Allowed

Banti @ Akil Peer Mohd. Shaikh v. Dy. Commissioner of Police Zone 2 Nashik and Anr.

Bombay HC3 Aug 2012WP/1971/2012

Case brief

AI extract

What is this about?

The court quashed the impugned externment orders passed by the appropriate and appellate authorities. The decision was vitiated because the authorities based their satisfaction on causing alarm (Section 56(1)(a)) instead of the cited provision regarding obstruction or prevention (Section 56(1)(b)).

What did the court decide?

The impugned orders passed by the appropriate authority and the appellate authority were quashed and set aside.

Banti @ Akil Peer Mohd. Shaikh Vs Dy… — Constitutional and Fundamental Rights | Bombay HC (2012)

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1 w1971.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.1971 OF 2012

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Banti @ Akil Peer Mohd. Shaikh Age 24 years, residing at Khandoba Chowk, Indira Nagar, Nashik, District Nashik .. Petitioner.

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Vs. 1.Dy.Commissioner of Police Zone-2, Nashik .. 2.Principal Secretary (Spl.) Home Department, Mantralaya, Mumbai .. 3.State of Maharashtra .. Respondents.

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Mr.U.N.Tripathi for the petitioner. Mrs.A.S.Pai APP for the State. A.P.I. Pitale from Nirmal Nagar police station present.

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CORAM : A. M. KHANWILKAR & P. D. KODE, JJ.

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DATED : 3RD AUGUST, 2012

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ORAL JUDGMENT :

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Heard Counsel for the parties.

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This Writ Petition, under Article 226 of the Constitution of India,

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takes exception to the externment order passed against the petitioner by the appropriate authority in exercise of powers under Section

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2 w1971.12

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56(1)(b) of the Bombay Police Act, 1951 (for short 'Act') as also the decision of the appellate authority, which has confirmed the said decision.

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The petitioner was served with a show cause notice, which was the basis for initiation of externment proceedings against the petitioner. The show cause notice unambiguously refers to the action initiated by invoking provisions of Section 56(1)(b) of the Act. Even the operative order passed by the appropriate authority or for that matter, the appellate authority proceeds on the premise that the action of externment against the petitioner was required to be invoked on account of Section 56(1)(b) of the Act. However, the subjective satisfaction recorded by the appropriate authority and which has been confirmed by the appellate authority proceeds on the assumption that the movements or acts of the petitioner are causing or calculated to cause alarm, danger or harm to person or property. This ground is ascribable to Section 56(1)(a) of the Act, whereas, the order passed by the appropriate authority and confirmed by the appellate authority is on the assumption that it was a case for taking action under Section 56(1)(b) of the Act. This fallacious approach vitiates the subjective satisfaction reached by the externment authority. As a result, we have no hesitation in quashing and setting aside the impugned orders passed by the appropriate authority as well as the appellate authority.

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3 w1971.12

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Besides, in the present case, while parting, we may place on record that the externment period against the petitioner is virtually coming to an end. In any case, we have allowed this Petition. The impugned orders cannot be enforced against the petitioner any further.

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Petition is allowed on the above terms.

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(P. D. KODE,J.) (A. M. KHANWILKAR,J.)

Banti @ Akil Peer Mohd. Shaikh v. Dy. Commissioner of Police Zone 2 Nashik and Anr.

Case brief

What is this about?

What did the court decide?

Banti @ Akil Peer Mohd. Shaikh v. Dy. Commissioner of Police Zone 2 Nashik and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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