Bombay High Court
Sunil Ukandrao Pachare vs State Of Mah. Thr. Chief ... on 5 July, 2023
Bench: Vinay Joshi, Valmiki Sa Menezes
Judgment wp343.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION No. 343/2023.
Sunil Ukandrao Pachare,
Aged about 38 years, Occupation
Cultivator, resident of Ward No.1
Padegaon, Tahsil and District
Wardha. ... PETITIONER.
VERSUS
1.State of Maharashtra,
through Chief Secretary,
Home Department, Mantralaya,
Mumbai.
2.Sub Divisional Magistrate,
Sub Division, Wardha,
District Wardha.
3.Sub Divisional Police Officer,
Wardha, District Wardha.
4.Assistant Police Inspector,
Police Station Sawangi (Meghe),
District Wardha. ... RESPONDENTS.
---------------------------------
Mr. J.R. Kidilay, Advocate for the Petitioner.
Mr. V.A. Thakare, A.P.P. for Respondents.
----------------------------------
Rgd.
::: Uploaded on - 06/07/2023 ::: Downloaded on - 06/07/2023 16:16:09 :::
Judgment wp343.23
2
CORAM : VINAY JOSHI AND
VALMIKI SA MENEZES,, JJ.
DATE : JULY 05, 2023
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Rule. Rule is made returnable forthwith. Heard finally by
consent of the learned Counsel for the parties.
2. Being aggrieved and dissatisfied by the order of
externment dated 07.02.2023 passed by respondent no.2 Sub
Divisional Magistrate, Wardha in Externment Case No.23/2022,
whereby the petitioner has been externed from the limits of Wardha
District for a period of one year, he has approached to this Court in
writ jurisdiction. The impugned order has been passed in exercise of
powers conferred upon respondent no.2 under Section 56[1][b] of
the Maharashtra Police Act.
3. The impugned order has been challenged primely on the
Rgd.
::: Uploaded on - 06/07/2023 ::: Downloaded on - 06/07/2023 16:16:09 :::
Judgment wp343.23
3
ground that the externment proceeding is mainly based on the
offences punishable under the Maharashtra Prohibition Act, and
therefore, the order is not sustainable in the eyes of law. It is
submitted that the impugned order infringes petitioners'
fundamental right of freedom of movement, which is an arbitrary
action of the Authority.
4. On the other hand, the learned A.P.P. has raised a
preliminary objection that the petitioner ought to have approached
to the Divisional Commissioner in statutory appeal. Moreover it is
submitted that repeatedly the petitioner has been involved in the
offences under the Maharashtra Prohibition Act from the year 2006.
Despite registration of various offences and prohibitory action, the
petitioner has continued his illegal activities which are dangerous to
the safety of the society.
5. As regards to the initial objection in respect of
maintainability of the writ, the learned Counsel appearing for the
petitioner has relied upon the decision of this Court in case of
Rgd.
::: Uploaded on - 06/07/2023 ::: Downloaded on - 06/07/2023 16:16:09 :::
Judgment wp343.23
4
Darshan Arun Barhanpure .vrs. State of Maharashtra and others -
Criminal Writ Petition No.599/2020 decided on 17.02.2021, which
extensively deals with the issue. In paragraph nos. 5 and 6 of the
aforesaid decision, it has been observed that the issue pertains to
violation of principle of due process of law and therefore, writ is
maintainable in absence of filing statutory appeal.
6. The impugned order contains a chart indicating 7 prior
offences registered against the petitioner within a period from
25.11.2015 to 12.06.2021, apart from the prohibitory action
initiated in the year 2019. The offences at Sr.Nos. 1 to 6 relates to
the action under Section 65[e] of the Maharashtra Prohibition Act.
True the last offence at Sr.No.7 pertains to the offence punishable
under Section 326 falling under Chapter XVI of the Indian Penal
Code. Besides said isolated offence, the authority has considered
rest of the offences which are under the Maharashtra Prohibition Act.
Time and again it has been ruled that the action of externment
cannot be based solely on the offences registered under the
Maharashtra Prohibition Act, meaning thereby, the offences which
Rgd.
::: Uploaded on - 06/07/2023 ::: Downloaded on - 06/07/2023 16:16:09 :::
Judgment wp343.23
5
does not fall within Chapters - XII, XVI and XVII of the Indian Penal
Code. Perusal of the impugned order indicates that the petitioner
was indulging into sale of illicit liquor which caused concern for
initiating action. The show cause notice does not specify the gist of
in-camera statements. The impugned order does not discloses
subjective satisfaction regarding externment on account of an
isolated offences registered under Section 326 of the Indian Penal
Code. Besides that there does not appear to be a live link in
between the last offence and initiation of the impugned action.
7. In the circumstances, the impugned order would not
sustain in the eyes of law. In view of above, Criminal Writ Petition
needs to be allowed, hence, the following order.
ORDER
[i] Criminal Writ Petition is allowed and disposed of.
[ii] The impugned order of externment dated 07.02.2023
passed by respondent no.2 Sub Divisional Magistrate,
Wardha in Externment Case No.23/2022, is hereby
Rgd.
Judgment wp343.23
quashed and set aside.
[iii] Rule is made absolute in aforesaid terms, with no order
as to costs.
JUDGE JUDGE
Rgd.
