Criminal Writ Petition No.541 of 2017

23rd August, 2017.

Petitioner Counsel: Mr. KARMARKAR
Respondent Counsel: Mr. S.S. DOIFODE

Cases Cited:
Sachin Hiraman Tayde Vs. The Deputy Commissioner of Police, Nashik and Others, 2014 ALL MR (Cri) 1310 [Para 7]
Smt. Surekha Paras Waghmare Vs. State of Maharashtra & Anr., 2013 ALL MR (Cri) 2706 [Para 7]

JUDGMENT

Smt. Vasanti A Naik, J. :- Rule. Rule is made returnable forthwith. The Criminal Writ Petition is heard finally at the stage of admission with the consent of the learned Counsel for the parties.

2. By this Criminal Writ Petition, the petitioner challenges the order of the Deputy Police Commissioner, Nagpur, dt.17.4.2017 under Section 56(1)(bb) of the Maharashtra Police Act, 1951 externing the petitioner from Nagpur City and the adjoining rural areas for two years.

3. A notice was served on the petitioner under Section 59 of the Act asking him to show cause as to why he should not be externed under the provisions of Section 56 of the Act in view of the pendency of the offences against him under Section 307 of the Penal Code and Section 65(e) of the Maharashtra Prohibition Act, 1949. The petitioner submitted a reply and pointed out to the Deputy Commissioner of Police, Nagpur that he had not committed any offence or such activities for which he could have been externed under the provisions of Section 56 of the Act. However, the Deputy Commissioner of Police recorded the statements of the witnesses and the order of externment was passed against the petitioner under Section 56(1)(bb) of the Act, externing him from Nagpur City and the rural areas for two years. The order of externment, dt.17.4.2017 is challenged by the petitioner in the instant petition.

4. Mr.Karmarkar, learned Counsel for the petitioner submitted by taking this Court through the provisions of Section 56(1)(bb) of the Maharashtra Police Act that the impugned order of externment could not have been passed against the petitioner by resorting to the said provision. It is stated that the order under Section 56(1)(bb) of the Act could have been passed only if the Deputy Police Commissioner had a reasonable ground for believing that the petitioner had acted in any manner that is prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, Anti Social and Other Dangerous Activities Act, 1980. It is stated that the provisions of Section 56(1)(bb) could have been invoked by the Deputy Police Commissioner if the actions on the part of the petitioner were prejudicial to the maintenance of supplies of commodities essential to the communities as defined under the provisions of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. It is stated that no proceedings are pending against the petitioner for the offence punishable under the Penal Code and the pending proceedings only pertain to the provisions of Section 65(e) of the Maharashtra Prohibition Act. It is stated that on the basis of the pendency of the cases under S.65(e) of the Maharashtra Prohibition Act it cannot be said that the actions on the part of the petitioner are prejudicial to the maintenance of the public order as defined under the Maharashtra Prevention of Communal, Anti Social and Other Dangerous Activities Act or to the maintenance of supplies of commodities essential to the communities. It is stated that, in view of the aforesaid, the impugned order is liable to be quashed and set aside.

5. Mr.S.S.Doifode, the learned Additional Public Prosecutor appearing for the respondents has fairly admitted that after 2014, the offences are registered against the petitioner only under the provisions of Section 65(e) of the Maharashtra Prohibition Act and the said proceedings are pending. It is stated that even if the trial is pending against the petitioner for the offence punishable under Section 307 of the Penal Code, the same had commenced in the year 2000.

6. On a reading of the relevant provisions of the Maharashtra Police Act and the Maharashtra Prohibition Act, it appears that the Deputy Commissioner of Police was not justified in passing the order of externment by invoking the provisions of Section 56(1)(bb) of the Maharashtra Police Act, 1951. The provisions of Section 56(1)(bb) read thus :

"56. Removal of persons about to commit offence :

Whenever it shall appear in Greater Bombay and other areas for which a Commissioner bas been appointed under Sec. 7 to the Commissioner and in other area or areas to which State Government may, by notification in the Official Gaulle, extend the provisions of this section, to the District Magistrate, or the sub. Divisional Magistrate specially empowered by the State Government in that behalf

(a) ...............

(b) ................

(bb) that there are reasonable grounds for believing that such person is acting or is about to act (1) in any manner prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, Antisocial and other Dangerous Activities Act, 1980, or (2) in any manner prejudicial to the maintenance of supplies of commodities essential of the community as defined in the Explanation to subsection(1) of Sec. 3 of the Prevention of Blackmarketing and maintenance of Supplies of Essential Commodities Act, 1980 (VII of 1980)."

(c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or other wise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm [or such prejudicial act] or the outbreak or spread of such disease or to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the jurisdiction of the Officer, or not and whether contiguous or not), by such route, and within such time, as the said officer may prescribe and not to enter or return to the area or areas specified (hereinafter referred to as "the specified area or areas") from which he was directed to remove himself.

It is apparent from a reading of the provisions of Section 56(1)(bb) of the Maharashtra Police Act that a person could be directed to remove himself out of the areas in the State of Maharashtra under S.56(1)(bb) of the Act only if there is a reasonable ground for believing that such of person is acting or is about to act in any manner prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, AntiSocial and Other Dangerous Activities Act or to the maintenance of supplies of commodities essential to the community as defined in the explanation to subsection(1) of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980.

7. In the instant case, we find from the chart in the impugned order that proceedings are shown to be pending against the petitioner under Section 307 of the Penal Code from the year 2000. The learned Counsel for the petitioner has stated that the said proceedings are not pending and the petitioner is acquitted in the said proceedings, in the year 2004. Be that as it may, even if it is considered that the proceedings under Section 307 of the Penal Code are pending against the petitioner, the trial in those proceedings had commenced in the year 2000. They are stale proceedings on the basis of which the order of externment could not have been passed in 2017 unless crime was registered against the petitioner under the provisions of the Penal Code or the Acts in the recent past. It is held by this Court in the Judgment reported in 2014 ALL MR (Cri) 1310, Sachin Hiraman Tayde vs. The Deputy Commissioner of Police, Nashik and Others that stale cases cannot be taken into consideration while passing the externment orders. The proceedings pending against the petitioner relate to the offence punishable under Section 65(e) of the Maharashtra Prohibition Act. Under Section 65(e) of the said Act, a person is liable to be convicted and punished for a term mentioned in the said section if he sells, buys or possesses any intoxicant other than opium or hemp. On a reading of the provisions of Section 65(e) of the Maharashtra Prohibition Act, it appears that the proceedings are initiated against the petitioner since the year 2014 only in respect of the alleged offence of selling, buying or possessing an intoxicant. Pendency of the proceedings in respect of the said offence cannot be a ground for externing the petitioner under the provisions of Section 56(1)(bb) of the Maharashtra Police Act. Pendency of the proceedings for the offence under Section 65(e) of the Maharashtra Prohibition Act cannot make the Deputy Police Commissioner believe that the petitioner would be acting in any manner prejudicial to the maintenance of public order as defined under the Maharashtra Prevention of Communal, AntiSocial and Other Dangerous Activities Act. Pendency of the proceedings for the offence under Section 65(e) of the Maharashtra Prohibition Act also cannot result in recording the satisfaction that the action of the petitioner would be prejudicial to the maintenance of supplies of commodities essential to the community. Since it is not the case of the respondents that intoxicant is a commodity essential to the community, the externment of the petitioner could not have been made under the provisions of Section 56(1)(bb) of the Maharashtra Police Act. It is held by this Court in the Judgment reported in 2013 ALL MR (Cri) 2706, Smt. Surekha .vs. State of Maharashtra and another that an externment order cannot be passed on the basis of pendency of the cases under the Maharashtra Prohibition Act. In the instant case, the externment order could not have been passed under S.56(1)(bb) of the Act when the offences registered against the petitioner during the past three years relate only to the provisions of Section 65 (e) of the Maharashtra Prohibition Act. The respondents have not pointed out any other provision of the Maharashtra Police Act under which the order could be sustained.

8. Hence, for the reasons aforesaid, the Criminal Writ Petition is allowed. The impugned order dt.17.4.2017 is hereby quashed and set aside. Rule is made absolute in the aforesaid terms.

Petition allowed.