PETITIONER:
BHAGUBHAI DULLABHABHAI BHANDARI
Vs.
RESPONDENT:
THE DISTRICT MAGISTRATE, THANA& OTHERS(with connected petiti
DATE OF JUDGMENT:
08/05/1956
BENCH:
SINHA, BHUVNESHWAR P.
DAS, SUDHI RANJAN (CJ)
JAGANNADHADAS, B.
AIYYAR, T.L. VENKATARAMA
IMAM, SYED JAFFER
CITATION:
1956 AIR 585 1956 SCR 533
ACT
Bombay Police Act, 1951 (Bombay Act XXII of 1951), s. 56-
Constitutional validity-Order of externment-Restrictions-
Reasonableness-" Witness", scope of the word in the section-
Whether ,not applicable to members of the police force or
customs department Constitution of India, Art. 19.
HEADNOTE
Section 56 of the Bombay Police Act, 1951, is not
unconstitutional and does not contravene the provisions of
Art. 19 of the Constitution.
Gurbachan Singh v. State of Bombay ( [1952] S.C.R. 737),
followed.
In order to attract the operation of the section the Officer
concerned should be satisfied that the witnesses are not
willing to come forward to give evidence in public, but it
is not necessary to show that all the witnesses are
unwilling to give evidence. The terms of the section do not
justify any restricted meaning being given to the word
"witnesses" and it is applicable to members of the police
force and employees and officers of the Customs Department
also.
Gurbachan Singh v. State of Bombay ( [1952] S.C.R. 737),
explained.
Under the provisions of s. 56 of the Bombay Police Act,
1951, an order of externment was passed against the
petitioner by which he was directed to remove himself
outside the limits of Greater Bombay and not to enter the
said area for a period of two years without the prescribed
permission; and subsequently he entered Greater Bombay in
order to attend Court in a case pending against him in which
a warrant of arrest had been issued. He was convicted for
committing the breach of the externment order and he
contended that his conviction was in itself an indication of
the unreasonableness of the restriction.
Held, that the restrictions cannot be said to be
unreasonable, as the petitioner could have avoided the
prosecution. and the conviction by obtaining the previous
permission of the prescribed authority.
Per JAGANNADHADAS J.-If the matter were res integra should
have felt difficulty in upholding the validity of s. 56(b)
of
534
the Bombay Police Act, 1951, in so far as it did not
demarcate the application thereof to the more serious
classes of offences falling within the specified Chapters.
I.should also have felt difficulty in holding a provision to
be reasonable which clothes the executive officers with an
authority to extern a person for so long a period as two
years.
JUDGMENT
ORIGINAL JURISDICTION: Petitions Nos. 439 & 440 of 1955.
Petitions under Article 32 of the Constitution of India for
the enforcement of Fundamental Rights.
H. J. Umrigar and R. A. Govind, for the petitioner in
Petition No. 439 of 1955.
J. B. Dadachanji, for the petitioner in Petition No. 440
of 1955,
M. C. Setalvad, Attorney-General of India, B. Sen and R.
H. Dhebar, for the respondents.
1956. May 8. The judgment of S. R. Das C. J. and
Venkatarama Ayyar, B. P. Sinha and Jafer Imam JJ. was
delivered by Sinha J. Jagannadhadas J. delivered a separate
judgment,
SINHA J.-These petitions under article 32 of the
Constitution challenge the constitutionality of some of the
provisions of the Bombay Police Act, XXII of 1951, (which
hereinafter will, be referred to as "The Act"), with special
reference to section 56, as also of the orders passed
against them externing them under that section of the Act.
In Petition No. 439 of 1955 Babubhai Dullabhbhai Bhandari is
the petitioner and the District Magistrate of Thana, the
Deputy Superintendent of Police and Sub-Divisional Police
Officer, Bhivandi Division, Bhivandi, District Thana, and
the State of Bombay are respondents 1, 2 and 3. The
petitioner is a citizen of India and carries on trade in
grass at Bhilad, a railway station on the Western Railway.
On 21st January 1955 the Deputy Superintendent of Police and
Sub-Divisional Police Officer, Bhiwandi Division, served a
notice under section 56 of the Act in the following terms:-
535
No. Ext. 3/1 of 1955
Office of the S.D.P.O. Bhiwandi,
Bhiwandi, dated 21-1-1955.
(I) I, Shri C. V. Bapat, Deputy Superintendent of Police and
Sub-Divisional office Bhiwandi Division, District Thana, do
hereby issue a notice to you, Shri Bhagu Dubai Bhandari
alias Bhagwanbhai Dulla Bhai Jadhav of Bhilad District
Thana, that it is proposed that you should be removed
outside the District of Thana and you should not enter or
return to the said district for a period of two years from
the date of the order to be made under section 56 of the
Bombay Police Act, 1951 for the following reasons:
(II) Evidence is forthcoming that your following activities
have caused and are calculated to cause alarm, danger and
harm to person and property in Bhilad and the surrounding
areas:-
(III) You have been dealing in smuggled foreign liquor
and maintained a veil of secrecy by criminal intimidation
and physical violence to the villagers and other right
thinking persons.
(2) Your activities have been in continuation of your
similar activities for the. last five years, given as
under:-
(a) You criminally assaulted persons with the help of your
associates and did violent acts in order to strike terror
into the hearts of the villagers, so that they should not
challenge you or your men.
(b) You have been criminally assaulting and intimidating
Central Excise and Custom officials with the help of your
gang, so as to stop them from looking into your anti-
national, anti-social and illegal activities. As a result
of your unlawful and dangerous activities you are held in
terrific awe by the Central Excise and Custom Officers and
men and villagers in Bhilad area who are continuously
labouring under grave apprehension of danger to their per-
son and property.
(c) You and your associates were and are making use of
criminal intimidation against the villagers in order to
prevent them from having recourse to legal means.
536
(III) That you and ’ your associates are also understood
to be in possession of unlicensed firearms which has been
causing considerable alarm and spreading a feeling of
insecurity of life and property in the mind of villagers
from Bhilad and neighbouring villages and Central Excise and
Customs employees.
(IV) The witnesses are not willing to come forward and to
give evidence against you by reason of apprehension of
danger and harm to their person and property.
(V) Now, I Shri C. V. Bapat, Deputy Superintendent of
Police and Sub-Divisional Police Officer, Bhiwandi Division,
District Thana in exercise of the authority conferred upon
me under section 59 of the Bombay Police Act, 1951 by the
District Magistrate Thana under his number,MAG. 2/ EX dated
17-1-1955 do hereby direct you to appear before me at 11
a.m. on 27-1-1955 at Dahanu in the office of the Sub-Divi-
sional Police Office Dahanu for tendering your explanation
regarding the said allegation. You are also entitled to
appear before me by advocate for the purpose of tendering
your explanation and examining witnesses, produced by you.
Signed and sealed this day of 21st Jan. 1955..
Sd..........................
Deputy Superintendent of Police &
Sub-Divisional Police Officer, Bhiwandi.
To
Shri Bhagu Dubal Bhandari @ Bhagwanbhai Dullabhai
Jadhav of Bhilad, District Thana".
By that notice the petitioner was called upon to appear
before the said police officer on the 27th January 1955 in
order to enable the former to offer such explanation and
examine such witnesses as he may be advised. In pursuance
of that notice the petitioner appeared, before the police
officer aforesaid and the hearing of his case took place on
different dates. The petitioner claims to have examined
seven "respectable persons" to testify on his behalf. Ulti-
mately on the 11th July 1955 an order was passed by the
District Magistrate of Thana externing the petitioner
outside the Thana District. The order of
537
externment is Ex. D to the petition and contains the
recitals that after considering the evidence before him and
the explanation offered by the petitioner the District
Magistrate of Thana (the 1st respondent), was satisfied that
the petitioner "engages in giving threats and assaulting
Central Excise and Customs Officials men and residents of
Bhilad and surrounding villages and indulges in illicit
traffic of foreign liquor from Daman" and that in his
opinion "witnessess are not willing to come forward to give
evidence in public against the said Shri Bhagubhai Dul-
labhbhai Bhandari alias Bhagwanbhai Dullabhbhai Jadhav of
Bhilad by reason of apprehension on their part as regards
the safety of their person and property". It is this order
which is challenged as illegal and ultra vires and against
which the petitioner has moved this Court for an appropriate
writ, direction or order against the respondents "
prohibiting them, their servants and agents from acting upon
or taking any steps in enforcement, furtherance or pursuance
of the said order and from interfering in any manner with
the petitioner’s right to reside in Bhilad and carry on his
business. The petitioner had preferred an appeal to the
Government against the said order of externment. But the
appeal was dismissed on the 9th September 1955. Against the
said order the petitioner moved the High Court of Judicature
at Bombay under article 226 of the Constitution, but the
said application was also dismissed in limine by the High
Court by its order dated the 7th November 1955,
The District Magistrate of Thana, the 1st respondent has
sworn to the affidavit filed in this Court in answer to the
petition. He swears that he had passed the externment order
complained against after perusing the police reports and
going through the explanation offered by the petitioner and
the statements of the witnesses produced by him and on
hearing his advocate. He further states in the affidavit
that the general nature of the material allegations against
the petitioner was given to him, that the material given to
him was clear and by no means vague. Only the names of the
persons who had given the,
538
information against the petitioner were not disclosed to him
inasmuch as those persons were not prepared to. come out in
the open and depose against him in public as witnesses. He
was satisfied that witnesses were unwilling to come forward
to give evidence in public against the petitioner. He also
affirms that the petitioner’s movements and acts were not
only causing alarm, danger or harm to personal property of
the general public round about Bhilad, but also that his
movements and acts were causing danger and alarm to public
servants of the police force and the Central Excise who were
doing very responsible work at Bhilad which is on the
borderline of the Indian territory adjoining Daman area
which is Portuguese territory. He admits that the
petitioner was discharged by ’the Judicial Magistrate, First
Class, Umbergaon because the witnesses did not appear and
depose against ’him for fear of the petitioner.
In Petition No. 440 of 1955, Kunwar Rameshwar Singh is the
petitioner and the respondents are-
1. Shri W. K. Patil, Deputy Commissioner of Police, Crime
Branch (I) C.I.D., Greater Bombay,
2. The Commissioner of Police, Greater Bombay, and
3. The State of Bombay.
The petitioner is a citizen of India and claims to be a
"social worker" connected with several social organisations.
He alleges that his main social activity has been the
improvement of the lot of prostitutes and singing girls in
certain quarters’of Bombay On the 2nd November, 1954 the
petitioner was served with a notice under section 56 read
with section 59 of the Act (Ex. A to the petition) setting
out the allegations against him and calling upon him to ex-
plain those matters. In pursuance of the said notice the
petitioner appeared before the Superintendent of Police to
show cause against the proposed action against him.
Ultimately on the 4th January, 1955 the Commissioner of
Police, the second respondent, passed an order to the effect
that the petitioner should remove himself from the limits of
Greater Bombay
539
within seven days. That order is marked Ex. H and is to
the following effect.
" Order of Externment
------------------------
(Section 56 of the Bombay Police Act, 1951)
Police Station: Nagpada No. 7/c/43/1955.
Whereas the Commissioner of Police, Greater Bombay, has-
directed by his order, dated the 13th August, 1954 and 11th
December 1954, made under sub-section (2) of section 10 of
the Bombay Police Act, 1951 (Bombay Act XXII of 1951) that
the powers, functions and duties under the said Act shall
also be exercised by the Deputy Commissioners of Police,
Greater Bombay.
And whereas evidence has been placed before me, Deputy
Commissioner of Police, Crime Branch (1), against the person
known as Kunwar Rameshwar Singh, to the following
effect:-
I. That since October, 1953 in the locality known as
Falkland Road, Foras Road, Sukhalaji Street, Bapty Road,
Kamathipura and the areas adjoining thereto in Greater
Bombay his movements and acts are causing alarm and harm to
the persons residing in, carrying ’on business in, or
visiting the said locality in that:
(i) He with assistance of his associates some of them being
Sk. Makbool Sk. Hussain, Abdul Rahiman, Suleman alias
Sapad, Ahmad Yusuf alias Ahmed Dalal, Shafi and others,
extort Money from women residing in and carrying on business
either as prostitutes or singing girls in the said locality
on threats of assault and of causing bodily injury to them;
(ii) That he-with the assistance of the said associates
assault or threaten with assault the aforesaid women who do
not comply with his demands for money;
(iii) That in order to compel the aforesaid women to pay
him the money demanded by him he also posts his associates
at or near the places of business of the aforesaid women and
prevent customers from entering the rooms of, such women;
70
540
(iv) That he with the assistance of his associates extort
money from shopkeepers, hotel-keepers, merchants and hawkers
carrying on business in the said locality and from rent
collectors of buildings occupied by the aforesaid
prostitutes and singing girls -by assaulting them or
threatening them with assault and dislocation of business;
(v) That he causes damage to the property of the said
hotelkeepers and hawkers of the said locality who do not pay
him money demanded by him;
(vi) That he accosts persons visiting the rooms of singing
girls in the said locality for the purpose of entertainment
and demand money from them under threats of assault and of
preventing them from visiting the said locality;
(vii) That he has committed several acts of the nature
mentioned above.
II. That witnesses to the above incidents are not willing
to come forward to give evidence in public against him as
they apprehend that they will be assaulted by him and/or by
his associates if they do so.
And whereas I have heard the said person and considered the
explanation tendered by him and also the evidence given by
the witnesses produced by him and have heard his counsel.
And whereas after considering all the evidence and
explanation detailed above, I am satisfied that:
The Movements and acts of Kunwar Rameshwar Singh since
October, 1953, are causing alarm and harm to the persons
residing in carrying on business in or Visitin the locality
known as Falkland Road, Foras Road Sukhalaji Street, Bapty
Road, Kamathipura and the areas adjoining thereto in Greater
Bombay and that he indulges in activities mentioned above.
And whereas in my opinion witnesses are unwilling to come
forward to give evidence in public against the said person
by reason of apprehension on their part as regards the
safety of their persons;
Now, therefore, in exercise of the powers vested in me under
section 56 of the said Act, 1, Shri W. K. Patil, Deputy
Commissioner of Police, Crime Branch
541
(1) C.I.D., Greater Bombay himself hereby direct that the
said Kunwar Rameshwar Singh shall remove outside the limits
of Greater Bombay by Central Rly. (route) within seven days
from the date of service of this order and I further direct
that he shall not enter the said area of Greater Bombay for
a period of two years from the date of this order without a
permission in writing from the Commissioner of Police
Greater Bombay, or the Government of Bombay.
Sd. W. K. Patil,
Dy. Commissioner of Police,
Crime Branch (I) C.I.D. Greater Bombay".
The order quoted above is a self-contained one and discloses
the nature of the allegations against him which he bad been
called upon to explain. The petitioner preferred an appeal
to the third respondent, the State of Bombay. But his
appeal was dismissed on the 17th January 1955. The
petitioner challenged the validity of the said order passed
by the respondents by a petition under article 226 of the
Constitution to the Bombay High Court, but it was dismissed
on the 14th March 1955 after hearing. The judgment of the
High Court is Exhibit D. The learned Judge of the Bombay
High Court who dealt with the petition has set out briefly
the main allegations of the petitioner and the affidavit in
answer to the petition sworn to by the 1st respondent here.
The learned Judge observed in the course of his judgment
that in view of the averments in the petition and those in
the affidavit in reply it was impossible for him to hold
that the Deputy Commissioner of Police knew that witnesses
were willing to give evidence against the petitioner. The
petitioner went up on Letters Patent Appeal and a Division
Bench consisting of the Chief Justice and another Judge of
the Bombay High Court dismissed the appeal holding that once
the opinion has been formed by the authority that witnesses
were unwilling to give evidence in public against the
petitioner, the court could not go behind that opinion.
They also negatived the plea of want of bona fides in the
1st respondent who had initiated the proceedings.
542
The petitioner removed himself outside the limits of Greater
Bombay. Having come to know that a warrant of arrest had
been issued Against him in a certain pending case before the
Presidency Magistrate, Fourth Court, at Girgaum, Bombay, on
the 6th April 1955, the petitioner entered Greater Bombay to
attend court but he was arrested under the Act for
committing a breach of the externment order. He was
prosecuted before the Presidency Magistrate, Sixth Court at
Mazgaon, Bombay, for an offence under section 142 of the
Act. He was convicted by the Magistrate and sentenced to
nine months rigorous imprisonment by a judgment dated the
8th September 1955. The Magistrate’s judgment is Exhibit to
the petition. The learned Magistrate overruled the
petitioner’s contention that the order of externment passed
against him was illegal, relying chiefly upon the judgments
of the High Court referred to above, upholding the
constitutionality of that order. As regards his defence
that he had entered Greater Bombay in obedience to the
warrant issued against him, the learned Magistrate observed
that as a matter of fact, according to the statement of the
petitioner’s counsel before him he had taken that step "to
-test the validity of the order". Secondly, the learned
Magistrate has rightly pointed out that the petitioner
should have obtained the previous permission of the Police
Commissioner before returning to Bombay, as otherwise the
order of externment would be rendered nugatory. The learned
Magistrate also observed in the course of his judgment that
no allegations of mala fides had been made against the
police officers who bad initiated the proceedings against
the petitioner.
The petitioner went up in appeal to the High Court of Bombay
which by its judgment dated the 5th October 1955 upheld the
conviction and the sentence. The judgment of the High Court
is Exhibit G to the petition. A Division Bench of the
Bombay High Court repelled the contention on behalf of the
appellant that the order of externment was invalid, relying
chiefly upon the previous judgment of that very court
upholding the constitutionality of the very order
543
impugned. Another matter referred to in the judgment of the
High Court is rather significant. On behalf of the
appellant reliance had been placed upon a letter alleged to
have been sent to the petitioner by the Secretary to the
Chief Minister granting permission to him to return to
Bombay in order to see the Home Secretary. It was found on
enquiry by the learned Government Pleader who intimated to
the court that the alleged letter had not been signed by the
Secretary to the Chief Minister and that no such letter had
actually been sent to him. On that statement being made,
the petitioner’s counsel did not press his contention that
his return was after permission. The petitioner moved this
Court for special leave to appeal against the said judgment
of the High Court in Petition No. 601 of 1955. One of the
grounds in the petition was that the High Court should have
held that the externment order was illegal and that
therefore the petitioner’s entry was lawful. A Constitution
Bench of this Court by its order dated the 21st November
1955 dismissed the petition for special leave to appeal.
This completes the statement of the case made on behalf of
the petitioner.
In answer to this petition the first respondent has sworn to
the affidavit filed in this Court. It is necessary to state
in some detail the facts stated in this affidavit which
furnish the background to the whole case against the
petitioner. The petitioner is said to be a native of
Balrampur, District Gonda, Uttar Pradesh. After passing his
school examination in 1940, he joined the then Royal Indian
Navy in 1942. In the year 1946 while he was attached to S.
S. Talwar in Bombay, be was "released from service". In
1947 he joined the B. B. & C. 1. -Railway as a clerk and was
removed from his post in July 1947 for having made baseless
allegations against his superior officer. In 1949 he made
an attempt to enter the police force of Greater Bombay, but
that failed as he was found to be unreliable. Subsequently,
in August 1950 he joined the State Transport Department as a
clerk but had again to be removed from that post in April
1951. Later on, the petitioner obtained accommodation in
544
Bombay on a false representation that he was a refugee from
Pakistan. He was prosecuted and convicted and sentenced to
pay a fine of Rs. 30 or three months rigorous imprisonment
in default. His appeal from that order of conviction and
sentence to the High Court of Bombay was dismissed by a
Division Bench in September 1954. On a similar false repre-
sentation he had obtained from the Custodian of Evacuee
Property two shops in Bombay. Necessary proceedings had to
be taken against him for evicting him from those shops.
After his removal from Government jobs as aforesaid, the
petitioner "came forward" as a social worker directing his
activities mainly to "the redlight district" in certain
quarters of Greater Bombay inhabited by over 10,000 public
women. Along with his associates he started a norent
campaign and resorted to violence with the help of so-called
volunteers who were themselves bad characters, externees,
drunkards and persons with previous convictions. With the
help of associates like those he moved in the "redlight
district" and realised money from his victims by threat and
intimidation. Thus by all questionable means the petitioner
started extorting moneys by harassing the inmates of that
district and those who frequented those quarters. The rest
of the long affidavit running into 29 paragraphs is devoted
to denying the allegations made by the petitioner that he
had been a victim of police combination against him or that
the procedure laid down by the law had not been followed or
that the petitioner had not a fair and full opportunity of
explaining his case to the authorities. The affidavit
further asserts that witnesses who had given their
statements -to the police against the petitioner were not
willing to come forward openly to depose against him and
some of those witnesses who did turn up were prevailed upon
by the petitioner to change their original statements made
during the preliminary inquiries. On those averments it was
submitted by the 1st respondent that the proceedings against
him were regular and in accordance with the provisions of
545
the Act and that there was no merit in his contentions.
These two petitions were heard along with Petition No. 272
of 1955 which is being disposed of by a separate judgment.
In that case the order impugned had been passed under
section 57 of the Act. Sections 56 to 59 of the Act are
closely connected. The common arguments addressed to us by
Shri Purshotham challenging the validity of sections 56 to
59 have been dealt with in that judgment and need not be
repeated here. It is only necessary to deal with the
provisions of the section impugned in these two cases,
namely, section 56 of the Act, which is in these terms:-
"Whenever it shall appear in Greater ’Bombay and other
areas for which a Commissioner has been appointed under
section 7 to the Commissioner and in other area or areas to
which the State Government may, by notification in the
Official Gazette, extend the provisions of this section to
the District Magistrate, or the Sub-Divisional Magistrate
specially empowered by the State Government in that behalf
(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 reasonable 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, XVI or
XVII of the Indian Penal Code, or in the abetment of any
such offence, and when in the opinion of such officer
witnesses are not willing to come forward to give evidence
in public against such person by reason of apprehension on
their parts 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 said officer may, by an order in writing duly
served on him or by beat of drum or otherwise as he thinks
fit., direct such person or immigrant so to conduct himself
as shall seem necessary in order to prevent violence and
alarm or the, outbreak or spread of such disease or to
remove himself outside the area Within the local limits of
his jurisdiction by
546
such route and within such time as the said officer may
prescribe and not to enter or return to the said area from
which he was directed to remove himself".
In order to attract the operation of the section quoted
above with special, reference to the portions relevant to
these cases, it is necessary (1) that the Commissioner, the
District Magistrate or the Sub Divisional Magistrate
specially empowered by the State Government in that behalf,
as the case may be, should be satisfied that the movements
or acts of any person are causing or calculated to, cause
alarm, danger or harm to person or property, or that there
are reasonable grounds for believing that such person is
engaged or is about to be engaged in the commission of an
offence involving force of violence or an offence punishable
under Chapter-XII, XVI or XVII, Indian Penal Code, or in the
abetment of any such offence, and (2) that in the opinion of
such officer witnesses are not willing to come forward to
give evidence in public against such person by reason of
apprehension on their parts as regards the safety of their
person or property. When the officer concerned is satisfied
about these two essential matters, he may direct such person
to remove himself outside the local limits of his
jurisdiction and not to return to the said area for a period
not exceeding two years as laid down in section 58. But
before passing such orders the person proceeded against
under section 56 has to be given an opportunity of
explaining matters against him by adducing such evidence as
he may tender after he has been informed in writing as to
the "general nature of the material allegations against
him". Such a person is entitled to appear before the
officer by an advocate or attorney for the purpose of
tendering his explanation. and evidence.
It has not been contended on behalf of the petitioners that
they had-not been given the opportunity contemplated by
section 59. But grievance was sought to be made of the fact
that particulars of the evidence against the petitioners and
of their alleged activities have not been given to them.
That argument has
547
been dealt with in the judgment in the other case. It is
necessary therefore to deal only with the particular
arguments advanced on behalf of each petitioner peculiar to
his case.
In Petition No. 439 of 1955, it was said that this Court had
laid down in the case of Gurbachan Singh v. State of
Bombay(1) as follows:-
"The law is certainly an extraordinary, one and has been
made only to meet those exceptional cases where no witnesses
for fear of violence to their person or property are willing
to depose publicly against certain bad characters whose
presence-in certain areas constitutes a menace to the safety
of the public residing therein".
The words "no witnesses" have been emphasized as supporting
the argument that unless all the witnesses before the police
are unwilling to give evidence in open court the provisions
of section 56 cannot be taken recourse to. In our opinion,
it is reading too much into the observations of this Court
quoted above, made by Mukherjea, J. (as he then was). The
learned Judge did not mean to lay down, and we do not
understand him as having laid down, that unless each and
every witness is unwilling to give evidence in open court,
the provisions of section 56 are not available to the
police. The words of section 56 quoted above do not lend
themselves to that extreme contention. If such an extreme
interpretation were to be put on that part of section 56, it
is not difficult to imagine a situation where it will become
almost impossible to apply that section to any case.
It was next contended on behalf of the petitioner in this
case that the section contemplates witnesses other than
members of the police force and employees and officers of
the Customs Department. It is said that it is the duty of
the police force as of the employees of the Customs
Department to brave all danger and to come out in the open
even against desperate criminals to give evidence against
them in court and to subject themselves to cross-
examination. That is a counsel of perfection which every
member
(1) [1952] S.C.R. 787.
71
548
of the police force or every employee of the Customs
Department may not be able to act up to. Furthermore, the
terms of the section do not justify any such restricted
meaning being given to the word "witness". Hence, in our
opinion, there is no justification for the contention that
members of the police force and employees and officers of
the Customs Department must always come in the open and give
evidence against criminals or potential criminals. If the
officer concerned is satisfied that witnesses of whatever
description they may be, are not willing to come out in the
open, one of the essential conditions of the application of
section 56 is fulfilled and it is no more necessary for them
to stop to consider as to which class of persons those
witnesses may come from.
In Petition No. 440 of 1955 the learned counsel for the
petitioner had a more uphill task in view of the fact that
this very order impugned bad been examined in the criminal
prosecution against the petitioner by the Presidency
Magistrate and by the High Court on appeal and the petition
for special leave to appeal to this Court had been refused.
But it was argued on behalf of the petitioner that section
56 itself wag invalid as contravening the provisions of
article 19 of the Constitution-an argument which has already
been dealt-with by this Court in Gurbachan Singh v. State of
Bombay(1) referred to above. In that case, Mukherjea, J.
(as he then was) delivered the judgment of the court after
examining the constitutionality of section 27(1) of the City
of Bombay Police Act, (Bombay Act IV of 1902). The
operative words of that section are almost exactly the same
as those of section 56 of the Act. It is not therefore
necessary to re-examine the constitutionality of those very
provisions in this case. It is enough to point out that no
attempt was made in this Court to ;bake the authority of
that decision.
Shri Dadachanji, who appeared on behalf of the petitioner in
this case faintly suggested that the petitioner had been
proceeded against under the penal sec-
(1) [1952] S.C.R. 737.
549
tion of the Act notwithstanding the fact that he had entered
Greater Bombay in order to look after the case pending
against him in which a warrant of arrest had been issued.
But that is a closed chapter so far as the courts including
this Court also are concerned inasmuch as his conviction
stands conformed as a result of the refusal of this Court to
grant him -special leave to appeal from the, judgment of the
Bombay High Court. He further contended that his conviction
for his’ having entered Greater Bombay itself is an
indication of the unreasonableness of the restriction and of
the law under which the order of externment had been passed
against him. But if the petitioner had only taken the
course indicated by the law, namely, of obtaining the
previous permission of the prescribed authority, he could
have avoided the prosecution and the conviction. It must
therefore be held that there is no merit in this contention
also.
For the reasons aforesaid it must be held that section 56 of
the Act is not unconstitutional -and that the orders passed
against the petitioners are not invalid. These applications
must stand dismissed.
JAGANNADHADAS J.-In view of the decision of this Court in
Gurbachan Singh v. The State of Bombay(1), I agree that
these petitions should be dismissed.
But I think it right to add that if the matter were res
integra I should have felt difficulty in upholding the
validity of section 56(b) of the Bombay Police Act, 1951
(Bombay Act XXII of 1951) in so far as it did not demarcate
the application thereof to the more serious classes of
offences falling within the specified Chapters, serious
either because of the nature of the offence contemplated or
the circumstances under which it is to be committed and so
forth. I should also have felt difficulty in holding a
provision to be reasonable which clothes the executive
officers with an authority to extern a person for so long a
(1) [1952] S.C.R. 737.
550
period as two years. it has been said that there is a power
of cancellation at any time vested in the officer concerned.
Even so, I should have thought that the vesting of a power
to extern, a person out of his home for so long a period
without the obligation to review the order at some stated
periodical intervals, say once in three months or six
months, is prima facie unreasonable. Externment might
appear on the surface -not to be as serious an interference
with personal liberty as detention. But in actual practice
it may be productive of more serious injury to the person
concerned-or the rest of his family if he is the earning
member. An externed person is virtually thrown on the
streets of another place where be has got to seek his
livelihood afresh. He has to start in a new society with
the black-mark -of externment against him and may be driven
thereby to more criminality. On the other hand, in the case
of a person under detention, the State normally takes or is
bound to take care of him, and in appropriate cases provides
also for his family.
In view, however, of the previous decision of this Court
which is binding on me, I am prepared to accept the validity
of section 56 of the Bombay Police Act, 1951, and of the
orders of externment passed thereunder in these two cases.
Petition dismissed.
551