Bombay High Court
Shaikh Salim Shaikh Gaffur vs Divisional Comissiner Amravati Dist. ... on 10 January, 2025
2025:BHC-NAG:880
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO. 868 OF 2024
PETITIONER : Shaikh Salim Shaikh Gaffur,
aged about 45 years, occ- labour, R/o
Prabhag no.4, Ami, Tq. Arni. Distt.
Yavatmal.
VERSUS
RESPONDENT 1. Divisional Commissioner,
Amravati Division, Amravati
2. Sub-Divisional, Magistrate, Yavatmal
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Mr. S.A. Mohta, counsel for petitioner
Mr. V.A.Thakre, APP for respondent/state.
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CORAM : URMILA JOSHI-PHALKE, J.
DATE : 10/01/2025
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard finally
by consent of learned counsel appearing for the parties.
2. By this petition, the petitioner has challenged the
externment proceeding order dated 25/09/2024 passed by the
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Divisional Commissioner, Amravati, in appeal bearing No.
25/2024 MPA 1951/Sec.60/Externment/JB-7/2024/Yavatmal
arising out of order dated 19/04/2024 passed by the Sub-
Divisional Magistrate, Yavatmal, Section 56 of the Maharashtra
Police Act, 1951, externing the petitioner from Yavatmal district
for a period of one year under Section 56 1(b) of the Maharashtra
Police Act on the ground of violation of the principle of natural
justice and exceeding the jurisdiction as vested under the
provision of Section 56 of the Maharashtra Police Act, 1951. It is
the contention of the petitioner that the said action affected the
fundamental right of the petitioner to move freely throughout the
territory of India as guaranteed under Article 19(1)(d) of the
Constitution of India.
3. The proposal to extern the petitioner was initiated at
the instance of Police Inspector of Arni Police Station, Yavatmal,
under Section 56 of the Bombay Police Act, 1951. Accordingly, a
notice dated 24/6/2022 came to be issued under Section 56 (1)
(a)(b) of the Maharashtra Police Act, 1951, and an opportunity
was given to the petitioner to reply the same before the Assistant
Police Inspector, Sub-Division Office, Darwha District, Yavatmal.
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After considering the record, the seven offences are registered
against the present petitioner, and the preventive action is also
taken on 31/08/2023. The concerned authority, as well as the
Divisional Commissioner, confirmed the externment order passed
by the Authority.
4. It is submitted by learned counsel for the petitioner
that, in fact, the petitioner was falsely implicated in the alleged
crime. In one crime, bearing crime No. 416/2023, for the offences
punishable under Section 307 read with 34 of the Indian Penal
Code (IPC), Sections 3(1)(r), 3(2), and 3(v) of the Scheduled
Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989,
were quashed by this Court in Criminal Application No. 1432 of
2023 by order dated 04/01/2024.
5. It is further submitted that as far as the other crimes
are concerned, it was in respect of the illegal selling of contraband
like gutkha and scented tobacco, and those offences are not
covered under Chapters XII, XVI, and XVII of the Indian Penal
Code, and it is also pointed out that the name of the present
applicant is being implicated on the basis of the statement of the
co-accused, and nothing was seized from him or from his custody.
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6. It is submitted that the reply filed by the present
petitioner before the authority as well as before the Divisional
Commissioner was not considered, and without considering the
contention of the present petitioner, the order of externment was
passed, which is against the principle of natural justice.
7. Learned APP strongly opposed the said petition by
filing the reply, and it is submitted that the proposal was sent to
the Sub Divisional Police Officer, Darwha on 12/02/2024 by
respondent No. 2 for inquiry under Section 59 of the
Maharashtra Police Act, 1951. After receiving the inquiry report,
the report was submitted on 14/03/2024. After going through the
report, Sub-Divisional Police Officer, Darwha, notice was issued to
the petitioner on 29/02/2024. The petitioner appeared before the
authority and filed his reply. It is submitted that after perusal of
the report, it is cleared that petitioner was involved in the illegal
activities which creates fear in the mind of public, and the
petitioner used to give threat to the public in the vicinity which
shows the criminal nature of the petitioner. Due to this fear, no
one is coming forward to lodge a complaint against the petitioner.
The petitioner has been arrested by the police and released on
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bail, but there is no improvement in his conduct, and therefore the
said action was taken. The ground raised by the petitioner is that
his reply is not considered.
8. It is submitted by learned APP that the order passed
by the authority specifically states that his reply is considered by
the Authority as well as the Appellate Authority, and therefore, no
ground is made out to set aside the externment proceedings.
9. After hearing both sides and on perusal of the record,
it reveals that a proposal was sent to extern the present petitioner
from the Yavatmal District for two years. Accordingly, the notice
was issued under Section 56 (1)(a)(b) of the Maharashtra Police
Act, 1951 to the petitioner, which was replied to by the petitioner.
The order passed by the authority shows that in all seven offences
are registered against the present petitioner. Out of which, the
crime No. 416/2023, wherein the FIR is already quashed, in view
of the compromise. Out of the other six offences, crime Nos.
492/2022, 382/2023, 132/2023, and 488/2021 are registered
under Sections 328, 188, and 34; under Sections 26(2)(i), 27(2)
(e), 30(2)(a), and 59 of the Foods, Safety, and Standards Act,
2006 ; and under Sections 188, 272, 273, 328 of the IPC. Only
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one offence is registered under the provision of the Prevention of
Cruelty to Animals Act, 1960 (PETA).
10 On perusal of the order passed by the authority, it
shows that the present petitioner is involved in transporting the
contraband, like gutkha, scented tobacco, and pan masala. It is
alleged that the present petitioner is threatening to the members
of the society, as well as people who are scared to make any
complaint against him. As far as this observation is concerned, no
specific instances or the names of the witnesses are mentioned in
the order. The general allegations appear to be leveled that such
type of complaint is received against the present petitioner. There
is no reference regarding how many complaints are received from
the public as to the conduct of the present petitioner. As far as the
order of the externment, by its very nature, is extraordinary. It has
the effect of post distressment from the home and surroundings.
Often it affects the livelihood of the person in order to be externed.
Thus there must exist justifiable ground to sustain the order of
externment. The order of externment, therefore, must be strictly
within the bounds of statutory provisions. Under clause (a) of Sub-
Section 1 of Section 56, the externing authority must be satisfied
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on the basis of the objective material that the movements or act of
the person to be externed are causing or calculated to cause alarm,
danger, or harm to a person or property. Under clause-B there must
an objective material on the strength of which the externing
authority must record subjective satisfaction that there are
reasonable grounds for believing that the externee is engaged or
about to be engaged till the commission of offences involving force
or violence. Mere registration of number of offences by itself has
not sustained an externment under Section 56 (1)(b) of the Act.
The offences must either involve elements of force or violence or
fall under chapters XII, XVI, and XVII of the Indian Penal Code. In
addition, the externing authority must record satisfaction that the
witnesses are not willing to come forward to lead evidence in
public against the externee by reason of apprehension on their part
as regards the safety of their person or property.
11. To sustain an action of externment under Sub Clause-
B, the offences the externee has engaged in must be under one of
the chapters enumerated therein, and the acts or conduct of the
externee must be such that the witnesses are terrified and
dissuaded from giving evidence in public hearing due to fear for
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the safety of their person or property.
12. In the light of the above-mentioned requirements of
Section 56(1)(a) and (b), the aforementioned challenges deserve
to be appreciated. First, the consideration of the offences which
do not fall within the ambit of Clause-B of sub-Section1. Perusal
of the chart of the offences indicates that all the crimes are
registered against the Food Safety and Standards Act, 2006, which
is not covered under Chapters XII, XVI, and XVII of the Indian
Penal Code. Only one crime is registered under Section 307, which
comes under Chapter XVI, but it is already compounded, and the
FIR is already quashed.
13. The situation which thus obtained is that the externee
authority had floated the pendency of six cases which did not
satisfy the requirement of the class of cases stipulated by clause-b
and also considered the crimes in which already the FIR is
quashed. It is pertinent to note that crimes which are still under
investigation or wherein the investigations are completed are not
covered under Chapter-XII, XVI and XVII. Moreover, the
considerable period is already elapsed from the registration of the
aforesaid crime, still the initiation of the action for externment. A
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considerable period elapsed from the registration of the aforesaid
crimes till the initiation of the action for externment. The purpose
of externment is not punitive. Externment is with a view to disable
a person by moving him away from surroundings which prove
favourable for the commission of the offences and thereby disarm
the influence in the said area. Thus, there ought to be a lively the
acts of the externee and the action of the externment. Stale cases
cannot be used to support the externment order. This also bears
upon the subjective satisfaction arrived at by the externing
authority.
14. If the older passed by the externee authority as well
as the appellate authority is considered, there is no subjective
satisfaction recorded by both the authorities. Moreover, the reply
filed by the present petitioner appears to have not been
considered by the authority. Learned counsel for the petitioner
placed reliance on the decision of this Court in Criminal Writ
Petition No.497/2022 decided on 07/09/2022, wherein this
aspect was considered, and this court has quashed the
proceedings of the externment as the reply has not been
considered.
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15. In view of the above facts and circumstances, the
petitioner has made out a case in his favour. Accordingly, I
proceed to pass the following order.
a] The writ petition is allowed.
b] The impugned order dated 25/09/2024 and
19/04/2024 passed under Section 54 of the
Maharashtra Police Act, 1955 by the
respondents is quashed and set aside.
16. Rule is made absolute in above terms. No order as to
costs.
[URMILA JOSHI-PHALKE, J.]
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Signed by: Mr. R.K. NANDURKAR
Designation: PA To Honourable Judge
Date: 29/01/2025 17:57:44
