ALEEM KHAN SALIM KHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule. Rule is made returnable forthwith. Heard the learned Counsel for the respective parties. The petitioner has challenged the order of externment passed by the Sub-Divisional Magistrate, Morshi on 8.5.2013 externing the petitioner from Amravati District. Mr. P.V. Navlani, learned Counsel for the petitioner has submitted that the impugned order suffers from non-application of mind as the same is passed considering the irrelevant material which could not have been taken into consideration for passing the impugned order. The learned Counsel has pointed out that the petitioner has been acquitted in six prosecutions which are also taken into consideration by the learned Sub-Divisional Magistrate for passing the externment order. Apart from this, the impugned order shows that the last prosecution which is taken into consideration is of the year 2010. The show cause notice is dt. 21.1.2013 i.e. almost after a period of about three years. This shows that the externment order has no nexus with the object sought to be achieved by the externment order.

(2.) Though the learned A.P.P. has strongly opposed the petition, she has not been able to substantiate that there is no non-application of mind by the learned Sub-Divisional Magistrate.

(3.) We find that the learned Sub-Divisional Magistrate has taken into consideration the material which he could not have considered. The prosecutions in which the petitioner has been acquitted have been considered by the learned Sub-Divisional Magistrate as pending though, in the reply filed by the petitioner before the Sub-Divisional Magistrate, it was specifically pointed out that he has been acquitted in those cases. This is a case of patent non-application of mind by the Authority dealing with the liberty of the petitioner. The appellate Authority has also mechanically upheld the order passed by the learned Sub-Divisional Magistrate without considering the material available on the record. In view of the above, the impugned orders cannot be sustained in law. Hence, the same are set aside. Rule is made absolute in terms of prayer clause (a) of the petition.