- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1083 OF 2008 WRIT PETITION NO.1083 OF 2008 WRIT PETITION NO.1083 OF 2008 Abdul Jabbar Usman Ahmed Shaikh ...Petitioner vs. 1.The Deputy Commissioner of Police Zone-V, Mumbai 2.The Asst.Commissioner of Police Division, Mumbai 3.The State of Maharashtra ...Respondents Mr.U.N.Tripathi for the petitioner Mr.J.P.Yagnik A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : SEPTEMBER 23,2008 : SEPTEMBER 23,2008 : SEPTEMBER 23,2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submissions of the learned counsel for the parties were heard on 2nd September 2008 and the Judgment was reserved. Today, the petition is placed on board for dictation of Judgment. 2. The Petitioner by filing this petition under Article 227 of the Constitution of India has taken an exception to the order dated 27th February 2008 passed by the first Respondent (Deputy Commissioner of Police) by which the Petitioner has been ordered to be externed in exercise of power under section 56(1) (a) (b) of the Bombay Police Act,1951 (hereinafter referred to as the said Act). The order of externment has been confirmed in Appeal preferred by the Petitioner. - 2 - 3. With a view to appreciate the challenge to the order of externment, it will be necessary to refer to the facts of the case in brief. A show cause notice was issued to the Petitioner by the second Respondent (Assistant Commissioner of Police) setting out a general nature of allegations against him and calling upon him to show cause as to why order of externment should not be passed against him. The second Respondent-Assistant Commissioner of Police was authorised as an Enquiry Officer. The second Respondent conducted an enquiry after giving an opportunity of being heard to the Petitioner. After completing the enquiry, he submitted a report on 13th December 2007 to the first Respondent. After considering the material on record the first Respondent passed impugned order of externment. The main submission of the learned counsel for the Petitioner is that the first Respondent while passing the order of externment has referred to the enquiry report dated 13th December 2007 submitted by the second Respondent and the said enquiry report will have to be treated as extraneous material. He submitted that the order of externment shows that the mind of the externing authority has been influenced by the said report. He submitted that if the first Respondent wanted to rely upon the said report, a copy of the said report ought to have been made available to the Petitioner before the first Respondent gave an opportunity to the Petitioner of being heard. He placed reliance on the decision of the Apex Court in case of the - 3 - State of NCT of Delhi and another Vs. Sanjeev Alias Bittoo [2005 S.C.C. (cri) page 1025] and submitted that subjective satisfaction of the externing authority is somewhat similar to one required to arrived at by the detaining authority under the preventive detention laws. He submitted that the extraneous material in the form of the said report has been considered by the externing authority and therefore, only on this ground the order will have to be quashed and set aside. He submitted that in any case by not supplying a copy of the said report, breach of principles of natural justice has been committed. He submitted that all the material considered by the authority to arrive at the subjective satisfaction was required to be communicated to the Petitioner before passing an order of externment as an order of externment affects the fundamental rights of the externee. He submitted that the provisions of the said Act will have to be strictly construed. 4. The learned A.P.P. submitted that the first Respondent has considered the material placed before him which was on the record of the enquiry conducted by the second Respondent-Assistant Commissioner of Police and any extraneous material is not at all considered by the authority. He submitted that the report of the Enquiry Officer is based on material before the Enquiry Officer of which the Petitioner had adequate knowledge. He, therefore, submitted that no interference was called for. The learned counsel for the - 4 - Petitioner replied by contending that unless a copy of the said report is made available to the proposed externee, it cannot be decided whether the report contained any extraneous material. He, therefore, submitted that it was obligatory on the first and second Respondents to make available a copy of the report of the second Respondent so that the Petitioner could have effectively dealt with the material against him. 5. I have carefully considered the submissions. It will be necessary to refer to the section 59 of the said Act which reads thus : "59. 59. 59. Hearing Hearing Hearing to be given before order under sections 55, [56, to be given before order under sections 55, [56, to be given before order under sections 55, [56, 57 57 57 or 57 A] is passed or 57 A] is passed or 57 A] is passed (1) Before an order under section 55 [56, 57 or 57A] is passed against any person the officer acting under any of the said sections or any officer above the rank of an Inspector authorised by that officer shall inform the person in writing of the general nature of the material allegations against him and give him a reasonable opportunity of tendering an explanation regarding them. If such person makes an application for the examination of any witness produced by him, the authority or officer concerned shall grant such application; and examine such witness, unless for reasons to be recorded in writing, - 5 - the authority or officer is of opinion that such application is made for the purpose of vexation or delay. Any written-statement put in by such person shall be filed with the record of the case. Such person shall be entitled to appear before the officer proceeding under this section by an advocate or attorney for the purpose of tendering his explanation and examining the witness produced by him. (2) The authority or officer proceeding under sub-section (1) may, for the purpose of securing the attendance of any person against whom any order is proposed to be made under sections 55, [56, 57 or 57A] require such person to appear before him and to pass a security bond with or without sureties for such attendance during the inquiry. If the person fails to pass the security bond as required or fails to appear before the officer or authority during the inquiry, it shall be lawful to the officer or authority to proceed with the inquiry and thereupon such order as was proposed to be passed against him may be passed." Sub section 1 authorises the Officer who is competent to pass an order under section 55 to 57 and 57(A) of the said Act to authorise any Officer above the rank of Inspector to inform the externee in writing of the general nature of material - 6 - allegations against him and give him a reasonable authority of tendering reply regarding the allegations. The proposed externee is entitled to adduce evidence by examining the witnesses. He can also put in written statements. He can also engage services of an Advocate. In the present case, admittedly, the second Respondent- Assistant Commissioner of Police was authorised by the first Respondent to issue show cause notice to the petitioner informing him the general nature of the material allegations against him. 6. In the case of Nanhekhan Gulabkhan Pathan Vs. State of Maharashtra [(1992) 1 Mh.L.J. P. 225] this court has interpreted sub section 1 of section 59. The Division Bench held that though the authority competent to pass an order of externment authorises any officer to hold an enquiry, before passing an order of externment it is the obligation of the authority to give an opportunity of being heard to the proposed externee and unless the authority gives an opportunity of being heard, there is no compliance of principles of natural justice. 7. It must be stated here that after the Enquiry Officer conducts the enquiry, it is not necessary for the proposed externee to adduce the same evidence before the authority which he has already adduced before the said Enquiry Officer. The authority competent to pass an order of externment has to - 7 - peruse and consider the record of the enquiry and thereafter proceed to record his subjective satisfaction. If the authority competent to pass an order of externment authorises any other officer to hold enquiry in terms of sub section 1 o section 59, the authority holding enquiry has to submit a report after conducting the enquiry. 8. Reliance was placed by the learned counsel for the petitioner on case of State of NCT of Delhi (supra) and in particular paragraph 14 of the said decision. Paragraph 14 reads thus : "14. As regards the period, it was held that it is primarily for the externing authority to decide how best the order can be made effective, so as to subserve its real purpose. How long within the statutory limit of two yeas fixed by Section 58, the order shall operate and to what territories within the statuary limitations of Section 58 it should extend are matters which must depend upon its decision on the nature of the date which the authority is able to collect in the externment proceedings. No general formulation can be made that the order of externment must always be restricted to the area of the illegal activities of the externee. There can be no doubt that the executive order has also to show when questioned that there was application of mind. It is the It is the It is the - 8 - existence existence existence of material and not the sufficiency of material of material and not the sufficiency of material of material and not the sufficiency of material which which which can be questioned as the satisfaction is primarily can be questioned as the satisfaction is primarily can be questioned as the satisfaction is primarily subjective subjective subjective somewhat similar to one required to be arrived somewhat similar to one required to be arrived somewhat similar to one required to be arrived at at at by the detaining authority under the preventive by the detaining authority under the preventive by the detaining authority under the preventive detention detention detention laws. The scope of judicial review of laws. The scope of judicial review of laws. The scope of judicial review of administrative administrative administrative orders is rather limited. The orders is rather limited. The orders is rather limited. The consideration consideration consideration is limited to the legality of is limited to the legality of is limited to the legality of decision-making decision-making decision-making process and not legality of the order per process and not legality of the order per process and not legality of the order per se. se. se. Mere possibility of another view cannot be ground for interference." (Emphasis added) 9. Under sub section 1 of section 59 the requirement of law is that the person against whom the order of externment is proposed to be passed must be informed in writing of the general nature of material allegations against him. There is no requirement of law to supply copies of any documents which are referred to in the show cause notice. The requirement of law is that the person against whom the order of externment is passed must be informed of general nature of material allegations against him. The requirement of making available to the proposed externee copies of the documents placed before the authority competent to pass an order of externment cannot be read under sub section 1 of section 59. The enquiry conducted by the officer authorised under sub section 1 of section 59 is naturally relating to the allegations set out - 9 - against the externee in the show cause notice. If the authority concerned is satisfied, the order of externment can be passed only on the basis of the allegations incorporated in the show cause notice. In the present case, it is not the case of the petitioner that any allegation which is not the part of the show cause notice has been considered by the authority while recording subjective satisfaction. When in a given case, the material allegations contained in the show cause notice may relate to certain offences registered against the proposed externee, there is no requirement of law that the copies of F.I.R. or other documents relating to the offences should be made available to the externee. Therefore, it is difficult to read into sub section 1 of section 59 the requirement of making available a copy of report of the Enquiry Officer of enquiry conducted by him under sub section 1 of section 59. 10. In the circumstances, the contention raised by the counsel for the petitioner cannot be accepted. There is no merit in the petition and the same is rejected. JUDGE JUDGE JUDGE