Bombay High Court
Shahrukh Sardarkhan Pathan vs Divisional Commissioner, Nagpur ... on 1 December, 2025
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.883/2025
(Shahrukh Sardarkhan Pathan Vs. Divisional Commissioner, Nagpur Division, Nagpur & ors.)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. B. H. Sheikh, Advocate for petitioner.
Mr. Bhagwan M. Lonare, APP for respondent Nos. 1 to 3.
CORAM: M. M. NERLIKAR, J.
DATED : 01/12/2025.
Heard.
2. By this petition filed under Articles 226 and 227 of
the Constitution of India, the petitioner is challenging the
order dated 25.08.2025 passed by the respondent No.2,
under Section 56(1)(a) of the Maharashtra Police Act
('Police Act'), thereby externing the petitioner for one year
from Wardha District. Against same, an appeal was
preferred under Section 60 of the Police Act, which came
to be dismissed vide order dated 17.10.2025 by the
respondent No.1.
3. The learned counsel for the petitioner submits that
the Externing Authority has not applied its mind and there
is no subjective satisfaction arrived before passing the
impugned order. He submits that the offence is registered
under the provisions of Narcotic Drugs and Psychotropic
Substances Act, 1985, ('NDPS Act'), wherein name of the
petitioner was taken by the accused who has been caught
red handed, therefore, the Externing Authority failed to
take into consideration the entire material in the charge-
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sheet. Further, there is no compliance of Section 56(1)(b)
of the Police Act. Lastly, he prayed to allow the petition.
4. On the other hand, learned APP submits that the
petitioner is accused in serious crime punishable under
NDPS Act. There are total five crimes which are registered
against the petitioner. In last three crimes, the FIR was
registered under the Provisions of NDPS Act. His role has
surfaced during investigation and accordingly, charge-sheet
was filed against him in one of the crimes. Both the
Authorities i.e. Externing Authority and the Appellate
Authority has concurrently held against the petitioner. He
further submits that after going through the record,
respondent No.2 on the basis of material placed before it
and after subjectively satisfying itself himself has passed
the order, therefore, this Court may not go into the
findings of the proceedings arrived by the Authorities in
original as well as appellate proceedings under Article 226
and 227 of the Constitution of India. Lastly, he prayed to
dismiss the petition.
5. Upon perusal of the impugned orders, it appears
that the order is passed under Section 56(1)(a)(b) of the
Police Act. The notice under Section 59 of the Police Act
was issued to the petitioner on 08.07.2025. After perusal
of the notice, it appears that though it was stated in the
notice that the Sponsoring Authorities has recorded some
statements, however on the assurance of concealing their
names, they have not provided statements. Apparently,
requirement of Section 59 of the Police Act was not
complied with as Section 59 speaks about hearing to be
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given before an externment order under Sections 55, 56,
57 of 57(A) of the Police Act is passed. Section 59 also
speaks about the notice to be given against whom
externment proceedings are instituted and notice should
be in writing disclosing the general nature of the material
allegations against him and giving him a reasonable
opportunity of tendering explanation regarding the
allegations. Inquiry Officer can file the report to the
Externing Authority.
6. The notice issued under Section 59 of the Police
Act to the petitioner does not disclose what has been stated
by the witnesses in their statements. It is necessary and
mandatory on part of the respondent No.2 to disclose the
gist of the material allegations and merely referring the
chart crime against the petitioner would not by itself be
sufficient. Inquiry under Section 59 of the Act is the soul
of the entire proceedings which is to be initiated for
passing orders under Sections 55, 56, 57 or 57(A) of the
Police Act. If there is no compliance under Section 59, it
could be said that the petitioner did not get an opportunity
to give explanation or tender his explanation against
allegations which are levelled in the notice under Section
59.
7. This Court time and again observed in catena of
judgments that Section 59 is an important stage, wherein
the opportunity to give explanation is granted to the
persons against whom the proceedings of externment was
instituted. If the mandatory requirement provided under
Section 59 of the Police Act is not complied then the entire
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proceedings are vitiated.
8. As observed above, there is no gist of the in-
camera statements recorded by the Sponsoring Authority in
the show cause notice issued under Section 59 of the Police
Act and therefore, the proceedings is vitiated. Further, it is
necessary to mention at this juncture that after perusal of
the impugned order passed by respondent No.2, apparently
it is clear that even in the order, there is no reference of
the in-camera statements. Therefore, the orders cannot be
said to be passed under Section 56(1)(b) of the Police Act.
Section 56(1)(b) speaks about involvement of the Externee
in the crimes punishable under Chapters XII, XVI, or XVII
of the Indian Penal Code and also speaks about the
contingency when in the opinion of the officer, the
witnesses are not willing to come forward to give evidence
in public against such persons by reason of apprehension
on their part as regards the safety of the persons or their
property. There are two limbs of Clause 'b', first is
involvement in crimes punishable under Chapters XII, XVI
and XVII of the Indian Penal Code and second that
witnesses are not willing to come forward to give evidence
due to conduct of externee, therefore the impugned orders
do not comply with the requirement of the second limb of
Section 56(1)(b). Even the Appellate Court has failed to
consider the mandatory requirements provided under
Section 59 as well as 56 of the Police Act and if there is no
compliance of requirement, then the entire proceedings do
not sustain.
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9. Considering the above facts and circumstances,
the case is made out to interfere in the impugned orders
and accordingly the following order is passed:-
ORDER
(I) The petition is allowed.
(II) This Court hereby quashed and set aside the order dated 25.08.2025 passed by respondent No.2 and order dated 17.10.2025 passed by respondent No.1 in appeal No.119/2025.
10. Petition stands disposed of in above terms.
( M. M. NERLIKAR, J.) Gohane Signed by: Mr. J. B. Gohane Designation: PS To Honourable Judge Date: 02/12/2025 18:13:52