J. B. MEHTA, S. H. SHETH, J.

( 1 ) THE petitioner challenges the externment order dated January 10 1972 under sec. 57 (1) of the Bombay Police Act 1951 hereinafter referred to as the Act for a period of two years from four contiguous districts. A show cause notice was issued to the petitioner on March 30 1971 informing him that he had been thrice convicted for offences under the Bombay Prohibition Act 1949 and he was still continuing his activities for similar offences not only in Rajkot District but also in the limits of the three contiguous Districts of Surendranagar Bhavnagar and Amreli and therefore it was proposed to extern him from all these four Districts. The three convictions which were mentioned were under the various sections of the Prohibition Act in 1967 and 1968. Particulars were given about his activities of similar offences by mentioning that:- (1) on February 27 1969 in Jasdan village in Vajsur locality in the evening at 5-45 P. M he was caught with country liquor made locally and implements for manufacturing the same and (2) on September 4 1970 at 4-0 A. M. he was found in a drunken state in the said Vajsur locality and at that time some intoxicant was also found with him. After the petitioners explanation in this connection the petitioner was externed by the impugned order at Annexure 4 where it was mentioned that the petitioner was thrice convicted on June 8 1967 June 17 1968 and September 13 1968 under sec. 67 (b) of the Bombay Prohibition Act for which he was sentenced for the first offence to three months Rigorous imprisonment and a fine of Rs. 500/for the second offence 15 days R. I. and a fine of Rs. 50/and in the third case with a fine of Rs. 50/only. These offences having taken place within the period of three years and as materials were placed before the authorities to the effect that the petitioner was again involved in a case when he was caught on February 29 1969 in Vajsur locality of Jasdan at 5-45 P. M. in a drunken condition and also as he was caught on September 4 1970 at 4-00 A. M. in drunken state after considering the explanation and the evidence the authority was satisfied that the petitioner had three convictions mentioned above and that he was likely to engage himself again in the commission of similar offences. The authority therefore ordered his externment not only from Rajkot District but also from the aforesaid three Districts as he was likely to operate and indulge in his activities from the contiguous districts through his associates and agents. The petitioner has challenged the externment order in this petition on the ground that such an order was ultra vires order as the authority had passed this order merely on the basis of three convictions under sec. 66 (b) without considering whether there was any substantial danger to the society because of the presence of such a person in a particular locality. There was no allegation or proof of danger to the society and therefore the power was exercised in violation of the constitutional guarantee under Article 19 (1) (d) and (e) because the restraint sought to be imposed on the petitioners freedom was not in the interest of general public. There was therefore complete non-application of mind by the authority. The concerned authority Sub-Divisional Magistrate Mr. Ghosh had filed first affidavit on March 18 1972 where he in terms admitted that in the notice there was no allegation as regards the breach of peace or of other activities which might be harmful or injurious to the people or the society and that was not a necessary ingredient of sec. 57 of the Act. He emphatically denied that there must be substantial danger to the society because of the presence of such persons before an externment order could be passed under sec. 57 (c ). In the subsequent affidavit of April 10 1972 the said Mr. Ghosh has pointed out the details of the three previous convictions and has taken up a plea that the petitioner was found not only drinking liquor but

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