JUDGMENT
1. By this petition filed under Articles 226 & 227
of the Constitution of India, the petitioner is
challenging the order dated 13-8-2001 passed by the
Sub-Divisional Magistrate, Yavatmal in Criminal Case No.
421/01 and the order dated 11-10-2001 passed by the
Appellate Authority, i.e. Principal Secretary (Appeals
and Security) to the Government of Maharashtra, Home
Department in Appeal No. EXT/04/2001/129/SPL-5.
2. Heard Shri U.A. Gosawi, the learned Counsel for
the petitioner and Shri Mirza, the learned Additional
Public Prosecutor for the respondents.
3. The petitioner was externed under Sections 56
& 59 of the Bombay Police Act, 1952 by an order dated
13-8-2001 passed by the respondent no.2. By the said
order, the petitioner was externed for two years from
Yavatmal and five neighbouring districts, namely, Nanded,
Akola, Wardha, Chandrapur and Washim. The petitioner
challenged the said order of externment before the
Government of Maharashtra, Home Department, Mumbai in
appeal. The Appellate Authority, namely, the Principal
Secretary (Appeals and Security) to the Government of
Maharashtra, Home Department vide his order dated
11-10-2001 rejected the appeal and confirmed the
externment order passed by Sub-Divisional Magistrate.
The petitioner challenges both the aforesaid orders on
the ground that in show-cause notice there is no averment
that witnesses are not coming forward to depose or that
they have not lodged the complaint against the petitioner
due to fear as also on the ground that though the
activity of the petitioner is stated to be restricted to
Yavatmal town, yet by the externment order in question,
the petitioner has been externed from not only the
district Yavatmal, but also 5 other districts, namely,
Nanded, Akola, Wardha, Chandrapur and Washim. According
to the petitioner, it is in excess of the power conferred
under Sections 56 & 59 of the Bombay Police Act. Besides
this, there are other grounds on which the order of
externment has been challenged.
4. Shri Gosawi, the learned Counsel for the
petitioner, relying upon the decision of this Court in
Punjaji Dagdu Gaikwad .vs. State of Maharashtra and
others reported in 2001(3) Mh.L.J. 926 contended that
the order of externment suffered from vice of excessive
externment from 5 districts in respect of which no data
was placed and, therefore, the entire order of externment
is liable to be quashed.
5. Shri Mirza, the learned Additional Public
Prosecutor, though supported the impugned orders conceded
that the activity of the petitioner was restricted to
Yavatmal town only. However, by the externment order in
question, the petitioner has been externed not only from
Yavatmal town but also from 5 other districts, namely,
Nanded, Akola, Wardha, Chandrapur and Washim.
6. In Punjaji Dagdu Gaikwad .vs. State of
Maharashtra and others reported in 2001(3) Mh.L.J. 926
relied upon by the learned Counsel for the petitioner,
this Court relying upon the decision in Pandharinath
Shridhar Rangnekar .vs. Dy. Commissioner of Police,
State of Maharashtra , observed in paragraph no.6 as below :-
“6. In Pandharinath Shridhar Rangnekar .vs.
Dy. Commissioner of Police, State of
Maharashtra , upon which reliance was
placed by learned A.P.P., it was held that it
is the externment authority which must decide
the period for which the order is to operate
and the territories to which it should extend.
Nevertheless, it is pertinent to note that the
Apex Court had observed that it depends upon
the nature of data collected in each case and
no general formulation is possible, but there
should not be greater restraint on personal
liberty than is reasonable in the
circumstances of the case. The Apex Court had
referred to judgment of this Court in Balu
Shivling Domble .vs. The Divisional
Magistrate and held that an excessive order
can undoubtedly be struck down because no
greater restraint on personal liberty can be
permitted than is reasonable in the
circumstances of the case. Nevertheless, it
was pointed out that the larger area may
conceivably have to be comprised within the
externment order so as to isolate the externee
from his moorings. However, for that purpose
data is required. In the case under
consideration, there does not appear to be any
such data with relation to the five districts
from where also the petitioner has been
externed along with the area of the
activities, i.e. district Buldana.
Therefore, the impugned order suffers from the
vice of excessive externment from the five
districts in respect of which no data was
placed and the entire externment order is
liable to be quashed.”
7. The aforesaid observations made by this Court
clearly indicate that an excessive order can undoubtedly
be struck down since no greater restraint of personal
liberty can be permitted than is reasonable in the
circumstances of the case. However, larger area may
conceivably have to be comprised within the externment
order so as to isolate the externee from his moorings but
for that purpose data is required. In the case in hand,
there does not appear to be any such data with relation
to the five districts from where also the petitioner has
been externed along with the area of activities, i.e.
Yavatmal town. This clearly indicates that the
externment order in question suffers from vice of
excessive externment from the five districts mentioned as
above and, therefore, both the impugned orders dated
13-8-2001 passed by the Sub-Divisional Magistrate,
Yavatmal and 11-10-2001 passed by the Principal Secretary
(Appeals & Security) to the Government of Maharashtra,
Home Department, Mumbai are liable to be quashed.
8. In the result, the Writ Petition is allowed.
The impugned orders dated 13-8-2001 and 11-10-2001 are
hereby quashed and set aside. The petitioner/externee
shall be set at liberty forthwith in case he is not
required in any matter. Rule is accordingly made
absolute in the aforesaid terms.