C.S. Dharmadhikari, J.@mdashIn this petition the petitioner has challenged the order of externment passed by the Sub-Divisional Magistrate, Miraj dated 26th of December, 1983 externing her from the area of Sangli, Satara, Kolhapur and Solapur district for a period of 2 years. This order is passed in exercise of the powers conferred u/s 56(a) and (b) of the Bombay Police Act. The petitioner has also challenged the order passed by the State Government in appeal u/s 60 of the Act dated 12th of December, 1984.
2. In the order of externment it is stated by the Externing Authority that since 1974 to date in Miraj City and particularly at her residence opp. Hira Hotel, her acts and movement are causing and are calculated to cause alaram, harm and danger to the residents of the aforesaid locality. It was also alleged that the petitioner is an habitual offender and has committed offence under various section of Chapters 16 and 17 of the Penal Code. Then in para 2 of the order it is stated that during 1974 to 1983 the opponent has committed several acts and offences coming within the purview of Chapters 16 and 17 of the Indian Penal Code.
3. Thus from the bare reading of the order it is quite clear that the order is based on the offences which took place from 1974 to 1983. If the show case notice dated 29th of July, 1983 is read in this context, it is quite clear that the offences referred to therein are from the year 1977 to 1981. No reference is made to the offence prior to 1977 and after 1981. Thus the order is based on the material which was not disclosed in the show case notice. As held by this Court in Mahadeo Ganpat Lanjewar v. State of Maharashtra, 1964 Mh.L.J. Note No. 69 a material cannot be used against the externee without giving him or her an opportunity to show case against that material. In that case it was held by this Court that if this has done the order became bad because the Magistrate is likely to be influenced by this undisclosed materials while passing the order and it is not possible for the Court to decided that what he would have held if such extraneous material was excluded from his consideration. In the present case from the speaking order dated 26th of December, 1983 passed by the Sub-Divisional Magistrate, it is quite clear that he has heavily relied upon the offences which took place between 1974 to 1977. It has also observed in the said order that the petitioner has committed number of offences during the Course of the enquiry of the proceeding u/s 56 of the Act. Then Sub-Divisional Magistrate has made a reference to the report submitted by the Sub-Inspector dated 28-12-1981. It is an admitted position that the petitioner has been acquitted in some of the cases but it is not disclosed in the show cause notice nor in the order which are those cases. Then finally the learned Magistrate has held that the offences committed by the petitioner are as old as in the year 1974 and latest in the year 1983. Therefore, in substance the order is passed on the basis of this extraneous and undisclosed material. It is well settled that if in the show cause notice no opportunity is given to the externee to explain the offences which are relied upon in the final order of externment then the order of externment must stand vitiated. In this view of the matter it is not necessary to consider any other contention raised and argued before us.
In the result therefore, rule is made absolute. The order of externment dated 26th of December, 1983 issued by the Sub-Divisional Magistrate, Miraj as well as the order passed by the State in appeal dated 12th of December, 1984 are quashed and set aside.
