((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.978 OF 2009 Prakash Sitaram Raut Petitioner versus The Assistant Police Commissioner, Bhandup Division, Mumbai & others Respondents G.H.Keluskar for petitioner. Miss A.T.Javeri, APP for State. CORAM : A.S.OKA, J. DATE : 07th May 2009 JUDGEMENT : 1. The submissions of the learned counsel for the parties were heard earlier. The challenge in this writ petition is to the order of externment passed against the petitioner in exercise of powers under section 56(1)(A)(B) of the Bombay Police Act, 1951. The Deputy Commissioner of Police (the second respondent herein) passed an order directing that the petitioner should be externed from the districts of Mumbai, Mumbai Suburban, Thane and Raigad. There was an appeal preferred by the petitioner against the said order. By the impugned order passed by the Appellate ((-2-)) Authority, the order of externment has been modified and the same has been confined to the districts of Mumbai, Mumbai Suburban and Thane. 2. The submission of the learned counsel for the petitioner is that the impugned order passed by the second respondent was excessive and therefore after finding that the same is excessive the appellate authority ought to have set aside the said order instead of modifying the same. He submitted that even while extending the impugned order to the districts of Mumbai, Mumbai Suburban and Raigad, no reasons have been assigned by the appellate authority especially when all the activities alleged against the petitioner are confined to the areas falling in various police stations in the Mumbai Suburban district. 3. The learned APP submitted that the appellate authority has a power to modify the order of externment and accordingly the order of externment has been modified by the bringing it in conformity with the law laid down by the Apex Court in the case of Pandharinath Shridhar Rangnekar Vs. Deputy Commissioner of Police ([1973]1-SCC-372). She submitted that ((-3-)) considering the close connectivity and availability of easy modes of transport between Mumbai and Thane districts, the appellate authority was justified in passing an order relating to the said two districts. She submitted that after the appellate authority having rectified the defect in the order, in writ jurisdiction, no interference is called for as this Court is concerned only with the validity and legality of the decision making process. 4. I have carefully considered the submissions. As stated earlier, initially the order of externment passed by the second respondent was relating to Districts of Mumbai, Mumbai Suburban, Thane and Raigad. In view of the law laid down by this Court in the case of Ganpat @ Ganesh Tanaji Katare Vs. Assistant Commissioner of Police & others (2005-ALL M.R.[Cri]-2717), the said order was completely illegal being excessive as the order could not have been extended to Raigad district. 5. An order of externment affects the freedom of an individual which is guaranteed by the Constitution of India. While testing an order ((-4-)) of externment, the parameters are not different from the parameters which govern the writ jurisdiction of this Court while dealing with the challenge to an order of preventive detention. If it is shown that there is a non application of mind on the part of the authority who has passed an order of externment or order of preventive detention, the order itself gets vitiated. The reason is that if there is non application of mind, it affects the subjective satisfaction of the authority concerned. The said subjective satisfaction itself is vitiated by non application of mind. It must be borne in mind that the order of externment is preventive in nature which is passed without adjudicating upon the guilt of a person. Therefore, once the authority dealing with the appeal against an order of externment finds that the order is vitiated by non application of mind, the appellate authority cannot modify the order which is rendered illegal by virtue of non application of mind by the externing authority. 6. In the present case, the very fact that the order required modification by confining the order to the districts of Mumbai, Mumbai ((-5-)) Suburban and Thane districts shows that the appellate authority was satisfied that there was non application of mind on the part of the externing authority. After finding that the order of externment is illegal, the said order ought to have been set aside by the appellate authority and the illegality which is the result of non application of mind could not have been cured by modifying the said order in this fashion. 7. Hence, petition succeeds. Hence, I pass following order :- (a) Rule is made absolute in terms of prayer clause (b). (A.S.OKA, J.)