1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2070 OF 2009 Sanjay Genu Sathe ..Petitioner versus Secretary of the Home Department, Mantralaya, Mumbai & Anr. ..Respondents Mr. R. S. Kadam for Petitioner. Ms. M. H. Mhatre – APP for State. CORAM : S. A. BOBDE, J. DATED : 10TH SEPTEMBER, 2009. P.C. : 1. The petitioner has challenged the order externing him from Pune City and Pune Rural under the provisions of The Bombay Police Act, 1951. 2. The main contention of Mr. Kadam, the learned counsel for the petitioner is that though the notice was issued to the petitioner to show cause why he should not be externed with reference to Section 56(b) of the Act. the externment order is passed in respect of ground referable to Section 56(a) of the Act, as a result the petitioner had no opportunity to show cause in respect of the ground under Section 56(a) and the order is therefore 2 vitiated on that count. Section 56 of the Act reads as follows: “56. Removal of persons about to commit offence.- [(1) whereever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate empowered by the State Government in that behalf (a) that the movements or acts of any person are causing or calculated to cause alarm, danager or harm to person or property or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code (XLV of 1860), or in the abetment of any such offence and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or (bb) that there are reasonable grounds the for believing that such person is acting or is about to act (1) in any manner prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, Anti-social and other Dangerous Activities Act, 1980 (Mah. VII of 3 1981), or (2) in any manner prejudicial to the maintenance of supplies of commodities essential to the community as defined in the Explanation to sub-section (1) of Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by any order in writing duly served on him or by beat of drum or otherwise as he thinks fit direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm [or such prejudicial act,] or the outbreak or spread of such diesease or [notwithstanding anything contained in this Act or any other law for the time being in force, to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the jurisdiction of the officer or not and whether contiguous or not), by such route, and within such time, as the officer may specify and not to enter or return to the area or areas specified (hereianfter referred to as “the specified area or areas”) from which he was directed to remove himself]. (2) An officer directing any person under sub-section (1) to remove himself from any specified area or areas in the State may further direct that such person that during the period the order made against him is in force, as and when he resides in any other areas in the State, he shall 4 report his place of residence to the officer in-charge of the nearest police station once in every month, even if there be no change in his address. The said officer may also direct that, during the said period, as and when he goes away from the State, he shall, within ten days from the date of his departure from the State send a report in writing to the said officer, either by post or otherwise, of the date of his departure, and as and when he comes back to the State he shall, within ten days, from the date of his arrival in the State, report the date of his arrival to the officer in-charge of the police station nearest to the place where he may be staying.]” It is clear and not disputed on behalf of the respondents that the grounds in clauses (a) and (b) are distant and separate. 3. On a plain reading of the notice dated 5th December 2008 issued to the petitioner it is clear that the same was in respect of action under Section 56(b) of the Act. The notice was issued under Section 59 of the Act. The substance of the notice was that several cases were pending against the petitioner; that 3 witnesses had deposed before the Externing Authority in respect of the petitioner’s act, such as extortion etc. and that because of his activities the witnesses are not coming forward to complain against him and there is danger to their life and property. By the notice the petitioner is called upon to show cause as to why he should not be externed for the 5 reasons stated therein. The petitioner thereafter filed a reply to the show cause notice. The Externing Authority passed an order substantially on the ground that there is alarm, danger and harm to the people residing in the area and created feeling of insecurity in the area from the year 2002 till today and that the witnesses are not coming forward to depose against him. 4. The appeal filed by the petitioner before the Principal Secretary has also been dismissed. It may be noted that the appellate authority has observed that the detention order is passed under Section 56(1) (a) and (b) of the Act. 5. From a reading of the show cause notice and the externment order, the submission of the learned counsel for the petitioner is borne out and must be accepted. Clearly the show cause notice is under Section 56(1)(b) of the Act, whereas the externment order contains the grounds referable to clause 56(1)(a). Since there was no show cause in respect of the ground referable to Section 56 (1)(a), it must be held that the order is vitiated interalia for violation of Section 59 of the Act. The grounds under Section 56 (1) (a) and 56(1) (b) of the Act are distinct in their content and impact. Therefore the show cause notice must distinctly state the grounds on which the detaining authority proposes to extern a citizen and call upon him to show cause accordingly. Issuing show cause notice under one clause of the section and 6 passing an order under another clause or generally with another clause, results in a clear miscarriage of justice and violation of law. In the circumstances, the impugned orders are hereby set aside. Petition is made absolute in terms of prayer clause (a). (S. A. BOBDE, J.)