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Sawant, J.—What is challenged in the present petition is an order of externment passed under S. 57(b) read with S. 59, Bombay Police Act, 1951, hereinafter referred to as "the Act". The notice issued under S. 59 preceding the impugned order dt. 8th October 1985 states that the externee had been convicted of offences mentioned in the notice and further that he was likely again to engage himself in the commission of the offence similar to that for which he had been convicted. The externee was, therefore, called upon to remain present in the enquiry which was to be held under the said section. After the enquiry, the impugned order was passed on 15th November 1985 externing the petitioner from the districts of Thane and Greater Bombay for a period of two years.
The gravamen of the challenge to the impugned order is that it has been passed only on the ground that the externee had to his record two convictions for the offences under S. 66(b), Bombay Prohibition Act. There was no further material available with the externing authority to come to the conclusion that the externee was likely to indulge in similar activities in future which is a must for passing an order on the grounds mentioned in S. 57. Hence the order is bad in law.
In order to appreciate this contention, it is necessary to reproduce the relevant portion of S. 57. It is as follows :-
"S. 57. If a person has been convicted - (a) ............
(b) twice or more of an offence under the Bombay Prohibition Act, 1949, not being an offence under Ss. 65, 66A or 68, or
(ba) ............
(c) ............
the Commissioner, the District Magistrate, or the Sub-Divisional Magistrate ................. if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted, may direct such person notwithstanding anything contained in this Act or any other law for the time being in force, to remove himself outside such area or areas in the State of Maharashtra ................... as the officer may specify and not to enter or return to the area or areas so specified from which he was directed to remove himself."
The aforesaid provisions make it clear that for an externment under S. 57 two requirements have to be fulfilled :
(1) there must be a conviction or convictions for an offence mentioned in the relevant clauses of the section and (2) the externing authority should have reason to believe that the proposed externee is likely again to engage himself in the commission an offence similar to that for which he was convicted. There is no dispute before us that the present externee had suffered two convictions under S. 66(b), Bombay Prohibition Act, 1949 which is the first requirement of Cl. (b) of the section. What is, however, contended before us is that the second requirement of S. 57 was not fulfilled in the present case inasmuch as there was no material before the externing authority to form the belief that the externee was likely again to engage himself in the commission of a similar offence. Although in reply to this contention raised in the petition, the externing authority has stated that he had such material before him, it was admittedly not disclosed in the notice given to the externee under S. 59, nor is there a mention of it in the impugned order. It is unnecessary to emphasise that if there was any such material before the externing authority it was incumbent upon the authority to indicate at least the general nature of the material allegations in the notice served upon the externee. Without such indication, it was impossible for the externee to meet them in the enquiry held under S. 59. the non-disclosure of such material in the notice will, therefore, have to be treated as an absence of it so far as the externee is concerned. Since in the present case no indication whatsoever of the material was given in the notice we must proceed on the basis that in fact no such material was before the externing authority.
We have no doubt whatsoever in our mind, nor was it seriously disputed before us on behalf of the State, that for passing an externment order under S. 57 it is not enough that the externee is convicted for the offences mentioned in sub-sec. (1) thereof. The externing authority must in addition be in possession of material indicating repetition of activity on the part of the externee after the conviction or convictions, as the case may be, similar to that for which he was convicted. The renewed activity must further be of such nature as should reasonably give rise to the belief that the person concerned is likely again to engage himself in the commission of a similar offence. Without this further material and the reasonable belief based on such material, the externing authority cannot pass and it is not empowered to pass an order of externment under the said section. This is evident from the provisions of S. 57(1) itself. This interpretation of S. 57(!) is also reinforced by the provisions of S. 59 of the Act which require the externing authority or the police officer authorised by the externing authority as the case may be to inform the proposed externee in writing of the general nature of the material allegations against him and to give him a reasonable opportunity of tendering an explanation regarding them before passing an externment order. If the person concerned makes an application for the examination of any witness on his behalf, the authority or the officer has to grant the application and examine such witness unless for reasons to be recorded in writing the authority or the officer is of opinion that such application is made for the purpose of vexation or delay. In addition to the examination of a witness or witnesses, the proposed externee has also a right to put in his written statement in defence which is to be a part of the record of the case. The proposed externee is further entitled to appear in the enquiry by an advocate or attorney for the purpose of tendering his explanation and examining the witnesses produced by him. It will thus be apparent from the provisions of S. 59 that before an externment order is passed on the grounds mentioned in S. 57, the externing authority or the officer authorised by the authority has to hold an inquiry in which the proposed externee is to be afforded a reasonable opportunity to show cause against the ground or grounds on which he is sought to be externee. If the conviction or convictions already suffered were the only grounds for passing an order of externment under S. 57, the exercise of an inquiry under S. 59 is obviously uncalled for. Thus the provisions of S. 57(1) as well as the provisions of S. 59 make it abundantly clear that the externing authority must have in its possession material with regard to the activities of the proposed externee after the convictions in question on the basis of which the authority will have reason to believe that the person concerned is likely to engage himself in the commission of an offence similar to that for which he was convicted. Without such material the authority has no power to pass an externment order.
It is not disputed before us that the notice preceding the impugned order disclosed no such material. It merely recited the fact that the externee had suffered two convictions under S. 66(b), Bombay Prohibition Act. As pointed out above, even the order which followed the notice only stated that the petitioner had continued similar activity even after the conviction. The order also did not indicate even the general nature of the material allegations with regard to the alleged activities. In view of the same, the impugned order is prima facie contrary to the provisions of S. 57 of the Act and, therefore, bad in law. The result, therefore, is that the petition succeeds. The impugned order is quashed and the rule is made absolute.
Petition allowed.