Bombay High Court
Prashant Prabhu Gabhane vs State Of Mah. Thr. Pso Tumsar ... on 24 June, 2022
Author: Vinay Joshi
Bench: Vinay Joshi
Judgment CWP374.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION No. 374/2022.
Prashant Prabhu Gabhane,
Aged about 30 years, Occupation
Service, resident of Kumbhare Ward,
Tahsil Tumsar, and District
Bhandara. ... PETITIONER.
VERSUS
1.State of Maharashtra,
through Police Station Officer,
Tumsar, District Bhandara.
2.Sub Divisional Magistrate,
Tumsar.
3.Divisional Commissioner,
Nagpur Division, Nagpur. ... RESPONDENTS.
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Mr. H.Chawhan, Advocate for the Petitioner
Mr.H.D. Dubey, A.P.P. for Respondents.
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CORAM : VINAY JOSHI, J.
DATE : JUNE 24, 2022.
Rgd. RAKESH GANESHLAL DHURIYA
28.06.2022 10:03
Judgment CWP374.
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ORAL JUDGMENT :
Heard. Considering the controversy involved in the matter and by consent of the learned Counsel for the parties, Writ Petition is taken up for final disposal at the stage of admission by issuing Rule, making the same returnable forthwith.
2. By this petition, the petitioner has prayed to quash and set aside the order of externment dated 10.02.2022 passed by the Sub Divisional Magistrate, Tumsar and the order of dismissal of appeal dated 09.06.2022 passed by the Divisional Commissioner, Nagpur Division, Nagpur.
3. The petitioner was served with a show cause notice dated 18.11.2021 in terms of Section 59[1] of the Bombay Police Act, calling upon him to show cause about intended action of externment. The show cause notice bears registration of total 8 offences against the petitioner and about his illegal activities. The petitioner replied to the show cause notice. Proposal of externment was accepted by the Sub Divisional Magistrate, Tumsar and accordingly vide impugned order dated 10.02.2022 the petitioner has been externed Rgd. RAKESH GANESHLAL DHURIYA 28.06.2022 10:03 Judgment CWP374.
3 for a period of one year from the territorial limits of Bhandara district. The petitioner has filed an appeal before the Divisional Commissioner in terms of Section 60 of the Act, challenging the order of externment, however, the said appeal came to be dismissed.
4. The impugned order of externment discloses that in all 6 offences were registered against the petitioner under the provisions of Maharashtra Prevention of Gambling Act, (hereinafter referred to as "the Gambling Act" for short) whilst one offence was registered under Section 188 of the Indian Penal Code pertaining to disobedience of the order promulgated by the public servant. On the basis of said material and information, externment order has been passed.
5. The learned Counsel for the petitioner primely assailed the impugned order by contending that the impugned order suffers from serious illegalities and arbitrariness. The authorities have seriously erred in initiating externment proceeding on the basis of the offence punishable under the Gambling Act. It is contended that the gist of in-camera statements was not informed to the petitioner.
Rgd. RAKESH GANESHLAL DHURIYA
28.06.2022 10:03
Judgment CWP374.
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6. The learned Counsel for the petitioner has relied on three decisions of this Court namely - (1) Dhananjay Manohar Sapkal .vrs. State of Maharashtra and another - 2005 [2] Mh.L.J. 384; (2) Kamalkishor Pusaram Bang .vrs. The Superintendent of Police and others - (Criminal Writ Petition 239/2018 decided on 12.04.2018 - Aurangabad Bench) and (3) Sagarsingh Kesharsingh Bawari .vrs. Ministry of Home Department and others - (Criminal Writ Petition No.355/2013 - decided on 03.09.2013), to contend that the registration of offence under Gambling Act cannot form the basis for initiating externment proceeding. In these decisions this Court has taken a consistent view that the prosecution under Gambling Act cannot be a foundation for passing externment order.
7. On the other hand the learned A.P.P. supported the impugned order by contending that continuously several offences have been registered against the petitioner. Pertinent to note that the impugned order does not bear any whisper about recording of any in-camera statements of the witnesses, apart from informing the gist of such statements to the externee. Unless there is subjective Rgd. RAKESH GANESHLAL DHURIYA 28.06.2022 10:03 Judgment CWP374.
5 satisfaction of the statutory authority, action could not have be taken. Undisputedly, majority of offence i.e. 5 out of 6 pertains to action under Gambling Act. In view of the law laid down in above cited judgments, such action is unsustainable in the eyes of law. The petition therefore needs to be allowed and is accordingly allowed. The order of externment dated 10.02.2022 passed by the Sub Divisional Magistrate, Tumsar in Case No.4/2021 is hereby quashed and set aside.
Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE
Rgd. RAKESH GANESHLAL DHURIYA
28.06.2022 10:03