Bombay High Court
Wajid Khan Aliyar Khan And Another vs The Divisional Commissioner ... on 16 February, 2021
Bench: S.B. Shukre, Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO. 592/2020
PETITIONERS: 1. Wajid Khan Aliyar Khan,
aged 32 years, Occ. Business.
2. Javed Khan Aliyar Khan,
aged 34 years, Occ. Business,
Both R/o. Nawab Pura, Old Town
Akola, Tq. and Dist. Akola.
...VERSUS...
RESPONDENTS: 1. The Divisional Commissioner,
Amravati District, Amravati.
2. The Superintendent of Police, Akola,
Tq. and District Akola.
3. Sub Divisional Police Officer, Akot,
District Akola.
4. The State of Maharashtra through
the Police Station Old Town Akola,
Dist. Akola.
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Shri S.V.Sirpurkar, Advocate for petitioners
Shri S.M.Ghodeswar, APP for respondent nos.1 to 4
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CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
DATE : 16/02/2021.
ORAL JUDGMENT (PER : SUNIL B. SHUKRE, J.)
Heard.
Rule. Rule made returnable forthwith. Heard
finally by consent of learned counsel appearing for the parties.
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2] Both the petitioners have been externed for a
period of two years from Akola District by the order
impugned herein.
3] According to the learned counsel for the
petitioners, the impugned order dated 07.08.2020 and the
other impugned order passed in appeal by the Divisional
Commissioner, Amravati, on 02.09.2020, both suffer from the
vice of arbitrariness and non application of mind, which has
been disagreed to by the learned APP appearing for
respondents.
4] We have gone through the impugned order dated
07.08.2020 and other impugned order dated 02.09.2020. On
careful consideration of both these orders, we find that there is
a substance in the argument of learned counsel for the
petitioners and no merit in the submission of the learned APP.
5] The impugned orders are passed upon a detailed
enquiry conducted by Sub Divisional Police Officer, Akot and
the report dated 31.07.2020 submitted by him. While the
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impugned orders consider two offences collectively committed
by the petitioners, namely Crime No. 100/2012 and Crime No.
309/2019, the impugned orders do not consider in any manner
the statements of the confidential witnesses, which in fact have
been dealt with properly by the S.D.P.O when he submitted his
enquiry report dated 31.07.2020. The recommendation made
by the S.D.P.O. was not only because, in his opinion, there was
a continuous criminal activities engaged in by both the
petitioners, but also because there was some other material in
the nature of statement of confidential witnesses, who gave
vital information of a nature which was considered, would lead
to an inference that the movement or encampment of both the
petitioners would or was likely to cause danger or alarm or
reasonable suspicion about criminal designs of the petitioners.
But the impugned orders completely ignore the statement of
the confidential witnesses and only consider two offences
collectively committed by the petitioners and one of them
being as old as eight years at the time of passing of the first
impugned order.
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6] The first crime considered by these authorities was
registered against both the petitioners in the year 2012 and
second crime was registered against both of them in the year
2019. Thus, there was a gap of about 7 years between
commission of these two offences collectively by the petitioners
and with such a gap in commission of the offences, it is
difficult to accept the proposition that the petitioners as a
group or body of persons are continuously engaged in such
activities as could be called as causing or likely to cause danger
or alarm or giving rise to an apprehension that some unlawful
designs are entertained by them. With such a big gap between
commission of two offences by the petitioners as a group, it
was necessary that there was some material available on record
which shows that even though apparently no offences were
registered against both the petitioners, during the
interregnum, their criminal activities continued clandestinely
and such material could have been found, if some of the
confidential witnesses had stated something relevant in that
regard.
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7] In the present case, statement of confidential
witnesses were indeed recorded, but not considered by the
authorities while passing both the impugned orders. So we are
of the view that the impugned orders have been passed
without consideration of the relevant material even though it
was available and this shows the non application of mind while
passing the orders. The impugned orders also suffer from the
vice of arbitrariness, as there is no material considered
whatsoever by the authorities which would fill up the gap
between two offences, one of the year 2012 and the last one of
the year 2019.
8] In the result, we find that this petition deserves to
be allowed and it is allowed accordingly. The impugned orders
are hereby quashed and set aside.
9] Rule is made absolute in these terms. No costs.
JUDGE JUDGE
Rvjalit
