Rajkumar S/O Bhaiyalal Garde vs Superintendent Of Police Gondia, ...
2021 Latest Caselaw 7937 Bom

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


                       CRIMINAL WRIT PETITION NO. 308/2021
                                      AND
                       CRIMINAL WRIT PETITION NO. 310/2021


 CRIMINAL WRIT PETITION NO. 308/2021

          Rajkumar S/o Bhaiyalal Garde,
          Aged about 50 years, Occ. Labour,
          R/o. Tumkheda, 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 petitioner
                 Shri S.S. Doifode, APP for the respondents
  *******************************************************************

 CRIMINAL WRIT PETITION NO. 310/2021

          Mahesh S/o Bhikuprasad Chakravati,
          Aged about 24 years, Occ. Business,
          R/o. Fulchur Naka, Dist. Gondia
                                                                  .... PETITIONER

                                  // VERSUS //

 1]       Superintendent of Police,
          Gondia, Dist. Gondia

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




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  *******************************************************************
                Shri V.S. Mishra, Advocate for the petitioner
                Shri S.P. Deshpande, APP for the respondents
  *******************************************************************

                               CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

JUNE 16, 2021

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, both the petitions can be conveniently

disposed of 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, 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

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was issued to six persons out of which two are before this Court by way of

the present writ petitions. One Nilesh Umrao Ukey 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 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

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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, Shri S.S. Doifode and Shri S.P. Deshpande, learned Additional

Public Prosecutors for the respondents - State in respective petitions.

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

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that Nilesh Umrao Ukey was the gang leader. He submitted that there was no

connection between the petitioners and gang leader 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

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

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