1 30wp868.2024.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL WRIT PETITION NO. 868 OF 20 24 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 -------------------------------------------------------------------------------------------- Mr. S.A. Mohta, counsel for petitioner Mr. V.A.Thakre, APP for respondent/state. -------------------------------------------------------------------------------------------- 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 rkn 2025:BHC-NAG:880 2 30wp868.2024.odt 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. rkn 3 30wp868.2024.odt 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. rkn 4 30wp868.2024.odt 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 rkn 5 30wp868.2024.odt 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 rkn 6 30wp868.2024.odt 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 rkn 7 30wp868.2024.odt 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 rkn 8 30wp868.2024.odt 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 rkn 9 30wp868.2024.odt 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. rkn 10 30wp868.2024.odt 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.] rkn