Abdul Haq Mohammad Yasin Ansari v. The State of Maharashtra & Ors.

Mr.Niteen Pradhan i/by Ms.Shubhada Khot for petitioner. Mr.A.S.Shitole, APP for State. CORAM : RANJIT MORE, J. DATE : 9th January 2012 PC :

Rule. Rule made returnable forthwith. Heard finally by consent of parties.

The petition is filed under Article 227 of Constitution of India read with Section 482 of the Code of Criminal Procedure challenging the order of externment passed by the Deputy Commissioner of Police, Zone-10, Mumbai under the provisions of Section 56(1)(a)(b) of the Bombay Police Act, 1951 (`the said Act'), as confirmed by the Appellate Authority namely the Principal Secretary (Law & Order), Home Department, Government of Maharashtra.

By the impugned order the petitioner has been externed for a period of five months from the area of Greater Mumbai (City and Suburbs). This order is passed after issuance of notice under section 59 of the said Act. A perusal of the impugned order shows that the same is passed on the basis of three CRs registered with Meghwadi Police Station and two in-camera statements. There is no doubt that out of these three CRs, one CR is compounded and the petitioner has been acquitted. 2 There is also no dispute that in pursuance of the notice under section 59 of the Act, the petitioner examined 29 witnesses including one local Corporator. However, the order passed by the Competent Authority does not make any reference to the evidence brought on record by the petitioner by way of examining the aforesaid 29 witnesses. Even there is no reference about this evidence in the Appellate Order of Principal Secretary, Home Department.

Learned APP relies upon the affidavit filed by the Externing Authority and submitted that the depositions of the witnesses examined by the petitioner have been considered by the Externing Authority. In absence of any reference to the said depositions in the impugned order and the appellate order, the externing authority by filing affidavit cannot supply any reasons. A reference can be made to the decision of Apex Court in case of Mohinder Singh Gill and another Vs. The Chief Election Commissioner reported in AIR-1978-SC-851.

Be that as it may, the petitioner specifically contended before the Appellate Authority that the affidavit tendered by him before the externing authority clearly indicates petitioner's character, however, the same has not been considered. Ground to that effect is taken in the appeal memo. Despite this fact, there is no discussion in the impugned order about the evidence produced by the petitioner.

In these facts and circumstances, I am of the view that the Externing Authority as well as the Appellate Authority has not considered all the evidence on record before passing the order of externment against the petitioner. On this ground alone the matter deserves to be remanded back to the Externing Authority i.e. the Deputy Commissioner of Police, Zone-10, Mumbai, for fresh consideration and for passing appropriate orders in accordance with law.