criwp450.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 450 OF 2011 Ramchandra s/o Dagdulal Bangad age 47 years, occ. business r/o Marwad Galli, Osmanabad Tq. & Dist. Osmanabad. .. PETITIONER VERSUS 1 The State of Maharashtra through its Secretary Home Department Maharashtra State Mantralaya, Mumbai. 2 The Sub Divisional Magistrate, Osmanabad Dist. Osmanabad. .. RESPONDENTS Mr. N.P. Patil Jamalpurkar, advocate for the petitioner. Mrs. Y.M. Kshirsagar, APP for the State. ===== CORAM : A.V. POTDAR, J. DATE : 5 th OCTOBER, 2011 ORAL JUDGMENT : 1 Rule. Rule made returnable forthwith. Heard finally by consent. 2 Present writ petition is preferred by the petitioner questioning the criwp450.11 2 legality and correctness of the order dated 8-6-2011 passed in Externment proceeding bearing no. 2011/Penal/Externment/CL-7 by the Sub Divisional Magistrate, Osmanabad thereby externing the petitioner for the period of two years from Osmanabad, Tuljapur, Omerga, Lohara, Bhoom, Paranda, Washi, Kallam in Osmanabad district, Latur and Ausa from Latur district and North Solapur and Barshi from Solapur district. 3 Heard learned counsel for the petitioner and learned APP for the State. Perused the record. Record shows that the petitioner is running a business of grocery shop in the name and style M/s D.L. Bangad. Petitioner was served with a notice under section 59(1) of the Bombay Police Act, 1951 on 29-1-2011 wherein there is reference of offence registered against him at C.R. No. 39/2010 under sections 3 and 7 of the Essential Commodities Act and another offence registered at C.R. No. 30/2010 of which investigation is in progress. It is alleged in the show cause notice that the petitioner herein is running grocery shop and also a fair price shop. He is selling the commodities provided to sell in the fair price shop to the ration card holders, in the black market with the assistance of some respectable persons in the area. Due to his fear and threats, nobody is coming forward to give evidence against him. It appears that the petitioner herein has replied the criwp450.11 3 show cause notice on 4-2-2011, denying all the allegations against him and specifically denying the allegation that he is running a fair price shop. On the contrary, it is stated in the reply to the show cause notice that he is dealing in selling grains and running a grocery shop since last 25 years. There is only offence regsitered against him wherein no evidence is led against him. It appears that on -2-2011, second notice was served upon him under section 56(b)(2) of the Bombay Police Act. It further appears that third notice was served upon the petitioner on 7-3-2011 which is a mirror copy of the earlier notice. Thereafter on 8-6-2011 order came to be passed thereby externing the petitioner from certain areas of Osmanabad, Latur and Solapur districts, which order is impugned in this writ petition. 4 During the course of submissions across the bar, relying on the observations of this court in the matter of Dhananjay Manohar Sapkal vs. State of Maharashtra and another reported in 2005(1) Bom.C.R. (Cri.) 362 so also in reported judgment in Criminal Writ Petition no. 693/2007 dated 30-1-2008 it is urged that even though statutory remedy is available to prefer an appeal challenging the impugned order, still if there is abuse of process of law, writ petition is maintainable in the present form without availing the statutory remedy as contemplated under section 60 of the Bombay Police criwp450.11 4 Act. It is further urged that in the show cause notice served upon the petitioner, it is alleged that the petitioner is running a fair price shop and selling the essential commodities provided to sell to the ration card holders, in the black market with the assistance of respectable persons in the society, which fact is denied by the petitioner. However, there is nothing brought on the record to shows that infact the petitioner is running fair price shop. It is further urged that even though there is reference in the impugned order that the witnesses are not coming before to give evidence against the petitioner, still the show cause notice is silent on the point of in camera statement of the witnesses recorded during enquiry. Lastly, it is urged that even though two offences are registered against the petitioner, out of those two offences, one is subjudised before the Court while in respect of second offence, investigation was still in progress when the show cause notice was served upon the petitioner and the impugned order was passed. Attention of the Court is specifically drawn to the fact that even though there is reference in all the three show cause notices that with the help of respectable persons in the society, the petitioner is selling the essential commodities in the black market, no offence is registered against the petitioner in that respect. It is the submission for the sake of assumption and presumption that common man is not coming before the investigation agency to give evidence but criwp450.11 5 that shall not be a hurdle for the police authorities to register an offence against the petitioner under Prevention of Black Marketing Act, if, infact the commodities are sold in black market. In substance, the notices so also the order of externment passed on the basis of show cause notices are without application of mind. While opposing these submissions, learned APP supports the order impugned. According to the learned APP, while passing the order, all the precautionary measures are taken by the Sub Divisional Magistrate, and, after compliance of the statutory provisions, the order impugned was passed which requires no interference at the hands of this Court. 5 At this juncture it is useful to given reference of the observations of this Court in the matter of Dhananjay Manohar Sapkal vs. State of Maharashtra and another reported in 2005(1) Bom.C.R.(Cri) 362 so also observations of the Division Bench of this Court (Nagpur Bench) in Criminal Writ Petition no. 693/2007 decided on 30-1-2008. In view of these observations, even though statutory remedy is provided under section 60 of the Bombay Police Act, it is to be held that without availing the statutory remedy, writ petition is maintainable. criwp450.11 6 6 Now coming to the second aspect of the case as regards reference in the show cause notice that the petitioner is running a fair price shop, no record appears to be produced either in the preliminary enquiry or at the time of passing final externment order by the learned Sub-Divisional Magistrate, Osmanabad. There is nothing on the record to show that infact the petitioner is running a fair price shop. In the absence of any record to show that the petitioner is / was running a fair price shop, it cannot be held that he is possessing the commodities provided by the State Government to sell to the ration card holders. In the absence of any documentary record, it cannot be held that the petitioner is receiving essential commodities for selling in his fair price shop. 7 Another question that requires consideration is even though there is allegation in the show cause notice which is held to be established during the preliminary enquiry, no offence was admittedly registered against the petitioner under the provisions of Prevention of Black Marketing Act which is apparent from the two offences registered against the petitioner. On perusal of the externment order it nowhere discloses about recording of the in camera statements of the witnesses. Thus, not only the show cause notice is bad in law but also the impunged order suffers from proper material criwp450.11 7 placed on record. In this regard, it is useful to give reference of the observations of this court in the matter of Milind Hiraman Meshram vs. State of Maharashtra reported in 2008(2) Mh.L.J. (Cri.) 6181 which are as follows : . Merely because the offences under Essential Commodities Act are committed, that too at large intervals, that fact by itself will not bring the petitioner or the concerned person within th purview of explanation to section 3 of the Prevention of Black marketing Act. There is in fact no reference muchless sufficient, to show that the applicant had done any act which is punishable or liable for inviting any preventive action, in terms of section 56(1)(bb) (2) of the Bombay Police Act. For the offences alleged committed by him, he is being proceeded and therefore, unless there is something more, as required by virtue of explanation to section 3 of the Act, there was no justification for initiating action under section 59 or 53. As the authority concerned i.e. Deputy Commissioner of Police has failed to consider the provisions of section 3 of the Prevention of Black Marketing Act, and explanation thereof it would not be proper to hold that he had applied his mind. The final order impugned in this application shows that the allegations were quite general and they were not concise to point out only the requirement of section 56(1)(bb)(2) of the Bombay Police Act under which the said order was passed. mere statement in final order that no positive defence is raised and witness are not coming forward to depose against petitioner does not seem to be substantiated by perusal of proceedings below. Good and forceful texture of words in final order has to be substantiated from material on record else it would vitiate. There is clear lack of application of mind in passing the impugned order. Order impugned is vitiated because of delay in passing the impugned order after issuance of show cause notice. 8 Perusal of the facts of the instant petition clearly reveal that criwp450.11 8 admittedly the show cause notices suffer from in camera statements and the impugned order also suffers from any material on record to show that infact the petitioner was running a fair price shop and was receiving essential commodities to sell in the fair price shop. There is no material on record to show that the commodities received from the Government for selling in the fair price shop were sold by the petitioner in the black market. If these facts are not established during enquiry but find place in the externment order, then the externment order is required to be quashed and set aside. Accordingly, the order impugned is quashed and set aside. Accordingly, the writ petition stands disposed of. Rule made absolute accordingly. ( A.V. POTDAR ) JUDGE dyb