JUDGMENT
S.R. Dongaonkar, J.
1. Heard Shri Renu, Advocate, for the petitioner and Shri Fulzele, A.P.P. for respondents.
2. In this petition under Section 482 of Cr.P.C., the petitioner is challenging the order of externment passed against him by Deputy Commissioner of Police, Circle 3, Nagpur City, by which he was externed from the area of Nagpur City and Nagpur District for the period of two years. This order was passed on 13.7.2007. The petitioner seeks to challenge that order.
3. Adverting to the facts of the petition, it is the case of the petitioner that he is resident of Nagpur City. He is peace loving and law abiding citizen. He has movable & immovable properties in Nagpur. It is his claim that on 23.3.2006 a show cause notice was issued to him under Section 59 of the Bombay Police Act by Assistant Police Commissioner, Kotwali Division, Nagpur. The same was served through Senior P.S.I., Police Station, Lakadganj, Nagpur. This notice was issued under Section 59 of the Bombay Police Act in pursuance to the proposed action under Section 56(1)(bb)(2) of the Bombay Police Act. It was mentioned in the said show cause that he had committed four offences under Section 3 r/w Section 7 of the Essential Commodities Act. The said crime numbers were (1) 3043/01 of Police Station Lakadganj, (2) 3164/03 of Police Station Lakadganj, (3) 3167/05 of Police Station Lakadganj and (4) 3342/05 of Police Station Lakadganj. The latter two offences were allegedly under investigation, whereas in the first two offences, the charge-sheets were submitted. It was also alleged that there were several other offences under Arms Act and the Indian Penal Code, besides Bombay Police Act, registered against him. It was also alleged that preventive actions were taken against him, but there was no improvement. He was not doing any business, but he was indulged in committing offences with the weapons as well as by forming unlawful assemblies. It was also specifically alleged that he was indulged in black-marketing of blue kerosene, which was for the distribution to the ration card holders. Besides this, it was also alleged that because of his terror, nobody was coming forward to lodge any report or for leading evidence in the Courts. This show cause notice under Section 59 of the Bombay Police Act was issued on 23.03.2006 seeking his explanation as to why he should not be externed for two years out of Nagpur District and city.
4. The petitioner then filed this Criminal Writ Petition No. 412/2006 to challenge the said show cause notice. It may be mentioned that the externment proceedings against the petitioner, despite the filing of writ petition were continued. However, it remained pending for considerably long time. It needs to be further mentioned that because this petition was pending, presumably, the authority concerned did not conduct further proceedings in that matter and they remained as they were for quite a long time. Thereafter, this petition was dismissed sometime on 20.6.2007 in default. After the said petition was dismissed, in the externment proceedings which were against the petitioner, the order came to be passed on 13.7.2007. Thereafter, on 23rd July, 2007, the order of dismissing the petition in default was set aside and the petition was restored. As the order of externment was already passed against the petitioner, the petitioner was allowed to amend this petition to make him keep challenge alive to the show cause notice as well as to the final order passed in externment proceedings against him. That is how, the petitioner is challenging the order of externment passed against him on 13.7.2007.
5. It is also necessary to mention that though it was out of scope of this petition, the petitioner had also sought, quashing and setting aside of F.I.Rs 3167/05 of Police Station Lakadganj and 3342/05 of Police Station Lakadganj in this petition. He also sought stay of those investigations. However, considering the totality of the circumstances, those prayers were not pressed, nor any contentions were advanced on those counts. Therefore, the validity of the show cause notice issued against the petitioner for externment out of Nagpur City and Nagpur District under Section 59 of the Bombay Police Act and final order of externment passed against him under Section 56 of the Bombay Police Act only are under challenge.
6. Learned Counsel for the petitioner has submitted that in view of AIR 1955 N.U.C. Rajasthan 5020 Shankar Dan and Ors. v. Devilal and Anr. Deep Chand v. State of Rajasthan Shreenath Travel Agency and Anr. v. Lt. Governor of Delhi and Ors., when any power is required to be exercised by a certain authority in a certain manner, it has to be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden, which is obvious. According to him, in the present case, the show cause notice was not issued by the authority nominated under Section 59 of the Bombay Police Act. It is also his submission that it was only the Commissioner of Police who could have exercised the powers under Section 59 of Bombay Police Act and under Section 56 of the said Act. It is further his submission that the said authority while passing final order under Section 56 of the Bombay Police Act, has not applied its mind to the facts & circumstances of the case and it, perfunctorily, passed the impugned order. According to him, the concerned authority should have considered that the offences under Bombay Prohibition Act as well as other offences could not be taken into consideration inasmuch as the order was sought to be passed in pursuance to the provisions of Section 56(1)(bb)(2). According to him, as the final order under Section 56 of the Bombay Police Act was passed in pursuance to the show cause notice under Section 59 of the Bombay Police Act, shows that the offences under Bombay Prohibition Act were taken into consideration, as such the final order of externment is bad and liable to be set aside. It is his submission that in view of Dhananjay Manohar Sapkal v. State of Maharashtra and Anr. and 2007 All MR (Cri.) 3036 Bharat s/o Dhondba Tarare v. The Sub Divisonal Officer and Ors. the order of the authority below is liable to be set aside on this count. Further, according to him, as the factum of earlier externment order was taken into consideration, there was clear non application of mind in view of Shri Narayan Motiram Khilnani v. The State of Maharashtra and 1992 Cr.LJ 326 Abdul Wahab v. The Sub Divisional Magistrate, Malegaon and Anr. On this count also the said order is liable to be set aside. It is further his submission that there was inexplicable delay in passing the order after issuance of show cause notice. The authority below did not pass the relevant order promptly and as such, the said order is bad. In this behalf, he relied on 1992 Cr.LJ 3983 Santosh Ramprasad Sharma v. Deputy Commissioner, Crime Branch, and Anr. He has further relied on the observations of this Court in Alam Ibrahim Shaikh v. S.G. Suryavansi, Dy. Commissioner of Police, Thane and Ors., and also on unreported judgment of this Court in Criminal Writ Petition No. 10/96 Raju Mahadeorao Shende v. State of Maharashtra and Anr., wherein it was held that after service of notice, 5 months time to dispose of the proceedings i.e. for passing final orders was taken that order was held to be bad. It is further contended by the learned Counsel for the applicant that there was no satisfactory and sufficient contents appearing from show-cause notice that the witnesses were not coming forward to depose against the applicant, as such final order on that basis was illegal. Two cases are still pending in the criminal courts and therefore, it was not proper on the part of learned authority to pass impugned order, without making the applicant known about the substance of the statements of relevant witnesses in view of Ram Narayan Patil v. The State of Maharashtra and Ors. Apart from this, it is also submitted that as the impugned order does not disclose the reasons on which basis the said order was passed. Final order is the repetition of contents of Show Cause Notice. As such the same is liable to be set aside in view of 1991 Cr.LJ 1725 Abdul Kadir Razzaque Beg v. The Sub Divisional Magistrate, Nashi and Ors. Apart from all these contentions, it is also submitted that the order which is impugned in this applicant was bad as there was total non application of mind, on merits and the same was passed in casual manner. Some discrepancies in show cause notice and final orders are pointed out and it is submitted that final order of externment is liable to be quashed and set aside. In the alternative, it is submitted that if the order is held to be legal, then the period of his externment which is already undergone should be accepted as a period for which he was liable to be externed.
7. Learned A.P.P. Shri Fulzele, while opposing the application, vehemently submitted that the impugned order passed by the Deputy Commissioner of Police, is correct. According to him, Assistant Commissioner of Police who had issued the show-cause notice was empowered and authorised to issue that notice. He has relied on the provisions of Maharashtra Ordinance No. IX of 1994 and the observations of this Court in Abdul Washim v. State of Maharashtra and Anr. As regards the merits of the order, learned APP relied on Saduddin v. State of Maharashtra and Anr. and State of NCT of Delhi and Anr. v. Sanjeev @ Bittoo and submitted that the satisfaction of the concerned authority is important and unless the satisfaction of the authority is demonstratively perverse or based on no evidence, misleading of evidence or which a reasonable person could not form positive opinion or that the person concerned was not given due opportunity resulting in prejudicing to that extent, if the authority is not satisfied, then only, court can interfere with such order. In the present case, authority was satisfied with the contents of show cause notice and facts in the case. It was also satisfied about the emergent action that was necessary and therefore, challenge to the order of the competent authority under Section 56 of the Bombay Police Act cannot survive. It is his submission further that the delay in passing the main order after issuance of show cause notice was only because of the fact that the petition was filed by the applicant for challenging the show cause notice itself and the petition was pending for hearing and the impugned order was passed only when this Court had dismissed the petition in default as no one appeared for the petitioner on 20/6/2007. It has to be noted in the present case that impugned order was passed on 13.7.2007 after the dismissal of the said petition by the applicant in default and the externment order was passed on 13.7.2007 and later on this petition was amended to challenge that final order of an externment. Therefore, according to the learned A.P.P. the order of externment passed against the petitioner is perfectly legal and valid.
8. Before appreciating the contentions of the parties, it is necessary to note few dates. On 20.3.2006 show cause notice was issued by Assistant Commissioner of Police. On 27.3.2006 it was served on the petitioner through Police Station Officer, Lakadganj. Thereafter report of service was received. Then proceedings started. Many a times leave was granted to the petitioner. At times he was absent in the proceedings. The submissions were also advanced by the Counsel for the petitioner, however, he did not appear in person, nor his witnesses. It is also apparent that on 21.8.2006 the Counsel for the applicant had appeared. He sought further time, but his request was rejected and the matter was closed for orders. Later on the matter was again adjourned to some dates. Thereafter on 6.9.2006 the applicant filed Writ Petition No. 412/06 (instant petition) challenging the show cause notice for externment. The reply of the state was filed in the instant petition. The petition was dismissed for default in appearance on 26.06.2007 and the impugned order was passed by Deputy Commissioner of Police on 13.07.2007.
9. With these dates in mind, it is necessary to consider the rival contentions of the parties.
10. The prayer Clauses in the present petition read as under:
(1) Quash and set aside the F.I.R. Nos. 3167/05 and 3342/05 dated 15.3.2005 and 9.11.2005 respectively and proceedings thereto;
(2) To stay the proceedings in the F.I.R. Nos. 3167/05 and 3342 dated 15.3.2005 and 9.11.2005 during the pendency of the instant petition.
(3) Quash and set aside the notice of externment dated 23.3.2006 at Annexure-P1 and the proceedings thereto;
(4) Stay the proceedings relating to the notice of externment dated 23.3.3006 at Annexure-P1, during the pendency of this petition.
(5) grant any other relief that this Hon’ble Court deems fit and proper in the facts and circumstances of the case. It is apparent that the prayers of quashing F.I.R Nos. 3167/05 and 3342/05 were also made. However, the same are not pressed at the time of final hearing of the petition.
11. With this background, the contents of the show cause notice issued to the under Section 59 of the Bombay Police Act, need to be seen. On close perusal of the said show cause notice, it would be seen that the said show cause notice was issued by the Assistant Police Commissioner, Kotwali Division, Nagpur. The contents of the same precisely show that on 8.2.2001 one offence, Crime No. 3043/01 under Section 3 r/w Section 7 of the Essential Commodities Act was registered against petitioner and the said proceedings are pending in the Court No. III. Next item which is pressed into service against the petitioner is relating to Crime No. 3164/01 of Section 3 r/w Section 7 of the Essential Commodities Act. Both these offences are under Essential Commodities Act. Next two items are also offence under Section 3 r/w Section 7 of the Essential Commodities Act. First is bearing Crime No. 3167/05, dated 15.6.2005 and another Crime No. 3342/05 of Section 3 & 7 of the Essential Commodities Act. Thus, the show cause notice is precisely based on 4 items of the offences which are allegedly committed by the applicant under Section 3 r/w Section 7 of the Essential Commodities Act. It needs to be specifically noted that Item No. III and IV, were not sent to the court for trial against the petitioner at that time, but they were under investigation.
12. Rest of the contents of the show cause notice points out that there are offences registered against the applicant, which are 9 in numbers, one of them is under Arms Act, two of them are under IPC and rest of them are under Bombay Police Act. Last part of the show cause notice pointed out general allegations against the applicant saying that he is not doing any work, he always remain with his friends, he always possesses the weapon and commits offences. Then the final order which is issued on 13.7.2007 again clearly shows that the said order was passed under Section 56(1)(bb) (2) of the Bombay Police Act, meaning thereby that the authority i.e. Deputy Commissioner of Police was satisfied there was necessity of issuance of order of externment under Section 56(1)(bb)(2) of the Bombay Police Act, which evidently means that the said order was passed because of petitioner’s committing offences of misconducts as contemplated by that section. Close perusal of the final order further shows that the authority has referred to the offences under Arms Act, I.P.C. and Bombay Police Act and the earlier externment proceeding. It also refers to a fact that the witnesses are not coming forward to depose against him.
13. This will clearly show that the final order was passed by the concerned authority without taking into consideration that the notice contemplated the action against the applicant for the mis-deeds committed by him, which can be referable under Section 56(1)(bb)(2) of the Bombay Police Act.
The relevant part of Section 56 is thus;
56. Removal of persons about to commit offence.-
(1) Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under Section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate specifically empowered by the State Government in that behalf.
…
or (2) in any manner prejudicial to the maintenance of supplies of commodities essential to the community as defined in the Explanation to Sub-section (1) of Section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980.
14. The relevant explanation of Section 3 of Prevention of Black-marking Act reads as under Explanation: For the purpose of this subsection, the expression ‘acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community’ means-
(a) committing or instigating any person to commit any offence punishable under the Essential Commodities Act 1955 (10 of 1955), or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade or commerce in, any commodity essential to the community; or
(b) dealing in any commodity-
(i) which is an essential commodity as defined in the Essential Commodities Act, 1955 (10 of 1955), or
(ii) with respect to which provisions have been made in any such other law as is referred to in Clause (a), with a view to making grain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid.
On perusal of the relevant provisions, it would be seen that there is no reference to the object of this provision of Section 56(1)(bb)(2) of the Bombay Police Act and also to this explanation in show cause notice and the impugned order. Merely because the offences under Essential Commodities Act are committed, that too at large intervals, that fact by itself will not bring the petitioner or the concerned person within the purview of explanation to Section 3 of the Prevention of Black marketing Act. On close perusal of the show cause notice as well as final order, it would be seen that there is in fact no reference muchless sufficient, to show that the applicant had done any act which is punishable or liable for inviting any preventive action, in terms of Section 56(1)(bb)(2) of the Bombay Police Act. For the offences allegedly committed by him, he is being proceeded and therefore, unless there is something more, as required by virtue of explanation to Section 3 of the aforesaid Act, in my opinion, it is difficult to accept the contention of the respondent that there was justification for initiating action under Section 59 or 56 of the Bombay Police Act. As the authority concerned i.e. Deputy Commissioner of Police has failed to consider the provisions of Section 3 of the Prevention of Black Marketing Act, and explanation thereof it would not be proper to hold that he had applied his mind, muchless properly to the facts of the present case.
15. Apart from this, it would be seen that the authority concerned has also considered the offences and proceedings which were earlier considered; in earlier externment proceedings, against the petitioner. There is reason to believe that the authority which passed the impugned order was not alive with the requirement of Section 56(1)(bb)(2) of the Bombay Police Act. On the contrary, the final order impugned in this application shows that the allegations were quite general and they were not concise to point out only the requirement of Section 56(1)(bb)(2) of the Bombay Police Act under which the said order was passed. Mere statement in final order that no positive defence is raised and witness are not coming forward to depose against petitioner does not seem to be substantiated by perusal of proceedings below. Good and forceful texture of words in final order has to be substantiated from material on record else it would vitiate. There is clear lack of application of mind in passing the impugned order and as such it is liable to be quashed and set aside.
16. As regards other contentions raised by the learned Counsel for the applicant, suffice it to say that they need not be considered in detail in view of the above. However, it has to be recorded that in the present case, the authority which has passed the impugned order, had an authority to pass that order in view of the provisions of Section 56 of the Bombay Police Act and the issuance of show cause notice by A.C.P. under Section 59 of the Bombay Police Act was clearly permissible inasmuch as it has been provided under Section 59 of the Bombay Police Act that before an order under Sections 55, 56, 57 or 57A is passed against any person, the officer acting under any of the said Section or any officer above the rank of Inspector authorized by that officer, can issue that notice. Here, the show cause notice was issued by A.C.P. There is no sufficient reason to hold that he was not authorized by the authority, who can pass the order under Section 56 of the Bombay Police Act. Further, in view of the observations of this Court in Abdul Wasim v. State of Maharashtra, this contention, in view of the observations in Para 10 of the said judgment, thus,-
10. With the help of the learned Counsel, I have perused the concerned provisions. On reading those provisions, I hold that there is no merit in the submission made by the learned counsel. Section 59 itself provides for the manner of inquiry if conducted by the officer externing the person from a particular area. Section 59 provides that the said officer can authorise any officer above the rank of an Inspector to issue in writing the general nature of material allegations to the externee and to accept his explanation and record and examine the witnesses tendered by him. This is a statutory provision permitting an authorization to an officer exercising the power of the externment. Therefore, the authorization by the Deputy Commissioner of Police to the Assistant Commissioner of Police is not in any way affected or bad in law. I further accept the submission of the learned Additional Public Prosecutor that for the functions and duties to be performed under the provisions of the Act or under any other law for the time being in force, no general or special order is necessary. Such order is necessary when the functions and duties are assigned to the Assistant Commissioner of Police by the Commissioner of Police. That means the functions and duties, which are not assigned by the provisions of law but they are being assigned to the Assistant Commissioner of Police because of the order of the Commissioner of Police; for such delegation of power, the general or special order is necessary. However, as I have already found that Section 59 itself is clear enough to delegate the power to any officer above the rank of an Inspector, the reference to Section 11, as pointed out by the learned Counsel for the petitioner, was needless. In the result, the submission made by the learned Counsel that for the purposes of the non-application of Section 10(2) and issuance of the notice under Section 56 by the Assistant Commissioner of Police and the act of recording the statement by the said Assistant Commissioner of Police relying on Section 11 are without any merit and therefore, they are rejected has to be repelled.
17. As regards the contention that the order impugned is vitiated because of delay in passing the impugned order after issuance of show cause notice, it also appears to be acceptable. The show cause notice appears to be issued on 23.3.2006, matter seems to have been closed for orders in August, 2006, final order seems to have been passed on 13.7.2007. No doubt, this petition was pending till it was dismissed in default on 20.6.2007. It however appears that there was no stay to the proceedings against the petitioner. It also does not appear that any time, any request was made to this Court that the activities of the applicant are prejudicial to the interest of the community and therefore, he needs to be externed at the earliest and therefore, the authority below should be allowed to pass the necessary orders. The delay in passing such order would clearly mean that externment was not warranted, muchless because no further mis-deeds or commission of such offences has been alleged by the respondent, against the petitioner during the pendency of petition.
18. In my opinion, therefore, even without referring to the authorities citied by the learned Counsel for the applicant, suffice it to say that the final order impugned in this application was clearly similar to that of show cause notice and both of them did not contain the details of the acts which are prejudicial to the community as required under Section 56(1)(bb)(2) of the Bombay Police Act and the explanation to Section 3 of the Prevention of Black Marketing. The explanation of petitioner does not seem to have been invited properly. As observed above it shows lack of application of mind by the concerned authority. Merely repetition of contents of show cuase notice in the final order can not serve the purpose. It is needless to say that final order has to be based on consideration of submissions by the noticee for which recording of reasons would be must unlike the case in hand. There is inordinate delay in passing the order meaning thereby there was no need of immediate action of externment. It also does not seem to be verified as to what was the out come of two cases under Essential Commodities Act alleged against petitioner of which investigation was being done. In such circumstances, it has to be held that there was total lack of application of mind by the authorities concerned while passing the impugned order. As such it calls for quashing and setting side. Ordered accordingly.
The application is thus allowed in the above terms.