Judgment:
V.M. Kanade, J.
1. Heard Counsel for the petitioner and APP for the State.
2. The petitioner is challenging an order of externment dated 15th March, 2010. It is submitted that the show cause notice which was issued by the respondent mentions the criminal case which was filed against the petitioner in the year 2004 and in which, he was convicted in the year 2006. Secondly, he refers to chapter case which was initiated against the petitioner in the year 2004. It is submitted that the said cases which are mentioned are not proximate in point of the time to the show cause notice and thereafter, order of externment which has been passed. It is submitted that one of the requirement which has to be established by the Externing Authority is that the Externing Authority is to be satisfied that the petitioner is likely to commit the said offence. It is submitted that the Externing Authority could not have arrived at such a conclusion particularly, when the said case which was filed against the petitioner was not proximate on that point of time. On this ground alone, order of externment is liable to set aside. The learned Counsel relied on the judgment in the case of : 1987 (3) Bom.C.R. 656 reported in Dhondiram Appa Hatkar v. The State of Maharashtra and Ors..
3. The learned APP, on instructions from Mr. S.B. Bandgar, API of Ambarnath Police Station, was not in a position to point out any other material from the show cause notice on the basis of which it could be inferred that the petitioner was likely to commit any such activity in future.
4. In my view, the ratio of the judgment Dhondiram Appa Hatkar (supra) applies to the facts of the present case. A Division Bench of this Court in para 5, after referring to provisions of Section 57, has observed as under:
Therefore, it will be clear that the mere fact that the person has been convicted is not enough but the competent authority empowered to extern the person must have reason to believe that such person is likely again to engage himself in the commission of an offence similar to the one for which he was convicted. It is also clear that if notice under Section 59 in this behalf is to be worthwhile, then, at least, general indication in the notice has to be given regarding the material in possession of the Externing Authority upon which his satisfaction is based. In may be that the fact that the person is persistently engaged in certain kind of offences or has been previously convicted itself may be the material or the ground which may enable the authority to come to the conclusion that such person is likely to engage himself again in the commission of similar offences, obviously depending upon the propensity, gravity, and magnitude of the crime and activities involved. It will all depend on the facts of each case, and no general rule can be laid down in that behalf.
The Division Bench has further observed in para 6 as under:.Firstly, we find that the first conviction is on 5th July, 1980, thereafter, till 9th October, 1984 there is not a single conviction. The last conviction was on 18th May, 1985 and the notice under Section 59 was issued on 15th October, 1986. In these circumstances, it is difficult to hold, that on the basis of these convictions alone, which were not proximate, any reasonable man could have come to the conclusion that the petitioner is again likely to engage himself in the commission of similar offences. Secondly the notice under Section 59 does not indicate at all any other material which could give the authority a cause to believe that the person is again likely to engage himself in similar offences. Even the final order of externment does not disclose, even remotely, any such material....
5. In the present case also, unfortunately, there is no material mentioned in the show cause notice. The criminal case was filed against the petitioner pertains to year 2004. The chapter proceedings were also initiated in the same year. There is no material to show that the petitioner has committed any such activity during the last six years. No NC complaint has been filed against the present petitioner during these years and as such, therefore, it is difficult to hold, on the basis of the conviction of the petitioner in the year 2006 which is definitely not proximate in point of time, that the petitioner is likely to commit similar offence again.
6. Under these circumstances, the petition is allowed. Order of externment is quashed and set aside. Rule is made absolute in terms of prayer Clause (a).