Bombay High Court
Swapnil Rajesh Dcunha vs State Of Maharashtra And Anr on 2 December, 2024
2024:BHC-AS:47238
WAKLE Manoj 24-WP(ST)-21580-2024.doc
MANOJ
JANARDHAN
Digitally signed by
WAKLE MANOJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY
JANARDHAN
Date: 2024.12.06
12:38:22 +0530
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 21580 OF 2024.
Swapnil Rajesh Dcunha
Age: 40 years, Occ: Self employed,
Residing at: Flat No.204, Rebecca
Kiven, Thakur Bhat, Behind Sgar Sheth
Petrol Pump, Vasai West, Tal- Vasai,
District- Palghat, Pin Code- 401201 ... Petitioner
Vs.
1. The State of Maharashtra
2. The Divisional Commissioner,
Kokan Region, Mumbai
3. The Deputy Commissioner of Police
Vasai Zone-2, Vasai Mira-Bhayander
Vasai-Virar Police commissionerate
4. The Assistant Commissioner of Police,
@ Inquiry Officer,
Mira Bhayander, Vasai-Virar
Police Commissionerate ... Respondents
Mr. Vedant Babar i/by Mr. Rahul S. Kadam for Petitioner.
Ms. R.V. Newton, APP for the State.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 11th NOVEMBER, 2024.
PRONOUNCED ON : 2nd DECEMBER, 2024.
JUDGMENT :
–
. Heard Mr. Babar, learned Advocate for the Petitioner and Ms.
Newton, learned A.P.P. for the Respondent-State. Perused the record.
2) Rule. Rule is made returnable forthwith by consent of the
parties, heard finally.
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Manoj 24-WP(ST)-21580-2024.doc 3) Instant Petition seeks for quashing and setting aside of the
impugned Order dated 21st June, 2024 passed by Respondent No.3
invoking the provisions of Section 55 of the Maharashtra Police Act, 1951
(‘the Act’ for short) thereby the Petitioner has been externed from the
limits of Districts Palghar, Thane, Nashik, Brihan-Mumbai and Mumbai
Suburbs, for a period of two years and the Order dated 30th September,
2024 passed by Respondent No.2 thereby Externment Appeal No.126 of
2024 filed by the Petitioner assailing said ‘Order of Externment’ came to
be dismissed.
4) In view of a direction from Respondent No.3 vide letter dated
13th February 2024, the Respondent No.4 initiated an enquiry against the
Petitioner and his 3 associates under Section 55 of the Act and issued a
notice dated 27th February, 2024 to them to show cause as to why they
should not be externed from the limits of the areas stated in the said
notice, for a period of two years. The notice also conveyed the four to
attend for the enquiry in the office of Respondent No.4. The Petitioner
challenged that notice by his reply dated 4th March, 2024. On completion
of the enquiry, the Respondent No.4 returned the externment proposal
along with his enquiry report dated 19 th April, 2024. In the report,
Respondent No.4 conveyed that considering the old and recent crimes
committed by the Petitioner as a gang leader and others as members of
said gang, it is seen that the Petitioner and his associates, in Vasai,
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Manikpur and Virar localities, are involved in misusing information
received under RTI by threatening and abusing public servants working
in the concerned areas, absuing on caste, filing unnecessary applications
in public offices to harass them, grabbing land of others, demanding
ransom from them and threatening to defame them in case ransom is
refused etc. Said acts of the Petitioner and others posed danger to the
public peace in the area and threat to their life and properties. Statement
of the confidential witnesses also confirmed the above and informed that
witnesses are not willing to come forward to give evidence in public
against the Petitioner by reason of apprehension on their part as regards
the safety of their person or property. The preventive actions initiated
against the Petitioner and his associate did not help. The Respondent
No.4, therefore, advised to extern the Petitioner and his 3 associates, to
bring an improvement in them.
5) In turn, Respondent No.3 issued a notice dated 8 th May, 2024
and thereby called upon the Petitioner and his 3 associates to show cause
as to why they should not be externed, as advice in the said report. The
Petitioner opposed the notice by his reply dated 14 th May, 2024 and
examined one witness in his defence. Additionally, Petitioner relied upon
certain documents of aforesaid C.R. No.313/2023 and C.R. No.105/2023.
After hearing the Petitioner and others with him, the Respondent No.3
held that considering the material on record the advice for externment of
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the Petitioner and his gang members, is justifiable. Hence, Respondent
No.3 passed the impugned Order of Externment against the Petitioner
and his 3 associates. The Petitioner challenge his externment in the
Appeal No.126/2024. However, the Respondent No.2 dismissed the
Appeal.
6) Following crimes and preventive actions were considered to
pass the impugned Order of Externment :-
Sr. Police C.R.Nos. and Name of the Accused Present
No. Station Sections status
1. Vasai Police C.R.No. 272/2020 Swapnil Rajesh Dcunha Pending in
Station Sections 354(a), 504, 506 the Court of
of IPC. law
2. Pending in
C.R.No. 205/2021 Swapnil Rajesh Dcunha
Sections 269,270 of IPC, the Court of
Section 37(1),(c) of the law
Maharashtra Police Act,
1951.
3. C.R.No. 105/2023 1) Swapnil Rajesh Dcunha Pending in
Sections 323,353,34 of the Court of
2) Nadeem Taj Khan
IPC, Section 1 (2), (e) of law
Scheduled Caste and
Tribe Atrocities Act.
4. C.R.No. 316/2023 Swapnil Rajesh Dcunha Pending in
Sections 143, 147, 149, the Court of
341, 427, 447, 504, 506 law
of IPC.
5.
C.R.No. 313/2023 1) Swapnil Rajesh Dcunha Pending in
Sections 306, 34 of IPC. 2) Bharatbhushan Verma the Court
3) Santosh Ramdaya Sharma of law
6. Virar Police C.R.No. 428/2022 Swapnil Rajesh Dcunha
Station Sections 353, 341 of IPC.
7. Manikpur C.R.No. 09/2022 Swapnil Rajesh Dcunha Pending in
Police Sections 353, 506 of IPC, the Court
Station Section 3 of Official of law
Secrets Act along with
Sections 112, 117, 120 of
the Maharashtra Police
Act, 1951.
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PREVENTIVE ACTION TAKEN
Sr. Name of the Party Preventive Section
No. Action
1 Swapnil Rajesh Dcunha, aged 40, of Vasai Police Station Under Sec.
Resi. at-204, Rabeka Queen, Thakur 36/2021 107 of Cr.P.C.
Bhat, Behind Sagarshet Petrol Pump,
Vasai, Tal-Vasai, Dist- Palghar Vasai Police Station Under Sec. 110
06/2023 of Cr.P.C.
2 Nadeem Taj Khan, aged 31, Resi. At -Plot Vasai Police Station Under Sec. 110
No. 201, Rubella Building, Lake Garden, 49/2022 of Cr.P.C.
Papadi, Tal-Vasai, Dist-Palghar
7) Additionally, the Respondent No.2 has considered in-camera
statement of two confidential witness ‘A’ and ‘B’. Said witness revealed
that they knew the Petitioner and his associates. Petitioner is involved in
the aforesaid criminal acts. Further, witness ‘A’ stated that about two
years back dispute had occurred between witness ‘A’ and his neighbour.
The Petitioner and his associates present there, recorded a video of the
said dispute and published on You-tube, Facebook. When the witness ‘A’
asked about the video, the Petitioner and his associates threatened that if
witness ‘A’ files a report with police he would repeat the said act and told
him to settle the matter. Therefore, the witness ‘A’ did not approach the
police to file a report due to fear from the Petitioner and his associates.
7.1) The witness ‘B’ disclosed that, once he had been to the excise
office at Vasai. At that time the Petitioner and two others with him
quarreled with the officials present in the said office and abused one, on
his caste. At that time the associates of the Petitioner were recording a
video of the quarrel and threatened to defame him by publishing that
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video. Therefore, the witness ‘B’ gave an understanding to the Petitioner.
However, two days thereafter Petitioner and his associates threatened
the witness ‘B’ not to intervene as above otherwise he will have to face its
consequences.
8) Mr. Babar, learned Advocate for Petitioner submitted that,
the Order of Externment is based on extraneous material. There is need
of at least 5 members to form a gang, which is lacking in this case.
Necessary live link is missing between various crimes and the Order of
Externment. There is no justifiable reason to extern the Petitioner from
the limits of several Districts for a period of two years. Thus, the Order of
Externment is without the objective and subjective satisfaction, it is
excessive and unreasonable. However, the said Order has been upheld by
the Respondent No.2. Hence, both impugned Orders are illegal.
9) In contrast, the learned APP Ms. Newton urged that, the
Petitioner is a leader of the gang which is habitually involved in
committing different crimes. This fact is confirmed by the material
disclosed from the in-camera statement of the confidential witnesses.
Therefore, the case was made out to extern the Petitioner. Accordingly,
the Order of Externment has been passed and based on the same
material, said Order has been upheld in the Appeal. As such, there is no
substance in the Petition.
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Manoj 24-WP(ST)-21580-2024.doc 10) I have carefully considered the record and rival submissions.
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. The Order of Externment, therefore, must be strictly within
the bounds of the statutory provisions. Under clause (a) of sub-Section
(1) of Section 56, the externing authority must be satisfied on the basis of
the objective material that the movements or acts of the person to be
externed are causing or calculated to cause alarm, danger or harm to
person or property. Under clause (b), there must be an objective material
on the strength of which the externing authority must record subjective
satisfaction that there are reasonable grounds for believing that the
externee is engaged or about to be engaged in the commission of offences
involving force or violence. Mere registration of number of offences by
itself does not sustain an externment under Section 56 (1) (b) of the Act.
The offences must either involve elements of force or involve or fall
under Chapters XII, XVI, and XVII of the Indian Penal Code. In addition,
the externing authority must record satisfaction that the witnesses are
not willing to come forward to give evidence in public against the
externee by reason of apprehension on their part as regards the safety of
their person or property.
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Manoj 24-WP(ST)-21580-2024.doc 11) In the present case, the crimes at serial Nos.1, 2, 6 and 7 were
committed in the year 2020, 2021 and 2022. Thereafter, 3 crimes were
registered against the Petitioner and his associates in the year 2023.
Meanwhile, two preventive actions were initiate against the Petitioner.
However, there was no live link between the crimes at serial Nos.1, 2, 6
and 7. There is considerable gap in the crime at serial No.3, which was
registered on 3rd April, 2024 and the proposal for the externment which
was initiated on 9th February, 2024. The object of externment is not to
penalize the externee, but to distance him from the surroundings which
prove helpful for commission of the offences and thereby disarm his
influence in the said area. Therefore, there ought to be a live-link
between the acts of the externee and the action of externment. In other
words, stale cases cannot be taken into aid to pass the externment order.
This has direct relevance to the subjective satisfaction based on which the
an externment order is passed.
12) As to the duration of the externment, the Respondent No.2
noted that the other associates and sureties of the Petitioner and 3 other
externees with him are resident of district Palghar, Thane, Nashik and
Mumbai area and it is likely that the four would commit offences by
entering into those areas by taking shelter of their said associates and
sureties. Therefore, looking at the criminal antecedents of the Petitioner
and gravity of the aforesaid crimes, all the four been externed for two
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years. This ground, however, is not available as details of the said
associates and sureties of the Petitioner and 3 other externees are not
stated in the impugned Order. Majority of the crimes were stale. Not a
single crime is committed in the District Nashik. Therefore, externment
of the Petitioner from the limits of several Districts was not justifiable.
Thus, the impugned Order of Externment has resulted in unreasonable
hardships to the Petitioner. In the result, the ‘Order of Externment’ is
suffering from the voice of excessive-ness and unreasonable. The said
other associates of the Petitioner and 3 other externees were not
proceeded against under Section 55 of the Act. This is unfair regard
having had to the facts and circumstances of the case. Yet, the
respondent upheld the impugned Order of Externment and its duration.
13) As held in the cited case of Deepak Laxman Dongre Vs. The
State of Maharashtra and Ors.1, “there cannot be any manner of doubt
that an order of externment is an extraordinary measure. The effect of
the order of externment is depriving a citizen of his fundamental right of
free movement throughout the territory of India. In practical terms, such
an order prevents the person even from staying in his own house along
with his family members during the period for which this order is in
subsistence. …”. “As the Order of Externment’ takes away fundamental
right under Article 19 (1) (d) of the Constitution of India, it must stand
1. AIR 2022 SC 1241.
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the test of reasonableness contemplated by clause (5) of Article 19.”
13.1) In Deepak Dongre (supra), in paragraph 13 it is also observed
that, the maximum period provided for externment is of two years.
Therefore, an application of mind on the part of the competent authority
is required for deciding the duration of the restraint Order under Section
56. if this is lacking or the reasons are not sufficient to extern one for the
complete 2 years period, then the ‘Order of Externment’ is not reasonable
and on this ground alone, liable to be quashed and set aside. In the case
of Manohar Krushna Madhavi Vs. State of Maharashtra and Anr. 2, the
order of externment and even the order passed by the Appellate
Authority did not disclose reasons as to why the Petitioner therein was
externed for a maximum period of 02 years. Therefore, it was held that
the authority concerned have lacked application of mind regarding
deciding the duration of the extenment order and, on this ground alone
the Writ Petition was allowed. Similarly, in the case of Ajay Ram Thorat
Vs. State of Maharashtra and Ors.3, in the entire externment order this
Court did not see any reason or any indication regarding subjective
satisfaction of the externing authority mentioning as to why the
Petitioner was externed for a maximum period of two years. Therefore,
and having regard to the observations in the case of Deepak Dongre
(supra), this Court set aside the Order of Externment.
2. 2023:BHC-AS:7032
3. AIROnline 2023 BOM 1106.
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Manoj 24-WP(ST)-21580-2024.doc 14) Conspectus of the above discussion is that, the objective and
subjective satisfaction arrived at for passing the ‘Order of Externment’
for the period of two years is erroneous as it is without a satisfactory
reason as well as excessive and unreasonable. However, the Respondent
No.2 upheld the said Order. In view thereof, the impugned ‘Order of
Externment’ dated 21st June, 2024 and the impugned Order dated 30th
September, 2024 thereby dismissing the Externment Appeal filed by the
Petitioner, both are not sustainable in law and liable to be quashed and
set aside. The Petition succeeds, thus. Hence, following Order :-
– ORDER –
i) Writ Petition (Stamp) No.21580 of 2024 is allowed.
ii) The impugned ‘Order of Externment’ dated 21st June,
2024 passed by Respondent No.3 against the
Petitioner and the Order dated 30th September, 2024
passed by Respondent No.2 thereby dismissing the
Externment Appeal No.126 of 2024 filed by the
Petitioner, are quashed and set aside.
iii) Rule is made absolute in the aforesaid terms.
(SHYAM C. CHANDAK, J.)
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