9. cr wp 2131-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2131 OF 2010 Aslam Noor Khan .. Petitioner Vs The Asst. Commissioner of Police & Ors .. Respondents Mr. Vikas Shivarkar for the Petitioner Mr. J.P. Kharge, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 7th SEPTEMBER, 2010. P.C.: 1. Heard learned advocate for the petitioner and learned APP for the State. 2. The petitioner has challenged the order of externment dated 12th May, 2010 passed against him under Section 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. 2 - Deputy Commissioner of Police. The said order has been confirmed in the appeal by the Appellate Authority by order dated 28th June, 2010 which order has also been challenged. 3. The learned advocate for the petitioner has challenged the order of externment on two grounds. The first ground is that the externment order is based on erroneous facts. The 1 9. cr wp 2131-10.doc learned advocate for the petitioner pointed out that the order of externment is based on three C.Rs. of Khadak Police Station i.e 23/94, 103/04 and 239/08. He submitted that the petitioner has been acquitted in C.R. No. 23/94 on 31.08.1996 which fact has not been taken into consideration by the Externing Authority. The show cause notice shows that the said offence is still pending whereas the petitioner has been acquitted in the said case way back in the year 1996. The fact that the petitioner was acquitted in C.R. No. 23/94 was not brought to the notice of Externing Authority and hence, it has not been taken into consideration by the Externing Authority. It was for the proposing police station to bring it to the notice of the Externing Authority that the petitioner was acquitted in the said case. However, it has not been done and hence, the Externing Authority has proceeded on the basis that the said C.R. is still pending trial. Thus, in such case, it can be said that the externment order is based on incorrect and erroneous facts. 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 9th April, 2009 and the order of externment was passed on 12th May, 2010 i.e after a period of 13 months from the date on which the show cause notice was issued. It is 2 9. cr wp 2131-10.doc further pointed out out that the last prejudicial incident mentioned in the show cause notice took place in December 2008 and the externment order was passed on 12th May 2010 i.e after almost 1 and 1/2 year. 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 by Respondent no. 1 in his affidavit dated 11th August, 2010. The learned APP submitted that as the delay has been properly explained, on that ground, the order cannot be set aside. 6. On the last date i.e on 30th August 2010, the counsel appearing for both the sides were put to notice that this petition will be heard on the next date finally at the admission stage. The order dated 30th August 2010, clearly mentions that by way of last chance, matter is being adjourned to 7th September, 2010. Accordingly, this petition is fixed for final hearing today. Time was also given to the learned APP to file additional affidavit, if so desired to explain delay. However, despite opportunity being given, no additional affidavit has been filed by the learned APP. 7. As far as delay is concerned, in the said affidavit, it is stated that the show cause notice was issued on 16th April 2010, thereafter, the petitioner remained present before 3 9. cr wp 2131-10.doc the Externing Authority on 20th April, 2009. The petitioner filed Vakalatnama of lawyer and requested for time for giving reply to the said Show Cause Notice. On that day, his bond was obtained, and in view of his application for time, the matter was adjourned to 27th April, 2009. Thereafter, the petitioner was present before the Externing Authority on 27th April 2009 and he requested for another date for giving reply to the said show cause notice, hence, the matter was adjourned to 3rd May, 2009. The petitioner remained present on 3rd May, 2009 and gave his reply to the said Show Cause Notice along with list of 9 witnesses. The petitioner preferred application for adjournment for examination of witnesses and he was granted time till 12th May, 2009. On 12th May 2009, the petitioner produced only two witnesses namely (1) Dinesh S. Durande and (2) Mahendra M. Sundecha. From 13th September 2009 and thereafter, the petitioner neither remained present before the Externing Authority nor informed anything to him, hence, inquiries were completed. Thereafter, externment order came to be passed. 8. From 13th September 2009 till 12th May 2010 i.e when the externment order was passed, no explanation has been furnished by the respondent. So also no explanation is furnished for the period from 13th May 2009 till 13th 4 9. cr wp 2131-10.doc September 2009. Thus, it is seen that from 13th May 2009 till 12th May 2010 i.e for a period of one year, no explanation has been furnished. 9. 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 and / or his learned counsel kept delaying the matter, as alleged. The petitioner was only entitled to a reasonable opportunity of showing cause and if this facility was being misused by delaying the proceedings, it was the duty of the concerned authority to have enforced due expediency instead of allowing matters to drift. 10.It needs to be reiterated in these cases that the law visualizes a situation where an offender has become so persistently troublesome or dangerous to society around him that his physical presence in that area has to be done 5 9. cr wp 2131-10.doc 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 enquiries 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. 11.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. 12.In the affidavit which is on record, there is no explanation for the delay from 13th May 2009 to 12th May, 2010. The delay is rather inordinate and therefore, the 6 9. cr wp 2131-10.doc authority was under an obligation to explain the same. In view of the unexplained delay, it will have to be seen whether the live link is snapped. The last offence registered against the petitioner is of December 2008. There is nothing on record to show that after December 2008, the petitioner continued with his prejudical activities till May 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 12th May 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. 13.In my view, considering the facts and circumstances of the case, the Externment order is vitiated on two grounds. One because of delay in passing the Externment Order and secondly, the Externment Order is based on erroneous facts. Hence,the petition must succeed and the Externment Order is quashed. [SMT. V.K. TAHILRAMANI, J.] 7 9. cr wp 2131-10.doc 8