Amir Shabbir Sayyed @ Sobu vs The Dy. Commissioner Of Police And ...
2021 Latest Caselaw 2946 Bom

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           Vishwanath                                 1/5                     CRWP-1513-2020 (J).doc
Vishwanath S. Sherla
S. Sherla  Date:
           2021.02.15
           19:41:43
           +0530          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE JURISDICTION

                               CRIMINAL WRIT PETITION NO. 1513 OF 2020

            Amir Shabbir Sayyed @ Sobu
            Aged- 20 Years, Occ: Clined Under
            Prayas Rehab Program,
            Room No. 228, Shahid Bhagarsingh
            Nagar, BPT Railway Gate No. 5, Wadala,
            Mumbai- 400037.                                        ...PETITIONER

                     Versus

            1.       The Dy. Commissioner of Police
                     Zone-Port Ballardpier,
                     Dist. Mumbai.

            2.       The Hon'ble Div. Commissioner,
                     Konkan Bhavan, Mumbai.

            3.    The State of Maharashtra
                  At the instance of Wadala Polic Station.         ...RESPONDENTS
                                                 ...
            Mr. Silvin Y. Kale for Petitioner.
            Mrs. S.D. Shinde, APP for State.
                                                 ...

                                              CORAM : S. S. SHINDE &
                                                      MANISH PITALE, JJ.

RESERVED ON : 11th FEBRUARY, 2021.

PRONOUNCED ON: 15th FEBRUARY, 2021.

JUDGMENT [PER S.S. SHINDE, J.]:

. Rule. Rule made returnable forthwith and heard with the consent

of learned counsel appearing for the parties.

            Bhagyawant Punde
                                             2/5                      CRWP-1513-2020 (J).doc

2. It is the case of the petitioner that he received show cause notice

dated 21.08.2019 issued by Assistant Commissioner of Police. The Petitioner

appeared before the said authority on 25.09.2019, 27.09.2019 and

07.10.2019. On various dates inquiry was conducted by Respondent No. 1.

On 18.10.2019, Respondent No. 1 passed the impugned order of externment.

Being aggrieved, the petitioner approached the appellate authority, however,

appellate authority on 28.01.2020 dismissed the appeal file by the petitioner.

Hence, this petition.

3. Learned counsel appearing for the petitioner submits that the

petitioner is neither professional nor habitual criminal, but misguided youth

aged 20 years. The alleged activities of the petitioner are restricted to Wadala

region, however, the petitioner is externed from Mumbai City and Mumbai

Suburbs. The inquiry was conducted by the Assistant Commissioner of Police

and the order passed by the Deputy Commissioner of Police, is in violation of

Maharashtra State Circular No. EXT 1212/P.K. 296/VISHA 3 (B) dated

15.03.2015. It is submitted that the essential requirement of Section 55(1) of

the Maharashtra Police Act, that there has to be a reasonable apprehension

that the witnesses are not willing to come forward against the proposed

externee, is not met in the present case. The statement of witnesses have been

belatedly recorded. The said witnesses are got up witnesses. The offences

Bhagyawant Punde 3/5 CRWP-1513-2020 (J).doc

alleged against the petitioner are individualistic in nature and nothing to do

with the general public. The petitioner's case has been taken by "Prayas" a

project of Tata Institute of Social Sciences, working in Mumbai Central

Prison, Byculla District Prison, Thane Central Prison, Kalyan District Prison

and Protective Home with the sole objectives of reformation and

rehabilitation of under trial prisoners and girls/women rescued from

prostitution. The Petitioner is a young person of 20 years of age with high

potential of reformation and rehabilitation. Therefore, learned counsel for the

petitioner submits that, the petition may be allowed.

4. On the other hand, learned APP appearing for Respondents-State

relying upon the original record and reasons assigned in the impugned order

passed by the Deputy Commissioner of Police and the appellate authority

submits that both the authorities on facts concluded against the petitioner and

therefore, no case is made out to interfere in the order of externment under

extraordinary writ jurisdiction.

5. We have given due consideration to the rival submissions. With

the able assistance of learned counsel appearing for the parties, perused

pleadings and grounds in the petition, annexures thereto, impugned order

passed by the authority and original record in relation to the externment

Bhagyawant Punde 4/5 CRWP-1513-2020 (J).doc

proceedings of the petitioner. It appears that the respondent authority has

relied upon the Crime No. 65/2018 registered for the offences punishable

under Sections 307, 326, 143, 145, 147, 149 of IPC and Crime No. 86/2019

registered for the offences punishable under Sections 307, 506 (2), 323, 34 of

IPC. So far offences registered against the petitioner are concerned, the law

will take its own course and concerned court will look into the allegations

and will take an appropriate decision.

6. So far statement of two in camera witnesses are concerned, it

appears that those are recorded in the month of July 2019, however, an

externment order has been passed on 18.10.2019. It is not explained before

this Court that, why there was delay in passing the order of an externment

after recording said in camera statements of witnesses. In absence of

explanation, we find it difficult to accept that there is live link between the

recording of said statements and passing of an externment order. Apart from

it, on careful perusal of those statements it appears that two individual

witnesses were allegedly stopped by the petitioner and his friends and

petitioner removed money from their pockets. It is only stated that the

persons passing through said area, in which alleged incidents have taken

place, have witnessed the said incident. In the facts of the present case,

respondents have failed to demonstrate that the said two incidents alleged

Bhagyawant Punde 5/5 CRWP-1513-2020 (J).doc

against the petitioner by two witnesses whose statements have been recorded

in camera, caused disturbance to the public order. There is no denial to the

fact that the Petitioner is young boy of 20 years and there are chances of

reformation and rehabilitation. For the reasons aforestated, we are of the

opinion that the petition deserves to be allowed. Accordingly, the writ

petition is allowed. The order dated 18.10.2019 passed by Respondent No. 1

and impugned order dated 28.01.2020 passed by Respondent No. 2 are

hereby quashed and set aside. Rule made absolute to above extent. The writ

petition stands disposed of.

      ( MANISH PITALE, J.)                           (S. S. SHINDE, J.)




Bhagyawant Punde