Vashisth Kumar Sahu @ Lotiya Pathan vs State Of Chhattisgarh

Heard Mr. Satyendra Srivas holding the brief of Mr. Rakesh Kumar Thakur, learned counsel for the petitioner as well as Mr. H.S. Ahluwalia, learned Deputy Advocate General, appearing for the State/respondents.

Registry has pointed out default that certified copy of order dated 01.05.2023 is not filed.

Defects pointed out by the Registry is over-ruled.

The instant petition has been filed under Article 226 of the Constitution of India challenging the legality and validity of the order dated 01.05.2023 passed by the respondent No.2 / District Magistrate, Balod, whereby the petitioner has been externed from revenue District Balod and its adjoining districts Durg, Dhamtari, Rajnandgaon, Mohala-Manpur-Ambagarh Chowki and Kaner for a period of one year on the basis of recommendation dated 20.07.2023 made by respondent No.3 / Superintendent of Police, District – Balod and the order dated 05.07.2023 passed by the respondent No.1, whereby the appeal preferred under Section 9 of the Chhattisgarh State Security Act, 1990 (for short, ‘the Act of 1990’) has been dismissed holding that the petitioner has not properly explained the delay to file the appeal.

Brief facts of the case are that the petitioner is a resident of District Balod. Respondent No.3 has submitted a report prepared by the respondent No.4 on 20.07.2022 before the respondent No.2 and prayed for externment of the petitioner alleging that the petitioner is involved in smuggling of liquor, due to which atmosphere of locality are badly affected and he also used to quarrel with the local resident of the area which is badly effecting the small children of the locality also. It has been also stated in the report that there were 10 criminal cases registered against the petitioner in which he has been charge-sheeted and due to his terror the local resident do not file complaint openly against the petitioner and due to his continuously involvement in crime, six Istagasa has also been filed against him upto year 2022, but then also there is no improvement in the behavior of the petitioner and local resident are afraid from his terror and no one is coming forward to say anything against him and he is continuously involved in Crime to sell illegal liquor, gambling and betting.

On the basis of aforesaid report dated 20.07.2022, the respondent No.2 has initiated action u/S 5 and 6 of the Act of 1990 against the petitioner and issued notice to him and consequently the petitioner has also filed reply, denying all the allegations leveled against him and stated that he was never involved in any kind of crime and he has been falsely implicated in the crime due to enmity. He further stated in his reply that he is a labour and taking care of his family from his income, but some anti social aliment who are having enmity are falsely implicating him in the crime with the collusion of police and not letting him to live peaceful life, he never did anything which attracts the provisions of the Act of 1990. He further pleaded in his reply that the prosecution has not supplied him copy of application and relevant documents to raise defence and prayed for the dismissal of the exernment proceeding initiated against him.

The respondent No.2, after recording the statement of prosecution witnesses has passed the order of externment of the petitiooner on 01.05.2023 from Balod District and other adjoining districts Durg, Dhamtari, Rajnandgaon, Mohala-Manpur-Ambagarh Chowki and Kaner for a period of one year.

The petitioner has preferred an appeal u/S 9 of the Act of 1990 against the aforesaid order dated 01.05.2023 before respondent No.1 with application for condonation of delay in filing the appeal giving explanation that during the trial he was suffering from serious illness and was getting treatment in AIIMS Hospital, Raipur, therefore, he could file his reply in the trial and cross-examined the prosecution witnesses. He further pleaded that against him ex-party order has been passed and he has been informed about the impugned order after expiry of the limitation to file the appeal.

The respondent No.1 has dismissed the appeal on 05.07.2023 holding that the petitioner has not properly explained the delay to file the appeal. Hence, this petition.

Learned counsel for the petitioner submits that respondent Nos. 1 & 2 have acted in very arbitrary and unlawful manner, they ought to have considered that in the Act of 1990, it is required to establish that a person can be punished under the Act, if a person has been convicted U/s 3 or 4 of the Gambling Act, 1867 three (3) times within three years. He further submitted that the petitioner has been falsely implicated for crime punishable under the Excise act, Gambling Act and minor offences under IPC and as per the impugned order dated 01.05.2023, he has not been punished for any of the offences. The impugned order dated 01.05.2023 has been passed by the respondent No.2 without affording any opportunity of hearing to the petitioner, without affording him to cross-examine the prosecution witnesses, without informing him about the dates of subsequent hearing and under great violation of natural justice. He also submitted that the respondent No.1 has also passed the impugned order dated 05.07.2023 without properly considering the reason assigned by the petitioner for the delay occurred to file appeal, hence is bad in law and liable to be interfered with.

On the other hand, learned State counsel opposed the submissions of learned counsel for the petitioner and supporting the impugned orders.

Before adverting to the contentions of the counsel for the petitioner as discussed earlier and examining them on the anvil of the law prevailing in the filed of externment, it is apt to refer the provisions of the Act, 1990. Sections 5 and 6 of the Act, 1990 under which the order of externment has been passed is quoted hereinbelow :-

"5. Removal of persons about to commit offence.-

Whenever it appears to the District Magistrate-

(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 reasonably 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, 4 XVI or XVII or under Section 506 of 509 of the Indian Penal Code, 1860 (45 of 1860) or in the abetment of any such offence, and when in the opinion of the District Magistrate witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part 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 District Magistrate, may by an order in writing duly served on him or by beat of drum or otherwise as the District Magistrate thinks fit, direct such person or immigrant-

(a) so as to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease;

(b) to remove himself outside the district or districts or any part thereof or such area and any district or districts or any part thereof, contiguous thereto by such route within such time as the District Magistrate may specify and not to enter or return to the said district or part thereof or such are and such contiguous districts, or part thereof, as the case may be, from which he was directed to remove himself."

Removal of persons convicted of certain offences.- If a person has been convicted -

(a) of an offence.-

(i) under Chapter XII, XVI or XVII or under Section 506 or 509 of the Indian Penal Code, 1860 (45 or 1860); or

(ii) under the Protection of Civil Rights Act, 1955 (22 of 1955); or

(b) twice, of an offence under Suppression of Immoral Traffic in Women and Girls Act, 1956 (104 of 1556); or

(c) thrice, of an offence within a period of three years under Section 3 or 4 of 4-A of the Public Gambling Act, 1867 (3 of 1867), in its application to the State of Chhattisgarh;

the District Magistrate may, if he has reason to believe that such person is likely against to engage himself in the commission of an offence similar to that for which he was convicted direct such person by an order to remove himself outside the district or part thereof or such area and any district or districts or any part thereof, contiguous thereto by such route and within such time as the District Magistrate may order and not to enter or return to the District or part thereof or such area and such contiguous district or part thereof, as the case may be, from which he was directed to remove himself.

Explanation :- For the purpose of this Section, the expression, "an offence similar to that for which he was convicted" means

(i) in the case of a person convicted of an offence mentioned in clause (a), tin offence falling under any of the Chapters or Sections of the Indian Penal Code, 1860 (45 of 1860), mentioned in that clause or an offence falling under the provisions of the Act mentioned in sub-clause (ii) of that clause; and

(ii) in the case of a person convicted of an offence mentioned in clauses (b) and (c), an offence falling under the provisions of the Act mentioned respectively in the said clauses.

From perusal of the impugned orders and materials available on record, it transpires that there as many as 10 criminal cases (1) Crime No. 176/2017, U/s 34(2) of the Excise Act (2) Crime No. 327/2017, U/s 34(1)(a) of the Excise Act (3) Crime No. 374/2018, U/s 34(1)(a) of the Excise Act (4) Crime No. 123/2019, U/s 34(1)(a) of the Excise Act (5) Crime No. 425/2019, U/s 294, 506B, 323, 34 of IPC (6) Crime No. 432/2019 U/s 294, 506, 323, 34 of IPC (7) Crime No. 434/2019, U/s 294, 506, 323, 34 of IPC (8) Crime No. 182/10, U/s 294, 506, 323, 34 of IPC (9) Crime No. 93/2022, U/s 294, 506, 323, 34 of IPC (10) Crime No.215/2022, U/s 452, 294, 506, 323, 34 of IPC were registered against the present petitioner and charge-sheets were also filed before the concerned trial Court and 06 cases of prohibitory in nature were also registered against him and ishtgashas were filed in every cases, but there is no improvement in the criminal activities of the petitioner. When common people made complaint against the petitioner or someone in the locality tries to stop him, the petitioner becomes even more agitated and starts threatening. Due to its criminal activities, an atmosphere of panic and terror has been created in the city and ward. Petitioner’s free movement in the society and in the region has become extremely dangerous for maintaining peace and order in the region, thus we are of the opinion that the conduct of the petitioner is too dangerous for the people living in the locality.

Looking to the number of criminal activities registered under different Acts and prohibitory actions taken against the petitioner, which are increasing day by day and also looking to the conduct of the petitioner by which free movement in the society and in the region has become extremely dangerous for maintaining peace and order, we are of the opinion that the District Magistrate has followed the due procedure of law and has rightly passed the impugned order against the petitioner under Sections 5 and 6 of the Act of 1990. Moreover, considering the fact that the petitioner has not properly explained the delay to file the appeal before the appellate authority and also considering the nature of cases registered against the petitioner and his anti-social activities and action taken by the respondents is preventive in nature, hence, we do not find any illegality or infirmity in the impugned order dated 01.05.2023 passed by the respondent No.2 / District Magistrate, Balod, whereby the petitioner has been externed from revenue District Balod and its adjoining districts Durg, Dhamtari, Rajnandgaon, Mohala-Manpur-Ambagarh Chowki and Kaner for a period of one year on the basis of recommendation dated 20.07.2023 made by respondent No.3 / Superintendent of Police, District – Balod and the order dated 05.07.2023 passed by the respondent No.1, whereby the appeal preferred under Section 9 of the Chhattisgarh State Security Act, 1990 (for short, ‘the Act of 1990’) has been dismissed holding that the petitioner has not properly explained the delay to file the appeal.

Accordingly, the instant writ petition stands dismissed.