CR-WP-2056-10.doc JDK IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2056 OF 2010 Sahadev L.Dhavare .. Petitioner Vs Dy.Commissioner, Circle-1, Pune City Pune and Ors. .. Respondents ---- Mr. Prashant M.Patil Adv. i/b Mr.K.S.Patil Adv. for the Petitioner Mrs. P.P.Bhosale, APP for the State ----- CORAM : SMT. V.K. TAHILRAMANI, J DATE OF RESERVING ORDER : SEPTEMBER 08, 2010 DATE OF PRONOUNCING ORDER : 28 SEPTEMBER, 2010 ORAL ORDER: 1. Heard learned advocate for the petitioner and learned APP for the State. By consent, rule is made returnable forthwith and matter is finally heard. 2. The petitioner has challenged the order of externment dated 30th April, 2010 passed against him under Section 1 CR-WP-2056-10.doc 57(b) of the Bombay Police Act, 1951 (hereinafter referred to as the 'said Act'). The externment order was passed against the petitioner by respondent no. 1 - Deputy Commissioner of Police, Circle-1, Pune. The said order has been confirmed by the Appellate Authority by order dated 28th June, 2010 which order is also challenged. 3. The learned advocate for the petitioner has challenged the order of the appellate authority on the ground that though the externment order mentions only 3 CRs of Khadak Police Station and one chapter proceedings, the appellate authority has taken into consideration 7 CRs of Khadak Police Station. Though the externment authority has taken into consideration only CR Nos. 208 of 2008, 134 of 2008 and 3250 of 2005, in addition to these cases, the appellate authority has relied upon four other CRs in order to confirm the order of externment. Moreover, he submitted that the appellate authority has relied on CR No. 208 of 2003 wherein the petitioner has been acquitted by the learned J.M.F.C. by order dated 19th May, 2010. He submitted that the fact that the petitioner was acquitted in the said case, has not been considered by the appellate authority which is clear from a reading of the order dated 28th June, 2010. On going through the order dated 28th June, 2010, it is seen that the fact that the externee was acquitted in CR No.208 of 2008 has not been taken into 2 CR-WP-2056-10.doc consideration by the appellate authority. Moreover, the appellate authority in addition to the cases relied upon by the externing authority, has relied upon four other cases in order to confirm the externment order, which obviously could not have been done by the appellate authority. Hence, order dated 28th July, 2010 cannot be sustained. 4. The second ground raised by the learned advocate for the petitioner is that there is inordinate delay in passing the order of externment. The show cause notice was issued on 27th October, 2008 and the order of externment was passed on 30th May, 2010 i.e after a period of almost 1 year and 7 months from the date on which the show cause notice was issued. It is further pointed out out that the last prejudicial incident mentioned in the show cause notice took place on 18th August, 2008 and the externment order was passed on 30th April 2010 i.e after almost 1 year and 9 months. Hence, the Externment Order suffers from the vice of delay. 5. The learned APP has opposed the petition by pointing out that the delay in passing the order has been satisfactorily explained in affidavit dated 16th August, 2010. The learned APP submitted that as the delay has been properly explained, on that ground, the order cannot be set aside. 3 CR-WP-2056-10.doc 6. As far as delay is concerned, in the said affidavit, it is stated that the show cause notice was issued on 27th October, 2010, thereafter, the petitioner remained present on 10th December, 2008 and requested for time to file his say with his lawyer. On that day, his statement was recorded and in view of his application for time, the matter was adjourned to 15th December, 2008. The petitioner filed Vakalatnama of lawyer on 15th December, 2008. Thereafter, the petitioner remained present on 26th December, 2008 and he gave his reply to the said show cause notice and stated that he will bring four witnesses on 29th December, 2008 and 31st December, 2008. On 29th December, 2008 the petitioner produced only two witnesses namely (1) Ramesh Kale and (2) Alpesh Rathod. From 29th December, 2008 and thereafter, the petitioner neither remained present nor informed anything, hence, inquiries were completed on 10th February,2009 and the externment order came to be passed on 30th April, 2010. 7. From 29th December, 2008 till 30th April, 2010 i.e when the externment order was passed, the explanation furnished by the respondent is that the petitioner was called for recording his say on 28th August, 2009 and 30th April, 2010. No further explanation is furnished for the period from 10th February, 2009 till 30th April, 2010. Thus, it is seen that from 10th February, 2009 till 30th 4 CR-WP-2056-10.doc April, 2010 i.e for a period of about one year and two and half months, no explanation has been furnished except that the petitioner was called to record his statement. 8. The proceedings by way of an externment order are essentially preventive by nature and the very essence of such proceedings is that they must be expeditiously completed. If the object of externing a particular person is in order to remove him from the scene of his obnoxious activities which are having a detrimental effect in that area, the entire objective gets frustrated if the proceedings are allowed to drag on for an abnormally long period and it cannot then be said, that there exists a live link between the charges that are leveled and the preventive action that is contemplated. The Externing Officer was not at all helpless if the petitioner kept delaying the matter, as alleged. It is not at all necessary to wait for proposed externee for an inordinately long period of time to show up to record his statement or otherwise. The petitioner was only entitled to a reasonable opportunity of showing cause and if this facility was being misused by him, it was the duty of the concerned authority to have enforced due expediency instead of allowing matters to drag on endlessly. 9. It needs to be reiterated in these cases that the law visualizes a situation where an offender has become so 5 CR-WP-2056-10.doc persistently troublesome or dangerous to society around him that his physical presence in that area has to be done away with in the public interest. Delay in implementation, therefore, runs counter to and frustrates the objective behind these provisions. More importantly, a reviewing authority such as a Court, is unable in cases of gross delay, to ascertain as to whether the situation complained about is still in existence at the latter point of time when the order was passed. The passing of an adverse order even if earlier justified may no longer be valid. Alternatively, in the case of hardened and habitual offenders, with whom the police are most concerned, it is imperative that their activities are curbed at the earliest point of time. Dragging on externment proceedings for months and years will subject society to the torture from the offenders right through that long period and seriously undermine public confidence in the administration. 10. The delay in passing order of externment by itself is not fatal. However, there has to be some satisfactory explanation for the delay. The delay should not result in snapping live link between the prejudicial activities and passing of an externment order on the basis of such prejudicial activities. After February, 2009, there was no need to wait for a period of 1 year and two months for the 6 CR-WP-2056-10.doc proposed externee to come. In view of the inordinate time factor, it will have to be seen whether the live link is snapped. The last offence registered against the petitioner is of August, 2008. There is nothing on record to show that after August 2008, the petitioner continued with his prejudical activities till April, 2010. The Externing authority has also not stated on affidavit that he was subjectively satisfied that despite this lapse of time, the live link between the last prejudicial activity and the passing of externment order on 30th April, 2010 was in existence and despite this lapse of time, it was still necessary to pass an order of Externment. In such case, it is obvious that the delay resulted in snapping the live link between the preventive action and the allegations against the petitioner. 11.In my view, considering the facts and circumstances of the case, the Externment order is vitiated on the ground of delay. Hence,the petition must succeed and the Externment Order is quashed. [SMT. V.K. TAHILRAMANI, J.] 7