1 WP.1152-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1152 OF 2011 Mr.Mohammad Sayeed @ Gabbar Rafiq Khan. ..Petitioner. Versus Principal Secretary (Appeal & Suraksha) and 3 others. ..Respondents. .... Mr.Raju Yamgar, Advocate for the Petitioner. Mr.S.A. Shaikh, APP, for the State. .... CORAM : A. R. JOSHI, J. DATE OF RESERVING THE ORDER: 03rd MAY, 2011 DATE OF PRONOUNCING THE ORDER: 06th MAY, 2011 P.C.: 1. Rule. Rule is made returnable forthwith by consent of the parties. Writ Petition is heard finally. Perused the accompanying documents. By the present Writ Petition, the petitioner has challenged the externment order dated 7th December, 2010 passed by the Deputy Commissioner of Police, Zone-6, Mumbai, and the order of the Appellate Authority dated 5th March, 2011 rejecting the appeal preferred by the petitioner against the externment order. 2 WP.1152-11 2. By the externment order, the petitioner was externed from Mumbai and Mumbai Suburban area for a period of six months. 3. Certain factual position as emerged out from the documents produced in the Writ Petition can be narrated in order to have proper perspective of the matter and to decide the challenge to the impugned order. Initially show cause notice under Section 59 of the Bombay Police Act was issued by the Assistant Commissioner of Police, Chembur Division, Mumbai on 5.10.2010 and it was served on the petitioner on the same day. In the said notice, there is specific mention of criminal antecedents of the present petitioner, details of which are as under :- Sr.N o. Police Station Crime No. & Sections 1. Nehrunagar 175 / 97, U/secs. 324, 325, 114 of IPC. 2. Nehrunagar 198 / 2002, U/secs. 324, 427, 34 of IPC. 3. Nehrunagar 145 / 2008, U/secs. 143, 144, 146, 147, 148, 149, 324, 323, 504, 506 (2) of IPC. 4. Nehrunagar 188 / 2010, U/secs. 323, 324, 504, 506(2), 34 of IPC & U/sec. 37(1)(A) of Mumbai Police Act. 3 WP.1152-11 4. Apart from the above criminal antecedents, there is mention in the show cause notice regarding four in-camera statements giving almost all the details as to in what manner the petitioner had created terror and coerced the said witnesses. So far as the first witness is concerned, the incident is of June, 2010 in the last week at about 6:30 p.m. when witness was coming from his job and was doing sundry business as a hawker of selling cutlery articles, the petitioner along with two other associates approached him and demanded Rs.400/- and insisted on getting cable connection from the petitioner. On refusal by the witness, the petitioner ransacked the articles and gave threats of dire consequences to the witness and forcibly took out Rs.250/- from the cash box. 5. So far as the second witness is concerned, the incident is of first week of July, 2010 happened at 9:30 p.m. when witness was going to his place of business at Kurla(E) via Qureshi Nagar Road, the petitioner along with two associates accosted him and gave threats of dire consequences by pointing a chopper and took out money-purse from the said witness and extracted Rs.2700/- and threw away the money-purse and when the mob gathered the 4 WP.1152-11 petitioner gave threat to the persons in the mob by pointing chopper towards them. 6. So far as the third witness is concerned, the incident is of first week of June, 2010 happened at about 9:00 p.m. at the business place of the witness when the employees of the witness were also present. Said witness was threatened and assaulted and demand of Rs.5000/- was made in order to allow the said witness to conduct his business at that place. Petitioner and his two associates manhandled the witness and took out Rs.2500/- from his money-purse. 7. So far as the fourth witness is concerned, the incident happened in first week of July, 2010 at 7:45 p.m. at the business premises of the witness. An amount of Rs.2000/- was extracted from the shirt-packet of the said witness and threat was given to the employees of the said witness then present. So also, an amount of Rs.1800/- was taken from the cash box and threats were given to the persons who had gathered there by pointing a chopper towards the neck of the witness and as such the petitioner created a terror in the area. It is also mentioned in the show cause notice that due 5 WP.1152-11 to such activities of the petitioner the witnesses are not coming forward to give complaints. 8. After issuance of show cause notice the petitioner attended the enquiry and examined four witnesses in support of his defence. 9. After considering the material available against the petitioner and considering his defence, the externment order was passed by the competent authority after satisfying itself with the situation as to activities of the petitioner injurious to the public at large, specifically, at the area of Kasaiwada, Umar Wadi, Taksheela Nagar and Kurla (E) and nearby areas. 10. Against the order of externment, the petitioner approached the appellate authority by preferring an appeal taking various grounds which are also canvassed during the hearing of the present Writ Petition. Said grounds are as under :- i. Statements of the witnesses are false and fabricated and they are vague statements giving no any details as to actual incidents; ii. The complainant on whose complaint, criminal cases were lodged against the petitioner is himself a person 6 WP.1152-11 of notorious character and NC complaints are lodged against him and he is politically influential person and at whose instance the externment order is passed; iii. Four defence witnesses examined on behalf of the petitioner were not considered by the externing authority in proper perspective ; iv. The petitioner is not convicted in any offences, though, criminal antecedents are mentioned; v. The alleged activities of the petitioner are apparently within the area of Nehru Nagar, however, he has been externed from Mumbai and Mumbai Sub-Urban, and as such the externment order is suffering from vice of excessive jurisdiction; vi. The mental health of the present petitioner is not good and his wife is presently pregnant and requires personal attention from the petitioner who has been unreasonably externed without any cause for the period of six months. 11. So far as the in-camera statements are concerned, though in the externment order, there is a reference to only two in-camera statements, this cannot be taken as a ground in support of denfence of the petitioner and though in the show cause notice instead of 7 WP.1152-11 two witnesses there are four witnesses mentioned. It cannot be construed that the petitioner was taken by surprise by referring to the in-camera statements of two witnesses in the externment order though the show cause notice mentioned four witnesses. 12. So far as the notorious character of the complainant himself is concerned, mere lodging of the NC complaints by the petitioner against him will not negate the activities of the petitioner if otherwise they are established. Moreover, whether or not the complainant is of a notorious character is not a question, what is to be seen is whether it was just and proper for the externing authority to extern the petitioner for a particular period from the areas specified. In the opinion of this Court, this ground is also not available to the petitioner to challenge the order of externment. 13. So far as non-accepting the version of four defence witnesses is concerned, in the opinion of this Court it is subjective satisfaction of the externing authority and as such when such opinion of the externing authority confirmed by the appellate authority, there is no need to interfere with the same in the writ jurisdiction. 8 WP.1152-11 14. So far as the another argument as to externment order suffering from vice of excessive jurisdiction, it must be said that when applying the test of contagious area, the area of Mumbai and Mumbai suburban cannot be considered as extraneous to the area of the activities of the present petitioner herein. In support of this defence of vice of excessive jurisdiction, following authorities are cited before the Court : 1. 2000 ALL MR (Cri) 578 Umar Mohamed Malbari Vs. K.P. Gaikwad, Dy. Commissioner of Police & Anr. 2. 2000(Supp.) Bom.C.R. 81 Ashok Shinvar Mali Vs. Sub-Divisional Magistrate & others. 3. 2005(2) Mh.L.J. 384 Dhananjay Manohar Sapkal Vs. State of Maharashtra & another. On carefully scrutinizing the ratios propounded by the said authorities, it must be stated that in the present matter, the petitioner is externed from BrihanMumbai and Mumbai Suburban Districts and not even from Thane or Raigad Districts, and as such 9 WP.1152-11 there cannot be any vice of externment order being excessive on the aspect of territory of activities of the petitioner. 15. So far as the alleged mental health and pregnancy of wife of the petitioner is concerned, there is no material available before the Court. Moreover, such grounds may not be considered in order to quash and set aside the order of externment, if, otherwise same is based on such material which is found satisfactory on subjective satisfaction of the competent authority. 16. In view of the above, there is no merit in the present Writ Petition and the same is accordingly disposed of with following order : :: O R D E R :: [i] Criminal Writ Petition No.1152 of 2011 is dismissed. Rule stands discharged accordingly. (A. R. JOSHI, J.) PPD