Gujarat High Court
Gafurkhan Sameerkhan Pathan vs State Of Gujarat on 25 October, 2021
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/SCR.A/9549/2021 ORDER DATED: 25/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 9549 of 2021
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GAFURKHAN SAMEERKHAN PATHAN
Versus
STATE OF GUJARAT
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Appearance:
MR LAV SHAH FOR MR PARTH D PATEL(9754) for the Applicant(s) No. 1
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 3
NOTICE SERVED(4) for the Respondent(s) No. 2
MS MAITHILI MEHTA, APP(2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 25/10/2021
ORAL ORDER
1. Rule. Learned APP Ms.Maithili Mehta waives service of notice of rule for respondents.
2. This petition is filed under Article 226 of the Constitution of India in which the petitioner has challenged the order dated 4.8.2020 passed by the Additional Commission of Police, N Division, Ahmedabad city as well as the order dated 17.12.2020 passed by the Additional Secretary, Home Department in Externment Appeal No. 1120/81/2020.
3. Heard learned advocate Mr.Lav Shah for the petitioner, learned APP Ms.Mehta for the respondents.
4. It is submitted by learned advocate for the petitioner that the respondent authority issued the notice under Section 56 of the Gujarat Police Act on 4.8.2020 whereby the petitioner was asked to show cause why he should not be externed from the areas which are mentioned in the Page 1 of 5 Downloaded on : Wed Oct 27 01:59:02 IST 2021 R/SCR.A/9549/2021 ORDER DATED: 25/10/2021 said notice for the alleged illegal activity carried out by him and on the basis of the five different FIRs which have been filed against him. The petitioner submitted his reply to the said show cause notice. It is submitted that thereafter, the respondent no.2 passed the impugned order dated 4.8.2020 wherein the respondent authority has referred five different FIRs which have been registered against the petitioner before Rakhiyal police station. Statement of different witnesses are also referred in the said order. The respondent no.2, thereafter, without assigning any reason externed the petitioner from Ahmedabad city, Ahmedabad Rural, Kheda, Mehsana and Gandhingar districts for a period of two years. It is submitted that though the FIRs are registered before Rakhiyal police station situated in Ahmedabad city, the petitioner has been externed from different districts and while passing the said order, the respondent- authority has not assigned any reason. It is, therefore, urged that the impugned order be quashed and set aside. At this stage, it is further submitted that the appellate authority has also not properly appreciated the aforesaid important aspect of the matter. At this stage, learned advocate for the petitioner has placed reliance upon the order dated 28.8.2019 passed by this Court in Special Criminal Application No.6824 of 2019 passed in the case of Asif @ Asif Gando Mehbubmiya Shaikh V/s State of Gujarat. Learned advocate has also placed reliance upon the order dated 22.11.2013 passed by this Court in Special Criminal Application No.3160 of 2013 in the case of Bhajansing Rameshsing Sikaligar V/s State of Gujarat. It is submitted that the present case is squarely covered by the aforesaid two orders passed by this Court.
5. On the other hand, learned APP has opposed this petition and referred to the impugned order passed by the respondent no.2. It is submitted that five different FIRs have been registered against the petitioner before Rakhiyal police station, the details of which are given in the impugned order itself. It is submitted that looking to the activities Page 2 of 5 Downloaded on : Wed Oct 27 01:59:02 IST 2021 R/SCR.A/9549/2021 ORDER DATED: 25/10/2021 carried out by the petitioner, the respondent-authority thought it fit to extern the petitioner from Ahmedabad city and different districts which are referred in the impugned order. It is submitted that the respondent no.1 has exercised the powers under Section 56 of the Gujarat Police Act and therefore this Court may not quash and set aside the impugned order. Learned APP, therefore, urged that this petition be dismissed.
6. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the respondent no.2 has passed the impugned order while exercising powers under Section 56 of the Gujarat Police Act. It is true that under Section 56 of the Act, the externing authority is empowered to extern a person not only from the district within which the externing authority has jurisdiction but also from the district contiguous to his own district. However, while externing the person from the adjoining district, the externing authority is required to assign the reasons about the existence of circumstances which would lead to the satisfaction of the authority that it was necessary not only to extern a person from his own district but also from the other nearby districts. If the impugned order passed by respondent no.2 externing authority is carefully seen, it is revealed that respondent no.2 has not assigned any cogent reason.
7. At this stage, this Court would like to refer to the observation made by this Court in the case of Bhajansing Rameshsing Sikaligar (supra), this Court has observed in paragraph 7 as under:
"The externing authority under Section 56 of the Bombay Police Act has power to remove or extern a person not only from the district within which the externing authority has jurisdiction, but also from the districts contiguous to his own district. The criteria for passing such an order is provided for in Section 56 and there must be some indication in the order itself of the existence of circumstances which would lead to the satisfaction of the authority Page 3 of 5 Downloaded on : Wed Oct 27 01:59:02 IST 2021 R/SCR.A/9549/2021 ORDER DATED: 25/10/2021 that it was necessary not only to extern a person from his own district but also from the contiguous district. Such circumstances must be qua every area or region from which a person is directed to be externed and there must be some material or indication of such material in the order. The case of Vrajlal Mohanlal V.District Magistrate, Rajkot and another, reported in 3 G.L.R. 807 can be referred on the point."
8. Similarly, in the case of Asif @ Asif Gando Mehbubmiya Shaikh (supra), this Court has observed in paragraphs 9,10 and 11 as under:
"9. The order of externment would stand vitiated as while arriving on a subjective satisfaction and passing the order of externment, the externment authority has not only referred, but has also relied upon in all five offences of which four offences are of IPC, whereas one offence is of Prevention of Gambling Act mentioned in the impugned order. The submission of learned advocate that there appears non-application of mind as the offences which are shown in the impugned order are not pertaining to the IPC offences, but are offences registered under the provision of Prevention of Gambling Act. On the other hand, Section 57 of the Bombay Police Act is the relevant section to be invoked in cases, where offences of Gambling Act are involved. Over and above, the notice dated 30.4.2019 do not refer to any registered offence against the externee and therefore also the impugned order has travelled beyond the show-cause notice and has referred to and relied upon the material which was not brought to the notice of the petitioner by way of show-cause notice.
10. Submission of learned advocate that order of co-externee of the same offences has been quashed and set aside by this Court vide order dated 22.08.2019 passed in Special Criminal Application No.6823 of 2019.
11. The externing authority under Section 56 of the Bombay Police Act has power to remove or extern a person not only from the district within which the externing authority has jurisdiction, but also from the districts contiguous to his own district. The criteria for passing such an order is provided for in Section 56 and there must be some indication in the order itself of the existence of circumstances which would lead to the satisfaction of the authority Page 4 of 5 Downloaded on : Wed Oct 27 01:59:02 IST 2021 R/SCR.A/9549/2021 ORDER DATED: 25/10/2021 that it was necessary not only to extern a person from his own district but also from the contiguous district. Such circumstances must be qua every area or region from which a person is directed to be externed and there must be some material or indication of such material in the order. The case of Vrajlal Mohanlal v. District Magistrate, Rajkot and another, reported in 3 G.L.R. 807 can be referred on the point."
9. Keeping in view the aforesaid two decisions rendered by this Court, if the facts of the present case are carefully examined, this Court is of the view that the present case is covered by the aforesaid two decisions. Accordingly, this petition is allowed. The impugned order dated 4.8.2020 passed by the Additional Commission of Police, N Division, Ahmedabad city is quashed and set aside. Similarly, as the appellate authority has also not properly considered the aforesaid important aspects, the order dated 17.12.2020 passed by the Additional Secretary, Home Department in Externment Appeal No. 1120/81/2020, is also quashed and set aside. Rule is made absolute.
(VIPUL M. PANCHOLI, J) SRILATHA Page 5 of 5 Downloaded on : Wed Oct 27 01:59:02 IST 2021