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2002 DIGILAW 752 (BOM)

Deepak Gendalal Gupta v. State of Maharashtra & others

2002-08-01

R.S.MOHITE

body2002
JUDGMENT - R.S. MOHITE, J.:---Heard parties. 2. By this petition, petitioner seeks to quash and set aside the order of externment passed by respondent No. 1, dated 2-6-2001, and the appellate order passed by the respondent No. 3, dismissing the petitioner's appeal against the aforesaid order of externment, which appellate order is passed on 26-7-2001. 3. The show-cause notice under section 59 of the Bombay Police Act was issued under the signature of the Assistant Police Commissioner, Rajapeth Division, Amravati on 23-2-2001. Subsequently, notices of hearing were given and in response to one such notice of hearing dated 9-5-2001, on the same day i.e. 9-5-2001 the petitioner filed a brief reply, in which there was a reference to an earlier written statement, which unfortunately is not annexed by the petitioner to this petition and is therefore, not available for the perusal of the Court. Ultimately, on 2-6-2001, an externment order came to be passed by the Deputy Commissioner of Police (Zonal), Amravati, externing the petitioner from Amravati for a period of two years. The petitioner preferred appeal on 29-6-2001, but the said appeal came to be rejected on 26-7-2001. 4. There are two grounds raised by the petitioner. The first ground is that the show-cause notice was issued by one authority i.e. the Assistant Police Commissioner and the actual externment order was passed by another authority i.e. the Deputy Commissioner of Police. According to the petitioner, this would vitiate the externment order. He has placed reliance upon a judgment delivered by a Single Judge of the Gujarat High Court reported in 1999 Cri.L.J. 2401 (Hussainmiya v. State of Gujarat)1. In that case, the externment order was not passed by the authority who issued show-cause notice and so also the externee was not given an opportunity of hearing. In this background, it was held that the order of externment was illegal and violative of the principles of natural justice. The aforesaid case is of no avail to the petitioner, because neither in the appeal nor in the present petition he has raised the ground sought to be canvassed by him. It is not his case that he was not heard or that no opportunity of hearing was given to him. In the judgment cited by the petitioner, a ground that the officer issuing the show-cause notice and the officer passing the final externment order was specifically raised. It is not his case that he was not heard or that no opportunity of hearing was given to him. In the judgment cited by the petitioner, a ground that the officer issuing the show-cause notice and the officer passing the final externment order was specifically raised. The Court has observed that the State had not brought material to show that the officer passing the order was a successor or that the officer issuing the show-cause notice was not available. Since this ground was not raised by the petitioner either in the appeal or in the petition, the State was not given opportunity for producing such material and, therefore, this point cannot come to the help of the petitioner without any pleadings in this regard. 5. The second ground is that there is non-application of mind because the impugned order indicates that the petitioner has been acquitted in two cases and that in the table of cases one case is repeated. A glance at the table, which forms a part of the impugned order, indicates that the same is merely a table of the cases which were filed against the petitioner. Wherever the petitioner is acquitted, it is clearly and fairly mentioned that he is acquitted. The externment authority has thus not misled himself. The mere mentioning of one case on two occasions by itself cannot vitiate the subject of satisfaction and the same appears to be merely a bona fide mistake in the preparation of the table. There is no other point. In the circumstances, there is no substance in the petition. Therefore, petition is dismissed. Rule discharged. Petition dismissed. -----