The subjective satisfaction for passing an externment order must be based on objective material, and crimes under the Prohibition Act should not be considered. The order must pass all legal tests and consider the impact on fundamental rights.

JUDGMENT

1. Rule. Rule made returnable forthwith. The petition is heard finally by consent of the learned advocates for the parties.

2. In this criminal writ petition, the petitioner has challenged the order passed by the respondent No.1-Deputy Commissioner of Police, Amravati Zone-1 dtd. 5/4/2022, whereby he was ordered to be externed from the Amravati City as well as Amravati District and also the order dtd. 28/9/2022 passed by the Appellate Authority-Respondent No.3 confirming the order of externment passed by the respondent No.1 dtd. 5/4/2022.

3. The facts leading to the filing of the petition can be summarized as follows: The respondent No.1 initiated proceeding for externment of the petitioner from Amravati District by invoking the provisions of Sec. 56(1)(b) of the Maharashtra Police Act, 1951 (for short "the Act of 1951"). The respondent No.1 to record his subjective satisfaction, relied upon the following crimes. The said crimes are set out hereinbelow in tabulated form:

4. The respondent No.1 conducted necessary inquiry. He issued a notice to the petitioner on 4/3/2022 to show cause as to why he should not be externed from the Amravati District. The respondent No.1, based on the material collected, passed the order of externment on 5/4/2022. The petitioner challenged the said order by filing an appeal before the respondent No.3. The respondent No.3 vide order dtd. 28/9/2022 though found certain deficiencies in the order of externment, dismissed the appeal and confirmed the said order.

5. The learned advocate for the petitioner submitted that out of five crimes registered at Frezarpura Police Station for the various offences committed under the provisions of the Indian Penal Code, 1860 (for short "IPC"), the petitioner was acquitted in four crimes before issuance of notice. The learned advocate submitted that while arriving at subjective satisfaction, four crimes at Serial Nos.1 to 4 in which he was acquitted were taken into consideration. The learned advocate further submitted that four crimes registered against the petitioner at Frezarpura Police Station were for commission of offences under Sec. 65(e) of the Maharashtra Prohibition Act, 1949 (for short "the Prohibition Act"). The learned advocate submitted that for the purpose of passing an externment order under Sec. 56(1)(b), the offences under the Prohibition Act cannot be taken into consideration. In order to substantiate this submission, he has placed reliance on the decision in the case of Dhananjay Manohar Sapkal Vs. State of Maharashtra and Another [2005(2) Mh.L.J. 384]. The learned advocate submitted that after excluding the crimes in which he was acquitted as well as the crimes under the Prohibition Act, only one crime at Serial No.5 registered at Frezarpura Police Station bearing Crime No.156/2017 was available to be considered by the respondent No.1. The learned advocate, therefore, submitted that the respondent No.1 took into consideration the stale crimes in which he was acquitted. It is further submitted that apart from the crimes being stale, there is no live link in those crimes as well as the proposed action. The learned advocate submitted that a reference has been made to the in-camera statements of the confidential witnesses. By drawing my attention to the show cause notice dated 4 th March, 2022, the learned advocate submitted that there was no mention of these statements in the show cause notice. The learned advocate further submitted that the statements of the confidential witnesses indicate that the same were recorded before issuance of notice. The learned advocate further submitted that the respondent No.1 did not record the reasons for externment of the petitioner from entire Amravati District and that too for a period of two years. The learned advocate submitted that in the absence of the reasons, the order passed by the respondent No.1 and confirmed by the respondent No.3 suffers from the virus of excessiveness.

6. The learned APP submitted t