Consideration of irrelevant material, lack of subjective satisfaction, and justification for maximum period of externment vitiates the externment order.

JUDGMENT

1. Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel appearing for the rival parties.

2. The externment order dtd. 28/12/2021, externing petitioner for a period of two years from the entire Wardha District is subject matter of challenge along with the order of dismissal of appeal by the Divisional Commissioner. The order of externment has been passed in terms of Sec. 56(1)(a)(b) of the Maharashtra Police Act, 1951.

3. The Authority has based the order of externment on total eight offences registered against petitioner during the period from the year 2016 to 2021 along with one prohibitory action. The impugned action has been challenged on the grounds namely :

(a) The petitioner was acquitted in the offence at serial No.2 however, that has been considered.

(b) Offences at serial Nos.1 to 5 are registered during the period from the year 2016 to 2018 however, those stale offences are considered.

(b) The offences at serial Nos.2, 4 and 5 are under the Maharashtra Prohibition Act, 1949, Maharashtra Police Act, 1951 and therefore, they are irrelevant in view of requirements specified under Sec. 56(1) of the Act, and

(c) The Authority has not recorded subjective satisfaction about requirement of externment for maximum period of two years.

4. To substantiate these grounds the petitioner has relied on various decision in cases of Deepak s/o Laxman Dongre Vs. State of Maharashtra and Ors. AIR 2022 SC 1241, Vijay @ Tyson s/o Namdeorao Dongre Vs. State of Maharashtra and Ors., (2017) ALL MR (Cri.) 5254, Munawar Shah Habib Shah Vs. State of Maharashtra and anr., (2014) ALL MR (Cri.) 1319, Shabbir @ Shahu Mohammad Shaikh Vs. State of Maharashtra and Ors., (2013) ALL MR (Cri.) 3837 and Bibansingh s/o Dalsingh Bawari and Ors. Vs. State of Maharashtra and anr., (2014) ALL MR (Cri.) 3655.

5. As against this the learned APP has justified the impugned order by contending that the offences at serial Nos.6 to 8 are bodily offences and thus, there is a reasonable nexus with the immediate externment action from the last registered crime of the year 2021. It is submitted that the police have recorded in-camera statements, which are verified by the Authority and thus, there is subjective satisfaction regarding the necessity for externment. Lastly, it is submitted that despite prohibitory action in the year 2020, the petitioner has committed one more offence.

6. There is no dispute that some of the offences i.e. offences at serial Nos.2, 4 and 5 does not fit within the required parameters. This Court in above referred case of Shabbir @ Shahu Mohammad Shaikh has expressed that when some irrelevant material is considered, it is not possible for the Court to decide as to what extent the externing Authority was influenced by irrelevant consideration and therefore, the order would vitiate. In the above referred cases of Vijay @ Tyson s/o Namdeorao Dongre and Munawar Shah Habib Shah, this Court took a view that the offences registered under other Act, namely, Maharashtra Prohibition Act, 1949, could not have been considered and therefore, the order is unsustainable.

7. As regards to subjective satisfaction about requirement of externment for maximum period of two years, in above referred case of Deepak s/o Laxman Dongre, the Hon'ble Supreme Court has emphasized that the Authority must recorded subjective satisfaction about the necessity of passing an order of externment for maximum period of two years. The impugned order does not indicate any reason or any reference as to on which basis the Authority came to the conclusion for requirement of imposing maximum period of externment. Thus, on various parameters the impugned order is unsustainable in the eyes of law and therefore, the impugned order of externment is hereby quashed and set aside.

8. Needless to say that the respondent is at liberty to initiate fresh action of externment, if circumstances warrant so, subject to complying the statutory provisions.

9. The Writ