Chanda W/O Pradeep Thakur vs State Of Mha. Thr. Divisional ...
2022 Latest Caselaw 9976 Bom

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

           CRIMINAL WRIT PETITION NO. 516 OF 2022

        Sau.Chanda w/o Pradeep Thakur, Aged
        50 years, occ. Household, R/o Near
        Pitale Hanuman Mandir Shad Hospital,
        P.S. Shanti Nagar, Itwari Railway Station,
        Nagpur.
                                                     ... PETITIONER

                              VERSUS
   1.   State of Maharashtra, through
        Divisional Commissioner, Nagpur
        Division, Nagpur.

   2.   Deputy Commissioner of Police Zone-
        3, Nagpur City, Nagpur.

   3.   Assistant Commissioner of Police,
        Lakadganj Zone, Nagpur City,
        Nagpur.

                                                ... RESPONDENTS
_____________________________________________________________
       Shri A.K. Bhangde, Advocate for the petitioner.
       Shri H.D. Dubey, A.P.P. for the respondents.
______________________________________________________________

             CORAM                    : VINAY JOSHI, J.
             CLOSED FOR JUDGMENT ON   : 27.09.2022.
             JUDGMENT PRONOUNCED ON : 29.09.2022.
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JUDGMENT :

RULE. Rule made returnable forthwith. Heard finally by

consent of learned Counsel appearing for the parties.

2. The petitioner has been externed for the period of one year

from entire Nagpur district vide order dated 29.12.2021 passed by the

respondent no.2 Deputy Commissioner of Police, Zone-3, Nagpur City,

Nagpur. The order has been passed in terms of Section 56(1)(bb) of the

Maharashtra Police Act. The petitioner has challenged the said order

before respondent no.1 - Divisional Commissioner, Nagpur, however

could not succeed. Both orders externing the petitioner have been

impugned herein.

3. Learned Counsel appearing for the petitioner would submit

that the order of externment is based on irrelevant consideration. The

essential requirements for initiating action under sub-clause (bb) of

Section 56(1) of the Maharashtra Police Act, has not been made out.

According to the petitioner, the authority has not recorded subjective

satisfaction and thus, the order is illegal. Per contra, the State

supported the impugned orders by filing the affidavit-in-reply. The

action of externment has been based on seven offences, which have

been incorporated in the order itself.

4. All the offences are under the provisions of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS

Act'). According to the petitioner, those offences does not fall within the

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

action is untenable. Basically, the above requirement is under Section

56(1)(b) of the Maharashtra Police Act, however, the present action is

taken under sub-clause (bb) to Section 56(1) of the Maharashtra Police

Act, which does not specify such requirement. In terms of sub-clause

(bb) of Section 56(1) of the Maharashtra Police Act, if the authority is

satisfied that there are reasonable grounds for believing that the

externee is acting or is about to act in the manner prejudicial to the

maintenance of public order as defined under the Maharashtra

Prevention of Communal, Anti Social and Other Dangerous Activities

Act, 1980 (for short 'the Act of 1980) then the action is justifiable.

5. Contextually, one has to refer sub-clause (iv) of Section

2(a) of the Act of 1980, which reads as below :

"2.(a)(iv) committing offences punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more, where the commission of such offences disturbs, or is likely to disturb public order."

6. In view of that the basic requirement is that there should be

more than one offence committed by a proposed externee for which

punishment of imprisonment shall extend to seven years or more.

Considering the said requirement, the nature of seven offences as

mentioned in the order, have been verified. It is found that offence at

serial nos. 4 and 6 are for the offence punishable under Sections 21(b)

and 20(b) of the NDPS Act, respectively. Both relates to the

intermediate quantity which attracts the punishment which may extent

to ten years along with fine. Thus, there are more than two offences

registered against the petitioner, which would meet the requisite

criteria. Though the learned Counsel for the petitioner relied on the

decision of this Court in case of Aamna Bi Sheikh Pir Mohd Sheikh vs.

State of Maharashtra and anr. (2019) ALL MR (Cri) 3193 however, the

said case is distinguishable on facts, as in that case, only one offence

was registered meeting the requisite criteria.

7. Learned Counsel for the petitioner has submitted that though

several offences were registered against the petitioner, nothing has

been seized from her custody. She was falsely implicated in the case at

the instance of co-accused. I am afraid to consider the said submission

since it is a matter of trial. Undoubtedly, in this proceeding, merits or

demerits of the crimes on which action has been based, cannot be

considered.

8. Learned Counsel for the petitioner by placing reliance on the

decision of the Supreme Court in case of Deepak s/o Laxman Dongre

vs. State of Maharashtra and ors. 2022 ALL MR (Cri) 761 (S.C.) ,

submitted that action of externment makes serious inroad on the

personal liberty and thus, the authority has to record its subjective

satisfaction. Undoubtedly, the competent authority is not expected to

assign elaborate reasons, however subjective satisfaction of the

existence of grounds must be demonstrated in the order. It reveals that

the Externing Authority has considered the nature of offences

registered against the petitioner. It was found that the petitioner was

indulging into illegal liquor business as well as sale of Narcotic Drugs.

Several people used to gather for said purpose, which causes breach of

public peace or there was every likelihood to create law and order

problem. The authority has assigned the reasons for necessity of

externment, which shows due application of mind.

9. The very object underlying these provisions of externment is to

protect the locality or contigeous area from a probable danger of

commission of offences by the externees. Though the provisions of

Section 56 of the Maharashtra Police Act makes a serious inroad of

personal liberty but such restraints have to be suffered in the lager

interest of the society, if circumstances warrant so.

10. Careful examination of impugned orders as well as the

order passed in Appeal shows that the order has been passed after

considering the relevant material on recording subjective satisfaction.

The grounds on which the order has been based meets the requisite

criteria. Therefore, no interference is called, hence, the petition stands

dismissed. No order as to costs.

Rule stands discharged.

(VINAY JOSHI, J.)

Trupti

TRUPTI SANTOSHJI AGRAWAL

01.10.2022 10:00