Mohd Wasim Mohd Kalim vs State Of Mah. Thr. Dcp, Zone 2, ...
2022 Latest Caselaw 8550 Bom

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



            CRIMINAL WRIT PETITION No. 508/2022.


Mohd Wasim Mohd Kalim,
Aged about 39 years, Occupation-
Labour, resident of IBM Road,
Bhimtekdi, Gittikhadan,
Nagpur.                                    ...     PETITIONER.


                             VERSUS


1.State of Maharashtra,
through Deputy Commissioner of Police,
Zone 2, Nagpur City, District Nagpur.

2.Assistant Commissioner of Police,
Sadar Division, Nagpur.                  ...     RESPONDENTS.


                         -----------------------
             Mr. M.N. Ali, Advocate for the Petitioner.
            Ms.M.H. Deshmukh, A.P.P. for Respondents.
                        ------------------------


                                CORAM : VINAY JOSHI, J.


CLOSED FOR JUDGMENT ON :                   25.08.2022.
JUDGMENT PRONOUNCED ON :                   29.08.2022.


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JUDGMENT :

Heard learned counsel for the parties. By their consent,

Writ Petition is taken up for final disposal by issuing Rule, making

the same returnable forthwith.

2. The petitioner raises a challenge to the externment order

dated 02.11.2021, passed by respondent no.1 Deputy Commissioner

of Police, Zone-2, Nagpur City, Nagpur, whereby the petitioner has

been externed for a period of 1 ½ years from entire Nagpur District.

The said order has been passed under Section 56[1][a][b] of the

Maharashtra Police Act (the Police Act).

3. The challenge is raised on the ground that the action is

based on irrelevant material, stale offences are considered by the

Authorities, no satisfaction has been recorded that witnesses are not

willing to come forward and without recording subjective

satisfaction, the order has been passed externing the petitioner for a

period of 1 ½ years.

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4. The State resisted the petition by filing affidavit-reply. It

is stated that the petitioner was consistently engaged in antisocial

activities namely the offence under of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (the NDPS Act). The authorities

have recorded subjective satisfaction and thus, the impugned order is

well sustainable in the eyes of law.

5. The order of externment has been based on total 7

offences as mentioned in the order itself. Undeniably, besides

offences at Sr.No.2, bearing Crime No.537/2015, rest of the offences

are punishable under the provisions of the NDPS Act. The

authorities have taken action under sub-clause [a] and sub-clause [b]

of Section 56[1] of the Police Act. Particularly, the action is under

sub-clause [b], since it is based on various offences registered against

the petitioner. In order to sustain the action under clause [b], the

externee must be engaged in commission of offence involving force

or violence or the offences which are falling in Chapters XII, XVI and

XVII of the Indian Penal Code. Undoubtedly, the offence at Sr.Nos. 1,

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3 to 7 neither relates to force or violence, nor falls within Chapters

XII, XVI and XVII of the Indian Penal Code, and therefore, the said

material could not have been taken into account by the Authority.

The only relevant material remaining is about offence registered at

Sr.No.2, which is of the year 2015, whilst the impugned show cause

notice has been issued on 22.07.2021. Thus, apparently the action is

based on stale offences, meaning thereby there is no live link in

between the relevant offences and the impugned action.

6. In order to attract action under sub-clause [b] to Section

56[1] of the Police Act, it is a further requirement that the Authority

must form an opinion that the witnesses are not willing to come

forward to give evidence against the externee. The impugned order

no where indicates subjective satisfaction in that regard. This Court

in reported case of Ajay @ Golu Shyam Solani .vrs. State of

Maharashtra and another - 2019 All MR (Cri) 702, has expressed

that in absence of reference in the impugned order regarding

subjective satisfaction that the witnesses are not willing to come

forward, is against the basic ingredients of Section 56[1][b] of the

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Police Act. On said count also the order is unsustainable in the eyes

of law.

7. The petitioner by placing reliance on the decision of

Supreme Court in case of Deepak Laxman Dongre .vrs. The State of

Maharashtra and others - Criminal Appeal No.139/2022 decided on

28.01.2022, would submit that it is necessary to record subjective

satisfaction regarding requirement of imposing maximum period of

externment. Though Section 58 provides maximum externment for a

period of two years, however, the Authority has externed the

petitioner for 1 ½ years, and thus, being different facts, the said

ground is not appelable.

8. In substance, the impugned order is based on irrelevant

material. There is no live link and stale offences have been

considered, and thus, the order would not sustain in the eyes of law.

In view of that, the Writ Petition is allowed and disposed of. The

impugned order of externment dated 02.11.2021 passed by

respondent no.1 Deputy Commissioner of Police, Zone-2, Nagpur

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City, Nagpur is hereby quashed and set aside.

9. Rule is made absolute in aforesaid terms with no order as

to costs.

JUDGE

Rgd.

Signed By:RAKESH GANESHLAL DHURIYA Private Secretary High Court of Bombay, at Nagpur Signing Date:30.08.2022 11:02