Deepak Vasanta Gahane vs Divisional Commissioner, Civil ...
2021 Latest Caselaw 4895 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                   CRIMINAL WRIT PETITION NO. 200 OF 2021

  Shri Deepak Vasant Gahane,
  Aged : 35 years, Occ. : Business,
  R/o. Futala, Tq. Sadak Arjuni &
  Dist. Gondia, presently at Nagpur.                                      . . . APPELLANT

                         ...V E R S U S..

  1. Divisional Commissioner,
     Nagpur Division Nagpur,
     Civil Lines, Nagpur,
     Tah. and District Nagpur.

  2. Sub Divisional Magistrate,
     Arjuni Morgaon, Tq. Arjuni Morgaon,
     District Gondia.

  3. Sub Divisional Police Officer,
     Deori, Tq. Deori, District Gondia.

  4. Police Station Officer,
     Police Station, Duggipar,
     Tah. Sadak Arjuni, District- Gondia
     (State of Maharashtra)                                          . . . RESPONDENTS

 ------------------------------------------------------------------------------------------------
 Shri U. K. Bisen, Advocate for appellant.
 Shri T. A. Mirza, A.P. P. for respondents/State.
 -----------------------------------------------------------------------------------------------
                               CORAM :- Z. A. HAQ AND
                                        AMIT B. BORKAR, JJ.

DATED :- 18.03.2021

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

1. Heard.

2. Rule. Rule made returnable forthwith.

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3. The petitioner has invoked writ jurisdiction of this Court

under Articles 226 and 227 of the Constitution of India by

challenging the order dated 23.02.2021 passed by the respondent

no. 1 confirming the order dated 11.01.2021 passed by the

respondent no. 2 externing the petitioner from District Gondia for

a period of six months.

4. The facts, which are relevant to adjudicate issue involved

in the petition are as follows :-

The Police Inspector, Duggipar, Tah. Sadak Arjuni,

District Gondia initiated proposal under Section 56(a) and 56(b)

of the Maharashtra Police Act, 1951 (for short "the Act of 1951")

bearing No. 1704/2020, dated 03.07.2020 proposing externment

of the petitioner. On 30.07.2020, the respondent no. 2 called

report from the Sub Divisional Police Officer (SDPO), Dewari, who

submitted the report stating that there are four offences registered

against the petitioner which are in respect of illegal theft of sand

and attack on government employee. It is also stated that the

petitioner was engaged in illegal transportation of sand causing

danger and harm to person and property.

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5. On 10.08.2020 a show-cause notice was issued to the

petitioner seeking his explanation on the proposal for externment.

The petitioner appeared before the respondent no. 2 on

29.10.2020, 09.11.2020, 26.11.2020 and 11.01.2021 alongwith

his Advocate. The Advocate for the petitioner made oral

submissions. After hearing the Advocate for the petitioner, on

11.01.2021 the respondent no. 2 passed the order of externment

against the petitioner from District Gondia for a period of six

months.

6. The petitioner challenged the order of externment dated

11.01.2021 passed by the respondent no. 2 by filing Appeal No.

4/2021. The respondent no. 1 after giving opportunity of hearing

to the petitioner dismissed Appeal No.4/2021 confirming the order

dated 11.01.2021 passed by the respondent no. 2 externing the

petitioner for a period of six months. The petitioner has therefore

approached this Court by way of the present petition. This Court

on 10.03.2021 issued notice to the respondents.

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7. We have heard Shri U. K. Bisen, learned Advocate for the

petitioner and Shri T. A. Mirza, learned A.P.P. for the

respondents/State.

8. In the show-cause notice as well as in the order externing

the petitioner, all four cases registered against the petitioner are

referred. In all the four cases referred, the offence alleged against

the petitioner is in respect of illegal transportation and theft of

sand. In one case the offence has been registered against the

petitioner for assaulting the government employee while

performing government duty. Though, the first offence registered

against the petitioner is of the year 2017, the last case under

Section 379 read with 34 of the Indian Penal Code and Section

48(7) of the Maharashtra Land Revenue Code, 1966 has been

registered on 09.06.2020. It is pertinent to note that all the cases

registered against the petitioner involves illegal transportation and

theft of sand.

9. This Court cannot be unmindful of the fact that there is

need to have increasing awareness to restore ecological balance

and to stop damage being caused to the nature. This Court cannot

lose sight of the fact that destructive environmental impact of sand

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mining has been issue of concern raised by Hon'ble Apex Court in

several matters. Illegal sand mining on the river-bed in India has

led to severe damage to rivers causing change in river-bed itself

over the years. Rivers in India have been affected by alarming rate

of unrestricted sand mining, which is damaging the eco-system of

the rivers. If this illegal sand mining activities are not stopped by

the State and Police Authorities of the State, it will cause serious

repercussion on the ecology of the country.

10. In the above backdrop, we have carefully considered the

show-cause notice issued by the respondent no. 2; reply filed by

the petitioner; order passed by the respondent no. 2 dated

11.01.2021 and the impugned order passed by the respondent no.

1 dated 23.02.2021. The order of externment refers to the

allegations of illegal transportation and theft of sand, which are

taken into consideration by the externing authority while issuing

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

recorded by the externing authority that due to acts of the

petitioner, environment of terror is created in the said village and

nearby area. There is also satisfaction recorded that inspite of

execution of bond there is no improvement in conduct of the

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petitioner as offence under Section 379 read with 34 of the Indian

Penal Code and Section 48(7) of the Maharashtra Land Revenue

Code has been registered against the petitioner. From the tenor of

the order of externment, it is apparent that the externing authority

has applied its mind while issuing the externment order. There

was sufficient material available with the externing authority to

substantiate conclusion that acts of the petitioner are causing harm

and danger to the persons and property as per Section 56 of the

said Act of 1951.

11. The Apex Court in the case of State of N.C.T. of Delhi

Vs. Sanjeev @ Bittoo [(2005) SCC (Cri) 1025] had occasion to

consider the scope and ambit of Section 47 of the Delhi Police Act.

The said provision is pari materia with Section 56 of the Act of

1951. In the said decision it is observed that it is the existence of

material and not the sufficiency of material which can be

questioned as the satisfaction is primarily subjective somewhat

similar to one required to be arrived at by the detaining authority

under the preventive detention laws. The scope of judicial review

of administrative orders is rather limited. The consideration is

limited to the legality of decision-making process and not legality

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of the order per se. Mere possibility of another view cannot be

ground for interference. It is true that some material must exist but

what is required is not an elaborate decision akin to a judgment.

On the contrary the order directing externment should show

existence of some material warranting an order of externment.

While dealing with the question mere repetition of the provision

would not be sufficient. Reference is to be made to some material

on record and if that is done, the requirements of law are met. It is

not the sufficiency of material but the existence of material which

is sine qua non.

12. On 09.06.2020 the last offence was registered against

the petitioner. The order of externment has been passed on

11.01.2021 on the basis of show-cause notice dated 10.08.2020.

Therefore, there is live link between the order of externment and

the offence registered against the petitioner.

13. It is submitted on behalf of the petitioner that offences

alleged against the petitioner are not the offences against human

body and therefore action of externment is ultra vires. Perusal of

sub-Section 1(b) of Section 56 of the Act of 1951 shows that it

enables the externing authority to pass the order in relation to

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offences under Chapter XVII of the Indian Penal Code.The offences

reflected in the externment order are under Section 379 of the

Indian Penal Code, which are offences under Chapter XVII of the

Indian Penal Code. Therefore, action of externment can be taken

against a person on allegation of registration of offence under

Chapter XVII of the Indian Penal Code.

14. For the aforesaid reasons, we are satisfied that externing

authority has exercised its powers within the parameters of Section

56 of the Act of 1951. Therefore, no interference is called for in

the present petition.

15. The Writ Petition is therefore dismissed. Rule is

discharged.

                             JUDGE                                         JUDGE


RR Jaiswal