  the  local  limits   of   his        jurisdiction and not to return to the said area for a period        not  exceeding  two years as laid down in section  58.   But        before  passing  such orders the  person  proceeded  against        under  section  56  has  to  be  given  an  opportunity   of        explaining matters against him by adducing such evidence  as        he  may tender after he has been informed in writing  as  to        the  "general  nature of the  material  allegations  against        him".   Such  a  person is entitled  to  appear  before  the        officer  by  an  advocate or attorney  for  the  purpose  of        tendering his explanation. and evidence.        It has not been contended on behalf of the petitioners  that        they  had-not  been given the  opportunity  contemplated  by        section 59. But grievance was sought to be made of the  fact        that particulars of the evidence against the petitioners and        of  their  alleged activities have not been given  to  them.        That argument has        547        been  dealt with in the judgment in the other case.   It  is        necessary  therefore  to  deal  only  with  the   particular        arguments advanced on behalf of each petitioner peculiar  to        his case.        In Petition No. 439 of 1955, it was said that this Court had        laid  down  in  the  case of Gurbachan  Singh  v.  State  of        Bombay(1) as follows:-        "The  law  is certainly an extraordinary, one and  has  been        made only to meet those exceptional cases where no witnesses        for fear of violence to their person or property are willing        to  depose  publicly against certain  bad  characters  whose        presence-in certain areas constitutes a menace to the safety



      of the public residing therein".        The words "no witnesses" have been emphasized as  supporting        the argument that unless all the witnesses before the police        are unwilling to give evidence in open court the  provisions        of section 56 cannot be taken recourse to.  In our  opinion,        it  is reading too much into the observations of this  Court        quoted  above, made by Mukherjea, J. (as he then was).   The        learned  Judge  did  not mean to lay down,  and  we  do  not        understand  him  as having laid down, that unless  each  and        every  witness is unwilling to give evidence in open  court,        the  provisions  of  section 56 are  not  available  to  the        police.   The words of section 56 quoted above do  not  lend        themselves  to that extreme contention. If such  an  extreme        interpretation were to be put on that part of section 56, it        is not difficult to imagine a situation where it will become        almost impossible to apply that section to any case.        It  was next contended on behalf of the petitioner  in  this        case  that  the section contemplates  witnesses  other  than        members  of the police force and employees and  officers  of        the  Customs Department.  It is said that it is the duty  of        the  police  force  as  of  the  employees  of  the  Customs        Department  to brave all danger and to come out in the  open        even  against desperate criminals to give  evidence  against        them   in  court  and  to  subject  themselves   to   cross-        examination.   That is a counsel of perfection  which  every        member        (1)  [1952] S.C.R. 787.        71        548        of  the  police  force  or every  employee  of  the  Customs        Department  may not be able to act up to.  Furthermore,  the        terms  of  the section do not justify  any  such  restricted        meaning  being given to the word "witness".  Hence,  in  our        opinion,  there is no justification for the contention  that        members  of the police force and employees and  officers  of        the Customs Department must always come in the open and give        evidence  against criminals or potential criminals.  If  the        officer  concerned is satisfied that witnesses  of  whatever        description they may be, are not willing to come out in  the        open, one of the essential conditions of the application  of        section 56 is fulfilled and it is no more necessary for them        to  stop  to  consider as to which class  of  persons  those        witnesses may come from.        In  Petition  No. 440 of 1955 the learned  counsel  for  the        petitioner  had a more uphill task in view of the fact  that        this  very order impugned bad been examined in the  criminal        prosecution   against  the  petitioner  by  the   Presidency        Magistrate and by the High Court on appeal and the  petition        for special leave to appeal to this Court had been  refused.        But  it was argued on behalf of the petitioner that  section        56  itself  wag invalid as contravening  the  provisions  of        article 19 of the Constitution-an argument which has already        been dealt-with by this Court in Gurbachan Singh v. State of        Bombay(1)  referred to above.  In that case,  Mukherjea,  J.        (as  he then was) delivered the judgment of the court  after        examining the constitutionality of section 27(1) of the City        of  Bombay  Police  Act,  (Bombay  Act  IV  of  1902).   The        operative words of that section are almost exactly the  same        as  those  of section 56 of the Act.  It  is  not  therefore        necessary to re-examine the constitutionality of those  very        provisions in this case.  It is enough to point out that  no        attempt  was  made in this Court to ;bake the  authority  of        that decision.        Shri Dadachanji, who appeared on behalf of the petitioner in        this  case  faintly suggested that the petitioner  had  been



      proceeded against under the penal sec-        (1)  [1952] S.C.R. 737.        549        tion of the Act notwithstanding the fact that he had entered        Greater  Bombay  in  order to look after  the  case  pending        against  him in which a warrant of arrest had  been  issued.        But that is a closed chapter so far as the courts  including        this  Court  also are concerned inasmuch as  his  conviction        stands conformed as a result of the refusal of this Court to        grant him -special leave to appeal from the, judgment of the        Bombay High Court.  He further contended that his conviction        for  his’  having  entered  Greater  Bombay  itself  is   an        indication of the unreasonableness of the restriction and of        the law under which the order of externment had been  passed        against  him.   But  if the petitioner had  only  taken  the        course  indicated  by  the law,  namely,  of  obtaining  the        previous  permission of the prescribed authority,  he  could        have  avoided the prosecution and the conviction.   It  must        therefore be held that there is no merit in this  contention        also.        For the reasons aforesaid it must be held that section 56 of        the Act is not unconstitutional -and that the orders  passed        against the petitioners are not invalid.  These applications        must stand dismissed.        JAGANNADHADAS  J.-In view of the decision of this  Court  in        Gurbachan  Singh  v. The State of Bombay(1),  I  agree  that        these petitions should be dismissed.        But  I  think it right to add that if the  matter  were  res        integra  I  should  have felt difficulty  in  upholding  the        validity  of  section 56(b) of the Bombay Police  Act,  1951        (Bombay Act XXII of 1951) in so far as it did not  demarcate        the  application  thereof  to the more  serious  classes  of        offences  falling  within the  specified  Chapters,  serious        either because of the nature of the offence contemplated  or        the  circumstances under which it is to be committed and  so        forth.   I  should also have felt difficulty  in  holding  a        provision  to  be  reasonable which  clothes  the  executive        officers with an authority to extern a person for so long a        (1)  [1952] S.C.R. 737.        550        period as two years. it has been said that there is a  power        of cancellation at any time vested in the officer concerned.        Even  so, I should have thought that the vesting of a  power        to  extern,  a person out of his home for so long  a  period        without  the obligation to review the order at  some  stated        periodical  intervals,  say  once in  three  months  or  six        months,  is  prima  facie  unreasonable.   Externment  might        appear on the surface -not to be as serious an  interference        with personal liberty as detention.  But in actual  practice        it  may be productive of more serious injury to  the  person        concerned-or  the  rest of his family if he is  the  earning        member.   An  externed  person is virtually  thrown  on  the        streets  of  another  place where be has  got  to  seek  his        livelihood  afresh.  He has to start in a new  society  with        the black-mark -of externment against him and may be  driven        thereby to more criminality.  On the other hand, in the case        of a person under detention, the State normally takes or  is        bound to take care of him, and in appropriate cases provides        also for his family.        In  view,  however, of the previous decision of  this  Court        which is binding on me, I am prepared to accept the validity        of  section  56 of the Bombay Police Act, 1951, and  of  the        orders of externment passed thereunder in these two cases.        Petition dismissed.        551