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गुरुवार, 15 सितंबर 2022

ORDER OF EXTERNMENT QUASHED AND SET ASIDE BY BOMBAY HIGH COURT

ORDER OF EXTERNMENT QUASHED AND SET ASIDE BY BOMBAY HIGH COURT


By Zafar Khan

Order of externment passed br Deputy Commissioner of Police, Zone 2, Nagpur City, Dist Nagpur  externing Mohd Wasim Mohd Kalim from Nagpur for a period of 1.5 years was quashed and set aside by Justice Vinay Joshi of Bombay High Court.Mohd Wasim Mohd Kalim had received show cause notice dated 30-07-20211 issued by Assistant Commissioner of Police, Sadar Division, Nagpur and by aforesaid notice Petitioner was called upon in accordance with the provisions of the show cause as to why order of externment should not be passed under section 56 (1) (a)(b) of Bombay Police Act and why he should not be externed from Nagpur District.

The notice was replied and Respondent no. 1, Deputy Commissioner of Police, Zone 2, Nagpur City, Dist Nagpur by his order dated 2-11-2021, considered the record and passed an order whereby directing that the Wasim to be externed from Nagpur for a period of 1.5 years under the provisions of Section 56 (1) (a) (b)  of the said Act.Therefore Wasim through his counsel Adv Mir Nagman Ali had challenged externment order before Bombay High Court. The challenge was raised on the ground that the action is based on irrelevant material, stale offences are considered by the Authorities, no satisfaction has been recorded that witnesses are not willing to come forward and without recording subjective satisfaction, the order has been passed externing the petitioner for a period of 1 ½ years.

The State had resisted the petition by filing affidavit-reply. It was stated that the petitioner was consistently engaged in antisocial activities namely the offence under of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act). The authorities have recorded subjective satisfaction and thus, the impugned order is well sustainable in the eyes of law.


While allowing the petiiton, Court observed as under-5.“The order of externment has been based on total 7 offences as mentioned in the order itself. Undeniably, besides offences at Sr.No.2, bearing Crime No.537/2015, rest of the offences are punishable under the provisions of the NDPS Act. The authorities have taken action under sub-clause [a] and sub-clause [b] of Section 56[1] of the Police Act. Particularly, the action is under sub-clause [b], since it is based on various offences registered against the petitioner. In order to sustain the action under clause [b], the externee must be engaged in commission of offence involving force or violence or the offences which are falling in Chapters XII, XVI and XVII of the Indian Penal Code. Undoubtedly, the offence at Sr.Nos. 1,3 to 7 neither relates to force or violence, nor falls within Chapters XII, XVI and XVII of the Indian Penal Code, and therefore, the said material could not have been taken into account by the Authority. The only relevant material remaining is about offence registered at Sr.No.2, which is of the year 2015, whilst the impugned show cause notice has been issued on 22.07.2021. Thus, apparently the action is based on stale offences, meaning thereby there is no live link in between the relevant offences and the impugned action.6. In order to attract action under sub-clause [b] to Section 56[1] of the Police Act, it is a further requirement that the Authority must form an opinion that the witnesses are not willing to come forward to give evidence against the externee. The impugned order no where indicates subjective satisfaction in that regard. This Court in reported case of Ajay @ Golu Shyam Solani .vrs. State of Maharashtra and another – 2019 All MR (Cri) 702, has expressed that in absence of reference in the impugned order regarding subjective satisfaction that the witnesses are not willing to come forward, is against the basic ingredients of Section 56[1][b] of the Police Act. On said count also the order is unsustainable in the eyes of law.


8.  In substance, the impugned order is based on irrelevant material. There is no live link and stale offences have been considered, and thus, the order would not sustain in the eyes of law. In view of that, the Writ Petition is allowed and disposed of. The impugned order of externment dated 02.11.2021 passed by respondent no.1 Deputy Commissioner of Police, Zone-2, Nagpur City, Nagpur is hereby quashed and set aside”