* 1 * W.P. 3121.2010 15.12.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3121 OF 2010 Chimya @ Suresh Shantaram Nikalaje ..... Petitioner V/S. The Principal Secretary of Home Department, Mantralaya, Mumbai & anr. ..... Respondents * * * * * * Mr. Rahul Kadam, Advocate for the petitioner. Mrs. M.M. Deshmukh, APP for the respondent-State. Coram : Smt. R.P. SondurBaldota, J. 15 December, 2010. P.C. : 1. Admit. By consent taken up for final hearing and disposed off at the stage of admission. 2. This petition challenges the order of externment dated 20th September, 2010 passed by respondent no.2-the Externing Authority * 2 * W.P. 3121.2010 15.12.2010 and the order dated 19th October, 2010 passed by the respondent no. 1, the appellate authority rejecting the appeal from the order of externment. 3. The petitioner claims to be working for a political party and a youth leader of that party. The name of the political party has not been disclosed in the petition. He alleges that certain persons from another group in his party are not happy with his progress and have falsely implicated him in various false cases. As a consequence of those cases, notice dated 4th August, 2010 under Section 59 of the Bombay Police Act, 1951 came to be issued to him to show cause as to why action under Section 56(1)(a) and (b) be not taken against him. Thereafter, on 20th September, 2010 respondent no.2 passed an order externing the petitioner from Pune city and Pune rural area for a period of 2 years. The petitioner challenged the order of externment by filing appeal before the appellate authority under the Bombay Police Act. The Appeal came to be dismissed by the order dated 19th October, 2010. 4. Before proceeding to consider the challenge to the externment order, it would be worthwhile to note the provision of Section 56(1) * 3 * W.P. 3121.2010 15.12.2010 of the Bombay Police Act, as also, the law laid down by the Apex Court on the subject. Section 56(1) of the Bombay Police Act, visualizes four different situations, in which the order of externment can be passed by the designated officer. The situations are covered by Clauses (a), (b), (bb) and (c) of Section 56(1). Each situation is distinct from another. Situation in Clause (a) relates to (i) the movements or acts of any person is causing or (ii) calculated to cause alarm danger or harm to (i) person or (ii) property. Situation in Clause (b) relates to there being reasonable grounds for believing that such person is (i) engaged or (ii) about to be engaged in the commission of offence involving (i) force or (ii) violence or (iii) an offence punishable under Chapter 12, 16 or 17 of Indian Penal Code or (iv) in the abatement 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 (i) person or (ii) property. Situation in Clause (bb) relates to there being reasonable grounds for believing that such person is (i) acting or (ii) is about to act, (i) in any manner prejudicial to maintenance of public order as defined * 4 * W.P. 3121.2010 15.12.2010 or (ii) in any manner prejudicial to the maintenance of supplies of essential commodities. The fourth situation in Clause (c) relates to likelihood of outbreak of epidemic disease from the continued residence of an immigrant. Plain reading of the provision shows that not only situation under each clause is distinct from the other, but there are several probabilities of different situations within each of the first three clauses. The provision obviously encompasses wide range of prejudicial activities to as to make the preventive action effective and purposeful. But the very reason reciprocally requires the externment authorities to be specific about the prejudicial act alleged against the person in respect of whom preventive action is to be taken. 5. The Apex Court while considering an externment order passed under Delhi Police Act in State of NCT of Delhi V/s. Sanjeev reported in 2005 SCC (Cri.) page 1025 observed that satisfaction of the externing authority is primarily subjective, somewhat similar to one required to be arrived at by the detaining authority under the preventive detention laws. In the same judgment, further it held that the order directing externment should show existence of some * 5 * W.P. 3121.2010 15.12.2010 material warranting an order of externment. While dealing with the question, mere repetition of the provision would not be sufficient. 6. In the case of Jagannath Mishra V/s. State of Orrisa reported in AIR 1966 Supreme Court page 1140 (V 58 C 220), the Apex Court was considering a detention order passed on six grounds which had been joined by the disjunctive or”. In respect thereof, the Apex “ Court observed as follows : There “ is another aspect of the order which leads to the same conclusion and unmistakably shows casualness in the makingof the order. Where a number of grounds are the basis of a detention order, we would expect the various grounds to be joined by the conjunctive "and" and the use of the disjunctive "or" in such a case makes no sense. In the present order however we find that the disjunctive "or" has been used, showing that the order is more or less a copy of S. 3(2)(15) without any application of the mind of the authority concerned to the grounds which apply in the present case.” 7. Use of the disjunctive was disapproved by the Apex Court in its subsequent decision also in Kishori Mohan V/s. State of West Bengal reported in AIR 1972 S.C. page 1749. The Apex Court * 6 * W.P. 3121.2010 15.12.2010 observed therein :- 8........The satisfaction of the District Magistrate was on the “ disjunctive and not conjunctive grounds, which means that he was not certain whether he had reached his subjective satisfaction as to the necessity of exercising his power of detentive on the ground of danger to the public order or danger to the security of the State. If he felt the necessity to detain the petitioner from the activities described by him in the grounds of detention on the ground that those activities affected or were likely to affect both the public order and the security of the State he would, no doubt, have used the conjunctive `and’ and not the disjunctive or’ in his order. But as ‘ the order stands it would appear that he was either not certain whether the alleged activities of the petitioner endanger public order or the security of the State, or he did not seriously apply his mind on the question whether the said alleged activities fell under on he head or the other and merely reproduced mechanically the language of Section 3(1)(a)(ii).” 8. Perusal of the impugned order shows that respondent no.2- the externing authority is not certain about the prejudicial act on * 7 * W.P. 3121.2010 15.12.2010 the part of the petitioner forming basis of the order of externment. There are several acts alleged against the petitioner which have been joined by the disjunctive "or" indicating that respondent no.2 is not certain about the acts imputed to the petitioner. The learned APP draws attention of the Court to a solitary statement in the order that the petitioner has in the local area created a terror by use of force. This solitary statement in the order cannot be read independent of the other statements indicating subjective satisfaction of the externing authority. 9. The learned APP also, submits that, it is not necessary that every act alleged against the petitioner in the show cause notice, is required to be taken into consideration and formed basis of the externment order. Undoubtedly, every act alleged in the show cause notice need not form the basis of the externment order. However, whatever has been the basis of the externment order has to spell out subjective satisfaction of the externing authority, which is found missing from the present order. In the circumstances, the writ petition is allowed. The order of externment dated 20th September, 2010 passed by respondent no.2-the Externing Authority being * 8 * W.P. 3121.2010 15.12.2010 Externment order No. 37 of 2010 and the order dated 19th October, 2010 passed by respondent no.1-the appellate authority (Coram: Medha Gadgil) in Appeal 185 of 2010 are quashed and set aside. [SMT. R.P. SONDURBALDOTA, J] * 9 * W.P. 3121.2010 15.12.2010 1.