Bhartari S/O Kailash Baheliya vs Superintendent Of Police, Gondia ...
2021 Latest Caselaw 6616 Bom

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


                       CRIMINAL WRIT PETITION NO. 255/2021
                                      WITH
                       CRIMINAL WRIT PETITION NO. 256/2021
                                      AND
                       CRIMINAL WRIT PETITION NO. 257/2021


CRIMINAL WRIT PETITION NO. 255/2021

     Bhartari S/o Kailash Baheliya,
     Aged about 39 years, Occ. Business,
     R/o. Kudwa Line, T.B. Toli,
     Dist. Gondia
                                                                     .... PETITIONER

                                    // VERSUS //

1]   Superintendent of Police, Gondia,
     Dist. Gondia

2]   Divisional Commissioner,
     Nagpur Division, Dist. Nagpur
                                                                .... RESPONDENT(S)


CRIMINAL WRIT PETITION NO. 256/2021

     Rahul S/o Vijay Meshram,
     Aged about 30 years, Occ. Business,
     R/o. Kudwa, Dist. Gondia
                                                                     .... PETITIONER

                                    // VERSUS //


1]   Superintendent of Police, Gondia,
     Dist. Gondia

2]   Divisional Commissioner,
     Nagpur Division, Dist. Nagpur                             .... RESPONDENT(S)




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CRIMINAL WRIT PETITION NO. 257/2021

      Nilesh S/o Umrao Ukey,
      Aged about 30 years, Occ. Business,
      R/o. Gondiatola, Dist. Gondia
                                                                        .... PETITIONER

                                     // VERSUS //

1]    Superintendent of Police, Gondia,
      Dist. Gondia

2]    Divisional Commissioner,
      Nagpur Division, Dist. Nagpur                               .... RESPONDENT(S)


     *******************************************************************
            Shri V.S. Mishra, Advocate for the petitioners in all petitions
              Shri T.A. Mirza, APP for the respondents in all petitions
     *******************************************************************

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

APRIL 22, 2021

ORAL JUDGMENT : (PER:- AMIT B. BORKAR, J.)

1] Since the impugned orders passed by the respondent nos. 1 and 2 in the

present petitions are common, all the petitions can be conveniently disposed by

common judgment.

2] In these petitions, the petitioners have challenged the externment order

dated 14/01/2021 passed by the Superintendent of Police, Gondia as well as appellate

order dated 03/03/2021 passed by the respondent no. 2 - Divisional Commissioner,

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Nagpur Division, Nagpur whereby the order of externment passed against the

petitioners was confirmed.

3] The petitioners were issued notice dated 17/09/2020 by the

Superintendent of Police, Gondia under Section 59 of the Maharashtra Police Act,

1951 (for short "the said Act") calling upon them to show cause as to why they should

not be externed out of the limits of Gondia District. The proceedings were initiated

under Section 55 of the said Act. The said notice was issued to six persons out of

which three are before this Court by way of the present writ petitions. The petitioner -

Nilesh Umrao Ukey in Criminal W.P. No. 257/2021 is described as the leader of the

gang. The notice dated 17/09/2020 mentions, in all, nine cases against all the

proposed externees right from the year 2011. The cases are under the Mines and

Minerals Act and under Section 379 of the Indian Penal Code. The petitioners

participated in the proceedings and filed their written statements and denied all the

allegations. They submitted that there is no gang nor any gang leader as alleged. It is

also stated that for formation of gang, there has to be repeated offences committed by

each and every member of the gang. They submitted that since the offences are not

serious in nature, the proposed action against them should be dropped.

4] The respondent no. 1, however considering the material against the

petitioners and their response, was pleased to pass order dated 14/01/2021 in

exercise of power under Section 55 of the said Act. The respondent no. 1 considered

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the pending cases against the petitioners and the statements of the witnesses. He

further considered the purpose of invoking Section 55 of the said Act and recorded his

subjective satisfaction that the petitioners and their associates were not paying any

heed to any law and were continuing to lead the illegal activities, which were

affecting the society. The respondent no. 1 further recorded satisfaction that the

activities of the gang were causing trouble in maintaining the law and order and

therefore this was a fit case where power under Section 55 of the said Act could be

invoked. The respondent no. 1 by the said order externed the petitioners and their

associates from Gondia District for period of 5 months.

5] The petitioners filed appeal before the respondent no. 2, which was

dismissed by the order dated 03/03/2021. During the course of appeal, same

submissions on behalf of the petitioners were reiterated which were made before the

respondent no. 1. It was submitted that the period of 5 months was excessive. It was

also contended that the offences registered against the petitioners are not serious in

nature. However, the respondent no. 2 did not accept the submissions made on behalf

of the petitioners and dismissed the appeal. The petitioners have challenged the

orders passed by the respondent nos. 1 and 2 in the present petitions.

6] We have heard Shri V.S. Mishra, learned advocate for the petitioners and

Shri T.A. Mirza, learned APP for the respondents - State.

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7]            Learned advocate for the petitioners submitted that the list of offences

mentioned against the petitioners go back to the year 2001 and therefore the offences

are stale and could not have been taken into consideration. He submitted that the

offences alleged against the petitioners are individualistic in nature and were not

alleged to have been committed by the gang. He further submitted that there was

nothing on record to show that the petitioner in Criminal W.P. No. 257/2021 was the

gang leader. He submitted that there was no connection between the petitioners and

therefore invocation of Section 55 of the said Act was misplaced.

8] For the purpose of adjudicating the issue involved in the present petitions, it

will be useful to consider the provisions of Section 55 of the Maharashtra Police Act

which reads thus :-

"55. Dispersal of gangs and bodies of persons. - Whenever it shall appear in Greater Bombay and in other areas in which a Commissioner is appointed under section 7 to the Commissioner and in a district to the District Magistrate, the Sub-Divisional Magistrate or the [Superintendent] [* * *] empowered by the State Government in that behalf, that the movement or encampment of any gang or body of persons in the area in his charge is causing or is calculated to cause danger or alarm or reasonable suspicion that unlawful designs are entertained by such gang or body or by members thereof, such officer may, by notification addressed to the persons appearing to be the leaders or chief men of such gang or body and published by beat of drum or otherwise as such officer thinks fit, direct the members of such gang or body so to conduct themselves as shall seem necessary in order to prevent violence and alarm or disperse and each of them to remove himself outside the area within the local limits of his jurisdiction [or such area and any district or districts, or any part thereof, contiguous thereto] within such time as such officer shall prescribe, and not to enter to area [for the areas and such contiguous districts, or part thereof, as the case may be,] or return to the place from which each of them was directed to remove himself."

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9]            We have carefully considered the show cause notice issued by the

respondent no. 1, reply filed by the petitioners, the order passed by the respondent

no. 1 dated 14/01/2021 and the impugned order passed by the respondent no. 2

dated 03/03/2021. The order of externment refers to the illegal transportation and

theft of sand, which are taken into consideration by the Externing Authority by issuing

the order of externment. In the order of externment, satisfaction is recorded by the

Externing Authority that due to the acts of gangs of the petitioners, environment of

terror is created in the said area. From the tenor of the order of externment, it is

apparent that the Externing Authority has applied its mind while issuing the order of

externment. There was sufficient material available with the Externing Authority to

substantiate the conclusion that the acts of the gangs of the petitioners are causing

harm and danger in the said area.

10] This Court cannot be unmindful of the fact that there is need to have

increasing awareness to restore the ecological balance and to stop the damage being

caused to the nature. This Court cannot lose sight of the fact that destructive

environmental impact of sand mining has been an issue of concern raised by the

Hon'ble Apex Court in several matters. Illegal sand mining on the river beds in India

has led to severe damage to the rivers causing change in the river beds itself over the

years. The rivers in India have been affected by the alarming rate of un-restricted sand

mining, which is damaging the ecosystem of the rivers. If these illegal sand mining

activities are not stopped by the State and the Police Authorities of the State, it will

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cause serious repercussion on the ecology of the country.

11] The respondent no. 1 has recorded his satisfaction as to how the

activities of the gang are causing danger and alarm in the locality. The list of offences

registered against the petitioners shows live link and therefore we do not find any

substance in the submission of learned advocate for the petitioners that stale offences

were the basis for passing the order of externment.

12] For the aforesaid reasons, we are satisfied that the Externing Authority

has exercised its powers within the parameters of Section 55 of the said Act.

Therefore, no interference is caused in the present petitions.

13]             The writ petitions are therefore dismissed.




                 (JUDGE)                                          (JUDGE)




ANSARI