[Cites 26, Cited by 0]
Madhya Pradesh High Court
Zuber vs The State Of Madhya Pradesh on 25 March, 2026
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 25th OF MARCH, 2026
WRIT PETITION No. 44868 of 2025
ZUBER
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Mohammed Anas Sheikh advocate for the petitioner.
Shri Rahul Solanki government advocate for respondent/State.
ORDER
1. Present petition has been preferred by the petitioner under Article 226 of
the constitution of India feeling aggrieved by the impugned order dated
18.10.2025 passed by the Commissioner, Ujjain Division, Ujjain (M.P.) in
Case No. 0088/Appeal/2025-26, whereby the learned Commissioner has
affirmed the order dated 2.07.2025 passed by District Magistrate Ratlam in
case no. 149/Externment/2024, by which the petitioner has been externed
from the territorial limits of Districts - Ujjain, Agar, Dhar, Jhabua, Mandsaur
and Ratlam for the period of one year under Section 5 (a) and 5 (b) of the
M.P. Rajya Suraksha Adhiniyam, 1990 (hereinafter referred to as
"Adhiniyam, 1990").
2. The exposition of facts giving rise to the present petition, in brief, are
as under:
a. The Superintendent of Police, Ratlam submitted a report dated
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26.11.2024 requesting for externment of petitioner u/S 5 (a)(b)
of the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 (for
short, referred to as the ''Adhiniyam, 1990'' hereinafter) from
the local limits of Distt. Ratlam and adjoining revenue districts
o f Ujjain, Agar Malva, Dhar, Jhabua, Mandsaur for his
criminal and anti-social activities. The Superintendent of Police
enclosed list of criminal prosecution and anti-social activities
of the petitioner alongwith the report.
b. The District Magistrate, Ujjain considered the report and after
affording an opportunity of hearing to the petitioner, directed
his externment for a period of one year from the local limits of
District Ratlam and revenue Districts Ujjain, Agar, Dhar,
Jhabua, Mandsaur vide order dated 02.07.2025.
c. The petitioner submitted an appeal u/S 9 of the Adhiniyam,
1990 before the Commissioner, Ujjain Division,Ujjain. The
Commissioner, Ujjain Division, Ujjain vide impugned order
dated 18.10.2025 passed in Case No.0088/Appeal/2025-26,
after hearing both the parties, rejected the appeal and
confirmed the order dated 02.07.2025 of the District
Magistrate, Ratlam.
3. Feeling aggrieved by these orders, the present writ petition has been
filed on the following grounds:
(i) The order of externment dated 02.07.2025 passed by the
District Magistrate is illegal, unlawful and erroneous.
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(ii) In three criminal cases relating to crime No. 162/2015, crime
No. 22/2016 and crime No. 635/2016 fine was imposed on the
petitioner. The others matters relating to crime Nos. 158/2021,
20/2022, 21/2022 and crime No. 667/2024 are pending for
trial. There was no complaint by general public to the
Superintendent of Police against the petitioner in recent past. The
old and stale activities cannot be considered for removal of the
petitioner, which is against his right to liberty.
(iii) Petitioner has not been given opportunity of hearing while
passing the externment order.
(iv) Petitioner is the bread earner of the family and has
responsibility of aged parents.
On these grounds, it is requested that the impugned orders be set aside.
4. Learned counsel for the petitioner, in addition to the grounds mentioned
in the petition submits that the removal order was passed considering the old
and stale criminal antecedents of the petitioner. No serious or heinous
offence was registered against the petitioner in the recent past. Learned
counsel referring to the judgment of Supreme Court in case of Deepak Vs.
State of Maharashtra reported in (2023) 14 SCC 707 contends that the
authority has to record its subjective satisfaction that the restriction should
be imposed for specific period. Where the competent authority passes an
order for maximum permissible period, the order of exteternment must
disclose application of mind and subjective satisfaction about necessity of
passing the order for maximum period. No such exercise was done by the
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District Magistrate in the present matter.The impugned order suffers from
impropriety and deserves to be set aside.
5. Per contra, learned counsel for the State referring to the list of criminal
antecedents submits that petitioner is continuously involved in criminal
activities. The District Magistrate committed no error in passing the removal
order in view of criminal antecedents reported against the petitioner. The
petition is meritless.
6. Heard, learned counsel for the parties and perused the record.
7. For the sake of convenience, Section 3 and 5 of the Adhiniyam, 1990 are
reproduced below:
"3. Power to make restriction order. -
(1) If a District Magistrate is satisfied with respect to any persons that he is acting
or is likely to act in a manner prejudicial to the security of the State or the
maintenance of public order and that, in order to prevent him from so acting it is
necessary in the interest of the general public to make an order under this Section,
the District Magistrate, may make an order,-
(a) requiring him to notify movements or to report himself or both to notify his
movements and report himself in such manner at such times and to such authority
or persons as may be specified in the order;
(b) imposing upon him such restrictions as may be specified in the order, in
respect of his association or communications with such persons as may be
mentioned in the order;
(c) prohibiting or restricting the possession or use by him of any such Article or
articles as may be specified in the order.
(2) A restriction order made Under Sub-section (1) shall remain in operation for
such period as may be specified therein and shall in no case exceed a period of one
year from the date of the order.
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
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(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 duty
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; or
(b) to remove himself outside the district 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 of part thereof or such area and such contiguous districts, or part thereof, as
the case may be, from which he was directed to remove himself.
8. The Section 5 of the Adhiniyam, 1990 has two limbs. The first part deals
with factors to be considered for taking appropriate action and the second
part deals with the action, which the District Magistrate may take
considering the material before him regarding the first part of the Section.
The District Magistrate may issue an order for removal under the following
circumstances:
1. When the movements or actions of any person are causing or
are likely to cause alarm, danger, or harm to persons or property.
2. When there are reasonable grounds to believe that a person is
engaged or is about to engage in the commission of an offense
involving force, violence, or offenses punishable under specific
chapters of the Indian Penal Code, 1860 and witnesses are
unwilling to testify publicly due to safety concerns.
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The order may direct the concerned to take necessary actions to prevent
violence or alarm or to remove themselves from specified Districts or areas
within a specified time frame.
9 . The Division Bench of High Court of M.P. in the case of Ashok Kumar
Patel Vs. State of M.P. reported in 2009 (4) MPLJ 343 observed as under:
6. A plain reading of Section 5 (b) of the Act of 1990 quoted above,
would show that for passing an order of externment against a person,
two conditions must be satisfied:-
i. There are reasonable grounds for believing that a person is engaged
or is about to be engaged in commission of an offence involving
force or violence or an offence punishable under Chapter XII, XVI or
XVII or under Section 506 or 509 of the Indian Penal Code, 1860 or
in the abetment of any such offence; and
ii. 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.
7. In State of N. C. T. of Delhi and another Vs. Sanjeev alias Bittoo
(supra), the Supreme Court had the occasion to interpret Section 47 of
the Bombay Police Act, 1978, which contains provisions similar to
Section 5 of the act of 1990 and has referred to these essential conditions
for passing an order under Section 47 of the Delhi Police Act in Para 10
of the judgment as reported in the AIR thus :-
"section 47 consists of two parts. First part relates to that satisfaction of
the Commissioner of Police or any Authorised officer reaching a
conclusion that movement or act of any person are causing alarm and
danger to person or property or that there are reasonable grounds for
believing that such person is engaged or is about to be engaged in
commission of enumerated offences or in the abetment of any such
offence or is so desperate and dangerous as to render his being at large
hazardous to the community. Opinion of the Concerned Officer has to be
formed that witnesses are not willing to come forward in public to give
evidence against such person by reason of apprehension on their part as
regards safety of person or property. After these opinions are formed on
the basis of materials forming foundation therefore the Commissioner
can pass an order adopting any of the available options as provided in
the provision itself. The three options are-
(1) to direct such person to so conduct himself as deemed
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necessary in order to prevent violence and alarm or
(2) to direct him to remove himself outside any part of Delhi or
(3) to remove himself outside whole of Delhi. "
8. The expression "is engaged or is about to be engaged" in the
commission of offence involving force or violence or an offence
punishable under Chapter XII, XVI or XVII or under Section 506 or 509
of the Indian penal Code, 1860 or in the abetment of any such offence,
shows that the commission of the offence or the abetment of such
offence by the person must have a very close proximity to the date on
which the order is proposed to be passed under Section 5 (b) of the Act
of 1990. Hence, if a person was engaged in the commission of offence or
in abetment of an offence of the type mentioned in section 5 (b), several
years or several months back, there cannot be any reasonable ground for
believing that the person is engaged or is about to be engaged in the
commission of such offence.
10. The second condition which must be satisfied for passing of an order
of externment against a person is that in the opinion of the District
Magistrate, witnesses are not willing to come forward to give evidence in
public against such person by a reason of apprehension on their part as
regards safety of person or property. Construing a parimateria provision
in Section 27 of the city of Bombay Police Act, 1902 in Gurbachan
Singh Vs. The State of Bombay and another, AIR 1952 SC 221, the
Supreme Court observed: -
"the law is certainly an extra-ordinary 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
constitute a menace to the safety or the public residing therein. "
11. In the instant case, the District Magistrate has in the impugned order
only baldly stated that the list of offences registered against the petitioner
reflects that he is a daring habitual criminal and because of this there is
fear and terror in the public and has not recorded any clear opinion on
the basis of materials, that in his opinion witnesses are not willing to
come forward to give evidence in public against such person by a reason
of apprehension on their part as regards safety of their person or
property. In most of the cases, challans have been filed by the Police in
Court obviously after examination of the witnesses under Section 161 of
Cr. PC and the cases are pending in the Court. There is no reference in
the order of District Magistrate that witnesses named in the challans filed
by the Police are not coming forward to give evidence against the
petitioner in Court. Hence, in the absence of any existence of material to
show that witnesses are not coming forward by a reason of apprehension
to danger to their person or property to give evidence against the
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petitioner in respect of the alleged offences, an order under Section 5 (b)
of the Act of 1990 cannot be passed by the District Magistrate by merely
repeating the language of Section 5 (b)of the Act of 1990.
12. In State of N. C. T. of Delhi and another Vs. Sanjeev alias Bittu
(supra), the Supreme Court interpreting Section 47 of the Bombay Police
Act, 1978, which is similarly worded as Section 5 of the Act of 1990, has
held in Para 25 :-
"it is true that some material must exist but what is required is not
an elaborate decision akin to a judgment. On the contrary, the
order directing externment should show existence of some
material warranting an order of externment. While dealing with
question mere repetition of the provision would not be sufficient.
Reference to be made to some material on record and if that is
done the requirements of law are met. As noted above, it is not the
sufficiency of material but the existence of material which is sine
qua non. "
13. The Act of 1990 certain serious restrictions on the fundamental right
to freedom under Article 19 (1) of the Constitution and the fundamental
right to personal liberty under Article 21 of the Constitution and unless
the conditions mentioned under Section 5 (b) of the Act of 1990 are
strictly satisfied, an order of externment, will have to be quashed by the
Court. While considering a case under Section 56 of the Bombay Police
Act, which also empowered the police to pass an order of externment,
the Supreme Court observed in pandharinath Shridhar Rangnekar Vs.
Dy. Commissioner of Police, State of maharashtra (supra), as under:-
"it is true that the provisions of Section 56 make a serious inroad
on personal liberty but such restraints have to be suffered in the
larger interests of society. This Court in Gurbachan Singh Vs. The
State of Bombay, 1952 SCR 737 = (AIR 1952 SC 221) had upheld
the validity of Section 27 (1) of the City of Bombay Police Act,
1902, which corresponds to Section 56 of the Act. Following that
decision, the challenge to the constitutionality of Section 56 was
repelled in 1956 SCR 533 = (AIR 1956 SC 585). We will only add
that care must be taken to ensure that the terms of Sections 56 and
59 are strictly complied with and that the slender safeguards which
those provisions offer are made available to the proposed
externee. "
14. We are thus of the considered opinion that the two conditions for an
order of externment stated in Section 5 (b) of the Act of 1990 do not
exist in this case and the order passed by the District Magistrate and
appellate order of the Commissioner are liable to be quashed. Since the
impugned order of externment passed by the District Magistrate and the
appellate order passed by the Divisional Commissioner are liable to be
quashed on this ground alone, it is not necessary for us to deal with the
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other grounds raised by the petitioner in this writ petition. In the result,
we quash the impugned order dated 18-11-2008 passed by the District
Magistrate Rewa in Cr. Case No. 227/08 as well as the appellate order
dated 13-1-2009 passed by the Commissioner, Rewa Division. No costs.
10. In the case of State of Maharashtra &Anr vs Salem Hasan Khan
reported in AIR 1989 SC 1304 , it has been held by the Supreme Court that:-
"On behalf of the appellant reliance has been placed on the decision of
this Court in Pandarinath Sridhar Rangnekar vs. Deputy Commissioner
of Police, [1973] 3 SCR 63, wherein a similar plea was taken by the
appellant before this Court. It was contended that the failure on the part
of the State Government indicated non-application of mind. The
appellant had also urged that the allegations contained in the show cause
notice were too vague in absence of details to afford him reasonable
opportunity to defend himself. Rejecting the argument, this Court held
that a full and complete disclosure of particulars, as is requisite in an
open prosecution, will frustrate the very purpose of an externment
proceeding. There is a brand of lawless elements in society which it is
impossible to bring to book by established methods of judicial trial
because in such trials there can be no conviction without legal evidence.
And legal evidence is impossible to obtain, because out of fear of
reprisal witnesses are unwilling to depose in public. While dealing with
the contention that the State Government was under a duty to give
reasons in support of its order dismissing the appeal, the point was
rejected in the following terms:--
"Precisely for the reason for which the proposed externee is only
entitled to be informed of the general nature of the material
allegations, neither the externing authority nor the State
Government in appeal can be asked to write a reasoned order in
the nature of a judgment."
As observed, if the authorities were to discuss the evidence in the case, it
would be easy to fix the identity of the witnesses who were unwilling to
depose in public against the proposed externee. A reasoned order
containing a discussion would probably spark off another round of
harassment. We are, therefore, of the view that the High Court was in
error in quashing the order as confirmed by the State Government in
appeal."
11. In the case of Wasiuddin Ahmed vs. District Magistrate, Aligarh
reported in AIR 1981 SC 2166. the Apex Court observed thus:-
"24. The past conduct or antecedent history of a person can appropriately
be taken into account in making a detention order. It is indeed usually
from prior events showing tendencies or inclination of a man that an
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inference is drawn whether he is likely in the future to act in a manner
prejudicial to the maintenance of public order. Of course, such
prejudicial conduct or antecedent history should ordinarily be proximate
in point of time and should have a rational connection with the
conclusion that the detention of the person is necessary."
12. In the case of Manoj vs. State of M.P. and others, reported in 2017(2)
MPLJ 294, it has been held as under:-
"11. The requirement of law is that there must be clear and present
danger based upon credible material which makes the movements and
acts of person in question alarming of dangerous or fraught with violence
and that for removing a person from a District there must exist a
reasonable ground for believing that the person is engaged or is about to
be engaged in commission of offence involving force or violence or in
the abetment of any such offence. It is the reach effect and potentiality of
overt commission of an offence which lend support to cause reasonable
apprehension would be the basis for valid exercise of power by the
Authority under these provisions. The antecedents of a person also plays
an important role in forming an opinion. It is indeed usually prior events
showing tendencies or inclination of a man that an inference is drawn
whether he is likely to act in a manner prejudical to the maintenance as
would cause alarm, danger or harm to person or property."
13. A Co-ordinate Bench of this Court in the case Sanju alias Sanjay Ben
Vs. State of M.P. and Others reported in 2005(4) MPHT 102 observed that a
person cannot be directed removal for his past act. Although past criminal
activities of a person may afford a guide as to his behavior in future, they
must be reviewed in context of the time, when the order is passed.
14. In the case of Ramgopal Raghuwanshi Vs. State of M.P. and Others
reported in 2014(4) MPLJ 654, this Court on consideration of precedents
held that an order of externment cannot be passed on the basis of old and
stale criminal activities. The commission of offence must have close
proximity to the date on which the order u/S 5 (b) of the Act is proposed to
be passed.
15. The factual scenario of the matter in hand is considered in the light of
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aforestated propositions of law.
16. Learned District Magistrate, although referred to criminal antecedents,
but reasons for the opinion that the movement and acts of the petitioner are
causing or calculated to cause alarm, danger or harm to person or the
property have not been recorded. The District Magistrate relied on the report
of the Superintendent of Police to conclude that he is prima-facie satisfied
that the petitioner is involved in criminal activities. His criminal activities are
growing day-by-day, therefore, there is danger to the security of State and
public order, whereas the material on record suggests otherwise. The reasons
for opinion regarding unwillingness of witness to give evidence is not
supported by any material. No witness was examined by the police or the
District Magistrate alleging threat by the conduct of petitioner. The
apprehension raised by the District Magistrate is without substance and basis.
The last prosecution for an offence was registered against the petitioner at
Crime No. 667/2024 (in the year 2024) u/Ss 115(2), 296, 351(2), 3(5),
126(2), 191(2), 191(3) of BNS, 2023, which was under investigation at the
time of passing of the Removal order. No criminal prosecution for any other
offence was registered against the petitioner thereafter. The petitioner has
stated in the reply submitted before the D.M. Ratlam that he accepted the
offences registered under Gambling Act and deposited the fine amount. The
District Magistrate did not seek verification or status of other matters. There
was no reasonable apprehension that the petitioner is engaged or is about to
be engaged in commission of any offence as provided u/S 5(b)(1) of the
Adhiniyam, 1990. This Court is of the considered opinion that the twin
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conditions for order of removal laid down in Section 5 (a) and (b) of the
Adhiniyam, 1990 did not exist. The Appellate Authority affirmed the order
of District Magistrate without properly appreciating the material on record.
The contentions advanced by the petitioner have substance.
17. The impugned orders suffer from manifest impropriety, therefore, the
order dated 2.07.2025 passed by the District Magistrate Ratlam and the
affirmation order dated 18.10.2025 passed by the Commissioner, Ujjain
Division, Ujjain are set aside being in apparent violation of the requirement
of relevant provisions of the Adhiniyam, 1990.
18. Accordingly, the writ petition is allowed.
(SANJEEV S KALGAONKAR)
JUDGE
BDJ
