Full Judgment Text
cwp1221.18(J)
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR .
CRIMINAL WRIT PETITION NO.1221/2018
Aamna Bi Shiekh Pir Mohd Sheikh,
Aged about 50 years, Occ. Private.
R/o Near Garib Nawaz Masjid, Boriapura,
Nagpur. .. PETITIONER
Versus
1. State of Maharashtra,
Through Deputy Commissioner of Police,
Zone3, Nagpur.
2. Assistant Commissioner of Police,
Kotwali Division, Nagpur. RESPONDENTS
Shri Mir Nagman Ali, Advocate for petitioner.
Shri S.S.Doifode, APP for respondents.
–
CORAM : S.B.SHUKRE and
S.M.MODAK, JJ.
DATED : 20.02.2019
ORAL JUDGMENT ( Per S.B.Shukre, J.)
1 . Rule. Rule made returnable forthwith. Heard finally by consent of
learned counsel for the parties.
2. We find that even though the notice issued under Section 59 (1) of the
Maharashtra Police Act, 1951 ( hereinafter referred to as 'The Act of 1951, for short)
was issued in respect of proposed action for externment to be taken against the
petitioner under the provisions of Section 56(1)clauses (a) and (bb), the externment
order has been passed by resorting to only the latter clause of this provision of law, that
is under Section 56(1)(bb) of the Act of 1951. The impugned order further shows that
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even under clause (bb) of Section 56(1), what has been considered as relevant ground
for externment by respondent no.1 is an activity considered by the authority as
prejudicial to the maintenance of public order as defined in the Maharashtra
Prevention of Communal AntiSocial and Other Dangerous Activities Act,
1980( hereinafter referred to as 'AntiSocial Act, for short) as provided under sub
clause (i) of clause (bb) to section 56(1). This order does not rely upon the other sub
clauses of Section 56(1)(bb) of the Act of 1951. So our scrutiny would be confined to
only this provision of law and the inquiry into the question as to whether the activity of
the petitioner which weighed with the respondent no.1 would fall squarely within the
definition of maintenance of public order given under the AntiSocial Act or not.
3. Section 2(a) of the AntiSocial Act, defines the expression “acting in any
manner prejudicial to the maintenance of public order”. In the instance case, the
definition as given under Clause (iv) of Section 2(a) is relevant and it is reproduced as
under :
Section 2. In this Act, unless the context otherwise requires,
(a) “acting in any manner prejudicial to the maintenance of public
order means
(i) …..
(ii) …..
(iii) …..
(iv) committing offences punishable with death or imprisonment for
life or imprisonment for a term extending to seven years or more, where the
commission of such offences disturbs, or is likely to disturb, public orders.
A bare reading of clause (iv) reproduced above, would be sufficient for us
to know what is contemplated under this definition. It is an activity which is
continuous in nature and not something that is an isolated or a singular activity. This is
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obvious from the use of plural form of noun offence. The noun is employed as
“offences”. That would mean that there should be atleast more than one offence
committed by the proposed externee for which the maximum punishment prescribed is
of death or imprisonment for life or imprisonment for a term extending to 7 years or
more. In addition to this requirement of law, other ingredient of the definition is that
the offences registered against the externee must be of such nature as to be when
committed would enable the authority to form an opinion that the commission thereof
is likely to disturb or would disturb the public order. But, the latter ingredient would
come into picture only after first part of the definition that is the commission of more
than one offence having prescribed punishment as mentioned in this clause is
completed. If first ingredient is not fulfilled, there would be no need for the authority
to consider the other factor relating to disturbance of the public order.
4. Having considered in this manner the requirement of law, we find in the
present case that there is only one offence out of the two offences minimum registered
against the petitioner which qualifies itself falling in the category of clause (iv) of
Section 2(a) of the AntiSocial Act viz. Crime No.295/2018 registered for the offences
punishable under Section 20 and 21 of the Narcotic Drugs and Psychotropic Substances
Act described on running page 9 of record. On perusal of the relevant provisions of the
Narcotic Drugs and Psychotropic Substances Act( for short, NDPS Act), we find that for
an offence under Section 20, relating to intermediate quantity of ganja, the minimum
sentence prescribed is ten years while Section 29 pertains to abetment of offence and it
is punishable with the punishment provided for the offence of which abetment is
committed. Second offence registered vide Crime No.6055/2017 is under Section 20
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read with Section 21 of the NDPS Act. The contraband article viz. g anja weighing 570
gms was seized in that case. It is admittedly a smaller quantity of the contraband
substance for which maximum punishment prescribed is of six months' imprisonment.
This offence would obviously not be covered by clause (iv) of Section 2(A) of the Anti
social Act. So what remains on record is only one offence attracting clause (iv). It is
thus obvious that the impugned order sans subjective satisfaction on the part of the
Externing Authority as contemplated under Section 56(1)(bb) and (ii) of the Act, 1951.
5. In these circumstances, we find that the impugned order does not explain
any application of mind to relevant material available on record and is, therefore, bad
in law and it must go.
6. In the result, the petition is allowed. The impugned order is hereby
quashed and set aside.
7. Rule is made absolute in the above terms.
JUDGE JUDGE
Andurkar..
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR .
CRIMINAL WRIT PETITION NO.1221/2018
Aamna Bi Shiekh Pir Mohd Sheikh,
Aged about 50 years, Occ. Private.
R/o Near Garib Nawaz Masjid, Boriapura,
Nagpur. .. PETITIONER
Versus
1. State of Maharashtra,
Through Deputy Commissioner of Police,
Zone3, Nagpur.
2. Assistant Commissioner of Police,
Kotwali Division, Nagpur. RESPONDENTS
Shri Mir Nagman Ali, Advocate for petitioner.
Shri S.S.Doifode, APP for respondents.
–
CORAM : S.B.SHUKRE and
S.M.MODAK, JJ.
DATED : 20.02.2019
ORAL JUDGMENT ( Per S.B.Shukre, J.)
1 . Rule. Rule made returnable forthwith. Heard finally by consent of
learned counsel for the parties.
2. We find that even though the notice issued under Section 59 (1) of the
Maharashtra Police Act, 1951 ( hereinafter referred to as 'The Act of 1951, for short)
was issued in respect of proposed action for externment to be taken against the
petitioner under the provisions of Section 56(1)clauses (a) and (bb), the externment
order has been passed by resorting to only the latter clause of this provision of law, that
is under Section 56(1)(bb) of the Act of 1951. The impugned order further shows that
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cwp1221.18(J)
2
even under clause (bb) of Section 56(1), what has been considered as relevant ground
for externment by respondent no.1 is an activity considered by the authority as
prejudicial to the maintenance of public order as defined in the Maharashtra
Prevention of Communal AntiSocial and Other Dangerous Activities Act,
1980( hereinafter referred to as 'AntiSocial Act, for short) as provided under sub
clause (i) of clause (bb) to section 56(1). This order does not rely upon the other sub
clauses of Section 56(1)(bb) of the Act of 1951. So our scrutiny would be confined to
only this provision of law and the inquiry into the question as to whether the activity of
the petitioner which weighed with the respondent no.1 would fall squarely within the
definition of maintenance of public order given under the AntiSocial Act or not.
3. Section 2(a) of the AntiSocial Act, defines the expression “acting in any
manner prejudicial to the maintenance of public order”. In the instance case, the
definition as given under Clause (iv) of Section 2(a) is relevant and it is reproduced as
under :
Section 2. In this Act, unless the context otherwise requires,
(a) “acting in any manner prejudicial to the maintenance of public
order means
(i) …..
(ii) …..
(iii) …..
(iv) committing offences punishable with death or imprisonment for
life or imprisonment for a term extending to seven years or more, where the
commission of such offences disturbs, or is likely to disturb, public orders.
A bare reading of clause (iv) reproduced above, would be sufficient for us
to know what is contemplated under this definition. It is an activity which is
continuous in nature and not something that is an isolated or a singular activity. This is
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cwp1221.18(J)
3
obvious from the use of plural form of noun offence. The noun is employed as
“offences”. That would mean that there should be atleast more than one offence
committed by the proposed externee for which the maximum punishment prescribed is
of death or imprisonment for life or imprisonment for a term extending to 7 years or
more. In addition to this requirement of law, other ingredient of the definition is that
the offences registered against the externee must be of such nature as to be when
committed would enable the authority to form an opinion that the commission thereof
is likely to disturb or would disturb the public order. But, the latter ingredient would
come into picture only after first part of the definition that is the commission of more
than one offence having prescribed punishment as mentioned in this clause is
completed. If first ingredient is not fulfilled, there would be no need for the authority
to consider the other factor relating to disturbance of the public order.
4. Having considered in this manner the requirement of law, we find in the
present case that there is only one offence out of the two offences minimum registered
against the petitioner which qualifies itself falling in the category of clause (iv) of
Section 2(a) of the AntiSocial Act viz. Crime No.295/2018 registered for the offences
punishable under Section 20 and 21 of the Narcotic Drugs and Psychotropic Substances
Act described on running page 9 of record. On perusal of the relevant provisions of the
Narcotic Drugs and Psychotropic Substances Act( for short, NDPS Act), we find that for
an offence under Section 20, relating to intermediate quantity of ganja, the minimum
sentence prescribed is ten years while Section 29 pertains to abetment of offence and it
is punishable with the punishment provided for the offence of which abetment is
committed. Second offence registered vide Crime No.6055/2017 is under Section 20
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cwp1221.18(J)
4
read with Section 21 of the NDPS Act. The contraband article viz. g anja weighing 570
gms was seized in that case. It is admittedly a smaller quantity of the contraband
substance for which maximum punishment prescribed is of six months' imprisonment.
This offence would obviously not be covered by clause (iv) of Section 2(A) of the Anti
social Act. So what remains on record is only one offence attracting clause (iv). It is
thus obvious that the impugned order sans subjective satisfaction on the part of the
Externing Authority as contemplated under Section 56(1)(bb) and (ii) of the Act, 1951.
5. In these circumstances, we find that the impugned order does not explain
any application of mind to relevant material available on record and is, therefore, bad
in law and it must go.
6. In the result, the petition is allowed. The impugned order is hereby
quashed and set aside.
7. Rule is made absolute in the above terms.
JUDGE JUDGE
Andurkar..
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