Bombay High Court
Shri. Mallu Tikaram Varma vs State Of Maha. Thr Assistant ... on 27 March, 2017
Bench: B.P. Dharmadhikari
cwp9.17 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL WRIT PETITION NO. 9 OF 2017
Shri Mallu Tikaram Varma,
aged about 49 years,
occupation - Labour, r/o
Rambagh, Police Station
Imambada, Nagpur,
Tah. & District - Nagpur. ... PETITIONER
Versus
1. State of Maharashtra
through Assistant Police
Commissioner, Sakkardara
Division, Nagpur City,
District - Nagpur.
2. Deputy Commissioner of Police,
Zone/ Circle No. 4, Nagpur City,
District - Nagpur.
3. State of Maharashtra,
through Police Station Imambada,
District - Nagpur, Tahsil and
District - Nagpur. ... RESPONDENTS
Shri A.B. Moon, Advocate for the petitioner.
Shri A.S. Fulzele, AGP for the respondents.
.....
CORAM : B.P. DHARMADHIKARI &
V.M. DESHPANDE, JJ.
MARCH 27, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard finally by issuing rule and making it
returnable forthwith with the consent of Shri Moon, learned
counsel for the petitioner and Shri Fulzele, learned AGP for the
respondents.
2. The order of externment under Section 57(1)(a)(v)
of the Bombay Police Act, 1951, dated 19.10.2016 for a period
of two years has been questioned in present petition.
3. Shri Moon, learned counsel relies upon the order
passed by the Division Bench of this Court on 02.12.2016 in
Criminal Writ Petition No. 845 of 2016, to urge that neither in
show cause notice nor in the impugned order or then in reply
before this Court, there is any reference to subjective
satisfaction of the Competent Authority, which forms the base
for ordering the externment.
4. The learned APP is strongly opposing this
statement. According to him, two in-camera statements and
four convictions under Section 12(A) of the Maharashtra
Prevention of Gambling Act, 1887, (hereinafter referred to as
1887 Act) support the action. He, therefore, submits that the
material on record being relevant and power conferred by the
statue having resorted to, there is no jurisdictional error.
5. We have perused the impugned order. The
impugned order mentions five offences under Section 12(A) of
the above mentioned 1887 Act and conviction in four. Then,
there is reference to two in-camera statements but then how in-
camera statements show likelihood of indulgence in similar
offence, is not discussed there. A perusal of show cause notice
dated 17.09.2016 also does not throw any light in this respect.
6. It appears that two so-called in-camera statements
bring on record at the most an act of extortion. Connection or
bearing of those acts with 1887 Act and conviction under
Section 12(A) thereof, is missing.
7. The order dated 02.12.2016 in Criminal Writ
Petition No. 854 of 2016 observes :
"Perusal of Section 57(1)(a)(v) of the Bombay
Police Act, 1951, reveals that it specifically refers to
previous offences under the Bombay Prevention of
Gambling Act. Section 57(1) permits externment if
the Authority has reason to believe that such convict
is likely to engage again in commission of the offences
similar to that for which he was convicted. This
"satisfaction" is lacking in the matter. No such
satisfaction is reflected in show cause notice or in
final orders, even in the reply-affidavit it has not been
pleaded.
Mere commission of offence in past is not
sufficient in scheme of Section 57(1) of the said Act.
The authority must have reasons with it which
persuaded it to record a subjective satisfaction that
convict is likely to engage in similar offences again.
As there is no such satisfaction, the material
ingredient is lacking."
One of us (B.P. Dharmadhikari, J.) is party to that
order.
8. In this situation, we find that the present order
dated 17.09.2016 is also unsustainable. It is accordingly
quashed and set aside. Rule is made absolute. However, in the
facts and circumstances of the case, there shall be no order as
to costs.
JUDGE JUDGE
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*GS.
