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2009 DIGILAW 704 (BOM)

Rajkishore Shivshankar Tiwari v. Makrand Ranade

2009-06-17

A.S.OKA

body2009
JUDGMENT:- The submissions of the learned counsel for the parties were heard on earlier date. The challenge in this petition is to the order of externment passed under section 56(1)(A)(B) of the Bombay Police Act, 19 (hereinafter referred to as the said Act). A she cause notice was issued on 26th July, 2008 the Assistant Commissioner of Police to the petitioner. The order of externment was pass by the Deputy Commissioner of police on 23rd September, 2008. By the order of externme the petitioner has been ordered to be extern for a period of one year from the area falli within the jurisdiction of Commissionerate Police of Greater Bombay and the rev en district of Thane for a period of one year. An appeal preferred by the petitioner against t said order has been dismissed. 2. The learned counsel for the petitioner has made two submissions. The first submission is as regards the breach principles of natural justice. His submission is that in the show cause notice reliance '" placed on the in camera statement of witness, 'B' without disclosing the area and local where the incident described by the witness, took place and therefore, the petitioner v deprived of the opportunity to give effect reply to the show cause notice. He placed reliance on the decision of the Division Bet of this Court in case of Abdul Kadir Razzaque Beg Vs. Sub-Divisional Magistrate, Nasik and others [1991 Mh.L.J. 474]. He also placed reliance on the decision of a learned Single Judge of this Court in case of Iqbal Hussain Abid Hussain Qureshi' The State of Maharashtra and others [(1999) Vo1.101(1) Born.L.R. 631]. He has also placed reliance on the unreported decision of this court dated 11th October, 2000 delivered in Criminal Writ Petition No.1414 of 2000 in support of the aforesaid contention. 3. The second contention raised the petitioner is that the proceedings passing an order of externment were initiated by issuing show cause notice, when petitioner was in judicial custody at Thane Central Prison and the show cause notice' served to him in the prison. He stated that when enquiry was conducted by the Assistant Commissioner of Police, the petitioner was admittedly brought before him from the Central Prison. He stated that when enquiry was conducted by the Assistant Commissioner of Police, the petitioner was admittedly brought before him from the Central Prison. He stated that when the Deputy Commissioner of Police heard the matter, the petitioner was brought before him from jail and the order was passed on 23rd September, 1998 i.e. On the very next day after the release of the petitioner on bail. He submitted that the action of externment is a preventive action and no reasons have been assigned in the order as to what was the necessity of taking preventive action when the petitioner was already in custody. He submitted that non-consideration of this aspect shows non application of mind and subjective satisfaction of the authority has been vitiated. He submitted that when this court considers the challenge to the order of externment, the tests applied by this court in a case where the challenge is to the order of preventive detention will have to be applied. He placed reliance on the decision of the Apex Court in case of State of NCT of Delhi and another Vs. Sanjeev @ Bittoo [2005 S.C.C. (Cri) 1025]. He also placed reliance on the decision of Apex Court in case of Dharmendra Suganchand Chelawa Vs. Suganchand Kanhaiyyalal Chelawat [ (1990)1 S.C.C 746 ]. Lastly, he placed reliance on the decision of Division Bench of this court in case of Bhaurao s/o. Punjabrao Gawande Vs. State of Maharashtra and others [2007 ALL MR (Cri) 152]. Lastly, he pointed out that the affidavit-in-reply has been filed by a police officer. He submitted that in this petition where the challenge is to the subjective satisfaction recorded by the authority which has passed an order of externment, reply could have been filed only by the authority and not by a Police Inspector. 4. The learned A.P.P. submitted that sufficient particulars of the place of incidents have been given in the show cause notice by referring to the locality of the incidents mentioned in the in camera statements of the witnesses. He submitted that the particulars in the show cause notice were sufficient for the petitioner to properly file a reply and to meet what was stated in the show cause notice. He submitted that the particulars in the show cause notice were sufficient for the petitioner to properly file a reply and to meet what was stated in the show cause notice. The learned A.P.P submitted that the date on which the order of externment was passed, the petitioner was admittedly not in custody and therefore, as on that date, the order of preventive nature could have been certainly passed by the authority. He submitted that this court cannot go into sufficiency of the material against the petitioner and in fact there is a sufficient material placed on record of the authority justifying the order of externment. 5. I have carefully considered the submissions. For dealing with the first contention it will be necessary to refer to the show cause notice. In the show cause notice, reliance has been placed on in-camera statement of witness 'B'. In his in-camera statement dated 17th July, 2008 the witness stated that he was running the shop in the area in which he is residing and therefore, he knows the persons staying in the locality. He stated that in the area in which he was residing is Rathodi gaon. The petitioner is known as anti social element against whom offences have been registered and he moves in his area along with his associates and always carries dangerous weapons with him. He described the activities of the petitioner. Thereafter, a specific incident narrated by the witness ; B' has been noted. According to the witness in the third week of February, 2008 at about 6.00 p.m., he was busy in his business. At that time, the petitioner along with his two associates came to his grocery shop and demanded certain grocery items. When the witness supplied grocery items and issued a bill, incident complained of had taken place. The witness stated that he was running the shop in the area in which he is residing. Later on, he described that he was residing in the area of Rathodi village where petitioner is staying. In the description of incident of February ,2008, there is a reference to his shop. It is set out in the show cause notice that the said shop is in Rathodi gaon area. It is set out that the incident complained of had taken place at 6.00 p.m in the third week of February, 2008. In the description of incident of February ,2008, there is a reference to his shop. It is set out in the show cause notice that the said shop is in Rathodi gaon area. It is set out that the incident complained of had taken place at 6.00 p.m in the third week of February, 2008. Reading the show cause notice as a whole, it is obvious that it refers to the locality of Rathodi gaon where witness 'B' was residing and was carrying on his business. In the circumstances, the first submission of the learned counsel for the petitioner cannot be accepted and the same will have to be rejected. 6. That takes me to the second submission of the learned counsel for the petitioner. The show cause notice and the order of externment record that in terms of section 59 of the said Act, the Assistant Commissioner of Police was appointed by the Deputy Commissioner of Police to hold an enquiry. The enquiry was fixed by the Assistant Commissioner of Police on 31st July, 2008. The file of the proceedings was produced before this court. I have perused the file. In the file, there is a noting made by the Assistant Commissioner of Police that the show cause notice was served to the petitioner on 29th July, 2008 in the Thane Central Jail and with the permission of the concerned Sessions Court, the petitioner was produced before the him. It is recorded that when the petitioner was questioned, he stated that he is not desirous of taking legal help and was not desirous of adducing any evidence. It appears from the file that thereafter a report of inquiry was submitted by the Assistant Commissioner of Police to the Deputy Commissioner of Police on 4th September, 2008. The Assistant Commissioner of Police recommended that an order of externment be passed. The Deputy Commissioner of Police directed that the notice be issued to the petitioner calling upon him to remain personally present or through his Advocate and to show cause as to why an order of externment should not be passed. The Roznama records that on 11th September, 2008, the petitioner was produced from Thane Central Prison. The Roznama records that when questioned by the Deputy Commissioner of Police, the petitioner replied that he was not desirous of engaging a lawyer and he was not desirous of producing any evidence. The Roznama records that on 11th September, 2008, the petitioner was produced from Thane Central Prison. The Roznama records that when questioned by the Deputy Commissioner of Police, the petitioner replied that he was not desirous of engaging a lawyer and he was not desirous of producing any evidence. It is recorded that he stated that he may be given one chance to improve. The Roznama records that on that day the case was closed for orders. Thus, the when enquiry commenced before the Assistant Commissioner of Police, the petitioner was in judicial custody. The petitioner continued to be in judicial custody and when hearing was concluded before the Deputy Commissioner of Police on 11th September, 2008 the petitioner was still in judicial custody and was detained in Thane Central Prison. Perusal of the order of externment shows that the Deputy Commissioner of Police has not considered the fact that the proceedings were initiated when the petitioner was in judicial custody and when the proceedings were closed for orders, the petitioner was in judicial custody. As stated earlier, the proceedings were closed for orders on 11th September, 2008 and the impugned order has been passed on 23rd September, 2008. In the impugned order, it is stated that the petitioner was arrested in connection with the offence registered at Malwani Police Station and thereafter, he has been enlarged on bail. 7. At this stage. it will be necessary to refer to the decision of the Apex Court in case of State of NCT of Delhi and another (supra). This was a case where the matter before the Apex Court arose out of challenge to the order of externment passed under section 51 of Delhi Police Act, 1978. The Apex Court considered the principles governing order of extemment. It will be necessary to refer to what is held in paragraph 14 of the said decision which reads thus: "14. As regards the period, it was held that it is primarily for the externing authority to decide how best the order can be made effective so as to subserve its real purpose. It will be necessary to refer to what is held in paragraph 14 of the said decision which reads thus: "14. As regards the period, it was held that it is primarily for the externing authority to decide how best the order can be made effective so as to subserve its real purpose. How long within the statutory limit of two years fixed by section 58, the order shall operate and to what territories within the statutory limitations of Section 58 it should extend are matters which must depend upon its decision on the nature of the data which the authority is able to collect in the externment proceedings. No general formulation can be made that the order of externment must always be restricted to the area of illegal activities of the externee. There can be no doubt that the executive order has also to show when questioned that there was application of mind. It is the existence of material and not the sufficiency of material which can be questioned as the satisfaction is primarily subjective somewhat similar to one required to be arrived at by the detaining authority under the preventive detention laws. The scope of judicial review of administrative orders is rather limited. The consideration is limited to the legality of decision making process and not legality of the order per se. Mere possibility of another view cannot be ground for interference." (Emphasis added) 8. Thus. the satisfaction to be recorded by the authority passing the externment order is akin to the satisfaction required to be recorded by the detaining authority under the law relating to preventive detention. 9. It will be also necessary to refer to what is held in paragraph 16 of the said decision. The Apex Court observed that if the power of passing an order of externment has been exercised on non-consideration of relevant factors or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. The Apex Court in paragraph 24 held that: "24. It is true that some material must exist but what is required is not an elaborate decision akin to a judgment. On the contrary the order directing externment should show existence of some material warranting an order of externment. While dealing with the question mere repetition of the provision would not be sufficient. It is true that some material must exist but what is required is not an elaborate decision akin to a judgment. On the contrary the order directing externment should show existence of some material warranting an order of externment. While dealing with the question mere repetition of the provision would not be sufficient. Reference is to be made to some material on record and it that is done the requirements of law are met. As noted above, it is not the sufficiency of material but the existence of material which is sine qua non." 10. It will be also necessary to refer to the decision of Apex Court in case of Dharmendra Suganchand Chelawat(supra). This was a case where Apex Court was considering the challenge to the order of preventive detention. The impugned detention order was passed against the detenu who was already in jail. It will be necessary to refer to paragraph 21 of the Judgment which reads thus: "21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future. and (b) taking into account the nature of the antecedent activities of the detenu. it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities." (Emphasis added) 11. It is to be borne in mind that the action of extemment is an action which is preventive in nature. The order of extemment affects the liberty of an individual. The preventive action is essentially required to be taken to ensure that the prejudicial activities of a the person in a particular area are prevented. It is to be borne in mind that the action of extemment is an action which is preventive in nature. The order of extemment affects the liberty of an individual. The preventive action is essentially required to be taken to ensure that the prejudicial activities of a the person in a particular area are prevented. If the person against whom order of extemment is proposed to be passed is in judicial custody or police custody, surely the order of extemment cannot be passed against him unless material is produced on record to show that the release of the person was imminent and that he is likely to resume his prejudicial activities after he is released. 12. It cannot be laid down as a proposition of law that the proceedings for passing an order of externment cannot be initiated against a person who is already in judicial custody, but in such a case, there has to be an application of mind by the exteming authority to the fact that the person against whom the action of externment is sought to be taken is in custody. The order must reflect the satisfaction of the externing authority that notwithstanding the fact that the person is in custody, there was necessity of taking preventive action against him as his release from the custody was imminent and after his release he is likely to resume prejudicial activities. 13. As pointed out earlier, in this case from the date on which the enquiry commenced till it was concluded, the petitioner was admittedly in judicial custody. The order was passed on 23rd September, 2008. A day earlier, the petitioner was enlargtd on bail. When enquiry was concluded on 11th September, 2008 the authority could not have been aware that the petitioner was enlarged on bail. There is not even a reference in the impugned order of extenment to the fact that when the proceedings were initiated and when the enquiry was concluded on 11th September, 2008, the petitioner was in judicial custody. There is nothing in the order even to infer that the Deputy Commissioner of Police applied his mind to this important aspect and that he was satisfied that the release of the petitioner was imminent and that he will again engage in prejudicial activities for which there was necessity of taking preventive action against him. There is nothing in the order even to infer that the Deputy Commissioner of Police applied his mind to this important aspect and that he was satisfied that the release of the petitioner was imminent and that he will again engage in prejudicial activities for which there was necessity of taking preventive action against him. The fact that the petitioner was in custody was certainly a relevant aspect which was required to be considered when the preventive action was sought to be taken against the petitioner. As stated earlier, the preventive action of order of externment has a result of affecting liberty of an individual. In this case there was non a application of mind as regards the fact that the petitioner was in custody. Therefore, as held by the Apex Court the exercise of power will have to be regarded as manifestly erroneous and therefore, non application of mind will vitiate the exercise of power. Thus, the challenge to the order of externment will have to be upheld on the second ground canvassed by the learned counsel for the petitioner. 14. At this stage, it must be noted that in the petition there are specific averments as regards non-application of mind by the externing authority. The specific allegations are found in the grounds set out in paragraph 5 of the petition. When such allegations are made and when this court issued rule on the petition, normally it is expected that the concerned authority who has passed the order will file an affidavit in reply. In the present case, the affidavit has been filed by the Assistant Police Inspector. Filing of such affidavit will not advance the cause of the State and this aspect needs to be noted. 15. In the circumstances, petition must succeed. Rule is made absolute in terms of prayer clause (b). Criminal Application No.5 of 2009 is disposed of. Petition allowed.