Bombay High Court
Mohamad Mohasin Abdul Salim Saudagar vs The State Of Maharashtra And Others on 22 January, 2024
2024:BHC-AUG:1343
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
2 CRIMINAL WRIT PETITION NO. 1708 OF 2023
MOHAMAD MOHASIN ABDUL SALIM SAUDAGAR
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for the Petitioner : Mr. Shailendra S. Gangakhedkar.
APP for Respondent/State : Mr. Mukesh K. Goyanka.
...
CORAM : SANJAY A. DESHMUKH, J.
DATE : 22nd January, 2024.
P.C.:
1 This petition is directed against the order passed by
respondent no.4 / Sub-Divisional Magistrate, Nanded dated 7th July,
2023 under Section 56(1)(a)(b) by which the petitioner is externed for
one year, against which he has preferred Appeal No.75 of 2023, before
the learned Divisional Commissioner, Aurangabad (Chatrapati
Sambhajinagar), which was dismissed on 3rd November, 2023.
2 The learned counsel for petitioner submitted that the order
passed by respondent No.2 is illegal, erroneous and not sustainable in
the eyes of law. There is no subjective satisfaction for passing the
impugned order. He pointed out the grounds of objection to the
impugned order that it is against liberty as enshrined under Article
19(1)(d) and Article 21 of the Constitution of India. He pointed out that
there is no legal ground to pass such order against the petitioner. The
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order is vague and arbitrary. He pointed out the authority of Hussain
Alias Bantu Mohd. Bashir Vs. Deputy Police Commissioner Nagpur
and others, in which para 15 it is held as under:-
"15. Thus despite the case relating to the epidemic
disease and disaster management having been closed,
the authorities below have blamed the petitioner of
indulging into the activities causing epidemic disease
and to spread such disease. This clearly shows that the
authorities below have not applied their mind while
passing the impugned orders."
3 The learned counsel for petitioner pointed out page Nos.2
and 3 of the impugned order, in which it is observed that the secret
witnesses have stated that prohibited Gutkha was carried by the
petitioner and if anybody opposes, the petitioner had quarreled and
threatened him. The learned counsel for petitioner submitted that
there is no such subjective satisfaction for passing the impugned order.
He lastly prayed to set aside the impugned order by allowing this writ
petition.
4 The learned APP strongly objected the petition. He
submitted that the petitioner is involved in various serious crimes. It is
lastly prayed to reject the petition.
5 The learned counsel for petitioner pointed out that the
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statements of secret witnesses are not supplied to this petitioner. This
itself is sufficient to show that the action taken by respondent No.2 is
unfair and illegal. No doubt, there are similar criminal cases registered
against the petitioner, however, at the same time, it is established from
the record that copies of secret witnesses were not supplied to this
petitioner as held in para 20 of the judgment of Hussain Alias Banto
Mohd. Bashir (supra), which reads as under:-
"20. If one goes through the particulars of the incident
as disclosed to the petitioner through the notice dated
11.10.2022, the very purport of recording in camera
statement has been defeated, as both the witnesses
could be easily identified by the petitioner. Further, the
original record show that, in the reply filed by R-1 in
appeal filed by the petitioner against his order dated
31.01.2023, the respondent No.1 has stated that these
two witnesses viz. witnesses (A) and (B) were
summoned by him. However, the Senior Police
Inspector has replied that the witnesses have refused to
appear to verify their statements because during inquiry
by Senior Police Inspector, they have narrated the
incident on the condition that they will not appear before
any Government office or the Court. It is further
mentioned in the reply that the Assistant Police
Commissioner has visited the spot and inquired with the
neighboring persons who have stated that the incident
has occurred and the occurrence of the incident has
been verified through the secret informant as well."
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6 Considering all these aspects, the order passed by
respondent No.2 is not sustainable as there is absence of subjective
satisfaction. The impugned order, therefore, deserves to be quashed
and set aside. The petition deserves to be allowed. The writ petition
is, therefore, allowed in terms of prayer clause (B). No costs.
7 Parties to act upon the authenticated copy of this order.
[ SANJAY A. DESHMUKH, J. ]
nga
