Bombay High Court
Javed Khan Ayyub Khan vs The State Of Maharashtra And Others on 10 January, 2025
2025:BHC-AUG:617
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1785 OF 2024
Javed Khan Ayyub Khan ... Petitioner
Age 37 years, Occu: Labour
R/o House No.5-163, Nutan Colony,
Near ABC Dry-cleaners, Aurangabad
VERSUS
1. The State of Maharashtra
2. The Commissioner of Police, Aurangabad
3. The Deputy Commissioner of Police
Zone No.1, Aurangabad
4. Police Inspector, ... Respondents
Kranti Chowk Police Station, Aurangabad
Mr. Siddesh Subhashrao Ghodke, Advocate for the Petitioner,
Mrs. A. S. Deshmukh, APP for the Respondents
CORAM : Y. G. KHOBRAGADE, J.
RESERVED ON : 02.01.2025
PRONOUNCED ON: 10.01.2025
JUDGMENT:
-
1. Rule. Rule made returnable forthwith. Heard finally with
consent of both the sides.
2. By the present petition, the Petitioner takes exception to the
order dated 23.07.2024 passed by the Divisional Commissioner,
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Chhatrapati Sambhajinagar (Aurangabad) in Externment Appeal bearing
No.2024/साiz./कक्ष-1/पाs ल-1/हद्दपार/सिआर-63 thereby confirmed order
dated 09.05.2024 passed by Respondent No.3/Deputy Commissioner of
Police in externment case bearing No. पोउपआ/परि-1/वि-2/हद्दपार-21/अं तिम
आदे श/2024/1595, whereby extern the Petitioner from Chhatrapati
Sambajinagar City and entire district for the period of two years from the
date of order.
3. On perusal of record, it indicates that the concerned police
authorities have sought to invoke Section 56 (1)(b) of the Maharashtra
Police Act,1951 for the purpose of externment of the Petitioner. On
29.11.2023, the Senior Police Inspector of Kranti Chowk Police Station,
Chhatrapati Sambhajinagar (Aurangabad) submitted a proposal for
externment of the Petitioner from Chhatrapati Sambajinagar City and
entire Chhatrapati Sambajinagar District for the period of two years. On
26.04.2024 a show cause notice was issued against the Petitioner which
has been duly served upon the petitioner on 28.04.2024. However, the
Petitioner fail to submit reply the said notice inspite of sufficient
opportunity was granted to him. Ultimately, on 09.05.2024, Respondent
No.3- Deputy Commissioner of Police passed the externment order and
externed the petitioner for the period of two years from the date of order,
considering registration of seven crimes and one chapter case, out of
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which, in one crime, the present Petitioner has been convicted and
sentenced to suffer rigorous imprisonment for five years for the offence
under the Narcotic Drugs and Psychotropic Substances Act, 1985. The
Respondent No.3 further held that the present petitioner is indulged in
various criminal activities which are disturbing peace in the society and
the petitioner is habitual offender.
4. Being aggrieved said order dated 09.05.2024, the petitioner
filed Appeal No.2024/साiz./कक्ष-1/पाsल-1/हद्दपार/सिआर-63 before the
Divisional Commissioner, Chh. Sambhajinagar. On 23.07.2024, the
appellate authority passed the impugned order and dismissed the appeal
of the petitioner.
5. The learned counsel appearing for the petitioner canvassed in
vehemence that while passing the order dated 09.05.2024, Respondent
No.3 has considered eight crimes registered against the Petitioner,
however, out of those crimes, two crimes are registered as Non Cognizable
offence (NC) and one is Chapter case. So also, in one crime, the petitioner
is convicted under the NDPS Act, however, the Petitioner filed an Appeal
against the conviction and sentence. On 03.03.2020, this Court passed an
order in Criminal Application No 192 of 2020 in Criminal Appeal No. 30
of 2020 and suspended the sentence. So also, all above crimes are
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registered with the Kranti Chowk Police Station, Chhatrapati
Sambhajinagar. Further, the Petitioner is falsely implicated in Special
Case No. 252 of 2023 i.e. Crime No. 79/2023 on disclosure statement of
the co-accused.
6. It is further canvass that, there is no any gang in operation of
which the Petitioner is a Member or the leader of said gang. The Petitioner
not been served with the show cause notice personally, therefore, the
petitioner could not submit the reply. Therefore, impugned order is
illegal and bad in law, hence, prayed to quash and set aside the same. In
support of this submission, the learned counsel for the petitioner relied on
the case of Lalookhan Haideralikhan Vs. M.M. Kamble, Special Executive
Magistrate, Byculla, 1996 Cri. L.J. 801.
7. Per contra, Shri Sunil Bapurao Mane, Senior Police Inspector,
Krantichowk Police Station, Aurangabad City/Chhatrapati Sambhajinagar
filed affidavit in reply and strongly resisted the petition.
8. The learned APP submitted that, the Respondent Police
authorities complied with due procedure of law and followed the
principles of natural justice. According to the learned APP, on 26.04.2024,
Respondent No.4 Police Inspector, Kranti Chowk Police Station issued a
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show-cause notice to the Petitioner, specifying about registration of
several crimes as described in the notice and called upon the petitioner as
to why he should not be externed from Chhatrapati Sambhajinagar
(Aurangabad) City as well as from entire District for the period of two
years. The said notice was duly served upon the Petitioner, however, the
Petitioner failed to submit his reply. The Petitioner was granted sufficient
opportunity of hearing and after considering the material available on
record as well as series of crimes registered against the Petitioner, the
Respondent No.3 passed the order dated 09.05.2024 and externed the
petitioner for the period of two years.
9. The learned APP further canvass that, the Petitioner had
questioned legality and validity of sad order before the appellate authority
i.e. the Divisional Commissioner, Chhatrapati Sambajinagar. On
23.07.2024, the appellate authority passed the impugned order and
affirmed the order of externment passed by Respondent No.3. On
23.07.2024, the Appellate Authority passed the impugned order and
dismissed the appeal after hearing both the sides. Therefore, impugned
order does not suffer from any illegality and no substantial grounds set
out to interfere with the findings recorded by both the authorities, hence,
prayed for dismissal of the petition.
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10. The learned APP further canvassed that the Respondent-
Authorities have passed the impugned orders on the administrative
grounds to maintain the peace in the society. Therefore, no interference is
called at the hands of this Court as the order of externment is an
administrative order. To buttress these submissions, the learned APP
placed reliance on Deepak Laxman Dongre V/s. State of Maharashtra and
Ors.; AIR 2022 SC 1241, wherein the Hon'ble Apex Court has laid down
the guidelines for deciding the Petitions challenging the order of
externment passed by the Competent Authority and held that for invoking
the said provisions there must be objective material on record on the basis
of which Competent Authority must record its subjective satisfaction. It is
further observed in cited case that, even if multiple offences have been
registered against an individual that by itself is not sufficient to pass an
order of externment. Moreover, there must be satisfying material on
record to indicate the reasonable apprehension of the witnesses of their
safety and for that reason they are not coming forward to give statement
against the externee.
11. Reverting back to the facts of the present case, it is pertinent
to note that the concerned Police authority has sought to invoke provisions
of Section 56 of the Maharashtra Police Act.
Section 56(1)(a),(b),(bb) and (c) read as under:
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56. Removal of persons about to commit offence. Whenever it shall
appear in Greater Bombay and other areas for which a Commissioner
has been appointed under Sec. 7 to the Commissioner and in other
area or areas to which State Government may, by notification in the
Official Gazette, extend the provisions of this section, to the District
Magistrate, or the Sub-Divisional Magistrate empowered by the State
Government in that behalf-
(a) that the movements or acts of any person are causing or
calculated to cause alarm, danger or harm to person or property, or
(b) that there are reasonable grounds for believing that such
person is engaged or is about to be engaged in the commission of an
offence involving force or violence or an offence punishable under
Chapters XII, XVI, or XVII of the Indian Penal Code, or in the
abetment of any such offence, and when in the opinion of such officer
witnesses are not willing to come forward to give evidence in public
against such person by reason of apprehension on their part as regards
the safety of their person or property;
(bb) that there are reasonable grounds for believing that such
person is acting or is about to act (1) in any manner prejudicial to the
maintenance of public order as defined in the Maharashtra Prevention
of Communal, Antisocial and other Dangerous Activities Act, 1980, or
(2) in any manner prejudicial to the maintenance of supplies of
commodities essential of the community as defined in the Explanation
to sub-section (1) of Section 3 of the Prevention of Blackmarketing
and Maintenance of Supplies of Essential Commodities Act, 1980, or
(c) that an outbreak of epidemic disease is likely to result from
the continued residence of an immigrant, the said officer may, by an
order in writing duly served on him or by beat of drum or other wise
as he thinks fit, direct such person or immigrant so to conduct himself
as shall seem necessary in order to prevent violence and alarm or such
prejudicial act, or the outbreak or spread of such disease or
[notwithstanding anything contained in this Act or any other law for
the time being in force, to remove himself outside such area or areas in
the State of Maharashtra (whether within the local limits of his
jurisdiction of the officer or not and whether contiguous or not), by
such route, and within such time as the officer may specify and not to
enter or return to the area or areas specified (hereinafter referred to
as " the specified area or area") from which he was directed to remove
himself.]
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12. On plain reading of section 56 it prima facie appears that, if
any person's movements or acts of any person are causing or calculated to
cause alarm, danger or harm to person or property and there are
reasonable grounds to believe that such person is engaged or is about to
engage in the commission of an offence involving force or violence or an
offence punishable under Chapters XII, XVI, or XVII of the Indian Penal
Code, or in the abetment of any such offence, and if the concerned officer
believe that act of such person is likely to disturb the peace in the society,
the District Magistrate or Sub Divisional Magistrate empowered to remove
such person from any specified area or areas for the specific period.
13. In the case in hand, it prima facie appears that, the Assistant
Commissioner of Police (City), Chhatrapati Sambhajinagar City submitted
a report after enquiry. During the course of enquiry it has been revealed
about registration of various crimes against the Petitioner, which read as
under:
Sr. Police Station Crime No./Sections Date of Present Status
No. Registration
1 Kranti Chowk Crime No.199/2023 Sections 29.06.2023 Pending in
294,323, 504, 506 of IPC Court
2 Kranti Chowk NC No.369/2024 Sections 03.05.2023 --
323, 504, 506, 34 IPC
3 Kranti Chowk NC No. 379/2024 Sections 05.05.2024 ---
504 and 506 IPC
4 Kranti Chowk Crime No.469/2021 Sections 08.06.2021 Pending in
326, 143, 147, 148, 149, 204, Court
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506 IPC
5 Kranti Chowk Crime No.79/2023 Sections 10.03.2023 Pending in
20(b),(ii), (A), 8(c), 29 of Court
NDPS Act r/w Section 34 IPC
6 Kranti Chowk Crime No.670 of 2021 03.12.2021 Pending in
Sections 20(b), 29 of NDPS Court
Act r/w Section 34 IPC
7 Kranti Chowk Crime No.677/2017 08.08.2017 Convicted by
Special Court
Section 20(b), of NDPS Act vide order dt.
11.10.2017 &
sentenced to
suffer RI for 5
years with fine
of Rs.20,000/-
8 Kranti Chowk Chapter Case No.22 of 2023, 22.06.2023
Section 110 of CRPC
14. Indeed, the Petitioner has produced a copy of the judgment
and order dated 21.12.2019 passed by the Special Judge under the NDPS
Act in Special Case No. 9 of 2017, whereby the present Petitioner came to
be sentenced for the offence punishable under Section 20 (b) (ii) (B) of
the NDPS Act for seizure of 2 kg. Ganja.
15. No doubt, the Petitioner has already challenged the order of
conviction in Criminal Appeal No.30 of 2020 before this Court. On
03.03.2020, the Co-ordinate Bench of this Court passed an order in
Criminal Application No. 192 of 2020 (In Criminal Appeal No. 30 of 2020)
and sentence against the present Petitioner came to be suspended during
the pendency of the appeal.
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16. Needless to say that, the trials are pending in respect of Crime
No 199 of 2023 for the offences punishable under Sections 294, 323,
504, 506 IPC registered on 29.06.2023, Crime No.469/2021 Sections 326,
143, 147, 148, 149, 204, 506 IPC Registered on 03.05.2023, Crime
No.79/2023 Sections 20(b),(ii), (A), 8(c), 29 of NDPS Act r/w Section 34
IPC registered on 10.03.2023 and Crime No.670 of 2021 Sections 20(b),
29 of NDPS Act r/w Section 34 IPC registered on 03.12.2024 .
17. On perusal of the order dated 09.05.2024 passed by
Respondent No.3 it reveals that, the Petitioner is habitual offender and
due to threats at the hands of the petitioner, witnesses are not giving
statements against the Petitioner. The order passed by Respondent No.3
itself speaks that, the Petitioner is indulged into various criminal activities
including singing obscene songs at the public place, causing grievous hurt
by using knife, issuance of life threats and criminal intimidation. Not
only this but the Petitioner is also engaged in dealing with illegal business
of narcotic substance for which he is already convicted and trial of another
similar nature of crime is pending against him.
18. In the case of N.C.T. of Delhi and Anr. V/s. Sanjeev alias
Bittoo; AIR 2005 SC 2080, the Hon'ble Apex Court has held that, the
Courts will be slow in interfering in the matters relating to administrative
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functions unless decision is tainted by any vulnerability like illegality,
irrationality and procedural impropriety. Keeping in mind the guidelines
laid down by the Hon'ble Apex Court, impugned orders are considered in
the facts and circumstances of the case.
19. In case of Balu @ Balasaheb Jagannath Jadhav Vs. Divisional
Commissioner, Aurangabad, 2017(10) LJSOFT 71 = 2017 ALL MR (Cri.)
3969, more than 30 offences were registered against the Petitioner
therein under the Maharashtra Prevention of Gambling Act and also under
the Indian Penal Code and therefore, this Court refused to interfere with
the findings recorded by the externing authority and appellate authority.
20. In the case of Rahmat Khan @ Rammu Bismillah V/s. Dy.
Commissioner of Police; (2021) 8 SCC 362, it is held that, Sections 56 to
59 of the Act are intended to prevent lawlessness and deal with class of
lawless elements in society who cannot be brought to book by established
methods of penal action, upon judicial trial. An externment order may
sometimes be necessary for maintenance of law and order. However, the
drastic action of externment should be only taken in exceptional cases to
maintain the law and order in a locality and or prevent the breach of
public tranquility and peace.
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21. In Gazi Saduddin V. State of Maharashtra; (2003) 7 SCC 330,
it has been observed that the satisfaction of the authority can be interfered
with if the satisfaction recorded is demonstrably perverse, based on no
evidence, misleading evidence or no reasonable person could have, on the
basis of the materials on record, been satisfied of the expedient necessity
of passing an order of externment.
22. In Lalookhan Haideralikhan, cited supra, it is held that mere
registration of cases for the alleged offences will not take the character of
the proof of fact and show cause notice based on accusation of charges not
yet proved would be wholly illegal and unsustainable. Therefore, notice
issued by the Special Executive Magistrate has been quashed.
23. However, in the case in hand, Crime Nos. 199 of 2023,
469/2021, 79/2023 and 670 of 2021 are registered against the present
petitioner for the offences punishable under the Indian Penal Code as well
as under the NDPS Act. The trials of said crimes are pending before the
Trial Court. It is a matter of record that, Two crimes are registered against
the petitioner are Non cognizable offences and one is chapter case.
Therefore, it appears that conduct and behaviour as well as activities of
the present petitioner are certainly harmful to the society. The Petitioner is
a habitual offender and his unlawful activities are certainly disturbing
peace in the society.
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24. Since, the activities of the petitioner as discussed above
certainly appears to be disturbing peace in the society and are causing or
calculated to cause alarm, danger or harm to person or property. In case in
hand, the petitioner was duly served with the show cause notice as to why
he should not be extenmenet from entire Chh. Sambhajinagar city and
District, due to his illegal and unlawful activities but the petitioner failed
to file the reply. The petitioner has has not denied about registration
various crimes against him as discussed above. The petitioner was
provided opportunity of hearing. Therefore, considering the material
produced on record it does not appear that the findings recorded by the
Respondent no. 2 as well the Respondent no. 3 are perverse, illegal.
25. On perusal of the order dated 09.05.2024 passed by the
Respondent no. 3, it prima facie appears that various crimes are registered
against the petitioner for the offences punishable under the Indian Penal
Code as well under the NDPS Act. The petitioner already convicted in
respect of Crime No.677/2017 for the offence punishable u/s 20(b), of
NDPS Act vide Judgment and Order dated 11.10.2017 and he sentenced
to suffer RI for 5 years with fine of Rs.20,000/-.
26. On face of record it appears that, the Respondent No.3 well
considered about registration of various crimes against the petitioner as
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well petitioner's behaviour in the society. Further, the Appellate Authority
passed the impugned order dated 23.07.2024, and considered all material
available on record and affirmed the externment order dated 09.05.2024,
which does not appear perverse, illegal or bad in law. However,
considering the nature of offences and unlawful activities of the petitioner,
externing the petitioner for the period of two years would be unjustifiable.
Therefore, considering the nature of offences, it would be just and proper
to extern the petitioner for a period of one year, hence, order dated
09.05.2024 passed by the Respondent no. 3 liable to be modified to that
extent. Accordingly, I proceed to pass the following order:
ORDER
(i) Criminal Writ Petition No. 1785 of 2024 is hereby partly allowed.
(ii) The order dated 09.05.2024 passed by Respondent No.3/Deputy
Commissioner of Police, Zone No.1, Chh. Sambhajinagar
( Aurangabad), which has been affirmed by the Divisional
Commissioner, Chh. Sambhajinagar vide order dated 23.07.2024, is
hereby modified to the extent of externment period of one year
from the date of initial order instead of two years.
(iii) Rule is partly made absolute in above terms.
( Y. G. KHOBRAGADE, J. )
JPChavan
