NITIN TUKARAM GAVANKAR Vs. DEPUTY COMMISSIONER OF POLICE

JUDGEMENT

(1.) THE submissions of the learned counsel appearing for the parties were heard on the last date. The challenge in this petition under Article 227 of the Constitution of India is to an order of externment passed by the Deputy Commissioner of Police on 29th January 2008 in exercise of powers under section 56(1)(a)(b) of the Bombay Police Act, 1951. The order of externment has been confirmed by the Appellate Authority in a statutory appeal.

(2.) THE learned counsel appearing for the petitioner has raised various contentions. The first contention is that the show cause notice refers to three cases registered against the petitioner and in one case out of the three, withdrawal of the case has been permitted and in another case, the petitioner has been discharged. The submission is that these relevant facts which were brought to the notice of the concerned authority by filing a reply have not been considered by the authority which has passed the order of externment. He submitted that the subjective satisfaction is vitiated by non consideration of these important factual aspects. It is submitted that an inquiry was conducted by the Assistant Commissioner of Police before whom six witnesses were examined and the evidence of the said witnesses has not been considered by the Deputy Commissioner who has passed the order of externment. It is submitted that order of externment shows non application of mind.

(3.) THE learned A.P.P submitted that the Assistant Commissioner of Police, Dahisar Division was appointed as an Enquiry Officer. It is submitted that though an opportunity was given to the petitioner to produce evidence before the Deputy Commissioner of Police, no evidence was adduced by the petitioner. The learned A.P.P submitted that the Deputy Commissioner of Police before passing the order of externment has considered the report of the Enquiry Officer and the Enquiry Officer has considered the evidence adduced by the petitioner. It is submitted that the subjective satisfaction recorded by the Deputy Commissioner of Police cannot be gone into in this Writ Petition under Article 226 and Article 227 of the Constitution of India. She pointed out that the learned Deputy Commissioner of Police had not only considered the offences registered against the petitioner but also the in-camera statements of certain persons. It is submitted that the other order dated 29th January 2008 is not a separate order but a noting made by the Deputy Commissioner of Police who has passed the order of externment which is duly served to the petitioner.