Quashed

Ramzan Jamil Sayyed v. Vikram Deshmane and Ors.

Bombay HC8 Jul 2016WP/2071/2016

Case brief

AI extract

What is this about?

This High Court quashed an order of externment issued against the petitioner and observed that the order was passed relying on material not covered in the show cause notice, violating the natural justice principle of giving an opportunity of being heard. The court also found the appellate authority had failed to record reasons for rejecting the stay application.

What did the court decide?

The order of externment dated 11/4/2016 was quashed and set aside, and the petitioner is permitted to re-enter the areas from which he has been externed.

Ramzan Jamil Sayyed Vs Vikram Deshmane… — Constitutional and Fundamental Rights | Bombay HC (2016)

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rsk 1 WP-2071-16.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.2071 OF 2016

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Ramzan Jamil Sayyed	]
Aged 26 years,	]
R/at:- Room No.2, Plot no.70B,	]
Gate No.7, New Collector Compound, Malwani, Malad (West), Mumbai	] ]	...Petitioner
vs.
1. Vikram Deshmane	]
Dy Commissioner of Police, Zone-11, Mumbai	] ]
2. Assistant Commissioner of Police, Malwani Division, Mumbai	] ]
3. Divisional Commissioner, Kokan Division, Mumbai	] ]
4. State of Maharashtra	]	...Respondents

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...

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Mr. Pawan Mali for the petitioner.

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Ms. M. H. Mhatre, APP for the Respondent Nos.1 to 4/State.

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…

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CORAM : A.S. OKA & A.A. SAYED, JJ. DATE : 8^th JULY, 2016.

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JUDGMENT: (PER A.S. OKA, J.)

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. Heard learned counsel appearing for the petitioner and learned APP for the respondents. Notice for final disposal is already issued on the earlier date.

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The challenge in this petition under Article 226 of the Constitution of India is to the order of externment passed by the second Respondent on 11 April 2016 against the petitioner in exercise of the

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rsk 2 WP-2071-16.doc

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powers under section 56(1) (A) (B) of the Bombay Police Act, 1951 ( for short, “the said Act”).

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The impugned order of externment was preceded by a show cause notice dated 28 September 2015 issued by the second Respondent to the petitioner in accordance with section 59 of the said Act. The show cause notice and in particular paragraph 4 thereof records cases registered against the petitioner. As far as the challenge to the impugned order of externment is concerned, it is mainly on the ground that extraneous material has been considered by the first Respondent while passing the impugned order.

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The learned counsel appearing for the petitioner pointed out that while passing the impugned order, the first Respondent has relied upon the First Information Report No.65/2016 registered against the petitioner with Malwani Police Station, Mumbai. He urged that there is no reference to the said offence in the show cause notice, as it was subsequently registered. Learned counsel appearing for the petitioner also pointed out the manner in which the Appellate Authority has disposed of the Application for interim relief in an Appeal under section 60 of the said Act. He relied upon the decision of Full Bench of this Court dated 14 June 2016 in Writ Petition No.1507/2007 (Sachin Yeshwant Pokre vs. Jayprakash M. Jadhav) along with connected Writ Petitions.

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The learned APP supported the impugned order by pointing out that the order is based on subjective satisfaction which is recorded on the basis of material on record.

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rsk 3 WP-2071-16.doc

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We have carefully perused the show cause notice dated 28 September 2015 and the impugned order. In the impugned order it is recorded that after the date fixed for hearing the petitioner, FIR No.65/2016 was registered against the petitioner for offences punishable under section 379, 430, 431 r/w 34 of the IPC. The first Respondent has specifically observed in the impugned order that the criminal tendency of the petitioner is very apparent from the arrest of the petitioner and his subsequent release, during pendency of the proceedings. Thus, the subjective satisfaction of the first Respondent is also based on the said subsequently registered offence during pendency of the proceedings. Though the FIR was registered subsequent to the date of show cause notice, no opportunity of being heard was given to the petitioner to deal with the said material relied upon against him by the externing Authority. The concerned Authority ought have informed the Petitioner that the Authority proposes to rely upon the subsequently registered offence and ought to have given him an opportunity to file a reply to the said material. Even a supplementary show cause notice could have been issued.

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The order of externment is an order of drastic nature which affects the liberty of an individual. Apart from the fact that extreneous material which was not a part of show cause notice has been considered, the order is in breach of principles of natural justice as the petitioner was not granted adequate opportunity to deal with the additional material relied upon against him. Therefore, the impugned order of externment stands vitiated.

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We have perused the order dated 25 May 2016 passed by

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rsk 4 WP-2071-16.doc

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the Appellate Authority by which the application for stay of the impugned order of externment has been rejected. We find that the Appellate Authority has not recorded any reasons. Considering the drastic nature of the order of externment, the Appellate Authority was expected to record brief reasons.

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Hence, the Petition must suceed and accordingly, we pass the following order:

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i) Rule is made absolute in terms of the prayer clause (a) which reads thus:

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(a) That Order of Externment dated 11/4/2016 issued by the Respondent No.1 bearing externment order No.104/C/43/16 directing the externment of the Petitioner from the area of Mumbai District for a period of one year, may be quashed and set aside and Petitioner be permitted to re-enter the areas from which he has been externed.

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ii) All the concerned to act upon the authenticated copy of the operative part of the judgment and order.

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(A.A. SAYED, J.)

Ramzan Jamil Sayyed v. Vikram Deshmane and Ors.

Case brief

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Ramzan Jamil Sayyed v. Vikram Deshmane and Ors.

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