Bombay High Court
Satish Sagun Korgaonkar vs The State Of Maharashtra on 21 April, 2014
Bench: Naresh H. Patil, Anuja Prabhudessai
1813-13 and 529-14-WP-Judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1813 OF 2013
Satish Sagun Korgaonkar
Aged about 38 years,
of Bombay, Adul, Indian Inhabitant,
Residing at Indraprasad Co-op. Hsg. Soc.
Bldg. No.41, Room No.1173,
2nd Floor, Adarsh Nagar,
Prabhadevi, Dadar (West),
Mumbai 400 030 ..Petitioner
v/s.
The State of Maharashtra
through the Inspector In charge
Worli Police Station. ..Respondents
With
WRIT PETITION NO. 529 OF 2014
Akbar Hussain Shafi Hussain
Age 40 years, Occ ; Business,
Res. of Yunus House,
New Grave Yard, Room No.1
Pailipada
Mumbai 400 0388 ..Petitioner
v/s.
The State of Maharashtra
through the Principal Secretary,
Home Department,
Government of Maharashtra,
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Mantralaya, Mumbai
2. Deputy Commissioner of Police,
Zone VI, Crawford market,
Mumbai.
3. The Assistant Commissioner of Police,
Trombay Division, Mumbai.
4. State House Office,
Trombay Police Stn.,
Mumbai ..Respondents
Mr. S.R.Chitnis Sr. Counsel a/w. Mr. Tapan Thatte, Mr. V.V.Ugle and
Mr. A.M.Saraogi for the Petitioner.
Mr. J.P.Yagnik, APP for the Respondent-State.
CORAM : NARESH H. PATIL AND
ANUJA PRABHUDESSAI, J.J.
RESERVED FOR ORDER ON: MARCH 21, 2014.
ORDER PRONOUNCED ON : APRIL 21, 2014.
JUDGMENT (PER ANUJA PRABHU DESSAI, J.).
1. Rule. Rule made returnable forthwith. Heard by consent of
parties.
2. The petitioners herein have challenged the externment orders
passed by the Deputy Police Commissioners under the provisions of
Section 56(1) (a) (b) of the Bombay Police Act and confirmation
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thereof by the statutory authorities.
3. The externment order passed in Criminal Writ Petition No.1813
of 2013 was preceded with notice dated 26.3.2012 issued under
Section 59 of the Bombay Police Act, and called upon the petitioner
to show cause as to why he should not be externed from the limits of
Gr. Bombay, New Mumbai and Thane District. The petitioner
appeared before the concerned authority and filed his reply and also
examined witnesses to refute the allegations leveled against him.
Upon considering the material on record, the Externing Authority
passed the impugned order externing the petitioner from the area of
Gr. Mumbai, Thane and Raigad for a period of two years.
4. The petitioner filed Externment Appeal No. 287 of 2012 before
the Appellate Authority challenging the order dated 5.9.2012, which
appeal was dismissed by the Appellate Authority vide order dated
9.4.2013. Hence the present petition.
5. The petitioner has challenged the impugned orders on the
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ground that he was served with incomplete copy of notice. He
further stated that the reply filed by him has not been considered and
that the order has been passed without going into the merits of the
matter and without considering the provisions of law. He has further
stated that he was sought to be externed in the year 2012-2013 on
the basis of the crimes registered in the year 2002-2003. The
petitioner has further stated that though the allegations alleged
against him relate to the city of Bombay, the externment order covers
2-3 districts and hence the order is excessive and is liable to be
quashed.
6. The Deputy Commissioner of Police had served upon the
petitioner in Criminal writ petition No. 529/2014 an externment
order dated 26.9.2013, which was preceded with notice dated 20th
August, 2013 under Section 59 of the Bombay Police Act. The
Petitioner was called upon to show cause as to why he should not be
externed from Mumabi, Mumbai Suburbs Thane and Raigad. Upon
considering the material on record and the reply filed by the
petitioner, the Externing Authority externed the Petitioner from
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Mumbai and Mumbai Suburbs for a period of two years. The
petitioner had challenged the order in appeal, which was dismissed
by the appellate authority vide order dated 21st January, 2014.
7. The petitioner claims that he is a respectable citizen engaged in
the business of service of providing internet and cable network and is
also engaged in social and political activities. The petitioner has
stated that his rivals have involved him in several criminal cases. The
petitioner has stated that he was issued a notice to show cause why
he should not be externed from the limits of Mumbai, Mumbai
Suburbs, Thane and Raigad District. The said notice was based on
old and stale cases and on wrong information. The petitioner has
stated that despite his reply, the externing authority passed a cryptic
order which is based on material which is not disclosed in the show
cause notice. The petitioner has stated that the externment order is
excessive. The petitioner has stated that there is no subjective
satisfaction of the fact that the witnesses are not willing to come
forward to give evidence in public against him by reason of
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apprehension of safety of their person or property. The petitioner
has stated that he has been externed at the behest of his rivals while
the main co-accused has been set free. The petitioner has stated that
the externment order as well as the order passed by the Appellate
Authority reflects non application of mind and deserves to be
quashed.
8. Learned Senior Counsel Shri. Chitnis, appearing for the has
argued that in view of Article 19(d) and (e) it is the fundamental
right of every citizen of India to move freely throughout the territory
of India. He has further argued that provisions of Section 56 of the
Bombay Police Act, which is restrictive of fundamental rights, can be
invoked if and only if the authority is satisfied that such action is
essential to maintain public order or when the acts of the proposed
externee causes danger, harm or alarm to person or property of the
public at large and not of one or two persons from the public. The
contention of learned Sr. Counsel Shri Chitnis is that there is no
material to believe that the petitioner is involved in any activity
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referred to in clause (a) and (b) of Section 56(1) and that the order
reflects total non-application of mind.
9. Learned Sr. Counsel Mr. Chitnis next contended that the alleged
activity of the petitioner in Criminal Writ petition no. 1813/13, as
alleged in the notice was restricted to Gopal Nagar and the areas
within the jurisdiction of Worli Police Station and that the said
petitioner was called upon to show cause why he should not be
externed from the limits of Gr. Bombay, New Mumbai and Thane
District. Whereas, the impugned order extends to Bombay, New
Mumbai, Thane and Raigad Districts. He, therefore, claims that the
order is excessive. Learned Sr. Counsel Mr. Chitnis has submitted
that the restrictions imposed by the Authority are unreasonable and
are violative of fundamental rights of the petitioner.
10. Learned Senior Counsel Mr. Chitnis has further argued that the
order in Criminal Writ Petition No. 529 of 2014 stands vitiated for
non compliance of provision under Section 59 of the Act. Learned
Senior Counsel Mr. Chitnis has next contended that the Authority had
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not recorded the finding that the witnesses are not coming forward
to give evidence against the petitioner in public so far as the grounds
mentioned in the impugned order and that such satisfaction was not
conveyed to the petitioner in the notice issued under Section 59 and
that non compliance with mandatory requirements vitiates the
externment proceedings. He has urged that the said order has been
passed without going into the merits of the matter and without
considering the provisions of law. Learned Sr. Counsel Mr. Chitnis has
contended that the restrictions imposed by the Authority are
unreasonable and are violative of fundamental rights of the petitioner
and consequently the order cannot be sustained.
11. In support of this contention, learned Sr. Counsel Shri Chitnis
has relied upon the following judgments :-
i) Balu vs. The Divisional Magistrate, Pandharpur 1969 Mh.L.J. 387
ii) Pandharinath Shridhar Rangnekar vs. Dy. Commissioner of
Police, AIR 1973 SC 630.
iii) Yeshwant Damodar Patil vs. Hemant Karkare, 1989 Mh.L.J. 1111.
iv) Ganpat @Ganesh Tanaji Katare vs. Asst. Commissiner of Police
2005 All MR (Cri) 2717.
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12. Learned APP Shri Yagnik has argued that the petitioner in
Criminal Writ petition No. 1813/13 is involved in several serious
crimes and that he had created terror in the minds of the witnesses,
due to which they were not coming forward to depose against the
petitioner and that the court cannot interfere with the subjective
satisfaction of the authority. Refuting the contention that the order is
excessive, learned APP Mr.Yagnik has contended that the areas of
externment are contiguous and are in close proximity and
considering the modes of transport and connectivity, and having
regard to the criminal activities of the petitioner; the authority was
fully satisfied in externing the petitioner from the limits of Mumbai,
New Mumbai, Thane and Raigad Districts. He, therefore, claims that
the order in criminal writ petition no.1813/13 is not excessive.
13. Learned APP Mr. Yagnik has contended that the petitioner in
Criminal Writ Petition No.529 of 2014 is involved in serious crimes
and had terrorized the witnesses due to which the witnesses were not
coming forward to depose against the petitioner. Refutting to the in
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camera statements, he contends that there was sufficient record, for
the Authority to record satisfaction that the witnesses were not
coming forward to depose against the petitioner in Criminal Writ
Petition No. 529 of 2014. He has vehemently argued that there is
complete compliance with the mandatory provisions of the Act and
that the subjective satisfaction of the Authority cannot be interfered
with.
14.
We have perused the material placed before us and considered
the arguments advanced by the learned Sr. Counsel Mr. Chitnis for
the petitioner and the learned APP Mr. Yagnik for the State.
15. Article 19(1)(d) and (1)(e) of the Constitution of India
guarantees fundamental rights to all citizens to move freely
throughout the territory of India and to reside and settle in any part
of the territory. Article 19(5) of the Constitution permits imposition
of reasonable restrictions on exercise of such fundamental rights
either in the interest of the general public or for the protection of the
interests of any Schedule Tribe Section 56 of the Bombay Police Act
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is one of the provisions in Chapter V of the Bombay Police Act which,
as a special measure of maintenance of public order and safety of the
State, imposes temporary restrictions on the fundamental rights
guaranteed by Article 19 of the Constitution of India.
Section 56(1)(a) (b) provides that :
[(1)] Whenever it shall appear in Greater Bombay and
other areas for which a Commissioner has been
appointed under section 7 to the Commissioner and in
other area or areas to which the State Government may,
by notification in the Official Gazette, extend the
provisions of this section, to the District Magistrate, or
the Sub- Divisional Magistrate empowered by the State
Government in that behalf
(a) That the movements or acts of any person are causing
or calculated to cause alarm, danger or harm to person or
property or.
(b) that there are reasonable grounds for believing that
such person is engaged or is about to be engaged in the
commission of an offence involving force or violence or
an offence punishable under Chapter XII, XVI or XVII of
the Indian Penal Code, or in the abetment of any such
offence and when in the opinion of such officer
witnesses are not willing to come forward to give
evidence in public against such person by reason of
apprehension on their part as regards the safety of their
person or property, or.
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15. Summarizing Section 56(1)(a)(b), it can be said that the
Externing Authority can pass the order of externment on any one of
the following activities:-
a) That the movements or acts of any person are causing or
calculated to cause alarm, danger or harm to the person or property.
b) That there are reasonable grounds for believing that such
person is engaged or is about to be engaged in commission of offence
involving force or violence;
Or an offence punishable under Chapter XII, XVI, XVII of I.P.C. ;
Or in the abetment of any such offence;
And when in the opinion of such officer, witnesses are not willing to
come forward to give evidence in public against such person by
reason of apprehension on their part as regard the safety of their
person or property.
16. Section 59 of the Bombay Police Act mandates that before
passing of externment order the proposed externee shall be informed
in writing of the general nature of the allegations against him and
give him a reasonable opportunity of tendering an explanation, and
on filing the application, permit him to examine witnesses, unless the
authority is of the opinion that such application was vexatious or
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made to delay the proceedings.
17. The scope and ambit of the Section 56(1)(a) and (b) was dealt
by this court in the case of Balu vs. The Divisional Magistrate,
Pandharpur reported in 1969 Mh.L.J. 387, it was held that :
" The expression "alarm, danger or harm to person or
property", which occurs in Section 56(a) of the Bombay
Police Act, must if possible be so interpreted as to ensure
that the provisions of that section are in conformity with
the fundamental rights guaranteed by Art. 19(1)(d) and
(e) of the Constitution. It must follow that the
expression "alarm, danger or harm to person or
property" must be held to refer to the alarm, danger or
harm to person or property of the public at large, and
not of one or two individuals among the public. This
inference also follows from the fact that Chapter V of the
Bombay Police Act, in which Section 56 falls, bears the
heading "Special Measures for Maintenance of Public
Order and Safety of State." ... It seems obvious that an
order under Section 56(a) cannot be made on the
ground that such an order was necessary for the
preservation of peace or the maintenance of law and
order in a particular locality.
18. In the case of Pandharinath Shridhar Rangnekar vs. Dy.
Commissioner of Police reported in AIR 1973 SC 630, the
Apex Court has held that :
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...These provisions show that the reasons which
necessitate or justify the passing of an externment order
arise out of extraordinary circumstances. An order of
externment can be passed under Clause (a) or (b) or
selection 56 if, and only if, the authority concerned is
satisfied that witnesses are unwilling to come forward to
give evidence in public against the proposed externee by
reason of apprehension on their part as regards the
safety of their person or property.
... Section 59 of the Act imposes but a limited obligation
on the authorities to inform the proposed externee "of
the general nature of the material allegations against
him". That obligation fixes the limits of the correlative
right of the proposed externee. He is entitled before an
order of externment is passed under s. 56 to know the
material allegations against him and the general nature
of those allegations. He is not entitled to be informed of
specific particulars relating to the material allegations.
19. In the case of Yeshwant Damodar Patil vs. Hemant
Karkare reported in 1989 Mh.L.J. 1111, this Court has held
that:
"The fact that the proposed externee is engaged or is
about to be engaged in one or the other type of the
activity or movement in Clauses (a) and (b) of
section 56(i) of the Bombay Police Act, is not
sufficient by itself to warrant an order of
externment. That fact, coupled with the opinion
formed by the designated officer that witnesses are
not willing to come forward to give evidence in
public for the reasons mentioned in clauses (a) and
(b) of section 56(i) of the Bombay Police Act, will
provide a proper basis for the exercise of the power
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of externment under the provisions of the Act....
...in every case of acts involved on the part of the
proposed externee, where an order of externment
proposed to be passed, it is necessary that the officer
concerned must be satisfied that witnesses are not
willing to come forward to give evidence against
him. Notice of such satisfaction must also necessarily
be given to the proposed externee under section 59
of the Bombay Police Act.
20. As regards the area of the externment, in the case of
Pandharinath (supra) the Apex Court has held it was held that :-
"..It is primarily for the externing authority to decide how
best the externment order can be made effective so as to
subserve its real purpose. How long, within the statutory
limit of 2 years fixed by Section 58, the order shall
operate and to what territories, within the statutory
limitations of Section 56, it should extend, are matters
which must depend for their decision on the nature of the
data which the authority is able to collect in the
externment proceedings. There are cases and cases and
therefore no general formulation can be made that the
order of externment must always be restricted to the area
to which the illegal activities of the externee extend. A
larger area may conceivably have to be comprised with
the externment order so as to isolate the externee from
his moorings."
21. In the case of Ganpat @ Ganesh Tanaji Katare vs. Asst.
Commissioner of Police 2005 All MR (Cri) 2717, this Court has
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held that :
"....the order or externment needs to be restricted to the
area in which illegal activities of the externee are carried
on. A larger area may always form part of externment
order. In case where activities are confined to particular
district, the order may extend to both districts. Mere
geographical proximity is no ground to extend the order
of externment to another district in which there are no
objectionable activities by the externee.
... The area to which order of externment is to operate
must be chosen with a view to meet the situation created
by the objectionable acts of the person sought to be
externed."
22. It is thus well settled that the externment can be ordered only
when it is necessary to prevent any person from acting in any way
prejudicial to public safety or maintenance of public order. The object
of externment is to keep the externee away from the place of his
moorings and to make it as difficult as possible to return to the place
of his activities. However, there is no straight jacket formula to
determine the area of externment. It is primarily for the Externing
Authority to deide how best the externment order can be made
effective so as to subserve the real purpose and it is within the
domain of the Externing Authority to exercise judicial discretion and
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determine the extent of the area/areas from which the externee is to
be externed. Such decision would vary from case to case depending
on peculiar facts and exigencies of each case, area/areas of
objectionable activities, connectivity, available mode of transport, the
purpose of externment etc. It therefore follows that the externment
beyond the area of activity cannot per se be excessive if it is
necessitated to meet the object of externment and provided the
procedure laid down under the Act is duly followed. The test of
excessiveness is whether the order exceeds the object of externment.
23. Reverting to the facts of the present petitions, the petitioner in
Criminal Writ Petition No. 1813 of 2013 was issued notice under
Section 59 of the Act. The notice states that since 2001 the petitioner
and his associates were involved in committing criminal activities
such as extorting money, assaulting and abusing and had thereby
caused or attempted to cause danger to the lives or the property of
the residents, hawkers and businessmen from Gopal Nagar and other
adjoining areas within the jurisdiction of of Worli police station. The
said notice refers to five crimes registered against the petitioner at
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Worli Police Station and the preventive measures taken against him
under Section 107 and 110 of Cr.P.C. in the year 2002, 2003, 2006
and 2009.
24. The notice further states that the discreet inquiry revealed that
apart from the said crimes, the petitioner and his associates were also
extorting money from the residents, hawkers and businessmen from
Worli, Dadar and adjoining areas within the jurisdiction of Worli and
Dadar Police Station, and that due to the fear, the said aggrieved
persons were not coming forward to give evidence against the
petitioner. The petitioner was called upon to show cause why he
should not be externed from Gr.Mumbai, New Mumbai, and Thane.
Subsequently by the impugned order which is within the purport of
Section 56(1)(a),(b) of the Bombay Police Act the petitioner was
externed from Gr.Mumbai, Thane and Raigad for two years.
24. The notice reveals that the alleged activities of the petitioner
were restricted to Gopal Nagar and adjoining areas within the
jurisdiction of Worli and Dadar Police Stations and the petitioner
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was called upon to show cause as to why he should not be externed
from the limits of Gr. Mumbai, New Bombay and Thane. The show
cause notice does not state that the petitioner was involved in
committing any illegal or criminal activities at Raigad. The petitioner
was not called upon to show cause why he should not be externed
from Raigad. Despite which the petitioner has been externed not
only from Gr. Mumbai and Thane but is externed also from Raigad,
without there being any nexus between the said area of externment
and the alleged area of criminal activity. The Externing Authority
has not given any reasons for externing the petitioner from Raigad
i.e. beyond the area of criminal activity or the area spelt out in the
notice. The externment order therefore is in violation of principles
of natural justice and suffers from vice of excessive externment. The
externment order amounts to unreasonable restriction on the
fundamental rights of the petitioner. Consequently, the order in
Criminal Writ petition is liable to be quashed.
25. Reverting to the facts of the Criminal Writ petition No. 529 of
2014, by the externment order dated 26.09.2013 the petitioner has
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been externed from Mumbai and Mumbai Suburbs. The externment
order specifically states that petitioner has carried out activities and
committed offences which constitute grounds of externment under
Clause (a) of Section 56(1) as well as first and second part of clause
(b) of Section 56(1) of the Bombay Police Act. The Externing
Authority has also recorded satisfaction that due to the illegal and
criminal activities of the petitioner, the witnesses and the victims are
not ready to depose against the petitioner by reason of their
apprehension as regards the safety of their person or property.
26. The impugned order therefore is within the purport of Section
56(1)(a) and (b) of the Act. It is however to be noted that vide
notice dated 28.05.2012 the petitioner was informed that since
January 2012 his movements and activities had caused or were
calculated to cause danger, harm and alarm to the persons or
properties of the residents, shop owners business men and women
from the area/areas within the jurisdiction of Trombay Police Station.
The petitioner was informed that he was involved in commission of
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serious offences involving force and violence. In Para no.3(a) of the
notice it was stated that the petitioner was involved in intimidating
and assaulting the residents, businessmen etc of the said locality by
means of deadly weapons and had terrorized the said residents
businessmen etc by committing offences punishable under Chapter
XVI and XVII of I.P.C. A brief narration of C.R.No. 247 of 2012 and
97 of 2013 is given in para 3(a)(i) and (ii) of the notice and the
details of the other crimes are specified in para 5 of the notice.
27. The notice at para 3(b) further states the petitioner and his
associates were assaulting and terrorizing the people due to which,
no one was ready to depose against him in public. A brief narration
on In camera statement is given in para 3(b)(1) and (2) of the notice.
At para 4 of the notice it is stated that due to the activities specified
in para 3(b) (1) and (2) of the notice, the victims and the witnesses
were not coming forward to depose against him in public as they
apprehended danger to their lives and properties. The petitioner
was therefore called upon to show cause why he should not be
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externed from the limits of Mumbai, Mumbai Suburban, Thane and
Raigad District.
28. The notice spells out the activities which constitute grounds
under clause (a) of Section 56(1) as well as grounds under first and
second part of clause(b) of Section 56(1) of the Act. However,
satisfaction that the witnesses are not coming forward to depose
against the petitioner is recorded only in respect of the activities
stated in para 3(b) (1) and (2) of the notice, which constitutes
grounds under first part of Clause (b) of Section 56(1) of the Act.
No such satisfaction is spelt out in respect of activities stated in paras
2, 3(a) & 5 of the notice, which constitute grounds under clause (a)
of Section 56(1) and second part of clause (b) of Section 56(1) of the
Act. Nonetheless the Externing Authority has externed the petitioner
under clause (a) and second part of clause (b) of Section 56(1) of the
Act. The order is not in accordance with the principles laid down by
the Division Bench of this Court in the case of Yeshwant vs. Hemant
Karkare (Supra) and is in breach of rules of natural justice. The
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impugned order amounts to unreasonable restriction on the
fundamental right guaranteed by Article 19 of the Constitution and
hence cannot be sustained.
29. Under the circumstances and in view of discussion supra, we
pass the following order:-
ORDER
i. Both petitions are allowed.
ii. The order of externment dated 5.9.2012 passed by the Deputy
Commissioner of Police against Satish Shagun Korgaonkar, who is petitioner in Writ Petition No.1813 of 2013, and the order dated 26.9.2013 passed by the Appellate Authority, thereby dismissing the appeal filed by the petitioner are quashed and set aside.
iii. The order of externment dated 26.9.2013 passed by the Deputy Commissioner of Police against Akbar Hussein Shafi Hussein, who is petitioner in Writ Petition No. 529 of 2014, and the order dated salgaonkar 23 of 24 ::: Downloaded on - 23/04/2014 23:33:42 ::: 1813-13 and 529-14-WP-Judgment.doc 21.1.2014 passed by the Appellate Authority, thereby dismissing the appeal filed by the petitioner are quashed and set aside.
iv. Rule is made absolute in above terms
(ANUJA PRABHUDESSAI, J.) (NARESH H. PATIL, J.)
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