Mumbai: Observing that it was a drastic action and unsustainable in law, the Bombay High Court has set aside an order passed by the Principal Home Secretary of Maharashtra Government externing a businessman from Nashik on the ground that there were four cases pending against him.
"Externment order when implemented may result in far reaching harsh consequences for the externee and his family members if dependent upon him for their livelihood. It may spell economic death for the externee," noted justices A P Bhangale and A S Oka in their recent order.
"That being so, procedure established by law must be shown to have been followed vigilantly and cautiously before a person is deprived of his fundamental right of free movement as guaranteed under article 19(1)(d) and personal liberty guaranteed under article 21 of the Constitution of India," they observed.
The Judges further remarked that the impugned order of externment not only suffers from the vice of laches but also from the non-application of mind. They felt that there was no justification to pass such drastic order and hence it is indefensible and unsustainable and must be set aside.
The Court was hearing a petition filed by Praful Yadav, a cable operator in Sinnar taluka of Nashik district, who challenged the externment order issued against him by R N Harari, Sub-divisional Magistrate, on April 13 last year.
Yadav had preferred an appeal before K K Pathak, Principal Home Secretary of State Government, who rejected it. Being aggrieved, he moved the High Court.
Counsel for petitioners, Saurabh Singha and Amin Solkar, argued that the impugned externment order was illegal, malafide and bad in law. There was no application of mind and the order was issued mechanically in most cavalier manner.
Besides, they said, cases under section 185 of the Motor Vehicles Act were also taken into consideration to form subjective satisfaction to extern the petitioner.
The lawyers said three cases alleged against the
petitioner are pending and he is on bail. He has not been convicted in any case in the past and no instance of misuse or abuse of personal liberty had been cited by authorities to extern him.
The lawyers further argued that without resorting to normal remedy available in law i.E cancellation of bail, the State had taken drastic action of externment without any valid and sound reason.
The externment order was passed after unexplained and gross delay in respect of the alleged incidents pertaining to year 2010, they pointed out.
Additional Public Prosecutor J P Yagnik defended the externment proceedings and contended that the impugned order was passed in view of four pending criminal cases giving rise to alarm and danger to the peace and order in the society. He, therefore, prayed for dismissal of the petition.
The Judges, however, noted that it is a well settled principle that to pass an externment order under Bombay Police Act, the authority such as Police Commissioner or District Magistrate must record his satisfaction that the acts of the person may cause harm or damage to anyone in the society or that he is likely to engage in some offence or activity which may be dangerous to the society.
"We find that the show cause notice dated February 11, 2011, was observed merely as a formality which mentioned about the proposal to extern received from Sinnar police station on the ground of four pending criminal cases including a case under Motor vehicles Act reported at that police station," the bench noted.
It also contained omnibus allegations that despite preventive proceedings against the noticee there was no change in his behaviour and there was an increasing tendency to commit offences on his part and there is danger to person or property of the people.
It was also alleged that no one was coming forward to give evidence against whom the notice was issued.
The court noted that the impugned order was passed 16 months after the last alleged offence by the petitioner. "The order granting bail in the last offence records a finding that there was no incriminating material brought on record. Hence, the live link between prejudicial activities and necessity of passing externment order was snapped".