Heard. Perused.

2. Rule. Rule made returnable forthwith. Taken up for final hearing by mutual consent of parties.

3. Externment order bearing No.DCB/Extt/18/7878/2010, passed by the Deputy Commissioner of Police, Aurangabad and the order of confirmation thereof, dated 14.12.2010, passed by the Secretary, Home department, Mantralaya, Mumbai are the subject matter of the present petition.

4. Notices dated 7.12.2007 and 25.2.2008, seeking cause as to why there should not be his externment for the period of two years from the local jurisdiction of Districts Aurangabad and Ja1na were issued under the provisions of Section 159 of the Bombay Police Act, 1951 to the petitioner by the Assistant Commissioner of Police, CIDCO, Aurangabad city and Deputy Commissioner of Police, Circle, Aurangabd respectively. Reply dated 11.3.2008 was given by the petitioner to the said notices and the externment proceedings were dropped vide order dated 26.3.2008 at Exhibit C.

5. It appears that, show-cause-notice dated 19.4.2010 requiring the petitioner to show cause again as to why he should not be externed from the limits of Aurangabad city and district as well as from district Jalna for two years, was served on the petitioner. According to the petitioner, the responded to the said notice and filed his say; and thereafter again another notice dated 30.7.2010, calling upon him to appear before the authorities and to make further submissions in his favour was again served on him and in response thereto, he appeared and made oral submissions. On 30.8.2010, the externment order directing externment of the petitioner for the period of two years from the local jurisdiction of Aurangabad city and district was passed. An appeal preferred against the said order, being Appeal No.190/2010, under Section 60 of the said Act before the Secretary, Home Department, Mantralaya, Mumbai came to be rejected vide order dated 14.12.2010, annexed to the petition at Exhibit B.

6. Firstly, learned Advocate for the petitioner submitted that the Deputy Commissioner of Police, Circle Aurangabad was not competent to issue the externment order as there was no General or special order of the State Government, empowering Deputy Commissioner of Police to exercise and perform any of the powers, functions and duties of the Commissioner under the orders of the Commissioner as required under Section 10(2) of the Bombay Police Act, 1951. In this connection, learned A.P.P. for the State pointed out the deletion of the phrase "In accordance with the general or special orders of the State Government in this behalf' appearing in Section 10(2) by virtue of Bombay Police (Amendment and Validation) Act, 1994 and the judgments passed by this Court, reported in 1995(1) Mh. L.J. 352 (Afjalkhan Sulemankhan Pathan Vs. State of Maharashtra and another) and 1998(1) Mh. L.J. 157 : [1998 ALL MR (Cri) 438] (Abdul Wasim s/o Mohammad Faruq Musalman Vs. State of Maharashtra and another) in that regard. Faced with this answer, Mr. Manorkar, learned counsel for the petitioner withdrew his submissions.

7. Secondly, Mr. Manorkar, learned Advocate for the petitioner submitted that, he had replied the show-cause-notice dated 19.4.2010 and raised contentions in his defence, and yet there is (10 reflection of it in the impugned order of externment dated 30.8.2009 passed exparte without application of mind by the concerned authority to the contentions raised by him, and as such, the impugned order is bad in law. Answering this submission, learned A.P.P. for the State submitted that the elaborate show-cause-notice giving the list of the crimes registered against the petitioner with Mukundwadi Police Station as well as chapter cases initiated against him, was duly served on the petitioner and complete opportunity was given to the petitioner to respond thereto, and the petitioner did avail of such opportunity and had tendered reply and the petitioner was heard, and ultimately, as a result of said hearing, preliminary