Bombay High Court
Kesarbai Ranjit Bhat And Ors vs The State Of Maharashtra And Ors on 21 September, 2021
Bench: S.S. Shinde, N. J. Jamadar
Digitally signed
LAXMIKANT by LAXMIKANT
GOPAL
GOPAL CHANDAN
CHANDAN Date: 2021.09.21 cri.wp-2730.21.odt
14:58:42 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2730 OF 2021
1] Smt. Kesarbai Ranjit Bhat ]
Age - 68 years, Indian Inhabitant ]
Occ - House wife, ]
]
2] Shri Hiralal Ramchandra Minekaru ]
Age - 52 years, Indian Inhabitant ]
Occ - Business, ]
]
]
3] Jayshree Hiralal Minekaru ]
Age - 42 years, Indian Inhabitant ]
Occ - House wife ]
]
R/at Near Hanuman Nagar, ]
Near Train Track, Ghorpadigaon, Pune ]..... Petitioners.
Versus
1] The State of Maharashtra, through ]
to be served through Public Prosecutor ]
High Court (A.S.) Mumbai ]
]
2] The Divisional Commissioner of Police, Pune ]
to be served through Public Prosecutor ]
High Court (A.S.) Mumbai ]
]
3] The Deputy Commissioner, Zone-5, Pune ]
to be served through Public Prosecutor ]
High Court (A.S.) Mumbai ]..... Respondents.
Mr. Vaibhav V Ugle for the Petitioner.
Mr. K V Saste, APP for the Respondents/State.
CORAM : S. S. SHINDE,
N. J. JAMADAR, JJ
Reserved on : 26th August 2021
Pronounced on : 21st September 2021
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JUDGMENT (PER S. S. SHINDE, J)
1 Rule. Rule is made returnable forthwith and heard finally with the
consent of the learned counsel appearing for the parties.
2 The above Writ Petition, filed under Articles 226 and 227 of the
Constitution of India, takes exception to the order dated 9th April 2021 passed
by the Appellate Authority i.e. the Divisional Commissioner of Police, Pune City
by which order the Appeal filed by the Petitioners came to be partly allowed
and resultantly the period of externment mentioned in the externment order
dated 31st December 2020 passed by the Externing Authority i.e. the Deputy
Commissioner of Police, Zone-5, Pune came to be curtailed to one year.
3 It is not necessary to burden this order with unnecessary details.
Suffice it to say that, the Petitioners herein were issued a show cause notice by
the Respondent No.3 herein, who is the Externing Authority, under the
provisions of the Maharashtra Police Ac. The said show cause notice referred
to the offences registered against the Petitioners. The allegations against the
Petitioners are that they are acting as a gang and indulging in preparing and
selling the country liquor in their vicinity and other parts of Pune District. It is
also alleged that the Petitioners are also threatening the person residing in the
said area that in case they try to inform the police or oppose their activities, in
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that case such persons would be sternly dealt with, and that the said activities
of petitioners are causing endanger to the health of many persons. The
offences mentioned in the show cause notice are alleged to have been
registered under the Bombay Prohibition Act, and NDPS Act. It is also alleged
that the Petitioners are creating terror in the locality. Therefore, the
Respondent No.3 issued the show cause notice dated 04/11/2020 to the
Petitioners to show cause as to why the externment proceedings should not be
initiated against them and as to why they should not be externed from Pimpari
Chinchwad Commissionerate, Pune City and Pune Districts for a period of 2
years. Thereafter externment proceedings were initiated against the
Petitioners, which culminated in the impugned externment order.
4 Pursuant to the said notice, the Petitioners appeared before the
Respondent No.3 and filed their Say before the Respondent No.3. It was the
case of the Petitioners in their reply that, they are suffering from various
ailments. They denied all the allegations mentioned in the show cause notice.
It is case of the Petitioners that they are not indulging in any illegal activities
and there is no danger to the life and property of the people at their hands,
and the offences mentioned in the show cause notice are pending for
adjudication before the Court. It is also the case of the Petitioners that the
Petitioner No.2 got acquitted of the case registered against her under the NDPS
Act. In the said background, it was the case of the Petitioners that the
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externment proceedings initiated against them are required to be quashed and
set aside.
5 The Respondent No.3 - the externing authority considered the
reply filed by the Petitioners as also the material on record and reached a
subjective satisfaction that the activities of the Petitioners are adverse to the
society as the said activities of preparing and selling the country liquor and
cannabis have potential to cause addiction of liquor and cannabis amongst the
people and thereby having an effect on their financial well-being as well as the
families, and therefore, there is a danger to the life of the people and their
properties. The Externing Authority was of the view that considering the
alleged illegal activities of the Petitioners, it was necessary to extern the
Petitioners. The impugned order records that the witnesses are not ready to
adduce evidence publicly against the Petitioners for fear of physical harm as
also loss of their property. The impugned order refers to 8 criminal cases which
are shown to be pending for adjudication. Therefore, Externing Authority
passed order dated 31st December 2020 thereby externing the Petitioners for a
period of 2 years from Pimpari Chinchwad Commissionerate, Pune City and
Pune District.
6 Being aggrieved by the said order of Respondent No.3, the
Petitioner have preferred an Appeal being No.12 of 2021 before the Appellate
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Authority - Respondent No.2 i.e. the Divisional Commissioner of Police, Pune
City. In the interregnum, the Petitioners have filed a Writ Petition being
No.1400 of 2021 before this Court for expediting the hearing of the said
Appeal. By order dated 1st April 2021, this Court disposed of the said Writ
Petition by directing the Respondent/Authority to decide the appeal filed by
the Petitioners within two weeks from the receipt of the said order.
7 The Appellate Authority considered the offences registered against
the Petitioners and, also considered the factum of whether the Externing
Authority has rightly reached the subjective satisfaction that it has reached.
After considering the material on record, the Appellate Authority did not deem
it appropriate to interfere with the Externment Order, however, modified the
Externment Order thereby reducing the period of externment from 2 years to 1
year. The said order dated 31st December 2020 passed by the Externing
Authority and, the order dated 9 th April 2021 passed by the Appellate Authority
are under challenge in this Writ Petition.
8 The learned counsel appearing for the Petitioners submits that the
cases registered against the Petitioners are under the Bombay Prohibition Act.
He further submits that the cases registered against the Petitioners are pending
for adjudication. It is also submitted that the show cause notice issued by the
Respondent No.2 is based on wrong information and old cases. That, the
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Respondent/Authorities failed to record the findings that which witness is not
coming forward to give evidence against the Petitioners. The learned counsel
for the Petitioner further submitted that the in-camera statements of two
witnesses cannot be relied upon, as the facts need to be tested on the anvil of
the evidence and cross examination. The Respondents/Authorities have not
considered the evidence available before them in proper perspective, and
without considering the documents of the Petitioners, they passed the
impugned orders. It is submitted that there is not a single conviction to the
credit of the Petitioners and, the Respondents/Authorities have failed to take
into consideration the said fact while passing the order of externment. It is
further submitted that as a matter of fact the externing authority did not arrive
at subjective satisfaction that the witnesses are unwilling to come forward to
give evidence in public against the proposed externees i.e. the petitioners
herein by reason of apprehension to safety of their part, persona and property.
He therefore submitted that the orders of externment need interference. He
submits that the writ petition may be allowed.
9 The learned APP, appearing for the Respondents/State submitted
that the order of externment passed by the Respondent/Authority is fully
justified and, the Respondents/Authorities after due satisfaction have passed
the impugned orders. It is submitted that the Petitioners are habitual offenders
and indulging in illegal activities of preparing and selling the liquor. It is also
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submitted that the activities of the Petitioners had created terror in the locality.
He therefore submits that the writ petition may be dismissed.
10 We have given our careful consideration to the rival submissions.
With the able assistance of learned counsel for the petitioners and learned APP
for State, perused the pleadings and grounds taken in the petition, annexures
thereto, original record pertaining to the externment proceedings of the
petitioner and reasons assigned in the impugned order by the
Respondent/Authority.
11 Upon careful perusal of the notice dated 6 th October, 2020 issued
to the Petitioners it is noticed that as many as five offences are registered
against Keasarbai, four offences against Hiralal Minekaru and two offences are
registered against Jayshree Minekaru. It appears that in Crime No. 470/2020
registered with Mundhwa Police Station, the aforesaid three persons are made
accused. It appears from the activities alleged against the petitioners that they
are acting as a gang and preparing country liquor and selling in the vicinity of
not only Mundhwa district but other parts of Pune district. The said alleged
activities of petitioners are wide spread and many persons including youths are
getting addicted to the liquor, and as a result the families of said persons are
affected. It appears from the reading of the allegations that petitioners are not
only illegally selling the liquor but also threatening the persons residing in the
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said area that, in case they try to inform the police or oppose their activities, in
that case such persons would be sternly dealt with. It appears that said
activities of petitioners are causing endanger to the health of many persons. As
a result of the activities of petitioners and threats given by the petitioners, the
people are not coming forward to depose against them by a reason of
apprehension to safety of their part, persona and property.
12 Upon careful perusal of the alleged activities of the petitioners and
the material collected by the respondents, it is crystal clear that the illegal
activities of the petitioners are causing endanger to the life of persons not only
residing in Mundhwa, but also other parts of the Pune district. The externining
authority i.e. the Commissioner of Police Zone-V, Pune City, has given cogent
reasons in the order that the petitioners are operating as a gang and illegally
selling country liquor which is affecting health of citizens residing in the Pune
district. The petitioners have created terror in the vicinity that in case any
citizen objects them for carrying out alleged activities, in that case, they will
ruthlessly deal with such persons. As a result, witnesses are not coming
forward to depose against them. It is not necessary to elaborate the reasons.
Suffice it to say that, the show cause notice issued to the petitioners is in
conformity with provisions of Section 59 of the Maharashtra Police Act.
Secondly, all the necessary procedure has been followed during the
proceedings conducted by the respondent-authorities. Definite findings are
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recorded by the externing authority that the petitioners are operating as a gang
and selling liquor which is affecting health of public in Pune district. The
appellate authority has also confirmed the order passed by the externinig
authority. While exercising writ jurisdiction it may not be appropriate to
interfere in the concurrent findings of facts which are in consonance with the
material on record and mandate of Section 55 of said Act.
13 In the peculiar facts and circumstances of this case, there is no
scope to interfere in the impugned orders passed by both the authorities, while
exercising writ jurisdiction. For the aforestated reasons, the writ petition stands
rejected.
[N. J. JAMADAR, J] [S. S. SHINDE , J]
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