Vijay Alias Tyson S/O. Namdeorao ... vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 6483 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR



                  CRIMINAL WRIT PETITION NO.541 OF 2017



  Vijay @ Tyson s/o. Namdeorao
  Dongre, aged about 30 years, 
  Occ. Business, r/o. Kumbhare
  colony, Kamptee, Police Station,
  Kamptee, District Nagpur.               ..........      PETITIONER



          // VERSUS //



  1.  The State of Maharashtra,
       through Secretary, Ministry
       of Home Affairs, Mantralaya,
       Mumbai.

  2.  The Deputy Commissioner of
       Police, Zone V, Nagpur City
       Police, Nagpur.

  3.  The Police Station Officer,
       Kamptee, Nagpur City.               ..........       RESPONDENTS


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  ____________________________________________________________  
                   Mr.Karmarkar, Advocate for the Petitioner.
            Mr.S.S.Doifode, A.P.P. for the Respondent/State.
   ____________________________________________________________


                                    CORAM     :  SMT. VASANTI  A  NAIK
                                                        AND
                                                        M.G.GIRATKAR, JJ.

DATE : 23.8.2017.

ORAL JUDGMENT (Per Smt. Vasanti A Naik, J) :

Rule. Rule is made returnable forthwith. The Criminal

Writ Petition is heard finally at the stage of admission with the

consent of the learned Counsel for the parties.

2. By this Criminal Writ Petition, the petitioner challenges

the order of the Deputy Police Commissioner, Nagpur, dt.17.4.2017

under Section 56(1)(bb) of the Maharashtra Police Act, 1951

externing the petitioner from Nagpur City and the adjoining rural

areas for two years.

3. A notice was served on the petitioner under Section 59

of the Act asking him to show cause as to why he should not be

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externed under the provisions of Section 56 of the Act in view of the

pendency of the offences against him under Section 307 of the Penal

Code and Section 65(e) of the Maharashtra Prohibition Act, 1949.

The petitioner submitted a reply and pointed out to the Deputy

Commissioner of Police, Nagpur that he had not committed any

offence or such activities for which he could have been externed

under the provisions of Section 56 of the Act. However, the Deputy

Commissioner of Police recorded the statements of the witnesses and

the order of externment was passed against the petitioner under

Section 56(1)(bb) of the Act, externing him from Nagpur City and

the rural areas for two years. The order of externment, dt.17.4.2017

is challenged by the petitioner in the instant petition.

4. Mr.Karmarkar, learned Counsel for the petitioner

submitted by taking this Court through the provisions of Section

56(1)(bb) of the Maharashtra Police Act that the impugned order of

externment could not have been passed against the petitioner by

resorting to the said provision. It is stated that the order under

Section 56(1)(bb) of the Act could have been passed only if the

Deputy Police Commissioner had a reasonable ground for believing

that the petitioner had acted in any manner that is prejudicial to the

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maintenance of public order as defined in the Maharashtra

Prevention of Communal, Anti Social and Other Dangerous Activities

Act, 1980. It is stated that the provisions of Section 56(1)(bb) could

have been invoked by the Deputy Police Commissioner if the actions

on the part of the petitioner were prejudicial to the maintenance of

supplies of commodities essential to the communities as defined

under the provisions of the Prevention of Black Marketing and

Maintenance of Supplies of Essential Commodities Act, 1980. It is

stated that no proceedings are pending against the petitioner for the

offence punishable under the Penal Code and the pending

proceedings only pertain to the provisions of Section 65(e) of the

Maharashtra Prohibition Act. It is stated that on the basis of the

pendency of the cases under S.65(e) of the Maharashtra Prohibition

Act it cannot be said that the actions on the part of the petitioner are

prejudicial to the maintenance of the public order as defined under

the Maharashtra Prevention of Communal, Anti Social and Other

Dangerous Activities Act or to the maintenance of supplies of

commodities essential to the communities. It is stated that, in view of

the aforesaid, the impugned order is liable to be quashed and set

aside.

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5. Mr.S.S.Doifode, the learned Additional Public Prosecutor

appearing for the respondents has fairly admitted that after 2014,

the offences are registered against the petitioner only under the

provisions of Section 65(e) of the Maharashtra Prohibition Act and

the said proceedings are pending. It is stated that even if the trial is

pending against the petitioner for the offence punishable under

Section 307 of the Penal Code, the same had commenced in the year

2000.

6. On a reading of the relevant provisions of the

Maharashtra Police Act and the Maharashtra Prohibition Act, it

appears that the Deputy Commissioner of Police was not justified in

passing the order of externment by invoking the provisions of Section

56(1)(bb) of the Maharashtra Police Act, 1951. The provisions of

Section 56(1)(bb) read thus :

"56. Removal of persons about to commit offence :

Whenever it shall appear in Greater Bombay and other areas for which a Commissioner bas been appointed under Sec. 7 to the Commissioner and in other area or areas to

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which State Government may, by notification in the Official Gaulle, extend the provisions of this section, to the District Magistrate, or the sub. Divisional Magistrate specially empowered by the State Government in that behalf-

(a) ...............

(b) ................

(bb) that there are reasonable grounds for believing that such person is acting or is about to act (1) in any manner prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, Antisocial and other Dangerous Activities Act, 1980, or (2) in any manner prejudicial to the maintenance of supplies of commodities essential of the community as defined in the Explanation to sub-section (1) of Sec. 3 of the Prevention of Black- marketing and maintenance of Supplies of Essential Commodities Act, 1980 (VII of 1980)."

(c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or other wise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm [or such prejudicial act] or the outbreak or spread of such disease or to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the

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jurisdiction of the Officer, or not and whether contiguous or not), by such route, and within such time, as the said officer may prescribe and not to enter or return to the area or areas specified (hereinafter referred to as "the specified area or areas") from which he was directed to remove himself.

It is apparent from a reading of the provisions of Section

56(1)(bb) of the Maharashtra Police Act that a person could be

directed to remove himself out of the areas in the State of

Maharashtra under S.56(1)(bb) of the Act only if there is a

reasonable ground for believing that such of person is acting or is

about to act in any manner prejudicial to the maintenance of public

order as defined in the Maharashtra Prevention of Communal, Anti-

Social and Other Dangerous Activities Act or to the maintenance of

supplies of commodities essential to the community as defined in the

explanation to sub-section (1) of Section 3 of the Prevention of Black

Marketing and Maintenance of Supplies of Essential Commodities

Act, 1980.

7. In the instant case, we find from the chart in the

impugned order that proceedings are shown to be pending against

the petitioner under Section 307 of the Penal Code from the year

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2000. The learned Counsel for the petitioner has stated that the said

proceedings are not pending and the petitioner is acquitted in the

said proceedings, in the year 2004. Be that as it may, even if it is

considered that the proceedings under Section 307 of the Penal Code

are pending against the petitioner, the trial in those proceedings had

commenced in the year 2000. They are stale proceedings on the basis

of which the order of externment could not have been passed in 2017

unless crime was registered against the petitioner under the

provisions of the Penal Code or the Acts in the recent past. It is held

by this Court in the Judgment reported in 2014 ALL MR (Cri) 1310,

Sachin Hiraman Tayde vs. The Deputy Commissioner of Police,

Nashik and Others that stale cases cannot be taken into

consideration while passing the externment orders. The proceedings

pending against the petitioner relate to the offence punishable under

Section 65(e) of the Maharashtra Prohibition Act. Under Section

65(e) of the said Act, a person is liable to be convicted and punished

for a term mentioned in the said section if he sells, buys or possesses

any intoxicant other than opium or hemp. On a reading of the

provisions of Section 65(e) of the Maharashtra Prohibition Act, it

appears that the proceedings are initiated against the petitioner since

the year 2014 only in respect of the alleged offence of selling, buying

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or possessing an intoxicant. Pendency of the proceedings in respect

of the said offence cannot be a ground for externing the petitioner

under the provisions of Section 56(1)(bb) of the Maharashtra Police

Act. Pendency of the proceedings for the offence under Section 65(e)

of the Maharashtra Prohibition Act cannot make the Deputy Police

Commissioner believe that the petitioner would be acting in any

manner prejudicial to the maintenance of public order as defined

under the Maharashtra Prevention of Communal, Anti-Social and

Other Dangerous Activities Act. Pendency of the proceedings for the

offence under Section 65(e) of the Maharashtra Prohibition Act also

cannot result in recording the satisfaction that the action of the

petitioner would be prejudicial to the maintenance of supplies of

commodities essential to the community. Since it is not the case of

the respondents that intoxicant is a commodity essential to the

community, the externment of the petitioner could not have been

made under the provisions of Section 56(1)(bb) of the Maharashtra

Police Act. It is held by this Court in the Judgment reported in 2013

ALL MR (Cri) 2706, Smt. Surekha .vs. State of Maharashtra and

another that an externment order cannot be passed on the basis of

pendency of the cases under the Maharashtra Prohibition Act. In the

instant case, the externment order could not have been passed under

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S.56(1)(bb) of the Act when the offences registered against the

petitioner during the past three years relate only to the provisions of

Section 65 (e) of the Maharashtra Prohibition Act. The respondents

have not pointed out any other provision of the Maharashtra Police

Act under which the order could be sustained.

8. Hence, for the reasons aforesaid, the Criminal Writ

Petition is allowed. The impugned order dt.17.4.2017 is hereby

quashed and set aside. Rule is made absolute in the aforesaid terms.

                            JUDGE                              JUDGE
   



  [jaiswal]





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