* 1 * WP-2296-2011 9. Dec. 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 2296 OF 2011 Yogesh P. Halwai .... Petitioner V/s. Mr. Sanjay Shintre & Ors. .... Respondents ***** Ms. Jaymala Ostwal i/by. M/s. J.J. Associates, Adv.for the petitioner. Mrs. U.V. Kezriwal, APP for State. CORAM :- Smt. R.P. SondurBaldota, J. 9 December, 2011. P.C. :- 1. Rule. Rule, made returnable forthwith. By consent, taken up for hearing immediately. 2. This petition is directed against the order dated 14th June, 2011 passed by the Deputy Commissioner of Police externing the petitioner from District- Bombay and Bombay Suburbs for a period of 2 years. The petitioner also challenges the order dated 2nd July, 2011 passed by the appellate authority dismissing the appeal against the order of externment. The preventive action of removal of the persons about to commit offence is taken under Sections 56 and 57 of the Bombay Police Act, 1957. The authority to take action is * 2 * WP-2296-2011 9. Dec. 2011 invested in either the Police Commissioner or the District Magistrate or Sub- Divisional Magistrate empowered by the State Government in that behalf. The show cause notice in this case had been sent by the Deputy Commissioner of Police, the externing authority. The petitioner had sent his reply to the notice and had also examined witnesses. The enquiry into the show cause notice, however, was conducted not by the Deputy Commissioner of Police, who is appointed as the Executive Magistrate, but, by the Assistant Commissioner of Police. The externing order itself at paragraph-3 states that there was enquiry conducted by the Assistant Commissioner of Police, Trombay before whom the petitioner had produced witnesses. The statements of the witnesses of the petitioner were recorded before the Assistant Commissioner of Police as the enquiry officers and he had submitted report to the externing authority which was the basis for action taken by the externing authority. This procedure adopted by the externing authority is illegal since there is no provision made anywhere for appointment of any enquiry officer by the externing authority for considering the reply of the externee or for recording of evidence of the witnesses to be examined by the externee. Therefore, the order of externment cannot be sustained. One more ground on which the order of externment must be set aside, is that, the order does not indicate that the externing officer had considered the cause shown by the externee. Therefore, there is clear non- * 3 * WP-2296-2011 9. Dec. 2011 application of mind in passing the order. Hence, the Rule is made absolute. The petition is allowed in terms of prayer clause (a). [SMT. R.P. SONDURBALDOTA, J]