1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 415 OF 2010 Damu Shrirangha Yamgar ..........Petitioner/Applicant V/S. State of Maharashtra (Through Deputy Commissioner, Zone-II, Panvel, Navi Mumbai ..........Respondent ----------- Mr. Manish Rai i/by. Mr. Y.P. Yagnik, adv.for the petitioner. Mr. P.A. Pol, PP for State-respondent. CORAM :- S.C. DHARMADHIKARI, J. DATED :- 8th FEBRUARY, 2010. P.C. :- 1. Heard learned counsel for the parties. 2. The order of externment is challenged in this writ petition. 3. The petitioner has been externed by the order dated 26/08/2009 pursuant to a show cause notice dated 21/7/2009. The show cause notice is issued under Section 56(1)(a)(b) of the Bombay 2 Police Act, 1951. In the show cause notice, it is alleged that the petitioner is involved in three criminal cases which have been registered at Uran Police Station and the status of which is shown as subjudice . Further, against him preventive action has been “ ” taken and a bond under Section 107 CrPC has been issued. 4. The petitioner replied to the allegations and pointed out that he is a residing at the address at which the show cause notice has been issued for the past 18 years. No criminal case has been registered against him under any penal law in any police station in the year 2009. Further, he challenged the proceedings as being vitiated by malafides. The petitioner submits that the petitioner was living at the address mentioned in the Title with his mother, wife and one daughter of 3 years old, father and two brothers. The petitioner is working as a rickshaw driver. The petitioner is the only bread earner for his family. The petitioner s daughter is just 3 years ’ old and requires love and care of her father. 5. In the order of the Externing Authority what has been referred to is the report of the Assistant Commissioner of Police, Sheva, Navi Mumbai who is stated to have issued the show cause notice, called for the reply and production of documents. He is stated to have considered the material produced by the present petitioner and 3 forwarded his report. It is based upon this report that the Deputy Commissioner of Police, Zone-II, Panvel, has passed the externment order. 6. This order has been upheld in appeal by the Principal Secretary (Home), Government of Maharashtra. 7. When the attention of the learned APP was invited to the fact that the Externing Authority has failed to apply his mind and record the satisfaction necessary in law, he fairly conceded that the order is based not on the independent satisfaction of the Externing Authority but on the contents of a report submitted to him. There is nothing in the provision which would justify such a course of action. I have noticed repeatedly that there is complete non- application of mind and flagrant breach of principles of natural justice in these proceedings. I was assured that the corrective steps are being taken at the end of the Government. This is one more matter where I am constrained to quash and set aside the orders of the Externing Authority and the Appellate Authority. The orders under challenge are suffering from a patent non-application of mind, so also, by a serious lacuna and defect, namely, it is not the authority issuing the notice who has heard and decided the matter, but some other officer has passed the order. 4 8. In the result, the Writ Petition succeeds. The orders under challenge are set aside. However, this does not prevent the Authorities from issuing fresh notice and extern the petitioner a;nd all such proceedings shall remain unaffected by the outcome of the present petition. [S.C. DHARMADHIKARI, J]