The legal principle established is that for an externment order to be valid, the person's engagement in criminal activities must have close proximity to the date of the order, and witnesses must be unwilling to come forward due to apprehension for their safety.

ORDER

1. The present petition is filed under Article 226 of the Constitution of India challenging the order of externment dated 10.7.2023 passed by District Magistrate, Ujjain u/S.5 of M.P. Suraksha Adhiniyam, 1990 (hereinafter referred as Adhiniyam) whereby the petitioner has been externed for a period of one year from the date of order from the boundaries of district Ujjain and contagious districts. The said order was challenged in the appeal before the Commissioner and by order dated 8.9.2023, the appeal has also been dismissed.

2. The facts of the case are that the Superintendent of Police sent a request dated 13.10.2022 to the District Magistrate, Ujjain for initiation of proceedings of externment u/S.5-B of Adhiniyam, 1990. A show cause notice was issued against the petitioner on the basis of list of criminal cases sent by the Superintendent of Police. The petitioner filed reply to the said allegation and denied the allegations and submitted that out of 12 cases of the list he has already been acquitted in 10 cases and the other are proceedings of prohibitory nature for keeping the peace and tranquility. The cases on which the order of externment has been passed is old and stale cases. It is also argued that the impugned order is passed contrary to the judgment passed by the division bench in the case of Ashok Kumar Patel Vs. State of MP and Ors. 2009 (4) MPLJ 434.

3. Learned counsel for the petitioner submits that the order of externment has been passed without compliance of provision of section 5-B of the Act, 1990. It is argued that the District Magistrate has not recorded his satisfaction that the witnesses are not willing to come forward to give evidence in public due to apprehension of their safety and therefore, the order of externment is bad in law. In support of his submission, he places reliance of the judgment of Division Bench in the case of Ashok Kumar Patel Vs. State of MP and Ors reported in 2009 (4) MPLJ 434 and also the judgment passed by the co-ordinate bench in the case of Meena Sonkar Vs. State of MP and Ors reported in 2017 (2) MPLJ 565 and in the case of Jahangeer Alvi Vs State of MP and Ors reported in 2017 (3) MPLJ 667 and also the judgment in the case of Istfaq Mohammad Vs. State of MP and Ors reported in 2018 (3) MPLJ 349.

4. Per contra, learned counsel for the respondent/state denied the submissions of the learned counsel for the petitioner and submitted that the externment order and the appellate order passed on the basis of material available against the petitioner. He relied on the report of the Superintendent of Police.

5. 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 field of externment, it is apt to refer the provisions of the Adhiniyam, 1990. Section 5 of the Act 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 or 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