Baldeo Singh vs State of U.P.

Hari Swarup, J.

This petition is directed against the order of the District Magistrate passed under section 3 (3) of the U.P. Control of Goondas Act, 1970 (to be hereinafter referred to as the Act). By this order the District Magistrate directed that the petitioner should remove himself from the district of Sultanpur within fifteen days of the order for a period of 120 days from the date of such removal. The petitioner went up in appeal before the Commissioner under section 6 of the Act. The Commissioner has dismissed the appeal. The petitioner has challenged both these orders on various grounds.

Learned counsel has contended that the finding that the petitioner was a goonda was perverse as there was no material for establishing that he committed offences habitually as comtemplated by the definition of the word ''goonda'' contained in section 2 of the Act. Goonda'' in the Act has been defined as under ;

"means a person who

(i) either by himself or as a member or leader of a gang, habitually commits, or attempts to commit, or abets the commission of, offences punishable under chapter XVI, chapter XVII or chapter XXII �of the Indian Penal Code, 1860 (Act XLV of 1860) ; or

(ii) has been convicted under the suppression of Immoral Traffic in Women and Girls Act, 1956 ; or

(iii) has been convicted not less than thrice under the U.P. Excise Act, 1910; or

(iv) is generally reputed to be a person who is desperate and dangerous to the community."

According to the finding of the District Magistrate the petitioner was habitually committing offences punishable under chapters XVI and XXII of the Indian Penal Code.

Learned counsel has contended further that there was no material for the other findings to which authorised the District Magistrate to pass the order under section 3 of the Act. Subsection (1) of section 3 authorises the District Magistrate to pass the order under subsection (3) of the Act if the following conditions exist:

(a) that any person is a Goonda ; and

(b) (I) that his movements or acts in the district or any part thererof are causing, or are calculated to cause alarm, danger or harm to persons or property ; or

(II) that there are reasonable grounds for believing that he is engaged, or about to engege, in the district or any part thereof, in the commission of any offence punishable under chapter XVI, chapter XVII, or chapter XXII of the Indian Penal Code 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

(c) 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."

According to the findings of the District Magistrate, the material placed before him was sufficient for his holding that the petitioner was a ''goonda'' and his acts were such that they caused alarm and danger to the community at large and there were reasonble grounds for believing that he engaged himself in offences punishable under chapters XVI and XXII of the Indian Penal Code. In the earlier part of the judgment he has also found that the witnesses were not willing to come forward to give evidence against him by reason of apprehension on their part as regards the safety of their person.

We do not consider it necessary in this case to investigate into the merits of the assertions of the petitioner''s learned counsel of the aforesaid two points, because even if the findings of the District Magistrate be correct, the impugned order will be bad because it was passed after a long lapse of time.

The material before the District Magistrate was a report dated January 21, 1972 from the SubInspector of Police regarding the commission of the offences by the petitioner under section 323 etc. of the Penal Code. In 1972 the petitioner was prosecuted in which he was acquitted as the four witnesses turned hostile.

Another report from a private person was of September 18, 1973 regarding the offence under section 506 of the Indian Penal Code. Similarly, there was a report of January 5, 1974 made by another person to the police about the intimidation by the petitioner. The reports were forwarded by the SubInspector of Police on January 6, 1974 to the District Magistrate, it was on July 8, 1974 that the District Magistrate issued a notice under section 3 of the Act calling upon the petitioner to show cause why action against him be not taken. Another notice was issued on July 23, 1974 to the same effect. The matter remained pending and the ultimate order was passed only on December 8, 1977. The question to be seen is whether the law authorised the District Magistrate to pass the order after such a long lapse of time.

Subsection (A. I. R. 1974. S.C. 1336.) of section 3 of the Act requires the District Magistrate that he shall by notice in writing inform the person concerned of the general nature of the material allegations against him in respect of clauses (a), (b) and (c) and give him a reasonable opportunity of tendering explanation regarding them. Subsection (2) of section 3 gives the person concerned opportunity to give the explanation or produce witnesses. The subsection gives the District Magistrate power even to refuse the request if

"For reasons to be recorded in writing the District Magistrate is of opinion that the request is made for the purpose of vexation or delay."

We therefore find that the law contemplates a quick action and delay is prohibited. Subsection (3) of section 3 under which the order is passed by the District Magistrate runs as under :

"Thereupon the District Magistrate on being satisfied that the conditions specified in clauses (a), (b) and (c) of subsection (A. I. R. 1974. S.C. 1336.) exist may by order in writing

(a) direct him to remove himself outside the district, or part, as the case may, by such route, if any, and within such time as may be specified in the order, and to desist from entering the district or the specified part thereof until the expiry of such period not exceeding six months as may be specified in the order ;

(b) (i) require such person to notify his movements or to report himself, or to do both, in such manner, at such time and to such authority or person as may be specified in the order ;

(ii) prohibit or restrict possession or use by him of any such article as may be specified in the order ;

(iii) direct him otherwise to conduct himself in such manner as may be specified in the order,

until the expiry of such period not exceeding six months as may be specified in the order."

The purpose of the Act is to prevent such activities as are mentioned in clauses (a), (b) and (c) of subsection (A.I.R1974 S.C. 1336,) of section 3. The distinctionbetween a penal and a preventive law is that the one looks at the past and the other at the future. In the administration of a penal law the relevant time is the time when the offence is committed. But in the case of a preventive law the relevant date is the date on which the order is passed. In matters where a law gives to an authority power to issue orders for the purpose of preventing the commission of offences, the time becomes the essence of the law and the circumstances have to be reviewed on the date of the order. The matter assumes greater importance when the power given by a Preventive Act is such as affects the fundamental right of a citizen guaranteed under article 19 (1) (d) and (e) of the Constitution. The present law gives power to the District Magistrate to restrict the movements of a citizen and to forbid him from residing even in his own house in the locality, it is therefore a serious kind of preventive law, and is of course not a penal law.

The principle applicable to preventive laws was pointed out by the Supreme Court very succinctly in Golam Hussain v. Police Commissioner, Calcutta (1). In para. 5 of the judgment it was laid down :

"......It is true that there must be a live link between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, namely, inhibition of prejudicial activity of the species specified in the statute. This credible chain is snapped if there is too long and unexplained an interval between the offending acts and the order of detention............."

The principle applies with equal force to the order where instead of detention, externment is permitted or directed. In the case of Lakshman Khatik v. State of West Bengal (A.L.R. 1974 S.C. 1264.) which was referred to in Gulam Hussain v. Police Commissioner (supra), it was pointed out :

"Several objections were raised to the detention order. But it is not necessary to deal with all of them because the petitioner is bound to succeed on the ground that it does not appear that the District Magistrate could have been, in the circumstances of the case, reasonably satisfied that it was necessary to order the detention of the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supply and service essential to the community.'''' In that case the span between the complained act and the impugned order was only of seven months. It was pointed out :

"The authorities concerned must have due regard to the object with which the order is passed, and if the object was to prevent disruption of supplies of foodgrains one should think that prompt action in such matters should be taken as soon as incidents like those which are referred to in the grounds have taken place. In our opinion, the order of detention is invalid."

Again, in Ramnarain Singh v. State of Bihar (A. I. R. 1972 S. C. 2225.) dealing with section 107 of the Code of Criminal Procedure it was pointed out:

"The underlying object of the section is preventive and not penal.

The section is designed to enable the magistrate to take measures with a view to prevent commission of offences involving breach of peace or disturbance of public tranquility wide powers have been conferred on the magistrates specified in this section and as the matter affects the liberty of the subject who has not been found gulity of an offence, it is essential that the power should be exercised strictly in accordance with law."

Then on finding that there was nothing to show during the period between the complained act and the impugned order that the appellants had done anything as may have caused apprehension of breach of peace, it was held that it was not expedient or essential to compel the appellants to execute bonds under section 107 of the Code of Criminal Procedure.

The ratio of the Supreme Court decisions is that when a preventive law is to be enforced, there must not be such a long gap of time between the complained act and the preventive order so as to break the link between the two. The nexus between the activity and the order must continue. Section 3(3) itself uses the word ''exist'' and not ''had existed''. This also points out that the action has to be taken without delay, certainly there will always be a gap of reasonable time between the delinquent conduct of the individual, the issue of the notice to him under subsection (1) of section 3 and the ultimate order under subsection (A.L.R. 1972 S.C. 2225.) of section 3; but if the time lag exceeds the limits of reasonableness and becomes unreasonably long, the link in the chain can get broken, and if this happens, the Magistrate will lose power to pass the ultimate order.

In the present case, the time gap between the notice under subsection (1) of section 3 and the order under subsection (A.L.R. 1972 S.C. 2225.) of section 3 of the Act was so long that in the ordinary course the chain could not have remained intact. The incidents or offences complained of were of 1972, 1973, and January 1974. Notice was issued in July 1974 and ultimate order was passed on December 8, 1977, more than three years even after the issue of the notice. The circumstances may have changed; the man may have changed his habits ; and the need of prevention may have disappeared. There is at least nothing on the record to show that any such act was done by the petitioner during the last four years prior to the externment order which may have made it necessary for the District Magistrate to pass such an order. In the circumstances of the case, the presumption can only be that the petitioner had ceased to be a bad character. The long eclipse must be deemed to have snapped the chain between the offending acts and the order of externment. The basis for the order must be deemed to have disappeared in the oblivion the impugned order of the District Magistrate, therefore, cannot be deemed to have been passed under any authority of law.

In the result, the petition is allowed. The order of the District Magistrate dated 8.12.1977 passed under section 3(3) of the Act and the appellate order passed by the Commissioner under section 6 of the Act, are quashed. Parties will bear their own costs.