Bombay High Court
Iqbal Hussain Abid Hussain Qureshi vs The State Of Maharashtra And Ors. on 20 November, 1998
Equivalent citations: (1999)101BOMLR631
Author: F.I. Rebello
Bench: F.I. Rebello
JUDGMENT F.I. Rebello, J.
1. Rule.
2. Respondents waive service. By consent, heard forthwith.
3. The petitioner in this petition impugns the order dated 19th August, 1998 whereby the petitioner was externed from the limits of Greater Mumbai and Thane District and the order in Appeal dated 13th October, 1998 confirming the said order.
4. Briefly the facts are as under:
A show cause notice dated 12th February, 1998 was issued and was served on the petitioner on 6th March, 1998. The Petitioner showed cause against the said show cause notice. The show cause notice was issued under Section 56(1)(A)(B) of the Bombay Police Act, 1951. The allegations against the Petitioner were that since 1977 (excluding the period of detention) the Petitioner's acts and actions within the areas of Kamathipura, Shuklaji Street and adjoining areas within the jurisdiction of Nagpada Police Station have caused apprehension in the mind of the local residents, shopkeepers, businessmen, hawkers and the law abiding and peace loving citizens regarding harm to their person and property resulting in the harmful and dangerous situation. It is also alleged that he committed offences within the jurisdiction of Shiwdi Police Station. Acts alleged are as under:
(1) C.R. No. 9/97 under Sections 365, 343 r/w 344 of the IPC in which some persons were forcibly taken to Kamthipura in the Petitioner's car and were detained and assaulted and released after threatening.
(2) On 24.11.1997 the deceased (Mohammed Issac Mohammed Ismail Ansari) died on account of some directions issued by the Petitioner to some local associates in respect of which a case has been registered under Sections 302, 307 r/w 34 of the I.P.C. at Nagpada Police Station being C.R. No. 425 of 1997.
(3) In camera statement of witness "A" in respect of the incident on 10th December, 1997 at 11.40 p.m. (4) In camera statement of witness "B" in respect of the incident which took place on 20th November, 1997 at 11.25 p.m. The order of externment came to be passed on 19th August, 1998. Appellant preferred an appeal before the Appellate Authority. The Appellate Authority dismissed the Appeal by order dated 9th October, 1998.
5. Various grounds have been taken in the Petition. I do not propose to advert to all the grounds. The main grounds of challenge are as under:
(a) The Appellant was acquitted in C.R. No. 9/97 by Judgment dated 6th October, 1998. The said judgment was placed before the Appellate Authority by an application dated 9th October, 1998. The order of the Appellate Authority was passed on the same date. The order was communicated much later on 18th October, 1998. The order does not show that the Appellate Authority applied his mind to the matter.
(b) In respect of the in camera statement of witness "B", the Authority did not furnish particulars regarding the time, the date, the place and the nature of incident. The same was therefore vague and consequently the order of the externment under the Act as well as the Appellate Authority are liable to be set aside.
(c) In respect of the incident on 10th December, 1997, it is alleged that the Petitioner along with associates forcibly extort moneys from witness "A". It is contended that the Petitioner was arrested on 25th January, 1997 and released on 16th January, 1998 and consequently also shows non-application of mind and/or relying on an incident which patently could not have happened and on that ground also the orders are liable to be quashed and set aside.
6. Respondents have filed an affidavit and they pointed out that in so far as the discrepancy of the dates in respect of the incident on 10th December, 1997 is concerned, the statement was recorded on 10th December, 1997 in respect of the incident of 12th November, 1997. The same was pointed out to the Petitioner as can be seen from the Roznama of the proceedings on 2nd May, 1998 which is further confirmed by the Roznama entry of 19th August, 1998. It is, therefore, contended that there is no substance in the said contention. It is further contended in respect of the C.R. No. 9 of 1997, that the Petitioner was acquitted by the Magistrate by judgment dated 6th October, 1998. The same could therefore not have been considered by the Authority which passed the order of externment on 6th March, 1998. Even in so far as the Appellate Authority is concerned, it is pointed out that the order is dated 9th October, 1998 and record will show that it was received at 7.45 p.m. on the said date. The order was passed by the Appellate Authority on 9th October, 1998 and consequently the order of the Appellate Authority also cannot be faulted. In so far as the statement of witness "B" is concerned, it is pointed out that sufficient material is there in the show cause notice to show that the incidents is in the area of Kamathipura, Shuklaji Street and adjoining areas as shown in the show cause notice and as such no prejudice has been caused to the Petitioner. It is, therefore, submitted that the Petition should be dismissed.
7. I will take the last ground first namely that in so far as in camera statement of witness "B" is concerned that no particulars of the place have been given and in the light of that Petitioner was denied proper opportunity to show cause. Statement of witness "B" only shows that incident took place on 20th November, 1997 at 11.25 p.m. In Abdul Kadir Razzaque Beg v. Sub Divisional Magistrate, Nasik and Ors. , the Division Bench of this Court has observed that the time, the date, the place and the nature of incident should be circumscribed within such reasonable limits in order to enable the Petitioner to meet the allegations against him. Whereas the in camera statement of witness "A" apart from showing the date and time shows also the place. No such particulars are set out in so far as in camera statement of witness "B" is concerned. The Petitioner therefore was denied a reasonable opportunity of meeting the said ground. Once it is held that the Petitioner was denied the reasonable opportunity, the said ground could not have been the basis of formation of opinion. It is also clear that when the order of externment is based on the several grounds and one of the grounds cannot be sustained, the Court cannot decide which ground weighs with the Externing Authority and it cannot substitute the decision over that of the Externing Authority. The order on that count is liable to be quashed and set aside.
8. The Petitioner's period of externment has already expired during the pendency of this Petition. It is, however, contended that if it is allowed to stand, it is likely to effect the Petitioner in other proceedings. In the light of that the following order:
Rule made absolute in terms of prayer Clauses (b) and (c) of the petition. In the circumstances of the case, there shall be no order as to costs.