* 1 * W.P. 2929.2010 18.11.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2929 OF 2010 Mohd. Fakruddin @ Ali Akbar ...Petitioner. Vs. Dy. Commissioner of Police & Ors. ...Respondents. --- Mr. U.N. Tripathi, for the Petitioner. Mrs. M.M. Deshmukh, APP for the State. --- CORAM : SMT. R.P. SONDURBALDOTA,J. : 18 NOVEMBER, 2010. P.C.: 1. This petition under Article 226 of the Constitution of India challenges the order of externment dated 30th July, 2010 issued by the Deputy Commissioner of Police, Zone-VI, Mumbai against the petitioner and confirmation of that order by the Appellate Authority on 23rd September, 2010. 2. The petitioner was served with the notice dated 15th May, 2010 calling upon him to show case as to why he should not be externed from the area of Bombay and Bombay suburban for the prejudicial activities alleged in the show cause notice. The notice * 2 * W.P. 2929.2010 18.11.2010 makes reference to eight criminal proceedings filed against the petitioner. He was acquitted in four proceedings filed in the year 1999, 2006, and 2009. Two other proceedings, one filed in the year 2004 and another filed in the year 2009 are pending in the court for hearing, whereas remaining two proceedings are the complaints filed in the year 2010 which are pending for investigation. The show cause notice gives complete details of the three latest complaints filed against the petitioner i.e. C.R. No. 432 of 2009, C.R. No.7 of 2010 and C.R. No.8 of 2010 for offences punishable under sections 379, 430, 353, 504, 34 of IPC, read with section 7 of Criminal Law Act read with section 4 of Damage to Public Property Act. The complaints allege that the petitioner along with other persons had unauthorisedly got water connection from the main water supply line at different places and installed booster pumps for stealing water and selling it to different persons. In the first case, 55 booster pumps were seized and in the other two cases 18 booster pumps each, were seized. The complaints also allege that when officials from the Water Department had noticed the activities of theft of water and had visited the site for taking preventive action,they were obstructed and assaulted. The show cause notice further makes * 3 * W.P. 2929.2010 18.11.2010 reference to two in-camera statements one dated 22nd April, 2010 and another dated 23rd April, 2010. The Petitioner submitted his reply to the show cause notice, after consideration of which the externment order was passed. 3. Mr. Tripathi, the learned counsel for the petitioner contends that the order of externment as well as order of the Appellate Authority discloses complete non application of mind. According to him the authorities have merely reproduced the requirements of sections and not applied mind to the facts alleged in the show cause notice. He submits that it was necessary for the authority to state in the order specifically after its subjective satisfaction as to whether the activities of the petitioner were causing harm, alarm and danger to the residents of the area of general public or whether the activities were calculated to cause harm, alarm or danger. He takes strong objection to the disjunctive or’ used in the order of externment. ‘ Secondly it is submitted that the executing authority, at para III of the order has considered extraneous material and hence the order is illegal and bad in law. 4. The learned APP on the other hand submits that the facts disclosed in the criminal cases are grave enough justifying the * 4 * W.P. 2929.2010 18.11.2010 action of externment. The petitioner has been found stealing precious public property i.e. water by installing booster pumps at a large number of places for the purpose of sale. He also submits that the externing authority is not expected to pass an elaborate order akin to a judgment. As long as the order of externment shows existence of some material warranting passing of the order, the same should be held to be a proper order. 5. Mr. Tripathi relies upon the decision of the Apex Court in the case of State of NCT of Delhi and another V. Sanjeev alias Bittoo reported in 2005 Supreme Court Cases (Cri) 1025 to submit that the order of externment is similar one to the action of the detaining authority under Preventive Detention Act. The attention of the Court is specifically invited to following observations at para 14 of the judgment:- 14. ......There can be no doubt that the executive order has also “ to show when questioned that there was application of mind. It is the existence of material and not the sufficiency of material which can be question as the satisfaction is primarily subjective somewhat similar to one required to be arrived at by the detaining authority under the preventive detention laws.” He then refers an unreported decision of division bench of this * 5 * W.P. 2929.2010 18.11.2010 Court dated 9th Sept., 2010 passed in the case of Naresh Kumar Sachdeva v/s. The State of Maharashtra & Ors. (Criminal Writ Petition No. 2530 of 2010) to submit that if the order refers to more than one activity it ought to use the conjunctive and’ and ‘ not the disjunctive or”. Otherwise the order would suffer from “ non-application of mind. 6. In the case of NCT of Delhi (supra), the Apex Court, while considering the externment order passed under the Delhi Police Act, also looked into the scope of judicial interference in matters of administrative decision and observed as under :- 14. .......The scope of judicial review of administrative orders “ is rather limited. The consideration is limited to the legality of decision making process and not legality of the order per se. Mere possibility of another view cannot be ground for interference.” 17. The Court will be slow to interfere in such matters “ relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.” 24. It is true that some material must exist but what is “ required is not an elaborate decision akin to a judgment. On * 6 * W.P. 2929.2010 18.11.2010 the contrary, the order directing externment should show existence of some material warranting an order of externment. While dealing with the question, mere repetition of the provision would not be sufficient. Reference is to be made to some material on record and if that is done, the requirements of law are met. As noted above, it is not the sufficiency of material but the existence of material which is sine qua non.” 7. Above is the backdrop against which the impugned orders are to be tested. The relevant portion of the order of externment which forms the basis of the main ground of challenge reads thus:- II. Since the month of November, 2009 (except for the period “ when he was in police/ jail custody) he has committed several such acts of the nature mentioned in sub-para (a) (b) of paragraph `1’ above. AND WHEREAS after considering all the evidence and explanation detailed above, I am satisfied that the P.E. Mohamed Fakruddin @ Ali Akbar Kamal Pasha Shaikh, aged 40 years, is causing or his activities are calculated to cause harm, alarm and danger to the residents, shopkeepers, businessmen and embroidery workers of Rafiq Nagar, Durga Seva Sangh, Gajanan Colony, Plot No.25, 27, Ahilyabai Holkar Marg, 90 Feet Road, Shivaji Nagar, Govandi, Mumbai-43 and the areas adjoining thereto within the jurisdiction of Shivaji Nagar Police * 7 * W.P. 2929.2010 18.11.2010 Station in Mumbai. The P.E. is engaged in the commission of offences like Hurt, assault on public servant, criminal intimidation, threats of dire consequences, water theft, criminal law Act and damage to public property and other petty offences. The P.E. is alleged to be moving around in the localities with dangerous weapon like sword, knife and choper on his person and using the same for committing these offences. The offences committed by the P.E. are punishable under Chapter XVI and XVII of the Indian Penal Code. III. That the witnesses to the above described acts and movements are not willing to come forward and depose against him in public by reason of apprehension on their part as regards the safety of their person and property.” The P.E. is involved in the following cases of Shivaji Nagar Police Station which are pending trial in the court. Sr.No. Police Station C.R. No. U/Sec. Result 01. Shivaji Nagar 432/2009 379, 430, 353, 504, 34 of IPC r/w. 7 Criminal Law Act r/w. 4 of Damage to Public Property Act. P.T. 02. Shivaji Nagar 07/2010 379, 430, 353, 504, 34 of IPC r/w. 7 Criminal Law Act r/w. 4 Damage to Public Property Act P.T. * 8 * W.P. 2929.2010 18.11.2010 03. Shivaji Nagar 08/2010 379, 430, 353, 504, 34 of IPC r/w. 7 Criminal Law Act r/w. 4 Damage to Public Property Act. P.T. 8. It can be seen from the above extract of the order that the disjunctive or” is used at only one place i.e. in the sentence “ relating to in-camera statements recorded by the police in which two witnesses deposed about the threats issued by the petitioner while moving around with dangerous weapons like sword, knife and chopper etc. to the shopkeepers in the locality of Rafique Nagar, Durga Seva Sangh. The order, however, further specifically states that his activities are calculated to cause harm, alarm and danger to the residents. The order further observes that the petitioner is engaged in commission of offences of hurt, assault on public servant, criminal intimidation, threats of dire consequences, water offences and other offences. It further states the petitioner is moving around in the locality with dangerous weapons and using the same for committing the offences punishable under Chapter 16 and 17 of the Indian Penal Code. The order also states that the witnesses to the above acts and movements are not willing to come forward and * 9 * W.P. 2929.2010 18.11.2010 depose against the petitioner in public out of apprehension as regards safety of their person and property. The order thus discloses existence of material warranting an order of externment which has been considered by the externing authority. In the circumstance, it cannot be said that there is non application of mind by the externing authority. The second contention of the externing authority at Para-III of the order having considered extraneous material is also without any substance. The material at Para-III is about the witnesses not coming forward to depose against the petitioner in public. Reference to that statement can be found in the paragraph just above the reference to in-camera statement in the show cause notice. The show cause notice in the said paragraph states that the persons in the locality are not coming forward to complaint against the petitioner, on account of their illegal activities referred to in the show cause notice and use of dangerous arms. 9. Mr. Tripathi lastly contends that the show cause notice makes reference to the earlier preventive action taken against the petitioner vide 1) Chapter Case No.17 of 1999 under section 107, Chapter Case No.3 of 2007 under section 110 and Chapter Case No.26 of 2002 under section 110 of Code of Criminal * 10 * W.P. 2929.2010 18.11.2010 Procedure, 1908, of which further details of the action are not stated. Since these preventive actions do not form the basis of the impugned order of externment there can be no prejudice caused to the petitioner. In the circumstances, the petition is dismissed. ( SMT. R.P. SONDURBALDOTA, J.)