Krishna Dey vs State of Tripura

Deepak Gupta, C.J.—By means of this petition under Article 226 of the Constitution of India, the petitioner Krishna Dey has challenged the order dated 29-03-2014 whereby the petitioner has been externed from the jurisdiction of West Tripura District for a period of six months under the provisions of the Tripura Security Act, 2000. The main grounds raised by the petitioner are that the Tripura Security Act, 2000 is ultra vires the Constitution of India and is liable to be quashed. The externment order has also been challenged on the ground that the nature of material allegations were not mentioned in the notice issued to the petitioner or in the impugned order.

We have heard Sri Arijit Bhowmik, learned counsel for the petitioner and Sri B.C. Das, learned Advocate General on behalf of the respondents.

The first contention of Mr. Bhowmik, learned counsel for the petitioner, is that the Tripura Security Act was enacted in the year 2000 and it was clearly mentioned in the Act that it would come into force w.e.f. 15-08-2000 and would remain in force for a period of five years up to 14th day of August, 2005. The proviso to sub-section (4) of section of the Act reads as follows:

"1(4). xxx Provided that the State Government may, from time to time by notification in the official gazette extend the period as aforesaid for such period not exceeding two years at a time as may be specified in the notification; so, however that the total period of such extension (after expiry of the 14th day of August, 2005) shall not exceed ten years; and wherein such notification is issued a copy thereof shall be laid as soon as may be before the Legislative Assembly of Tripura."

This proviso has been challenged by Sri Arijit Bhowmik, learned counsel for the petitioner, on the ground that there is excessive delegation and that the State legislature which was empowered to enact the Act and which had enacted the Act for a period of 5 years could not have delegated the powers to the executive to extend this Act from time to time, that too without laying down any guidelines.

On the other hand, Sri B.C. Das, learned Advocate General, submits that there is no excessive delegation and that when the power is given under the legislation to the executive to fix the date of enforcement of the Act, or the power to extend the Act, then this is, in fact, not delegation and there is no question of excessive delegation.

Reliance has been placed by Sri Bhowmik on the judgment of the Apex Court in State of Tamil Nadu and Others Vs. K. Shyam Sunder and Others, , especially paras-44 to 49 of the said judgment. He has relied upon the observation of the Apex Court wherein it has been said that though the legislature is empowered to delegate its power for certain limited purposes in favour of the executive, such delegation of power cannot be wide, uncanalised or unguided. In this behalf, reference may be made to para-49 of the judgment which reads as follows:-

"49. In view of the above, the law stands crystallised to the effect that in case the legislature wants to delegate its power in respect of the implementation of the law enacted by it, it must provide sufficient guidelines, conditions, on fulfillment of which, the Act would be enforced by the delegatee. Conferring unfettered, uncanalised powers without laying down certain norms for enforcement of the Act tantamounts to abdication of legislative power by the legislature which is not permissible in law. Moreso, where the Act has already come into force, such a power cannot be exercised just to nullify its commencement thereof."

On the other hand, Sri B.C. Das, learned Advocate General, has made reference to the judgment of the Apex Court in Special Reference No. 1 of 1951 in In Re: The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C States (Laws) Act, 1950, wherein the Apex Court held as follows:

"74. The conclusions at which I have arrived so far may now be summed up:

(1) The legislature must normally discharge its primary legislative function itself and not through others. (2) Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilize any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation. (3) It cannot abdicate its legislative functions, and therefore while entrusting power to an outside agency, it must see that such agency acts as a subordinate authority and does not become a parallel legislature. (4) The doctrine of separation of powers and the judicial interpretation it has received in America ever since the American Constitution was framed, enables the American Courts to check undue and excessive delegation but the Courts of this country are not committed to that doctrine and cannot apply it in the same way as it has been applied in America. Therefore, there are only two main checks in this country on the power of the legislature to delegate these being its good sense and the principle that it should not cross the line beyond which delegation amounts to "abdication and self-effacement."

Reference has also been made to the judgment of the Apex Court in Sardar Inder Singh Vs. The State of Rajasthan, . In that case also, the question was whether the legislature could delegate the power of extending the legislation. Referring to Delhi Laws Act case (AIR 1051 SC 332) (supra), the Apex Court held as follows:-

"9. xxx xxx xxx

This is clear authority that a provision in a statute conferring a power on an outside authority to bring it into force at such time as it might in its own discretion, determine, is conditional and not delegated legislation and that it will be valid, unless there is in the Constitution Act any limitation on its power to enact such a legislation."

Thereafter, the Apex Court held as follows:

"10. The petitioners do not dispute this. What they contend is that while it may be competent to the Legislature to leave it to an outside authority to decide when an enactment might be brought into force, it is not competent to it to authorise that authority to extend the life of the Act beyond the period fixed therein. On principle it is difficult to see why if the one is competent, the other is not. The reason for upholding a legislative provision authorising an outside authority to bring an Act into force at such time as it may determine is that it must depend on the facts as they may exist at a given point of time whether the law should then be made to operate, and that the decision of such an issue is best left to an executive authority. Such legislation is termed conditional, because the legislature has itself made the law in all its completeness as regards "place, person, laws, powers," leaving nothing for an outside authority to legislate on, the only function assigned to it being to bring the law into operation at such time as it might decide. And it can make no difference in the character of a legislation as a conditional one that the Legislature, after itself enacting the law and fixing, on a consideration of the facts as they might have then existed, the period of its duration, confers a power on an outside authority to extend its operation for a further period if it is satisfied that the state of facts which called forth the legislation continues to subsist."

As far as the present case is concerned, the State legislature had in the interest of the security of the State and for the purpose of maintenance of public order and maintenance of essential supplies enacted the Tripura Security Act and had initially decided that the Act will remain in force for a period of 5 years. However, power was given to the State Government to extend the Act by a period not exceeding two years at a time. An outer limit has been given that the total extension by two years each cannot be beyond a period of 10 years after 14-08-2005, i.e. the Act can be extended at the most up to 14-08-2015. It would also be pertinent to mention that the Act itself contemplates that after such notification of extension is issued, it shall be laid before the Legislative Assembly of Tripura. Thus, the legislature in its wisdom thought it fit to enact the Act and then decide that initially it shall remain in force for a period of 5 years and further granted power to the State Government to extend the period of enforcement of the Act by a period of 2 years at a time up to a maximum of 10 years. These, in our opinion, are sufficient protections laid down by the legislature. The State legislature had the legislative competence to enact such law. The legislature itself had thought that the Act should at the most be valid for a period of 15 years and this power of extension cannot be said to be an excessive power of delegation. The situation is squarely covered by the judgment of the Apex Court in Sardar Inder Singh Vs. The State of Rajasthan, . Therefore, the first contention is rejected.

That brings us to the second contention. Section 2(1) of the Act defines an "antisocial" person as follows:-

"2. In this Act unless there is anything repugnant in the subject or context,

(I) "anti-social" means a person who,

(a) is generally reputed to be desperate and dangerous to the community:

Provided that a person shall not be deemed to be desperate and dangerous to the community only because of his participation in democratic movement, trade union activities, labour or peasant movement; or

(b) either by himself or as member or leader of 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; or

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

(d) has been convicted not less than twice under the Tripura Excise Act, 1987; or

(e) has been convicted under the Prevention of Food Adulteration Act, 1954; or

(f) has been convicted for offences of gambling, black marketing or illegal money lending by any criminal court; or

(g) either by himself or as an agent of any person acts or deals with any essential commodity in a manner which is prejudicial to the maintenance of supplies and services essential to the life of the community."

As far as the case of the present petitioner is concerned, he is stated to be an "antisocial" in terms of Clauses (a) and (b) of sub-section (1) of section 2. Under sub-clause (a), a person can be said to be an "anti-social" if he is generally reputed to be desperate and dangerous to the community and under clause (b) he could be termed to be an "anti-social" if he himself or as a member of a gang, habitually commits or attempts to commit certain types of offences.

Section 6 of the Act empowers the District Magistrate to pass orders of externment and reads as follows:

"6. (1) Where it appears to District Magistrate-

(a) that any person is an anti-social; and

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

(ii) that there are reasonable grounds for believing that he is engaged, or about to engage, 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 Tripura Excise Act, 1987 or under the Prevention of Food Adulteration Act, 1954 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;

the District Magistrate shall by notice in writing inform him of the nature of the material allegations against him in respect of clauses (a), (b) and (c) and give him a reasonable opportunity of tendering an explanation regarding them.

(2) The person against whom an order under this section is proposed to be made shall be given a reasonable opportunity of being heard and examining himself, if he so desires, and also of examining any other witnesses in support of his explanation unless 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.

(3) Thereupon the District Magistrate on being satisfied that the conditions specified in clauses (a), (b) and (c) of sub-section (1) exist may by order in writing-

(a) direct him to remove himself outside the District, or part, as the case may be, 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 not exceeding six months as 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) 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."

If we read section 6 as a whole, it is more than apparent that all the conditions mentioned in clauses (a), (b) & (c) of sub-section (1) of section 6 must be fulfilled and the District Magistrate must be satisfied that all the conditions are fulfilled before passing an order of externment. The first condition is that the person should be an "antisocial" as defined in section 2 of the Act. The second condition is that his movement or acts in the district or part thereof are causing, or are calculated to cause alarm, danger or harm to persons or property. The second condition has a second part and the District Magistrate must reasonably believe that the person who is sought to be externed is engaged in the commission or abetment of certain types of offences and the third condition is that witnesses are not willing to come forward to give evidence against the said person by reason of apprehension as regards their safety. The District Magistrate is also enjoined to issue notice in writing upon the person sought to be externed and inform him of the "nature of the material allegations" against such person in respect of all the clauses (a), (b) and (c) and give him reasonable opportunity of giving his explanation thereof.

Sub-section (2) of section 6 of the Act even gives the right to the person, sought to be externed, not only to file a reply to the notice but also to examine witnesses. Thereafter, if the Magistrate is satisfied that all the conditions specified in clauses (a), (b) and (c) of sub-section (1) exist, then he may by order in writing direct the externment of the person or restrict his movements within the district.

As far as the present case is concerned, it is not disputed that the procedure was followed. The only question raised by Mr. Bhowmik, learned counsel for the petitioner, is that the notice issued to the petitioner did not inform him of the "nature of the material allegations" and, therefore, he did not have any proper opportunity to reply to the same. It is also submitted that the petitioner cannot be said to be a habitual criminal because he is involved in only two cases in both of which he has been granted bail. Lastly, it is submitted that even the order under challenge does not in any way set out the conditions reflected in clauses (a), (b) and (c) of sub-section (1) of section 6.

The main issue is what is the meaning of the phrase "nature of the material allegations".

In Black''s Law Dictionary, the term "material allegations" has been defined as follows:

"In a pleading, an assertion that is essential to the claim, charge or defense."

In P. Ramanatha Aiyer''s The Law Lexicon, "material allegations" has been defined as follows:

"An allegation is said to be material when it forms a substantive part of the case presented by the pleading. A material allegation in a pleading is one essential to the claim or defense, and which could not be stricken from the pleading without leaving it insufficient."

Therefore, a material allegation, in our view, is one which forms substantive part of the case and one which is essential to decide the issues in hand.

In the present case, the notice reads as follows:

"NOTICE UNDER THE TRIPURA SECURITY ACT, 2000

Whereas, the State Government, in exercise of the powers conferred by sub-section (4) of Section 1 of THE TRIPURA SECURITY ACT, 2000 has issued notification vide Notification No. F. 38(4)-PD/99 dated 08-08-2013 of the Government of Tripura in Home Department has extended the period of application of Tripura Security Act, 2000 with effect from 16-08-2013 upto 14-08-2015.

AND

Whereas, it has come to my notice from the materials submitted by the SP, West Tripura District that Sri Krishna Ch. Dey (De) (38), S/o. Late Hari Sankar alias Niranjan Dey (De) of 79 Tilla, GB PS-New Capital Complex, West Tripura District is a known anti-social, indulging in the commission of crimes against human body and property as defined under Chapter XVI of IPC and his activities in the district are causing danger to the life and property of the common people and has been charge sheeted in East Agartala PS Case No. 02/07 u/S. 302/34 IPC and East Agartala PS Case No. 171/13 u/Ss. 341/326/386/34 IPC.

AND

Whereas, the subject Shri Krishna Ch. Dey, (De) has shown no signs of reformation despite of preventive actions taken under u/S. 110 of Cr.P.C. The activities of Shri Dey is highly prejudicial to the maintenance of public order and is involved in destructive and subversive activities.

AND

Whereas, the subject Shri Krishna Ch. Dey (De) through his acts & movements created an apprehension in the area and the citizen are fearful. The complainants and victims feel unsafe owing to such behaviour. The local persons/witnesses are not willing to come forward to depose against him fearing their life.

AND

Whereas, the above mentioned subject moves around the locality with his accomplice and threatens and abuses people, assaults them and carries out property offences. He is also in possession of weapons used for committing crime.

AND

Whereas, there is an apprehension that the subject shall commit offences punishable under Chapter XVI of IPC.

NOW, therefore, Sri Krishna Ch. Dey (De) (38), S/o. Late Hari Sankar alias Niranjan Dey (De) of 79 Tilla, GB PS-New Capital Complex, West Tripura District is hereby asked to show-cause as to why u/S. 6(3)(a) and (b) of the Tripura Security Act-2000 shall not be initiated/applied against him. The response to this notice shall be furnished to the undersigned within 7 days during office hours till 5.00 p.m. from the date of receipt of the Memorandum positively. The proposed person may also present himself for being heard on 12th March, 2014 by 11.00 a.m. along with any witnesses, if he so desires.

Otherwise, an ex parte decision shall be taken by the undersigned.

Sd/- (Abhishek Singh) (05.03.2014) District Magistrate & Collector West Tripura District.

To

Sri Krishna Ch. Dey (De) (38), S/o. Late Hari Sankar alias Niranjan Dey (De) of 79 Tilla, GB, PS-New Capital Complex, West Tripura District."

It would be pertinent to mention that the order which is under challenge is virtually couched in similar language and the relevant portion of the order reads as follows:

"EXTERNMENT ORDER UNDER THE TRIPURA SECURITY ACT, 2000

XXX XXX XXX

Whereas, Superintendent of Police, West Tripura District has submitted a proposal for externment against Sri Krishna Chandra Dey (De), S/O. Late Hari Sankar Dey (De) alias Niranjan Dey (De) of 79 Tilla, G.B. P.S. New Capital Complex, Agartala, West Tripura District with following contention.

That he is an anti-social person, indulging in the commission of crimes against human body and property as defined under Chapter XVI of IPC and his activities in the district are causing danger to the life and property of the common people, and

That he has been charge-sheeted by in East Agartala P.S. Case No. 02/07 u/Ss. 302/34 IPC and East Agartala P.S. Case No. 171/13 u/Ss. 341/326/386/34 IPC and

That the preventive actions were taken against him vide New Capital Complex P.S. P/R No. 67/2010 u/Ss. 107/113/116 Cr.P.C. dated 17.01.2014, 31/2013 u/Ss. 107/113 Cr.P.C. dated 22.12.2013 and 68/2014 u/S. 110 Cr.P.C. dated 19.01.2014 and,

That through his acts & movements he has created an apprehension in the area and the citizens are fearful. The local persons/witnesses are not willing to come forward to depose against him fearing their life.

That there is an apprehension that the subject is likely to commit offences punishable under Chapter XVI of IPC.

XXX XXX XXX

AND

That, I am satisfied that sufficient evidence is available against Shri Krishna Chandra Dey (De), S/o. Late Hari Sankar Dey (De) alias Niranjan Dey (De) of 79 Tilla, GB. P.S. New Capital Complex, Agartala, West Tripura District that he is an anti-social person and has been charge-sheeted by the concerned PS in East Agartala PS Case No. 02/07 u/Ss. 302/34 IPC, East Agartala PS Case No. 171/13 u/Ss. 341/326/386/34 IPC which relate to crimes against human body and property as defined under Chapter XVI of IPC. Further, preventive actions were also taken u/Ss. 107/113/116 & 110 of Cr.P.C. That through his acts & movements he has created an apprehension in the area and the people are fearful. The local persons and witnesses are not willing to come forward to depose against him fearing their life. There is strong possibility that he will cause breach of peace and tranquility in the area and there is reasonable ground to believe that the subject is likely to commit offences punishable under Chapter XVI of IPC along with other cognizable offences.

xxx xxx xxx"

Mr. B.C. Das, learned Advocate General, relying upon the judgments of the Apex Court in Hari Khemu Gawali Vs. The Deputy Commissioner of Police, Bombay and Another, ; Pandharinath Shridhar Rangnekar Vs. Dy. Commr. of Police, The State of Maharashtra, ; Gazi Saduddin Vs. State of Maharashtra and Another, and State of N.C.T. of Delhi and Another Vs. Sanjeev @ Bittoo, contends that the words used are "nature of material allegations" and, therefore, allegations in detail are not to be mentioned in the notice but only the nature of the material allegations is to be supplied.

We are of the considered view that this is just a play with semantics. Nature of material allegations would also be similar to material allegations. It is true that an order of externment is passed more on the basis of suspicion and the State may not be required to prove the allegations and sometimes the State may also withhold the names of the persons who are threatened. We are saying this because if an anti-social element is threatening witnesses and they are named by the police, then their lives could be in danger by exposing them in the notice. However, in the confidential part of the report to the Magistrate, there must be some material to show who are the witnesses who are threatened or what are the cases in which the witnesses were threatened.

In Hari Khemu Gawali Vs. The Deputy Commissioner of Police, Bombay and Another, , the Apex Court held as follows:

"10. xxx xxx xxx

In this connection it was argued on behalf of the petitioner that S. 59 only required the general nature of the material allegations against the person externed to be disclosed and that, as it did not further provide for particulars to be supplied to such a person it would be very difficult for him to avail of at least the second ground on which S. 61 permits him to get the matter judicially examined. But in the very nature of things it could not have been otherwise. The grounds available to an externee had necessarily to be very limited in their scope, because if evidence were available which could be adduced in public, such a person could be dealt with under the preventive sections of the Code of Criminal Procedure, for example, under S. 107 or S. 110.

But the special provisions now under examination proceed on the basis that the person dealt with under any of the Ss. 55, 56, or 57 is of such a character as not to permit the ordinary laws of the land being put in motion in the ordinary way, namely, of examining witnesses in open court who should be cross-examined by the party against whom they were deposing. The provisions we are now examining are plainly intended to be used in special cases requiring special treatment, that is, cases which cannot be dealt with under the preventive sections of the Code of Criminal Procedure.

xxx xxx xxx"

Further, relying upon the judgment of the Apex Court in State of N.C.T. of Delhi and Another Vs. Sanjeev @ Bittoo, , it is urged that an externment order can be challenged only on the grounds of irregularity, irrationality and procedural impropriety. The Apex Court dealing with the law in question and dealing with provisions which are pari materia to the provisions of this Act held as follows:

"15. One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary (see State of U.P. and Others Vs. Renusagar Power Co. and Others, . xxx"

The Apex Court in para 25 held as follows:

"25. It is true that some material must exist but what is required is not an elaborate decision akin to a judgment. On the contrary the order directing externment should show existence of some material warranting an order of externment. While dealing with the question mere repetition of the provision would not be sufficient. Reference is to be made to some material on record and if that is done, the requirements of law are met. As noted above, it is not the sufficiency of material but the existence of material which is sine qua non."

(Emphasis supplied)

Reliance has been placed on the judgment of the Apex Court in Gazi Saduddin Vs. State of Maharashtra and Another, wherein the Apex Court held that the Court should not interfere only because other view was possible. It would be pertinent to mention that in Hari Khemu Gawali Vs. The Deputy Commissioner of Police, Bombay and Another, , in the notice in question which is referred to in the judgment, detailed allegations were made with regard to each and every case, with regard to his arrest on various case and the cases in which he has been convicted. The notice contained all material particulars.

In Gazi Saduddin Vs. State of Maharashtra and Another, , the Apex Court has noted that three of the persons who had appeared as witnesses had clearly stated that they had been threatened by the petitioner.

As far as the present case is concerned, we are constrained to observe that neither the notice nor the order gives any facts in detail. In the notice, it is stated that the petitioner is a known anti-social person indulging in crimes against human body and property. In this behalf, reference has been made to two cases; one registered against the petitioner for having committed an offence of murder in the year 2007 and another under sections 341/326/386/34 IPC registered in the year 2013. There is also reference to certain preventive actions taken in the year 2010. It is also contended that his acts and movement as such that the citizens are scared of him. As pointed out by us above, in terms of section 2 of the Act, a person can be said to be anti-social in terms of clause (b) if he is habitually committing or attempting to commit offences against human life and property. Even as per the prosecution, the two cases registered against the petitioner are of the year 2007 and 2013 and there is a gap of 6 years in between and, therefore, it cannot be said that he is habitual to committing such offences. For his general reputation to be desperate and dangerous, some material should have been placed on record by the police and not just the action which is taken. In this behalf, it may be pertinent to mention that the petitioner was granted bail in the case of murder in the year 2007 and has been attending the trial since then and in the said trial, no allegation has been made that he has tried to influence any witness. In case, any such allegation is made, then the State is at liberty to approach the criminal Court for cancellation of the bail. As far as the second case is concerned, the petitioner was granted anticipatory bail by a learned single Judge of this Court vide order dated 25-10-2013. True it is that merely because bail has been granted is not a ground by itself to quash the externment order but when a judicial authority grants bail, the administrative authority cannot pass an order of externment only on the basis of the material which was before the Court with no fresh material is placed before the Administrative Authority. It would be pertinent to mention that after anticipatory bail was granted, there are some police reports lodged by the police which are totally vague and do not specify anything specific against the petitioner. Even in the notice issued to the petitioner, no specific allegation has been made and only the language of the Act has been repeated in the notice. This is not equivalent to supplying the nature of the material allegations to him. The petitioner should have been told what are the allegations against him for which he is to be termed an anti-social and externed from his hometown. Other than only quoting the provisions of the Act, the notice does not give any facts whatsoever. Even if all the facts are not given in the notice, in the record those facts must be there. We have perused the records and there is no such material even on the record.

Therefore, we are of the considered view that the notice is totally illegal and as such, the externment order is quashed.

The petition is accordingly disposed of. No order as to costs. Send down the lower court records forthwith.