Bombay High Court
Abdul Rahim Yakub Sayyed vs State Of Maharashtra on 20 December, 2024
2024:BHC-AS:50425
P.H. Jayani 904 WP5644.2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 5644 OF 2024
Abdul Rahim Yakub Sayyed
Age : 47 yrs, Occupation : Business,
R/o Palm Plaza Building, Room No.2,
Ground Floor, Plot No.42, 52,
Bungalow, Panvel Dist. Raigad ....Petitioner
Vs.
The State of Maharashtra
through DCP Zone 2, Panvel, Navi Mumbai ....Respondent
Mr. Ibraheem K.M. for the Petitioner.
Mr. N.B. Patil, APP for the State.
Mr. Rajendra Ghevadekar, API, Panvel City, Navi Mumbai, present.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 18th DECEMBER, 2024.
PRONOUNCED ON : 20th DECEMBER, 2024.
JUDGMENT :
–
. Present Petition seeks to quash and set-aside the impugned
Order dated 01st May, 2024 passed by the Respondent Deputy
Commissioner of Police, Zone -2, Panvel, Navi Mumbai thereby Petitioner
has been externed and the Order dated 11th November, 2024 passed by
the Divisional Commissioner, Kokan Division thereby Externment Appeal
No.117/2024 filed by the Petitioner questioning the externment has been
dismissed.
2) Heard learned Advocate Mr. Ibrahim for the Petitioner and
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learned A.P.P. Mr. Patil for the Respondent. Perused the record.
3) Rule. Rule is made returnable forthwith. With consent of the
parties taken up for final hearing.
4) Factual matrix are that, in view of certain crimes registered
against the Petitioner and the preventive action taken in the interregnum
did not prove helpful, Panvel City Police Station submitted a proposal to
extern the Petitioner. Said proposal was inquired into by the Assistant
Commissioner of Police, Panvel Division/First Inquiry Officer. On
concluding the inquiry, the ACP returned the proposal with his advice to
extern the Petitoner. In turn, the Respondent issued a notice dated 19th
April, 2024 under Section 59 of the Maharashtra Police Act, 1951 (‘the
Act’, for short) and thereby called upon the Petitioner to show cause as to
why he should not be directed to remove himself from the limits of the
Districts Raigad and Thane alongwith Navi Mumbai, for a period of two
years, invoking Section 56 (1) (a) (b) of the Act. The Petitioner appeared
before the Respondent and submitted his written reply to the notice
whereby he denied the in-camera statements given by the confidential
witnesses ‘A’ and ‘B’, contending that the statements are false. Thereafter
the Respondent heard the parties and proceeded to consider the matter.
5) Brief details of the crimes, preventive action and the in-
camera statements, which were considered as adequate to order the
externment, and dismiss the Appeal are as under :-
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Sr. Police Crime Regn. Nos. Court Current status
No. Station, and Sections Case No.
1 Panvel City C.R.No.359/2022, 3350/2022 Subjudice
Sec. 37 (1) (3) r/w.135 of the
Maharashtra Police Act, 1951.
2. Panvel City C.R.No.237/2022, 3151/2022 Subjudice
Sec. 37 (1) (3) r/w.135 of the
Maharashtra Police Act, 1951.
3. Kalachowki, C.R.No.23/2022, ___ Under
Mumbai under Section 10 of the Unlawful investigation
Activities (Prevention) Act, 1967
r/w 34 of I.P.C.
4. Panvel City C.R.No.175/2023, 4555/2023 Subjudice
Sections 143, 147, 149, 504
and 506 of I.P.C.
Preventive action taken against Petitioner :-
Sr. Preventive
No. action Petitioner was kept in detention from
1. Under Section 151 (1), (3) of
30/09/2022 to 06/10/2022.
Cr.P.C. on 29/09/2022.
5.1) In view of the stories behind registration of the aforesaid
crimes, the Respondent-DCP held that, the Petitioner with the help of his
associates has committed the offences of unlawful assembly, agitation,
committing breach of prohibitory orders, threatening, etc. In the facts,
Petitioner is involved in the offences falling under Chapter XVI of the
I.P.C. Said activities of the Petitioner had created terror in the Panvel City
and Kala Chowki area of Mumbai. It had caused danger to the lives of
public. People, who fell victim to acts of the Petitioner, were not openly
coming forward to give evidence against him. The in-camera statement of
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the confidential witnesses revealed that, the Petitioner has been collecting
young boys and giving provoking speeches on caste disputes and anti-
social acts thereby making brain wash of said boys and also pressurising
them, to join the banned organization ‘PFI’. Thus, on the pretext of party-
work, the Petitioner was instigating young boys to work for religion. It is
held that, there is no substance in the reply submitted by the Petitioner.
Therefore, the respondent concluded that, it is expedient to extern the
Petitioner to restrain him from continuing his unlawful activities and in
the interest of general public. Further, the Respondent observed that, the
Petitioner has been residing at old panvel, and the areas of his unlawful
activities is Panvel. There are different sources of transportation to travel
outside the limits of Panvel. Therefore, a possibility of the Petitioner
again committing crimes by residing in Uran taluq, cannot be ruled out.
Therefore, it is necessary to extern the Petiitoner out of the limits of
Panvel and Uran Taluqs. Accordingly, the impugned Order of Externment
dated 01st May, 2024 came to be passed and the Petitioner was externed
out of the said taluq for a period of fifteen months. Petitioner’s Appeal
challenging the said Order of Externment turned down by the impugned
order dated 11th November, 2024. Hence, the Petition.
6) Learned Advocate Mr.Ibraheem for the Petitioner submits
that, the first two crimes registered with Panvel City Police Station are not
covered under Chapter XVI of I.P.C. Said two crimes were stale. There
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was no live-link in between the said two crimes and the Order of
Externment. He submits that, when the externment proceeding was
initiated, crime at Sr. no.3 was under investigation and it is a bailable
offence. As such, said crimes could not have been considered to pass the
Order of Externment. However, all the said crimes were taken support of
to pass the Order of Externment. Thus, in short, according to the learned
Counsel for the Petitioner, there was no sufficient objective material to
record the subjective satisfaction to pass the Order of Externment.
However the Petitioner has been externed. He submits that, no crime was
committed within Uran Police Station limits. Therefore, it was not
necessary to add Uran taluq to the area of externment. He submits that,
no reason is recorded to fix the duration of the externment as fifteen
months. As such, the impugned Order of Extrnment is excessive and
unreasonable. However, without giving any consideration to the aforesaid
aspects, the said Order has been upheld and the Appeal of the Petitioner
came to be dismissed. As a result, both the impugned Orders are not
sustainable in law and liable to be set aside.
7) The learned A.P.P. Mr. Patil, on the other hand, submits that
existence of the crime falling under Chapter XVI of the I.P.C. is not only
criteria for passing the ‘Order of Externment’. He submits that the
Petitioner with the help of his associates has committed serious offences.
The organisation ‘Popular Front of India’ has been banned by the
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Government, however, the Petitioner held meetings through said
organisation to encourage people to join the said organisation with
oblique motive. He submits that, the statements of confidential witnesses
have confirmed the said fact. In the backdrop and, having regard to the
connectivity between the two taluq, the ‘Order of Externment’ for fifteen
months was necessary. Hence, the Appeal also came to be dismissed. As
such, there is no substance in the Petition, submits the learned A.P.P.
8) It is settled law that, the measure of externment by its very
nature is extraordinary. It has the effect of forced displacement from the
home and surroundings. Often it affects the livelihood of the person
ordered to be externed. Thus, there must exist justifiable grounds to
sustain an Order of Externment. In other words, there must be sufficient
objective material on the strength of which the externing authority wants
to record the subjective satisfaction to pass the Order of Externment.
9) The crime at Sr.Nos.1 to 2 were registered in the year 2022.
The proposal for externment was initiated sometimes in February/March,
2024. There was considerable gap between the crime at Sr. No.3 and
Order of Externment. In order to justify the externment order, there is
need of urgency and promptness on the part of an Officer in initiating the
proceeding and taking the proceeding to the logical end, at the earliest.
That apart, the crime at Sr. No.3 was still under investigation when the
Order of Externment was passed. As such, the said three crimes could not
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have been taken into consideration.
10) In Sachin s/o. Sanjay Raut v/s. The Divisional Commissioner,
Amravati Division & Ors.1, in all 8 crimes were considered to direct the
externment. The last four crimes were under investigation, therefore, the
same were excluded from consideration. The remaining crimes were
registered in the year 2018, 2019 and 2020 respectively, two years prior
to the issuance of notice. Therefore, the said crimes were held as stale and
not sufficient to establish the live-link for passing the externment order.
To arrive at this conclusion, this Court noted that in order to justify the
live-link, the serious nature of the crime has been made the bone of
contention. The serious nature of the stale crime cannot be made the
foundation to establish the live-link. The object of externment proceeding
is to prevent a person from indulging in such offences repetitively in
future, so that, peace and tranquility in the society is maintained. On this
Count, no justifiable reason was stated in the externment order. Hence, it
is held that, the aforesaid aspect would largely reflect upon the subjective
satisfaction asserted in this proceeding by the Respondents and this basic
lacuna is sufficient to set aside the externment. Similarly, in the decision
between Imtiyaz Hussain Sayyad Vs. The State of Maharashtra and Ors. 2,
the learned Single Judge has held that, “It is trite, the crimes which are
still under investigation cannot be taken into consideration as depending
1. Cril.WP No.253 OF 2023, (Nag. DD. 10/07/2023).
2. AIR Online 2024 BOM 84.
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upon the outcome of the investigation, the investigating agency may or
may not send the accused for trial”.
11) In Deepak s/o Laxman Dongre v/s. State of Maharashtra and
Ors.3, the Hon’ble Supreme Court held that, an application of mind on the
part of the competent authority is required for deciding the duration of
the restraint order under Section 56 of the Act. On the basis of objective
assessment of the material on record, the authority has to record its
subjective satisfaction that the restriction should be imposed for a specific
period. In the case in hand, the Petitioner has been externed for a period
of fifteen months from two taluq. However, no reason is recorded as to
why the period of externment should be fifteen months.
12) Upshot of the aforesaid discussion is that, the crimes
considered by the authorities were not sufficient as an objective material
to record the subjective satisfaction to pass the Order of Externment. The
reason to extern the Petitioner for fifteen months is not discernible from
the record. As such, the Order of Externment is excessive and
unreasonable. However, the same has been upheld by the Divisional
Commissioner thereby dismissing the Appeal. In the backdrop, both the
impugned Orders are not sustainable in law and liable to be quashed and
set aside. The Petition succeeds, thus. Hence, following Order :-
3. 2022 ALL.M.R.(Cri.) 761 (S.C.).
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- ORDER -
(i) Writ Petition No.5644 of 2024 is allowed.
(ii) The impugned 'Order of Externment' dated 01st May,
2024 passed by the Deputy Commissioner of Police, Zone –
2, Panvel, Navi Mumbai and the Order dated 11 th
November, 2024 passed by the Divisional Commissioner,
Kokan Division dismissing the Petitioner’s Externment
Appeal No.117/2024, are quashed and set aside.
13) Petition stands disposed of in above terms. Rule made
absolute.
[SHYAM C. CHANDAK, J.]
Digitally
signed by
PREETI
PREETI HEERO
HEERO JAYANI
JAYANI Date:
2024.12.21
14:40:19
+05309/9
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