Devanand S/O Ramesh Pathrabe vs Divisional Commissioner, Nagpur ...
2021 Latest Caselaw 15077 Bom

                                       1                          CWP 365.21 (J)-1.odt




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

         CRIMINAL WRIT PETITION NO.365 OF 2021


Devanand s/o Ramesh Pathrabe,
Aged about 47 years,
Occupation-Private,
Present R/o. C/o. Sharad Nandanwar,
Ward No.1, Selu, District-Wardha.                    ..            Petitioner


                         .. Versus ..


1]   Divisional Commissioner,
     Nagpur Division, Nagpur.

2]   The Dy. Commissioner of Police,
     Zone-5, Dixit Nagar, Nari Road,
     Nagpur City, Nagpur.

3]   The Assistant Commissioner of Police,
     Jaripatka Division, Nagpur City,
     Nagpur.

4]   P.S.O. Police Station,
     Yashodhara Nagar, Nagpur.                       ..      Respondents


                   ..........
Mr. S.H. Sudame, Advocate for the petitioner,
Mr. S.S. Doifode, APP for the respondents.
                   ..........

                         Coram:       M.S. Sonak and
                                      Pushpa V. Ganediwala, JJ.

                         Date:        20th October 2021.





                                       2                          CWP 365.21 (J)-1.odt




ORAL JUDGMENT (PER : M. S. SONAK, J.) :-

Heard Mr. S.H. Sudame, the learned counsel for the

petitioner, and Mr. S.S. Doifode, the learned APP for the

respondents.

2. Rule. The rule is made returnable forthwith at the

request of and with the consent of the learned counsel for the

parties.

3. The challenge in this petition is to the orders dated

23.12.2020 and 12.3.2021 made by the Deputy Commissioner

and Divisional Commissioner respectively externing the

petitioner from Nagpur city rural area. The impugned order

dated 23.12.2020 has been made by invoking the provisions of

Section 57 of the Maharashtra Police Act, 1951 (the said Act),

and the order dated 12.3.2021 has been made by the appellate

authority confirming the externment order dated 23.12.2020.

4. Shri Sudame, the learned counsel for the petitioner,

submits that this is a case where the petitioner is alleged to

have been involved in offenses under the Bombay Prohibition

3 CWP 365.21 (J)-1.odt

Act, 1949 and Bombay Prevention of Gambling Act, 1887. He

submits that the offenses alleged are not of such serious nature

as to invoke the provisions of Section 57 of the said Act. Shri

Sudame submits that there is a breach of principles of natural

justice because the impugned order, in this case, refers to

some confidential statements of witnesses, but there was no

reference to such material in the show cause notice served

upon the petitioner. He submits that the impugned order

proceeds to observe that no witnesses appeared or were

examined in support of the petitioner and his defense, when in

fact, several witnesses including the Corporator was examined

and has given statement favoring the petitioner. He submits

that this is a case where relevant material has been excluded

from consideration thereby vitiating externment orders. Mr.

Sudame finally submits that this is a matter where the

impugned externment order has been made merely because

the petitioner was convicted in two cases under the Bombay

Prevention of Gambling Act, 1887. He points out that this

conviction was based on the consent tendered by the petitioner

in the Special Trial/Lok Adalat. By placing reliance on

Koli Dana Nathu .vs G. Ghosh, (1973) 14 GLR 209, he

submits that externment orders cannot be made merely on

4 CWP 365.21 (J)-1.odt

convictions. He submits that there is no material in support of

the subjective satisfaction that the petitioner was likely to

commit similar offenses again. For the aforesaid reasons, he

submits that the impugned orders warrant interference.

5. Mr. S.S. Doifode, the learned Additional Public

Prosecutor for the respondents-State, points out that the

impugned order has been made under Section 57 and not

under Section 56 of the Maharashtra Police Act, 1951. He

points out that there is a specific reference made to the

Maharashtra Prevention of Gambling Act, 1951 in Section 57 (1)

and, therefore, there is no merit in the contention that the

offenses alleged against the petitioner are not quite serious. He

points out that there is no requirement under Section 57 of the

said act about witnesses not willing to come forward to depose

against the proposed externee. He points out that the general

nature of the material allegations were supplied in the show

cause notice and, therefore, there is no case to interfere with

the impugned orders.

6. The rival contentions now fall for our determination.

5 CWP 365.21 (J)-1.odt

7. Section 57 of the Maharashtra Police Act, 1951 inter

alia provides that if a person has been convicted for all the

specified offenses under the Bombay Prohibition Act, 1949 or

Bombay Prevention of Gambling Act, 1887 and further if the

externing authority has reason to believe that such person is

likely again to engage himself in the commission of an offense

similar to that for which he was convicted, he may direct such

person notwithstanding anything contained in this Act or any

other law for the time being in force, to remove himself outside

such area or areas in the State of Maharashtra whether within

the local limits of the jurisdiction of the officer or not and

whether contiguous or not, by such route, and within such time,

as the officer may specify and not to enter or return to the area

or areas so specified from which he was directed to remove

himself.

8. From the aforesaid, it is clear that the conviction under

the Bombay Prohibition Act, 1949 and the Bombay Prevention

of Gambling Act, 1887, can afford cause of action for initiating

action under Section 57 of the Maharashtra Police Act, 1951,

provided the other condition about the subjective satisfaction

that such person is likely to again engage himself in the

6 CWP 365.21 (J)-1.odt

commission of a similar offense is fulfilled. Therefore, we are

unable to agree with Mr. Sudame's contention that offenses

under the Bombay Prohibition Act, 1949 or Bombay Prevention

of Gambling Act, 1887 are not serious offenses that attract the

provisions of Section 57 of the Maharashtra Police Act, 1951.

9. In this case, the show cause notice does refer to

several instances and several cases based on which the

subjective satisfaction about the petitioner likely to repeat the

offenses for which he was convicted has been reached. In

particular, there is a reference to informants, whose names

have been masked or whose anonymity has been maintained

for obvious reasons. Though there may not be a specific

reference to any confidential statement as such of witnesses,

we believe that this is not a case of any breach of natural

justice. The provisions of Section 59 of the Maharashtra Police

Act, 1951 have been complied with. This Section 59 requires

externing authority to inform the proposed externee of the

general nature of material allegations against him. The perusal

of the show cause notice indicates that the general nature of

the material allegations were indeed were informed to the

petitioner and the petitioner was granted a reasonable

7 CWP 365.21 (J)-1.odt

opportunity for tendering an explanation regarding the same.

As such, we are unable to accept Mr. Sudame's contentions

about the breach of natural justice or non-compliance with the

provisions of Section 59 of the said Act.

10. From the perusal of the impugned order, we are unable

to hold that the statements of the witnesses presented by the

petitioner have not been adverted to or that the same have not

been duly considered by the externing authority. The impugned

order not only considers the statement but also analyses them

and reasons that the same were in no manner sufficient to

discharge the show cause notice issued to the petitioner. The

statement made by the Corporator has been taken into

account, but we agree with the learned APP that such

statement at least, in the facts of the present case, cannot be

said to be sufficient to interfere that the decision-making

process leading to the making of the impugned order.

Ultimately, in such matters, we are primarily concerned with

the decision-making process. The sufficiency or otherwise of

the material based on which the subjective satisfaction is

reached is normally not open for judicial review. There is no

case made out by the petitioner that relevant considerations

8 CWP 365.21 (J)-1.odt

have been excluded or that the impugned orders are based on

some irrelevant considerations.

11. According to us, this is not a case where the impugned

order is based solely on two convictions recorded against the

petitioner under the provisions of the Maharashtra Prevention

of Gambling Act, 1887. The reference to two convictions is only

to comply with one of the parameters prescribed in Section 57

of the said Act. The other parameter namely the reason to

believe that the proposed externee is likely to again engage

himself in the commission of offenses similar to that for which

he was convicted is also fulfilled in the present case. It is, in

this context, that the externing authority placed reliance on the

material referred to both in the show cause notice as well as

the impugned orders. Based on all these materials, the

externing authority reached subjective satisfaction. There is no

case made out to interfere with the impugned orders.

12. The decision in Koli Dana Nathu (supra) is

distinguishable because in the said decision the externment

order was passed merely on the factum of convictions, without

there being any material to sustain the subjective satisfaction

9 CWP 365.21 (J)-1.odt

about the likelihood of the proposed externee to repeat the

offenses for which he was convicted. The position, in the

present case, is quite different and, therefore, for all the

aforesaid reasons, we see no merit in this petition.

13. Accordingly, we dismiss this petition, but without any

order of costs.

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




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