Point of Law : Externment order –Quash of - Right of the Petitioner to reply/make effective representation to answer such notice to the competent authority has been totally hampered and jeopardized.

JUDGMENT :

S. S. SHINDE, J.

1. Rule. Rule is made returnable forthwith and heard with the consent of the learned counsel appearing for the parties.

2. By way of this Writ Petition, the Petitioner takes exception to the externment order bearing No.186/C/43/Zone-2/20 dated 26/11/2020 passed by the 3rd Respondent i.e. Deputy Commissioner of Police, Zone-2 Mumbai which has been confirmed by the 2nd Respondent i.e. the Divisional Commissioner, Konkan Division, by order dated 23rd March 2021 in Appeal No.23/2021 filed by the Petitioner.

3. The Criminal Interim Application No.1679 of 2021 is filed by the Petitioner/Applicant for staying the said externment order dated 26/11/2020 passed by the 3rd Respondent as also the order passed by the 2nd Respondent in Appeal No.23 of 2021.

4. By the order of externment passed by the 3rd Respondent, the Petitioner has been externed out of the limits of Mumbai City, Mumbai Suburbs’ Districts for a period of 1 years on the ground that the Petitioner habitually commits criminal acts like forcible extortion, thefts with intention to cause wrongful loss and to cause harm to the assets of the public.

5. Being aggrieved and dissatisfied with the said order of externment, the Petitioner filed an Appeal before the Divisional Commissioner, Konkan Division. The said Appeal has been dismissed by the 2nd Respondent by order dated 23rd March 2021. Hence this Writ Petition.

6. The learned counsel appearing for the Petitioner submits that the concerned Assistant Police Commissioner, Zone-2, Mumbai, has failed to serve a copy of notice dated 12/08/2020. It is stated that, the Petitioner was not made aware about the general nature of material allegations made against the petitioner in the show cause notice, and therefore, Petitioner is deprived of his valuable right to make effective representation and, on this ground alone the impugned orders deserve to be set aside. It is submitted that there is not a single conviction to the credit of the Petitioner and, the Respondents/Authorities have failed to take into consideration the said fact while passing the order of externment. It is also submitted that the externment order is passed without sending initial show cause notice dated 12/08/2020 to make effective representation referred to herein above, and as a result, the Petitioner could not make effective representation because of not sending aforesaid notice mentioning therein the general nature of allegations, and therefore, the externment order is against the principles of natural justice, and is in violation of fundamental rights of the Petitioner.

The learned counsel for the Petitioner further submitted that the in-camera statements of two witnesses cannot be relied upon, as the facts need to be tested on the anvil of the evidence and cross examination. It is submitted that there was no communication of the alleged show cause notice purported to have been issued under Section 59 of the Bombay Police Act by the concerned Assistant Police Commissioner on 12/08/2020. It is further submitted that as a matter of fact the externing authority did not arrive at subjective satisfaction that the witnesses are unwilling to come forward to give evidence in public against the proposed externee i.e. the petitioner herein by reason of apprehension to safety of their part, persona and property. He therefore submitted that the order of externment needs interference. He submits that the writ petition may be allowed.

7. The learned APP, appearing for the Respondents/State, submitted that the order of externment passed by the Respondent/Authority is fully justified and, the Respondents/Authority after due satisfaction has passed the said order. It is submitted that the Petitioner is a habitual offender. He therefore submits that the writ petition may be dismissed.

8. We have given careful consideration to the rival submissions. With the able assistance of learned counsel for the petitioner and learned APP for State, perused the pleadings and