Gujarat High Court
Nashirkhan Yusufkhan Pathan vs State Of Gujarat & 2 on 5 November, 2014
Author: A.J.Desai
Bench: A.J.Desai
R/SCR.A/2474/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (AGAINST ORDER OF
EXTERNMENT) NO. 2474 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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NASHIRKHAN YUSUFKHAN PATHAN
Versus
STATE OF GUJARAT & 2
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Appearance:
MR GAJENDRA P BAGHEL, ADVOCATE for the Applicant
MR NJ SHAH ADDL. PUBLIC PROSECUTOR for the Respondents
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
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R/SCR.A/2474/2014 JUDGMENT
Date : 05/11/2014
ORAL JUDGMENT
[1] The petitioner has challenged the order of externment dated 10.02.2014 passed by respondent No.2 in Hadpari Case No.RB/HDP/90-2013/14 as well as the order dated 03.05.2014 passed by respondent No.1 in Externment Appeal No.81 of 2014.
[2] The Deputy Police Commissioner issued a notice on 18.06.2013 under section 59 of the Gujarat Police Act (for short "the Act") to the petitioner inter alia alleging to show cause as to why he should not be externed from Surat Rural, Bharuch, Navsari, Valsad, Tapi and Narmada for a period of two years. There is a specific allegation in the notice that the petitioner was doing all the activities as mentioned in the show-cause notice within the jurisdiction of concerned Police Station.
[3] In response to the show cause notice, the petitioner submitted his reply to the said show cause notice. After examining the reply, respondent No.2 has passed the order of externment on 10.02.2014 externing the petitioner for a period of two years from the area falling in the Police Commissioner of Surat city, Surat Rural, Bharuch, Tapi, Narmada, Valsad, Navsari and Dang. The petitioner preferred appeal under section 60 of the Act. The said order of externment was modified by the appellate authority vide order dated 03.05.2014, whereby the externing authority was pleased to reduce the period of externment from two years to one year and the area of externment and made relaxation for the districts of Bharuch, Tapi, Narmada, Valsad, Navsari and Dang but continued externment to the limit of Surat city and Surat Rural .
[4] Learned advocate appearing on behalf of the petitioner has challenged the show cause notice, order of externment and the order Page 2 of 5 R/SCR.A/2474/2014 JUDGMENT of appellate authority mainly on the ground that the competent authority has not considered the legal submissions while passing the impugned order. Learned advocate for the petitioner contended that the there is delay in passing the externment order passed by the externing authority and therefore, the order of externment should be quashed. It is also submitted by him that the authorities concerned have mechanically passed the order and externed the petitioner after the delay of more than eight months. He further submits that the impugned order of externment is passed by respondent No.2 relying upon a complaint / FIR being C.R.No.I-64 of 2013 registered with Salabatpura Police Station, Surat for the offences punishable under sections 143, 147, 148, 149, 332, 333, 337, 341, 186, 188 of the Indian Penal Code and under sections 3 and 7 of the Damage to Public Property Act.
[5] A specific point is taken by the petitioner in this petition contending that the order of externment has been passed after lapse of more than eight months from the date of issuance of show cause notice dated 18.06.2013. Therefore, the order of externment has been passed without considering the necessity to extern the petitioner after such lapse of time and therefore, the same is without any application of mind. He has also relied upon the decision of this Court in the case of Santosh Ramprasad Sharma Vs. Deputy Commissioner of Police, Ahmedabad and another reported in 1992 (2) GLH 547 and submitted that the impugned order may be quashed.
[6] Per contra, learned APP submitted that the competent authority has passed the impugned order after considering all the relevant materials and considering the petitioner's activity in light of offence, the impugned order is passed and the same is in conformity with the provisions of the Act and therefore, requested not to interfere with the impugned orders as the necessary consequences of restricting Page 3 of 5 R/SCR.A/2474/2014 JUDGMENT the movement of citizen and such restriction can be imposed only by proceedings in accordance with law. The law on the point is such that prior to passing of order, the competent authority is required to issue show cause notice disclosing specific grounds upon which an order of externment is proposed. The impugned order can be said to have been passed in violation of safeguards provided under the Act.
[7] This Court is of the considered opinion, there is much force in the arguments advanced on behalf of the petitioner. In externing a person which is in public interest, the authorities are expected to act promptly and if the matter is delayed, the same will exhibit that there is no urgent need and no necessity to extern a person from a particular locality or a district. The externment order restricts or curtails the freedom of the movement of a person concerned and therefore, any lapse/delay on the part of authority concerned cannot be permitted and the benefit will go to the party concerned and on that ground, the externee will be entitled to the benefit of quashing of such order of externment.
[8] It is true that mere delay in passing externment order cannot be fatal to quash such an order, but this Court is of the opinion that the delay must be explained. The preventive action should be taken immediately and any delay will definitely vitiate in passing such an order.
[9] In the result, the petition is allowed. The order of externment dated 10.02.2014 passed by respondent No.2 in Hadpari Case No.RB/HDP/90-2013/14 as well as the order dated 03.05.2014 passed by respondent No.1 in Externment Appeal No.81 of 2014 are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(A.J.DESAI, J.)
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R/SCR.A/2474/2014 JUDGMENT
vijay
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