drp {1} CWP No.25/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.25 OF 2011 Keshav Rama Muddewad PETITIONER Age-29 years, Occ-Business & Social Work R/o Wadar Lane, Bhokar, Tq-Bhokar, Dist-Nanded VERSUS 1. The State of Maharashtra RESPONDENTS Through Principal Secretary, Home Department, Mantralaya, Mumbai 2. The Sub Divisional Magistrate, S.D.M. Office Bhokar, Tq.Bhokar, Dist-Nanded 3. The Sub Divisional Police Officer, Bhokar, Tq-Bhokar, Dist-Nanded ....... Mr.S.C.Bhosale, Advocate for the petitioner Mr.G.R.Ingole, APP for respondents State ....... [CORAM : A.V.POTDAR, J.] DATE: 26 th April 2011 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. By consent of the parties, this petition is heard finally at the stage of admission. drp {2} CWP No.25/2011 2. By this petition, under Article 227 of the Constitution of India, the petitioner has prayed for quashing of the externment order dated 06.09.2010 passed by Sub Divisional Magistrate, Bhokar and confirmed vide order dated 4.12.2010 passed by Principal Secretary, Appeal & Order. Vide the impugned order, the petitioner is externed from Nanded district for a period of two years. 3. Heard learned counsel for the petitioner followed by learned APP. 4. It is submitted by learned counsel for the petitioner that the petitioner is resident of Bhokar and he was served with show cause notice on 04.06.2010 by SDPO Nanded thereby giving reference of 15 offences registered against the petitioner. It is further urged that out of the 15 offences, referred in the said show cause notice, 10 offence are under the Indian Penal Code where as 5 are the chapter cases, which are registered in Bhokar police station only. It is also urged that thereafter second show cause notice dated 10.06.2010 was issued to the petitioner. The petitioner has replied the said show cause notices on 14.06.2010 and 26.08.2010. The petitioner had contended in the reply that the petitioner is acquitted in 5 IPC cases and had also submitted the certified copies of the orders passed therein. In respect of other offences, it was submitted by the petitioner in the reply to the show cause notice, that except Crime No.55/2010, mentioned in the drp {3} CWP No.25/2011 show cause notice, all offences are of the year 2006. The petitioner had also contended that the show cause notice was silent on the point that the witnesses are not coming forward due to the fear of the petitioner. According to learned counsel for the petitioner, after receipt of the reply, the SDM, Bhokar, had passed the externment order on 06.09.2010 thereby externing the petitioner from entire Nanded district for a period of two years. Being aggrieved by the said order the petitioner had preferred statutory appeal u/s 60 of the Bombay Police Act before the State Government, however the said appeal also came to be rejected vide order dated 04.12.2010. Hence, the petitioner is before this Court. 5. During the course of submissions, learned counsel for the petitioner asserted that the show cause notices are conspicuously silent on the point that witnesses are not coming forward due to the fear of the petitioner and even the impugned orders do not refer this as one of the grounds to pass the said orders, which is erroneous finding. Secondly, it is urged that though all the offences registered against the petitioner are registered in one police station only i.e. in Bhokar police station, yet the impugned externment order is passed externing the petitioner from entire Nanded district, which is excessive. Thirdly, it is urged regarding proximity of the offences. According to learned counsel for the petitioner, other than the offence at Crime No. 55/2010, all other offences are registered against the petitioner prior to 2006 and the show cause notice is served on the petitioner drp {4} CWP No.25/2011 in the month of June 2010 and hence it is prayed to allow the petition and quash and set aside the impugned orders. 6. Per contra, learned APP supported the impugned orders and prayed for dismissal of the petition. 7. Considering the point in issue, it may be useful to refer the observations of this Court in the matter of “Haresh @ Kali Mohandas V/s Sub-Divisional Magistrate, Anjar” 2004 ALL MR (Cri) Journal 9 and “Smt.Gulshan Arif Tase V/s Sub Divisional Magistrate, Thane” 2010 ALL MR (Cri) 3209. This Court, in the said judgments, by referring the judgment in the matter of “Iqbal Hussain Abid Hussain Qureshi V/s State of Maharashtra” in Criminal Writ Petition No.1450/1998 and the judgment of the Division Bench in the matter of “Yashwant Damodar Patil V/s Hemant Karkare” 1989 Mh.L.J. 1111, has observed that it is a settled legal position in law that if an order of externment is passed, externing the petitioner from five districts and no reference is made to the prejudicial activity committed by him in those districts in the show cause notice, the said order is excessive and on that ground alone the order of externment is liable to be quashed. In the instant case also identical situation arise. Here also the show cause notice is silent as to the statements of witnesses recorded in camera indicate that they could not come forward due to the fear of the petitioner. drp {5} CWP No.25/2011 8. Further, it may also be useful to refer the observations of this Court in the matter of “Imran Suleman Shaikh V/s State of Maharashtra” 2010 ALL MR (Cri) 2490, wherein, this Court on the basis of the observations in the judgment in case of “Dhondiram Appa Hatkar V/s State of Maharashtra” 1987 (2) Bom.C.R. 656, has observed that - “Therefore, it will be clear that the mere fact that the person has been convicted is not enough but the competent authority empowered to extern the person must have reason to believe that such person is likely again to engage himself in the commission of an offence similar to the one for which he was convicted. It is also clear that if notice under section 59 in this behalf is to be worthwhile, then at least, general indication in the notice has to be given regarding the material in possession of the Externing Authority upon which his satisfaction is based. It may be that the fact that the person is persistently engaged in certain kind of offences or has been previously convicted itself may be the material or the ground which may enable the authority to come to the conclusion that such person is likely to engage himself again in the commission of similar offences, obviously depending upon the propensity, gravity and magnitude of the crime and activities involved. It will all depend on the fact of each case, and no general rule can be laid down in that behalf. Firstly, we find that the first conviction is on 5th July 1980, thereafter, till 9th October, 1984 there is not a single conviction. The last conviction was on 18th May 1985 and the notice under Section 59 was issued on 15th October 1986. In these circumstances, it is difficult to hold, that on the basis of these convictions alone, drp {6} CWP No.25/2011 which were not proximate, any reasonable man could have come to the conclusion that the petitioner is again likely to engaged himself in the commission of similar offences. Secondly, the notice under Section 59 does not indicate at all any other material which could give the authority a cause to believe that the person is again likely to engage himself in similar offences. Even the final order of externment does not disclose, even remotely, any such material..” 9. In the instant case also the criminal activities of the petitioner dates back about 5 years prior to the issuance of show cause notice and no offence is registered in the near proximity. Considering these circumstances, the externment order passed on the basis of the offence which date 5 years back requires to be quashed and set aside. 10. Further reliance is placed by the learned counsel for the petitioner on the observations of the Division Bench in the matter of “Umar Mohammed Malbari V/s K.P.Gaikwad” 1988 (2) Bom.C.R. 724. It is urged that all the offences, which are registered against the petitioner are in Bhokar police station, Tq- Bhokar only whereas the entire Nanded district consists of in all 16 talukas. There are no criminal antecedents of the petitioner in entire Nanded district except Bhokar Taluka. It is observed in para 7 of the judgment in case of “Umar Mohd” that externment out of limitation which are at far distance will undoubtedly be an excessive order and an excessive order has necessarily to be struck down because no greater restraint on personal liberty can be drp {7} CWP No.25/2011 permitted than is reasonable in the circumstances of the case. 11. In the premise, it has to be observed that though along with the reply to the show cause notice the petitioner has annexed certified copies of the orders of acquittal passed by competent courts, yet no reference of the said orders finds place in the impugned orders. In the premise, on the face of it, it is apparent that the orders impugned in the present petition are passed without application of mind. If the orders of externment are passed without application of mind, the same deserve to be quashed and set aside. 12. As learned counsel for the petitioner has successfully demonstrated that the statements of the witnesses, recorded in camera, are not referred in the show cause notice and the externment order is excessive so also there is no proximity of the offences registered till the date of show cause notice, then the orders impugned are bad in law and require to be quashed and set aside. 13. In the result, the petition succeeds. Both the impugned orders are quashed and set aside. Rule is made absolute on the terms indicated above with no order as to costs. [A.V.POTDAR, J.] drp/A11/cwp25-11