High Court
Facts
corrected CrWP1785-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1785 OF 2024Javed Khan Ayyub KhanAge 37 years, Occu: LabourR/o House No.5-163, Nutan Colony,Near ABC Dry-cleaners, Aurangabad...PetitionerVERSUS1.The State of Maharashtra2.The Commissioner of Police, Aurangabad3.The Deputy Commissioner of PoliceZone No.1, Aurangabad4.Police Inspector,Kranti Chowk Police Station, Aurangabad...RespondentsMr. Siddesh Subhashrao Ghodke, Advocate for the Petitioner,Mrs. A. S. Deshmukh, APP for the RespondentsCORAM : Y. G. KHOBRAGADE, J.RESERVED ON : 02.01.2025PRONOUNCED ON: 10.01.2025JUDGMENT:-1. Rule. Rule made returnable forthwith. Heard finally withconsent of both the sides.2.By the present petition, the Petitioner takes exception to theorder dated 23.07.2024 passed by the Divisional Commissioner,Page 1 of 14 corrected CrWP1785-24.odtChhatrapati Sambhajinagar (Aurangabad) in Externment Appeal bearingNo.2024/साiz./कक्ष-1/पाsल-1/हद्दपार/सिसआर-63 thereby confirmed orderdated 09.05.2024 passed by Respondent No.3/Deputy Commissioner ofPolice in externment case bearing No. पोउपआ/पसिर-1/सि(cid:14)-2/हद्दपार-21/अंसि(cid:17)मआदेश/2024/1595, whereby extern the Petitioner from ChhatrapatiSambajinagar City and entire district for the period of two years from thedate of order.3.On perusal of record, it indicates that the concerned policeauthorities have sought to invoke Section 56 (1)(b) of the MaharashtraPolice Act,1951 for the purpose of externment of the Petitioner. On29.11.2023, the Senior Police Inspector of Kranti Chowk Police Station,Chhatrapati Sambhajinagar (Aurangabad) submitted a proposal forexternment of the Petitioner from Chhatrapati Sambajinagar City andentire Chhatrapati Sambajinagar District for the period of two years. On26.04.2024 a show cause notice was issued against the Petitioner whichhas been duly served upon the petitioner on 28.04.2024. However, thePetitioner fail to submit reply the said notice inspite of sufficientopportunity was granted to him. Ultimately, on 09.05.2024, RespondentNo.3- Deputy Commissioner of Police passed the externment order andexterned the petitioner for the period of two years from the date of order,considering registration of seven crimes and one chapter case, out ofPage 2 of 14
Legal Reasoning
corrected CrWP1785-24.odt12.On plain reading of section 56 it prima facie appears that, ifany person's movements or acts of any person are causing or calculated tocause alarm, danger or harm to person or property and there arereasonable grounds to believe that such person is engaged or is about toengage in the commission of an offence involving force or violence or anoffence punishable under Chapters XII, XVI, or XVII of the Indian PenalCode, or in the abetment of any such offence, and if the concerned officerbelieve that act of such person is likely to disturb the peace in the society,the District Magistrate or Sub Divisional Magistrate empowered to removesuch person from any specified area or areas for the specific period.13.In the case in hand, it prima facie appears that, the AssistantCommissioner of Police (City), Chhatrapati Sambhajinagar City submitteda report after enquiry. During the course of enquiry it has been revealedabout registration of various crimes against the Petitioner, which read asunder:Sr.No.Police StationCrime No./SectionsDate ofRegistration Present Status1Kranti ChowkCrime No.199/2023 Sections294,323, 504, 506 of IPC29.06.2023Pending inCourt2Kranti ChowkNC No.369/2024 Sections323, 504, 506, 34 IPC03.05.2023--3Kranti ChowkNC No. 379/2024 Sections504 and 506 IPC05.05.2024---4Kranti ChowkCrime No.469/2021 Sections326, 143, 147, 148, 149, 204,08.06.2021Pending inCourtPage 8 of 14 corrected CrWP1785-24.odt506 IPC5Kranti ChowkCrime No.79/2023 Sections20(b),(ii), (A), 8(c), 29 ofNDPS Act r/w Section 34 IPC10.03.2023Pending inCourt6Kranti ChowkCrime No.670 of 2021Sections 20(b), 29 of NDPSAct r/w Section 34 IPC03.12.2021Pending inCourt7Kranti ChowkCrime No.677/2017 Section 20(b), of NDPS Act 08.08.2017Convicted bySpecial Courtvide order dt.11.10.2017 &sentenced tosuffer RI for 5years with fineof Rs.20,000/-8Kranti ChowkChapter Case No.22 of 2023,Section 110 of CRPC22.06.202314.Indeed, the Petitioner has produced a copy of the judgmentand order dated 21.12.2019 passed by the Special Judge under the NDPSAct in Special Case No. 9 of 2017, whereby the present Petitioner came tobe sentenced for the offence punishable under Section 20 (b) (ii) (B) ofthe NDPS Act for seizure of 2 kg. Ganja.15.No doubt, the Petitioner has already challenged the order ofconviction in Criminal Appeal No.30 of 2020 before this Court. On03.03.2020, the Co-ordinate Bench of this Court passed an order inCriminal Application No. 192 of 2020 (In Criminal Appeal No. 30 of 2020)and sentence against the present Petitioner came to be suspended duringthe pendency of the appeal.Page 9 of 14 corrected CrWP1785-24.odt16. Needless to say that, the trials are pending in respect of CrimeNo 199 of 2023 for the offences punishable under Sections 294, 323,504, 506 IPC registered on 29.06.2023, Crime No.469/2021 Sections 326,143, 147, 148, 149, 204, 506 IPC Registered on 03.05.2023, CrimeNo.79/2023 Sections 20(b),(ii), (A), 8(c), 29 of NDPS Act r/w Section 34IPC registered on 10.03.2023 and Crime No.670 of 2021 Sections 20(b),29 of NDPS Act r/w Section 34 IPC registered on 03.12.2024 .17.On perusal of the order dated 09.05.2024 passed byRespondent No.3 it reveals that, the Petitioner is habitual offender anddue to threats at the hands of the petitioner, witnesses are not givingstatements against the Petitioner. The order passed by Respondent No.3itself speaks that, the Petitioner is indulged into various criminal activitiesincluding singing obscene songs at the public place, causing grievous hurtby using knife, issuance of life threats and criminal intimidation. Notonly this but the Petitioner is also engaged in dealing with illegal businessof narcotic substance for which he is already convicted and trial of anothersimilar nature of crime is pending against him.18.In the case of N.C.T. of Delhi and Anr. V/s. Sanjeev aliasBittoo; AIR 2005 SC 2080, the Hon’ble Apex Court has held that, theCourts will be slow in interfering in the matters relating to administrativePage 10 of 14 corrected CrWP1785-24.odtfunctions unless decision is tainted by any vulnerability like illegality,irrationality and procedural impropriety. Keeping in mind the guidelineslaid down by the Hon’ble Apex Court, impugned orders are considered inthe facts and circumstances of the case.19. In case of Balu @ Balasaheb Jagannath Jadhav Vs. DivisionalCommissioner, Aurangabad, 2017(10) LJSOFT 71 = 2017 ALL MR (Cri.)3969, more than 30 offences were registered against the Petitionertherein under the Maharashtra Prevention of Gambling Act and also underthe Indian Penal Code and therefore, this Court refused to interfere withthe findings recorded by the externing authority and appellate authority.20.In the case of Rahmat Khan @ Rammu Bismillah V/s. Dy.Commissioner of Police; (2021) 8 SCC 362, it is held that, Sections 56 to59 of the Act are intended to prevent lawlessness and deal with class oflawless elements in society who cannot be brought to book by establishedmethods of penal action, upon judicial trial. An externment order maysometimes be necessary for maintenance of law and order. However, thedrastic action of externment should be only taken in exceptional cases tomaintain the law and order in a locality and or prevent the breach ofpublic tranquility and peace.Page 11 of 14 corrected CrWP1785-24.odt21. In Gazi Saduddin V. State of Maharashtra; (2003) 7 SCC 330,it has been observed that the satisfaction of the authority can be interferedwith if the satisfaction recorded is demonstrably perverse, based on noevidence, misleading evidence or no reasonable person could have, on thebasis of the materials on record, been satisfied of the expedient necessityof passing an order of externment.22. In Lalookhan Haideralikhan, cited supra, it is held that mereregistration of cases for the alleged offences will not take the character ofthe proof of fact and show cause notice based on accusation of charges notyet proved would be wholly illegal and unsustainable. Therefore, noticeissued by the Special Executive Magistrate has been quashed.23.However, in the case in hand, Crime Nos. 199 of 2023,469/2021, 79/2023 and 670 of 2021 are registered against the presentpetitioner for the offences punishable under the Indian Penal Code as wellas under the NDPS Act. The trials of said crimes are pending before theTrial Court. It is a matter of record that, Two crimes are registered againstthe petitioner are Non cognizable offences and one is chapter case.Therefore, it appears that conduct and behaviour as well as activities ofthe present petitioner are certainly harmful to the society. The Petitioner isa habitual offender and his unlawful activities are certainly disturbingpeace in the society. Page 12 of 14 corrected CrWP1785-24.odt24. Since, the activities of the petitioner as discussed abovecertainly appears to be disturbing peace in the society and are causing orcalculated to cause alarm, danger or harm to person or property. In case inhand, the petitioner was duly served with the show cause notice as to whyhe should not be extenmenet from entire Chh. Sambhajinagar city andDistrict, due to his illegal and unlawful activities but the petitioner failedto file the reply. The petitioner has has not denied about registrationvarious crimes against him as discussed above. The petitioner wasprovided opportunity of hearing. Therefore, considering the materialproduced on record it does not appear that the findings recorded by theRespondent no. 2 as well the Respondent no. 3 are perverse, illegal.25.On perusal of the order dated 09.05.2024 passed by theRespondent no. 3, it prima facie appears that various crimes are registeredagainst the petitioner for the offences punishable under the Indian PenalCode as well under the NDPS Act. The petitioner already convicted inrespect of Crime No.677/2017 for the offence punishable u/s 20(b), ofNDPS Act vide Judgment and Order dated 11.10.2017 and he sentencedto suffer RI for 5 years with fine of Rs.20,000/-. 26.On face of record it appears that, the Respondent No.3 wellconsidered about registration of various crimes against the petitioner asPage 13 of 14 corrected CrWP1785-24.odtwell petitioner’s behaviour in the society. Further, the Appellate Authoritypassed the impugned order dated 23.07.2024, and considered all materialavailable on record and affirmed the externment order dated 09.05.2024,which does not appear perverse, illegal or bad in law. However,considering the nature of offences and unlawful activities of the petitioner,externing the petitioner for the period of two years would be unjustifiable.Therefore, considering the nature of offences, it would be just and properto extern the petitioner for a period of one year, hence, order dated09.05.2024 passed by the Respondent no. 3 liable to be modified to thatextent. Accordingly, I proceed to pass the following order:O R D E R(i) Criminal Writ Petition No. 1785 of 2024 is hereby partly allowed.(ii) The order dated 09.05.2024 passed by Respondent No.3/DeputyCommissioner of Police, Zone No.1, Chh. Sambhajinagar( Aurangabad), which has been affirmed by the DivisionalCommissioner, Chh. Sambhajinagar vide order dated 23.07.2024, ishereby modified to the extent of externment period of one yearfrom the date of initial order instead of two years.(iii) Rule is partly made absolute in above terms.( Y. G. KHOBRAGADE, J. )JPChavanPage 14 of 14
Arguments
corrected CrWP1785-24.odtwhich, in one crime, the present Petitioner has been convicted andsentenced to suffer rigorous imprisonment for five years for the offenceunder the Narcotic Drugs and Psychotropic Substances Act, 1985. TheRespondent No.3 further held that the present petitioner is indulged invarious criminal activities which are disturbing peace in the society andthe petitioner is habitual offender. 4. Being aggrieved said order dated 09.05.2024, the petitionerfiled Appeal No.2024/साiz./कक्ष-1/पाsल-1/हद्दपार/सिसआर-63 before theDivisional Commissioner, Chh. Sambhajinagar. On 23.07.2024, theappellate authority passed the impugned order and dismissed the appealof the petitioner.5. The learned counsel appearing for the petitioner canvassed invehemence that while passing the order dated 09.05.2024, RespondentNo.3 has considered eight crimes registered against the Petitioner,however, out of those crimes, two crimes are registered as Non Cognizableoffence (NC) and one is Chapter case. So also, in one crime, the petitioneris convicted under the NDPS Act, however, the Petitioner filed an Appealagainst the conviction and sentence. On 03.03.2020, this Court passed anorder in Criminal Application No 192 of 2020 in Criminal Appeal No. 30of 2020 and suspended the sentence. So also, all above crimes arePage 3 of 14 corrected CrWP1785-24.odtregistered with the Kranti Chowk Police Station, ChhatrapatiSambhajinagar. Further, the Petitioner is falsely implicated in SpecialCase No. 252 of 2023 i.e. Crime No. 79/2023 on disclosure statement ofthe co-accused.6.It is further canvass that, there is no any gang in operation ofwhich the Petitioner is a Member or the leader of said gang. The Petitionernot been served with the show cause notice personally, therefore, thepetitioner could not submit the reply. Therefore, impugned order isillegal and bad in law, hence, prayed to quash and set aside the same. Insupport of this submission, the learned counsel for the petitioner relied onthe case of Lalookhan Haideralikhan Vs. M.M. Kamble, Special ExecutiveMagistrate, Byculla, 1996 Cri. L.J. 801.7. Per contra, Shri Sunil Bapurao Mane, Senior Police Inspector,Krantichowk Police Station, Aurangabad City/Chhatrapati Sambhajinagarfiled affidavit in reply and strongly resisted the petition.8.The learned APP submitted that, the Respondent Policeauthorities complied with due procedure of law and followed theprinciples of natural justice. According to the learned APP, on 26.04.2024,Respondent No.4 Police Inspector, Kranti Chowk Police Station issued aPage 4 of 14 corrected CrWP1785-24.odtshow-cause notice to the Petitioner, specifying about registration ofseveral crimes as described in the notice and called upon the petitioner asto why he should not be externed from Chhatrapati Sambhajinagar(Aurangabad) City as well as from entire District for the period of twoyears. The said notice was duly served upon the Petitioner, however, thePetitioner failed to submit his reply. The Petitioner was granted sufficientopportunity of hearing and after considering the material available onrecord as well as series of crimes registered against the Petitioner, theRespondent No.3 passed the order dated 09.05.2024 and externed thepetitioner for the period of two years.9.The learned APP further canvass that, the Petitioner hadquestioned legality and validity of sad order before the appellate authorityi.e. the Divisional Commissioner, Chhatrapati Sambajinagar. On23.07.2024, the appellate authority passed the impugned order andaffirmed the order of externment passed by Respondent No.3. On23.07.2024, the Appellate Authority passed the impugned order anddismissed the appeal after hearing both the sides. Therefore, impugnedorder does not suffer from any illegality and no substantial grounds setout to interfere with the findings recorded by both the authorities, hence,prayed for dismissal of the petition. Page 5 of 14 corrected CrWP1785-24.odt10.The learned APP further canvassed that the Respondent-Authorities have passed the impugned orders on the administrativegrounds to maintain the peace in the society. Therefore, no interference iscalled at the hands of this Court as the order of externment is anadministrative order. To buttress these submissions, the learned APPplaced reliance on Deepak Laxman Dongre V/s. State of Maharashtra andOrs.; AIR 2022 SC 1241, wherein the Hon’ble Apex Court has laid downthe guidelines for deciding the Petitions challenging the order ofexternment passed by the Competent Authority and held that for invokingthe said provisions there must be objective material on record on the basisof which Competent Authority must record its subjective satisfaction. It isfurther observed in cited case that, even if multiple offences have beenregistered against an individual that by itself is not sufficient to pass anorder of externment. Moreover, there must be satisfying material onrecord to indicate the reasonable apprehension of the witnesses of theirsafety and for that reason they are not coming forward to give statementagainst the externee.11. Reverting back to the facts of the present case, it is pertinentto note that the concerned Police authority has sought to invoke provisionsof Section 56 of the Maharashtra Police Act. Section 56(1)(a),(b),(bb) and (c) read as under:Page 6 of 14 corrected CrWP1785-24.odt56. Removal of persons about to commit offence. Whenever it shallappear in Greater Bombay and other areas for which a Commissionerhas been appointed under Sec. 7 to the Commissioner and in otherarea or areas to which State Government may, by notification in theOfficial Gazette, extend the provisions of this section, to the DistrictMagistrate, or the Sub-Divisional Magistrate empowered by the StateGovernment in that behalf- (a) that the movements or acts of any person are causing orcalculated to cause alarm, danger or harm to person or property, or(b) that there are reasonable grounds for believing that suchperson is engaged or is about to be engaged in the commission of anoffence involving force or violence or an offence punishable underChapters XII, XVI, or XVII of the Indian Penal Code, or in theabetment of any such offence, and when in the opinion of such officerwitnesses are not willing to come forward to give evidence in publicagainst such person by reason of apprehension on their part as regardsthe safety of their person or property; (bb) that there are reasonable grounds for believing that suchperson is acting or is about to act (1) in any manner prejudicial to themaintenance of public order as defined in the Maharashtra Preventionof Communal, Antisocial and other Dangerous Activities Act, 1980, or(2) in any manner prejudicial to the maintenance of supplies ofcommodities essential of the community as defined in the Explanationto sub-section (1) of Section 3 of the Prevention of Blackmarketingand Maintenance of Supplies of Essential Commodities Act, 1980, or(c) that an outbreak of epidemic disease is likely to result fromthe continued residence of an immigrant, the said officer may, by anorder in writing duly served on him or by beat of drum or other wiseas he thinks fit, direct such person or immigrant so to conduct himselfas shall seem necessary in order to prevent violence and alarm or suchprejudicial act, or the outbreak or spread of such disease or[notwithstanding anything contained in this Act or any other law forthe time being in force, to remove himself outside such area or areas inthe State of Maharashtra (whether within the local limits of hisjurisdiction of the officer or not and whether contiguous or not), bysuch route, and within such time as the officer may specify and not toenter or return to the area or areas specified (hereinafter referred toas " the specified area or area") from which he was directed to removehimself.]Page 7 of 14