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2011 DIGILAW 1531 (BOM)

Balu @ Dhananjay v. State of Maharashtra

2011-12-15

U.D.SALVI

body2011
Judgment : 1. Heard. Perused. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by mutual consent. 3. Worth of the judgment and order dated 18-08-2011, passed by the Principal Secretary, Home Department, Mantralaya, Mumbai-32 in Appeal No. EXT-2011/133/VS-3(A), confirming the externment order dated 03-03-2011 passed by the Sub Divisional Magistate, Selu, District Parbhani, is in question in the present petition. 4. A show-cause notice dated 17-04-2010 seeking explanation regarding the allegations made in the said notice was issued as per the provisions of Section 59(1) of the Bombay Police Act, 1951 (for short ‘said Act, 1951’). This notice was replied by the petitioner with his reply dated 15-01-2010. The petitioner was heard, and thereafter, the order of externment dated 03-03-2011 was passed by the Sub Divisional Magistrate, Selu, District Parbhani. 5. An appeal under Section 60 of the said Act, 1951 against the said order of externment was preferred before the Principal Secretary, Home Department, Mantralaya, Mumbai-32. Following the hearing afforded to the petitioner, the Principal Secretary, Home Department, Mantralaya, Mumbai32 rejected the appeal on 18-08-2011. It is this order of rejecting appeal is the subject matter of the present petition. The Principal Secretary, Home Department, Mantralaya, Mumbai-32, considered the rival submissions particularly the submission made on behalf of the Sub Divisional Magistrate, Selu, District Parbhani, with reference to four offences, particulars of which are tabulated here-in-under. 6. The learned Advocate for the petitioner submitted that criminal cases at serial Nos. 3 & 4 shown in the aforesaid table constitute an extraneous material as the same did not figure in the show-cause notice, and as such the same cannot be the basis either for passing externment order or confirming it. For this purpose he relied on the judgment delivered by the Division Bench of this Court in Ganu’sCase (GanuV. M.V. Chitale and another; reported in 1988 Cri.L.J. 1547 ) 7. In Ganu’s case (supra), the Division Bench of this Court opined that the impugned order of externment was clearly illegal as the first respondent i.e. the authority considered and relied upon the extraneous material which was not referred to in show-cause notice, and as such impugned order of externment suffer from vice of procedural illegality which cannot be sustained. 8. Learned APP for the State conceded to this factual aspect and the proposition of law flowing out of it. 9. 8. Learned APP for the State conceded to this factual aspect and the proposition of law flowing out of it. 9. As regards the other two criminal cases, the learned Advocate for the petitioner pointed out that in both the cases the petitioner was acquitted and this fact reflects in the submission made on behalf of the petitioner before the appellate authority that the appellant was wrongly involved in the criminal cases. He further pointed out from the reply dated 15-01-2010 to the show-cause notice that the fact of the acquittal in Crime No. 59/2008 i.e. the criminal case at serial No. 2 in the aforesaid table was brought to the notice to the Sub Divisional Police Officer, Selu, and it was incumbent upon the appellate authority to have considered these acquittals and then passed appropriate order. He pointed out that the impugned order passed by the appellate authority makes no utterance about the acquittal of the petitioner in the said criminal cases and thus proceeds to pass the order confirming the externment mechanically. 10. Perusal of the impugned order dated 18-08-2011, reveals that the appellate authority did take note of the said criminal cases but did not consider the fact of the acquittal of the petitioner in the said cases. It could have been possible for the appellate authority, and was incumbent, to have considered the acquittal and reasoned as to why those acquittals do not lessen the gravity of the allegations made in the show-cause notice regarding the spreading of the terror in the locality. A reference to Abdul Kadir Razzaque Beg’s case [Abdul Kadir Razzque Beg V. Sub-Divisional Magistrate, Nashik and others; reported in 1999(1) Mh.L.J. 474] cited by the petitioner further reinforces the view that such order passed by the appellate authority exhibits non-application of mind, and it deserves to be quashed on the same ground. Hence order. ORDER i] Judgment and order dated 18-08-2011 passed by the Principal Secretary, Home Department, Mantralaya, Mumbai-32 in Appeal No. EXT-2011/133/VS-3(A) is quashed and set aside Rule made absolute in terms of above order. Criminal Writ Petition No. 889/2011 stands disposed off accordingly.