- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1319 OF 2008 WRIT PETITION NO.1319 OF 2008 WRIT PETITION NO.1319 OF 2008 Wasim Akram Mansoor Sayed Ahmed @ Yaya Mohammed ...Petitioner vs. The State of Maharashtra and others ...Respondents Mr.Jude Fernandes for the petitioner Ms P.P.Shinde A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : AUGUST 30,2008 : AUGUST 30,2008 : AUGUST 30,2008 P.C.: P.C.: P.C.: 1. Heard Advocate for the petitioner and the learned A.P.P. for the Respondents. The challenge in this petition under Article 227 of the Constitution of India is to the order passed by the Deputy Commissioner of Police (second respondent herein) in exercise of power under section 56 (1) (a) r/w section 59 of the Bombay Police Act,1951 (hereinafter referred to as the said Act). By the said order, the petitioner was ordered to be externed from the area of falling within the jurisdiction of the Commissionerate of Police, Greater Bombay and District of Navi Mumbai, Thane as well as Raigad for a period of one year. 2. The challenge to the order of externment is on various grounds. The first challenge is that even going by the allegations made against the petitioner which form part of the show cause notice, though the allegations of prejudicial - 2 - activities of the petitioner are confined to the jurisdiction of the V.P.Road Police Station and Dr.D.B.Marg Police Station in Bombay, the order of externment relates to New Bombay, Thane and Raigad districts. The second contention is that before the Enquiry Officer appointed by the second respondent, the petitioner had examined four defence witnesses and the order of externment shows that the evidence of the said witnesses has not been considered. Learned A.P.P supported the impugned order by contending that the order of the second respondent is based on his subjective satisfaction which cannot be interfered with in a writ jurisdiction. The learned A.P.P invited my attention to the alleged prejudicial activities of the petitioner and justified the order passed by the second respondent. 3. Perusal of the order of the Appellate Authority shows that the second respondent had appointed an Enquiry Officer for giving hearing to the petitioner. Before the Enquiry officer, the petitioner examined four witnesses. The Appellate Authority has referred to the evidence of the said four witnesses. The Appellate Authority observed that even the second respondent gave an opportunity to the Petitioner to adduce the evidence and the said opportunity was not availed of. 4. It is true that the order of externment passed under - 3 - section 56 r/w section 59 of the said Act of 1951 is not an order passed in a judicial or a quasi judicial proceeding. Under section 59(1) of the said Act of 1951, the petitioner was entitled to adduce evidence by examining the witnesses and in fact as found by the Appellate Authority, four witness were examined by the petitioner. In the order of externment there is not even a reference to the deposition of the witnesses examined by the petitioner. The deposition of the said witnesses was certainly relevant material which ought to have been considered by the second respondent before recording his subjective satisfaction. Non consideration of the evidence of the said witnesses vitiates the subjective satisfaction of the second respondent. The very object of sub section 1 of section 59 of providing an opportunity to the proposed externee to show the cause has been defeated by non consideration of said relevant material in the form of evidence of the witnesses examined by the petitioner. Therefore, the order of externment is illegal. The petition must succeed only on this ground and it is not necessary to consider the other grounds. 5. Hence, I pass the following order : i) The impugned order of externment dated 24th March 2008 passed by the second respondent is quashed and set aside. Rule is made absolute accordingly. - 4 - JUDGE JUDGE JUDGE