Niyaz Khan @ Roxy vs State of U.P.& others.

A.K. Roopanwal, J.

This writ petition has been filed against the order dated 28.5.2008 passed by the A.D.M. (City), Varanasi, in Case No. 74/07/43/08, State Vs. Niyaz Khan, and the order dated 10.9.2008 passed by the Commissioner, Varanasi Division, Varanasi, in Appeal No. 138 of 2008, Niyaz Khan Vs. State. Vide order dated 28.5.2008 the petitioner was ordered to remain out of the district of Varanasi for a period of six months and when appeal was preferred against this order, that appeal was dismissed by the Commissioner vide order dated 10.9.2008.

It appears from the record that on the basis of four criminal cases and a report of the Inspector, Police Station Cantt., District Varanasi, a notice u/s 3(1) of the U.P. Control of Goondas Act, 1970, was issued against the petitioner by the A.D.M. (City), Varanasi, on 24.4.2007, whereby he was called upon to show cause as to why the externment order be not passed against him. He filed his reply but that reply was not accepted and finding that the petitioner is hazardous to the society, he was ordered to remain out of the territory of the district of Varanasi for a period of six months from the date of the order dated 28.5.2008. The appeal was filed in which the finding of the A.D.M. (City), Varanasi, was approved by the Commissioner of the Division and the appeal was dismissed.

I have heard Mr. Mohd. Naushad Siddiqui, learned counsel for the petitioner, learned AGA for the State and perused the record.

It has been argued by Mr. Siddiqui that out of the five cases shown against the petitioner two had been acquitted by the time the judgment was passed by the concerned Magistrate and therefore, these cases should not have been taken into use for holding that the petitioner was a goonda. He further argued that the cases registered at Crime No. 219/06 and Crime No. 323/06 being of the year 2006 should have also not been taken into use for treating the petitioner as a disparate and dangerous to the community. He also argued that the beat report dated 27.3.2007 has no backing behind it and it should have also not been used for any purpose.

A look at the above factual matrix would reveal that after 2006 no case was registered against the petitioner till the date when the notice under the Goondas Act was issued against him and therefore, he should not have been treated to be a goonda on the date of the notice. The purpose of the Goondas Act is that a person should not be allowed to disturb the tranquility of the society and this should be depicted from the circumstances available on the date of the issuance of the notice. When no offence was recorded against the petitioner after 2006 till the date of the issuance of the notice, hence there could be no occasion to hold that he was a disparate and dangerous to the community. Therefore, on the basis of the cases of the year 2006 the externment order should not have been passed against him.

In the same way the beat report being without any basis should have also not been taken into use by the Magistrate for any purpose.

In view of the above, I have no hesitation in holding that the externment order passed by the Magistrate was without any justification and should not have been passed. This is definitely an improper order and should not have been affirmed by the Commissioner in the appeal. Consequently, both the orders are liable to be quashed and the writ petition is liable to be allowed.

The writ petition is allowed and the orders dated 25.5.2008 and 10.9.2008 passed by the authorities below are hereby quashed.