1 WP.3504-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3504 OF 2010 Mohd. Najib Mohd. Aslam @ Sheru ] Kashmiri, aged 24 years, ] residing at Room No. 28, Amina Bldg ] 2nd floor, Khandiya Mohalla Cross ] Lane, Nagpada, Mumbai – 400 008. ] ..PETITIONER. Versus 1. The State of Maharashtra, ] 2. The Dy. Commissioner of Police, ] Zone-I, Mumbai. ] 3. The Principal Secretary (Appeal ] & Security), Home Department, ] Govt. of Maharashtra, Mantralaya, ] Mumbai – 400 032. ] ..RESPONDENTS. .... Mr.N.N. Gavankar, Advocate i/b. Mr.Arfan Sait, Advocate for the Petitioner. Mr.J.P. Kharge, A.P.P. for the State. .... CORAM : A. R. JOSHI, J. DATE OF RESERVING THE JUDGMENT : 31st MARCH, 2011 DATE OF PRONOUNCING THE JUDGMENT: 8th APRIL, 2011 JUDGMENT : 1. Writ Petition is heard finally. Rule. Rule is made returnable forthwith by consent of the parties. 2 WP.3504-10 2. Heard rival arguments of the parties at length. Perused the accompanying documents to the present Writ Petition. Also perused the affidavit filed by the Externing Authority – Deputy Commissioner of Police, Zone-I, Mumbai dated 14th December, 2010. 3. By the present Writ Petition, the Petitioner has challenged the externment order passed against him dated 20.09.2010 passed by the Externing Authority - DCP, Zone-I, Mumbai and the order dated 22.11.2010 passed by the Appellate Authority confirming the externment order. 4. 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 orders. 5. Senior PI of J.J. Marg Police Station submitted a proposal to DCP, Zone-I, Mumbai on 4th August, 2010 for initiating actions under Section 56(1)(a)(b) of the Mumbai Police Act, 1951 against the present petitioner mainly alleging that his activities are injurious to the public at large and such petitioner is continuously 3 WP.3504-10 involving in the activities involving force, violence and indulging in offences punishable under Chapters XVI & XVII of Indian Penal Code. It is alleged that the activities of the petitioner are causing harm and danger and alarm to the person and property of the people in the area where he has committed offences. 6. Initially show cause notice was issued under Section 59 of the Mumbai Police Act. It was issued by ACP Dongari Division, Mumbai – 9. In the said notice, details of the offences were mentioned as under : Sr. No. Police Station C.R. & Sections Status 1. Sir JJ Marg 272/08, 323, 324, 504, 506(2), 452, 34 Indian Penal Code. Pending in Court. 2. Sir JJ Marg 103/09, 323, 324, 504, 506(2) of Indian Penal Code. Pending in Court. 3. Sir JJ Marg 66/10, 143, 144, 147, 149, 452, 324, 326, 307, 506(2) of Indian Penal Code. Pending in Court. 7. Show-cause notice was issued against the present petitioner on 16.8.2010 by ACP, Dongri Division, Mumbai – 9 and as mentioned above three pending offences were narrated in the 4 WP.3504-10 notice. So also, there was mention of two in-camera statements of two witnesses recorded on respective dates i.e. on 31.7.2010 and 2.8.2010 giving all the details as to in what manner present petitioner had created a terror in the area and had given threats to the said witnesses. 8. Assistant Commissioner of Police, Dongri Division, Mumbai – 9 had submitted his report on 14.9.2010 before the externing authority i.e. the Deputy Commissioner of Police, Zone-I, Mumbai. Said externing authority examined the report and the material and found that there was a strong case against the petitioner for externment. The petitioner was called before the externing authority on 20.9.2010. He was informed about the offences registered against him. He did not examine any defence witness on his behalf and consequently on 20.9.2010 externment order was passed. 9. An appeal was preferred before the competent authority – Home Ministry, Government of Maharashtra against the said externment order. However, the appeal was rejected vide order dated 22.11.2010. Hence, being aggrieved by the externment order 5 WP.3504-10 and dismissal of the appeal, present Criminal Writ Petition is filed by the externee. 10. Only two grounds are mentioned objecting the order of externment, as under :- i. The notice was issued by the ACP, Dongri Division, Mumbai though having rubber stamp dated 16th August, 2010, the signature of the concerned ACP is dated signature and showing the date as 17.1.2010 written by hand by the said authority. By pointing out this and showing the copy of the said notice which is annexed to the present Writ Petition from page Nos.8 to 12, it is submitted that there is non-application of mind of the authority issuing notice and in fact said notice is apparently signed on 17.1.2010 however both the in camera statements are apparently recorded on 31.7.2010 and 2.8.2010, and as such, such extraneous material is subsequently added in the show cause notice though it was so earlier signed and dated by ACP, Dongri Division, Mumbai. 6 WP.3504-10 ii. The externment order suffers from exercise of excessive jurisdiction inasmuch as the alleged offences mentioned in the show cause notice are registered with Sir JJ Marg police station, Mumbai and the alleged in- camera statements mention the allegations against the petitioner as to he indulging in illegal activities and alleged threats to the witnesses, but, the area where the said witnesses were threatened is not at all mentioned and hence it was erroneous on the part of the externing authority to consider that the externment of the petitioner is necessary from the entire area of BrihanMumbai, Navi Mumbai and Thane District for the period of two years. 11. So far as the first objection is concerned, it is a factual position that the same objection was raised before the Appellate Authority. On this aspect, the order of the Appellate Authority dated 22.11.2010 is perused by this Court and there is an explanation given mentioning that said first objection do not contain any merit. This is more so when the office-copy of the show cause notice from 7 WP.3504-10 the record and proceedings was inspected by the Appellate Authority. Said office copy was also inspected by this Court. Said office copy contains only signature of ACP, Dongri Division and there is no date under the signature. It is true that copy of the said show cause notice annexed to the present Petition do mention the handwritten date below the signature of the show-cause notice issuing authority and the said date is 17.1.2010. Still considering this factual position and considering the reasoning given by the Appellate Authority, in the opinion of this Court the objection on this count cannot be upheld so as to using subsequently recorded in-camera statements respectively dated 31.7.2010 and 2.8.2010 after initially signing the show cause notice on 17.1.2010. 12. So far as the second objection is concerned - as to the externment order being excessive so far as the territorial area is concerned, following authorities are cited before this Court on behalf of the petitioner: i. 1988 Mh.L.J. 1034 [Umar Mohamed Malbari. Vs. K.P. Gaikwad, Dy. Commissioner of Police, and another] 8 WP.3504-10 ii. 2006(1) Mh.L.J. 510 [Ganpat @ Ganesh Tanaji Katare Vs. Assistant Commissioner of Police and others.] 13. This Court has gone through the ratios propounded by the above said authorities. The authorities mentioned above canvass the proposition that mere geographical proximity is not a ground to extend the order of externment to another District or the part of a District. Considering these ratios and considering the specific allegations against the present petitioner as to creating terror in the area of Sir JJ Marg police station or near about places and considering pendency of the cases only with Sir JJ Marg police station and considering that no specific place is mentioned as to at which place the witnesses were threatened by the petitioner, this second argument/ground can be accepted to hold that the externment order suffers from vice of being excessive. Further more in view of the ratios of the above mentioned authorities such order cannot be set-aside in part and the entire order of externment is required to be set-aside. 14. In view of the above, the impugned order is required to be 9 WP.3504-10 quashed and set aside. Accordingly, present Writ Petition is allowed. The impugned order of externment dated 20.9.2010 and the order of the Appellate Authority dated 22.11.2010 are quashed and set- aside. Rule made absolute accordingly. (A. R. JOSHI, J.) PPD