Gopal Padam Yadav vs The Divisional Commissioner, ...
2021 Latest Caselaw 16077 Bom

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

                           Criminal Writ Petition No.668/2021

                  Gopal Padam Yadav,
                  aged 40 years, Occ- Labour, Sabnis Plot, Amravati,
                  District Amravati                            ... Petitioner.

                                                       Versus

                  1. The Division Commissioner,
                     Amravati Division, Amravati.

                  2. The Deputy Commissioner of Police Zone-2, Amravati.

                  3. The Police Inspector, Police Station, Rajapeth,
                     Amravati.                                    ... Respondents.

                  ***********************************************************************************************
                                           Mr. Y.P. Kaslikar, Adv for petitioner.
                                            Mr. V.A. Thakre, APP for State.

            ****************************************************************************************************



                            CORAM : M.S. SONAK & PUSHPA V. GANEDIWALA, JJ.

DATE : 22-11-2021.

Oral Judgment (Per : M.S. Sonak, J.)

Heard Mr. Kaslikar, learned Counsel for the petitioner

and Mr. Thakre, learned APP for the State.

2. Rule. Rule is made returnable forth with at the request of

learned Counsel for the parties.

3. The challenge in this petition is to the order of exterment

dated 17-02-2021 as modified by order dated 26-07-2021 made by

the Appellate Authority reducing the period of externment from 2

years to 8 moths. The externment order has been issued as per

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Section 56(1)(a)(b) of the Maharashtra Police Act, 1951 (the said

Act).

4. In this case, the Appellate Authority, in its order dated

26-07-2021 has summarized the cases based on which the impugned

order came to be made.

5. The summary reads as follows :-

            Sr.    Police        Crime No.      Section                              Status
            No     Station
            .
            1      Rajapeth      505/2018       324, 34 of IPC                       Pending in Court.
            2      Rajapeth      432/2016       65(E) of Mah. Prohibition act        Pending in Court.
            3      Rajapeth      54/2017        65(E) Mah. Prohibition act.          Pending in Court.
            4      Rajapeth      604/2018       4,5 of Maharashtra Prevention of     Pending in Court.
                                                Gambling Act.
            5      Frezerpura 976/2020          109,188, 269, 370 of IPC with        Under Police
                                                51(B) of NDMA, 3,4 of the            investigation.
                                                Epidemic Diseases act and 12(A)
                                                of Mah. Prev. of Gambling act.



                  Preventive Action

            Sr.No.         Police Station      Ist No.          Section              Dated
            1              Rajapeth            15/2016          110(E)(G) of         28.09.2016
                                                                Cr.P.C.
            2              Rajapeth            06/2017          93 Mah.              07.02.2017
                                                                Prohibition act

6. Further, the Appellate Authority correctly observed that the

offences registered under the Maharashtra Prohibition Act, National Disaster

Management Act, the Pandemic Act and the Maharashtra Prevention of

Gambling Act cannot be considered for the purposes of making an

externment order under Section 56(1)(a)(b) of the said Act.

7. After excluding the aforesaid cases, what remains is the case

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bearing Crime No.505/2018, under the petitioner is alleged to commit

offence under Section 324 read with 34 of the IPC. This case is stated to

be pending before the Court.

8. According to us, based on the solitary instance aforesaid there

was no justification for making the impugned externment order. The issue

is not just solitary instance. Further, this is an instance of the year 2018 and

the impugned order has been made in February, 2021. Therefore, the nexus

between this instance and the requirement for making an externment order

has not been established.

9. Similar is the position when it comes to preventive action taken

against the petitioner in the years 2016-2017. Out of this, the action taken

in the year 2017 related to the provisions of the Maharashtra Prohibition

Act.

10. According to us, based on the aforesaid material there was no

case made out for exercise of the powers under Section 56(1)(a)(b) of the

said Act. The Appellate Authority has in fact appreciated this position but

despite the same, the Appellate Authority did not set aside the impugned

externment order but only reduced the period of externment from 2 years

to 8 months. In this case, the Appellate Authority had granted a stay on the

execution of the externment order and this stay was continued by this Court

as well.

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11. For the aforesaid reasons, we allow this petition and quash the

impugned externment order dated 17-02-2021 as modified by order dated

26-07-2021 made by the Appellate Authority.

12. Rule is made absolute in aforesaid terms. There shall be no

order for costs.

(Pushpa V. Ganediwala, J.) (M.S. Sonak, J.) Deshmukh