Bholu @ Shakir S/O Nur Mohammad vs Assistant Commissioner Of Police ...
2021 Latest Caselaw 6145 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.

              CRIMINAL WRIT PETN. NO. 238 OF 2021

PETITIONER :-                     Bholu Alias Shakir S/o Nur Mohammad,
                                  Aged about 47 years, Occ-Labor, R/o.
                                  Aadiwasi Nagar, New Town, Badnera, Tq.
                                  & District Amravati.

                                      ...VERSUS...

RESPONDENTS :-               1. Deputy Commissioner of Police, Zone-I,
                                Office at - Camp, Amravati.

                             2. Divisional Commissioner Amravati Office
                                at - Camp, Amravati, Tq. & Dist.
                                Amravati.

                             3. Police Station             Officer,     PS     Badnera,
                                Amravati.

-------------------------------------------------------------------------------------------
        Ms Maira Ateeb, Advocate a/w Mr. A.A.Syed, Advocate
                                  for the petitioner.
               Mr.S.P. Deshpande, A.P. P. for the respondents.
-------------------------------------------------------------------------------------------

                       CORAM : Z.A.HAQ AND AMIT B. BORKAR, JJ.

DATED : 06.04.2021.

ORAL JUDGMENT : (Per : Amit B. Borkar, J.)

1. Heard.

2. Rule. Rule made returnable forthwith.

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3. At the oral request of the Advocate for the petitioner, the

petitioner is permitted to amend designation of the respondent No.1 by

substituting "Assistant Commissioner of Police, Zone-1" by "Deputy

Commissioner of Police, Zone-I". The amendment shall be carried out

forthwith.

4. The petitioner has questioned legality and correctness of

the order dated 09/09/2020 passed by the respondent No.1, thereby

externing the petitioner from the limits of Amravati District for a period

of one year. The said order is confirmed by the respondent No.2 by

order dated 30/10/2020 in Appeal No.53 of 2020. The order of

externment passed by the respondent No.1 was in exercise of power

under section 56(1)(b) of the Maharashtra Police Act, 1951. The

learned counsel for the petitioner submits that the orders impugned are

unjust, infringe the fundamental right of freedom of movement

guaranteed to the petitioner but, it also in an arbitrary manner without

any material warranting any such externment of the petitioner. It is

submitted that the adverse Police Report is not based on any material.

5. Mr. S.P. Deshpande, the learned A.P.P. for the respondents,

submitted that the respondent Nos.1 and 2 have rightly passed the

orders against the petitioners, as the criminal history noted in the

impugned order shows dangerous activities of the petitioner and the

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order was necessary to bring under control the criminal activities of the

petitioner.

6. We have carefully considered the impugned orders passed

by the respondent Nos.1 and 2. On careful scrutiny of the impugned

orders, it appears that the respondent Nos.1 and 2 have considered as

many as eleven cases registered against the petitioner from the year

2008 till the year 2019. The order of externment is also based on

preventive action taken against the petitioner on four occasions. On

analyzing the crime registered against the petitioner, it appears that the

last offence registered against the petitioner was non-cognizable Crime

No.1140 of 2019 under sections 323, 504 and 506 of the Indian Penal

Code. Another offence registered against the petitioner was of

30/04/2019 bearing Crime No.324 of 2020, registered under section

65(E) of the Maharashtra Prohibition Act. The other offences registered

against the petitioner are under the provisions of the Maharashtra

Prevention of Gambling Act. We are therefore of the opinion that the

offence of 2016 and prior to it did not provide any live link to the so

called dangerous activities of the petitioner as of 21/08/2020, which is

the date of show cause notice. It therefore appears that there is huge

gap of more than four years in the offences registered against the

petitioner and the action taken against the petitioner. An overall

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consideration of the offences registered against the petitioner, we are

satisfied that the process of reaching subjective satisfaction as required

under section 56(1)(b) of the Maharashtra Police Act has been vitiated.

We do not find any relevant material available on record for recording

satisfaction as required under section 56(1)(b) of the Maharashtra

Police Act and therefore, the impugned orders cannot stand the scrutiny

of law.

7. In the result, we pass following order.

i. The order dated 09/09/2020 passed by the respondent

No.1 under section 56(1)(b) of the Maharashtra Police

Act, 1951 and the order dated 30/10/2020 passed by the

respondent No.2 in Appeal No.53 of 2020 are quashed

and set aside.

8. Rule is made absolute in the aforesaid terms.

                      (AMIT B. BORKAR, J)                         (Z.A.HAQ, J)



Ghanshyam
Khunte
Digitally signed by
Ghanshyam Khunte
Date: 2021.04.09
15:47:10 +0530




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