Imran Suleman Shaikh vs The State Of Maharashtra & Anr on 30 June, 2010

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                    
                 CRIMINAL APPELLATE JURISDICTION




                                            
          CRIMINAL WRIT PETITION NO. 1698 OF 2010

    Imran Suleman Shaikh                              ...Petitioner
            vs.




                                           
    The State of Maharashtra & Anr.                   ...Respondents



    Mrs.V.R. Raje for the Petitioner.




                                  
    Mr.J.P. Kharge, APP for the State.
                     
                                        CORAM : V.M. KANADE, J.

DATED : JUNE 30, 2010

P.C. :-

1 Heard Counsel for the petitioner and APP for

the State.

2 The petitioner is challenging an order of

externment dated 15th March, 2010. It is submitted

that the show cause notice which was issued by the

respondent mentions the criminal case which was

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filed against the petitioner in the year 2004 and in

which, he was convicted in the year 2006. Secondly,

he refers to chapter case which was initiated

against the petitioner in the year 2004. It is

submitted that the said cases which are mentioned

are not proximate in point of the time to the show

cause notice and thereafter, order of externment

which has been passed. It is submitted that one of

the requirement which has to be established by the

Externing Authority is that the Externing Authority

is to be satisfied that the petitioner is likely to

commit the said offence. It is submitted that the

Externing Authority could not have arrived at such a

conclusion particularly, when the said case which

was filed against the petitioner was not proximate

on that point of time. On this ground alone, order

of externment is liable to set aside. The learned

Counsel relied on the judgment in the case of

1987(3) Bom.C.R. 656 reported in Dhondiram Appa

Hatkar vs. The State of Maharashtra & Others.

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3 The learned APP, on instructions from

Mr.S.B. Bandgar, API of Ambarnath Police Station,

was not in a position to point out any other

material from the show cause notice on the basis of

which it could be inferred that the petitioner was

likely to commit any such activity in future.

4 In my view, the ratio of the judgment

Dhondiram Appa Hatkar (supra) applies to the facts

of the present case. A Division Bench of this Court

in para 5, after referring to provisions of Section

57, has observed as under ;-

Therefore, it will be clear
that the mere fact that the person
has been convicted is not enough but

the competent authority empowered to
extern the person must have reason to
believe that such person is likely
again to engage himself in the
commission of an offence similar to

the one for which he was convicted.
It is also clear that if notice under
section 59 in this behalf is to be
worthwhile, then, at least, general
indication in the notice has to be
given regarding the material in
possession of the Externing Authority

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upon which his satisfaction is based.
In may be that the fact that the
person is persistently engaged in

certain kind of offences or has been
previously convicted itself may be

the material or the ground which may
enable the authority to come to the
conclusion that such person is likely
to engage himself again in the

commission of similar offences,
obviously depending upon the
propensity, gravity, and magnitude of
the crime and activities involved. It
will all depend on the facts of each

case, and no general rule can be laid
down in that behalf.

The Division Bench has further observed in para 6 as

under :-

….. Firstly, we find that

the first conviction is on 5th July,
1980, thereafter, till 9th October,
1984 there is not a single
conviction. The last conviction was

on 18th May, 1985 and the notice under
Section 59 was issued on 15th October,
1986. In these circumstances, it is
difficult to hold, that on the basis
of these convictions alone, which

were not proximate, any reasonable
man could have come to the conclusion
that the petitioner is again likely
to engage himself in the commission
of similar offences. Secondly the
notice under section 59 does not
indicate at all any other material

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which could give the authority a
cause to believe that the person is
again likely to engage himself in

similar offences. Even the final
order of externment does not

disclose, even remotely, any such
material. …..

5 In the present case also, unfortunately,

there is no material mentioned in the show cause

notice. The criminal case was filed against the

petitioner pertains
ig to year 2004. The chapter

proceedings were also initiated in the same year.

There is no material to show that the petitioner has

committed any such activity during the last six

years. No NC complaint has been filed against the

present petitioner during these years and as such,

therefore, it is difficult to hold, on the basis of

the conviction of the petitioner in the year 2006

which is definitely not proximate in point of time,

that the petitioner is likely to commit similar

offence again.

6 Under these circumstances, the petition is

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allowed. Order of externment is quashed and set

aside. Rule is made absolute in terms of prayer

clause (a).

(V.M. KANADE, J.)

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