Gujarat High Court
Nana @ Raju Totaram Dusane (Sonara) vs State Of Gujarat on 4 September, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1871
Author: Ashokkumar C. Joshi
Bench: Ashokkumar C. Joshi
R/SCR.A/3337/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3337 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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NANA @ RAJU TOTARAM DUSANE (SONARA)
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR KUNAL S SHAH(5282) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS. MOXA THAKKAR, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 04/09/2020
ORAL JUDGMENT
1. Heard learned advocate Mr. Kunal S.Shah for the applicant and Ms. Moxa Thakkar, learned APP for the respondent State through video conference.
2. The petitioner, who is the externee, has preferred this petition under Article 226 and 227 of the Constitution of India, challenging the Page 1 of 7 Downloaded on : Fri Sep 04 22:08:53 IST 2020 R/SCR.A/3337/2020 JUDGMENT order of externment dated 24.08.2019 passed by the respondent No.2 in HDP/86/2019, whereby the petitioner is externed from the limits of Surat City and Surat District for a period of two years; as well as the order dated 03.03.2020 passed by the respondent No.1 in Externment Appeal No.200 / 2019.
3. The externment authority issued a show cause notice dated 10.07.2019 under Section 59 to the petitioner detenue inter alia alleging in the notice that the petitioner is a dangerous person and doing his activities by using force or violence and why for such acts he should not be externed from the city. In response to the show cause notice, the petitioner submitted his explanation on 22.07.2019. After examining the explanation, the respondent No.2 has passed the order of externment under Section 56(b) of the Gujarat Police Act, 1951 on 24.08.2019 externing the petitioner for a period of two years from the limits falling within the jurisdiction of the Commissioner of Police, Surat City. Being aggrieved by the same, the petitioner preferred an appeal under section 60 of the Act. The appeal preferred by the petitioner was rejected and the order passed by the respondent no.2 was confirmed by the appellate authority vide order dated 03.07.2014. Being aggrieved by the same, the petitioner approached this Court by way of this petition.
4. Learned advocate for the petitioner contended that there is a gross delay in passing the externment order. The alleged incident of FIR being C.R. No. I-70/2018 of Limbayat Police Station, Surat had taken place on 10.03.2018 and the notice was issued on 10.07.2019 and the externment order came to be passed on 24.08.2019. Therefore, there is delay in passing the order of externment for which no explanation was given by the Externing Authority. Hence, the object of the Act is defeated and Page 2 of 7 Downloaded on : Fri Sep 04 22:08:53 IST 2020 R/SCR.A/3337/2020 JUDGMENT therefore the externment order is required to be quashed. He further submitted that while passing the order of externment, the Externing Authority has not dealt with any contentions and documents produced by the Externee. He further submitted that the petitioner is not a habitual criminal. The externee has not committed or repeated the offences and therefore, it clearly shows that the case of the petitioner is not covered within the definition of dangerous person.
5. Learned advocate for the petitioner in support of his case relied upon the following authorities of this Court, which are as under:
(i) In case of Asif @ Asif Gando Mehbubmiya Shaikh Vs. State of Gujarat, reported in 2019 (0) AIJEL-HC 240952;
(ii) In case of Kalubhai Becharbhai Gohil Vs. State of Gujarat, reported in 2003 (0) GLHEL-HC 205973;
(iii) In case of Purushottambhai Budhabhai Raval Vs. State of Gujarat & Ors., reported in 2004 (2) G.L.H.579;
(iv) In case of Chauhan Shaukatali Mogalkhan Vs. Sub-Divisional Magistrate, reported in 2001 (0) GLHEL-HC 202204.
6. Per contra, learned APP has opposed for quashing and setting aside the order of externment as well as the order of the appellate authority and submitted that if Court is inclined to quash the orders, appropriate orders may be passed.
7. This Court has considered the arguments advanced by the learned Advocates appearing for the respective parties and also referred the authorities submitted by the learned advocate for the applicant.
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8. The Co-ordinate bench of this Court [Coram: A.Y. Kogje, J.] in case of Asif @ Asif Gando Mehbubmiya Shaikh Vs. State of Gujarat reported in reported in 2019 (0) AIJEL-HC 240952 has observed in paragraph no.9 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 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 30.04.2019 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.
8.1. This Court [Coram: P.B. Majmudar, J.] in case of Kalubhai Becharbhai Gohil Vs. State of Gujarat, reported in 2003 (0) GLHEL- HC 205973 has observed in paragraph no.6 as under:
"6. So far as the four cases mentioned in the order are concerned, the particulars of the four cases are incorporated in the show cause notice, in any manner. Even if it is not possible for the authority to give exact date, at least specification of period was required to be given so that the petitioner can effectively give reply. Instead, in the show cause notice, mere vague particulars are given to the effect that somewhere 8 or 9 months back, the petitioner had done a particular act. Even Page 4 of 7 Downloaded on : Fri Sep 04 22:08:53 IST 2020 R/SCR.A/3337/2020 JUDGMENT exact location is also not given in the said grounds..."
8.2. This Court [Coram: H.K. Rathod, J.] Chauhan Shaukatali Mogalkhan Vs. Sub-Divisional Magistrate, reported in 2001(0)GLHEL-HC202204 has observed in paragraph no.5 as under:
"5. I have considered the submissions of both the learned advocates. Looking to the facts of the present case, in the show cause notice, the offences which are enumerated by the concerned Authority, that all are pending before the trial and non of the case, the petitioner was convicted, and therefore, Sec.57(c) of the Act is not applicable at all. However, the show cause notice has been issued by the concerned authority keeping in mind the relevant provision of Sec.57(c) of the Act. Therefore, the show cause notice itself is amount to a result of non-application of mind, as no reply filed by the respondent - authority. It is also necessary to note that the statement of the secret witnesses which have been taken into account by the concerned Authority, at the time of passing the externment order and said facts have not been disclosed to the petitioner in the show cause notice and no material has been supply tot he petitioner along with the show cause notice which is adverse to the petitioner. Therefore, the real purpose of section 59 of the Act to give effective and reasonable opportunity to the petitioner in respect to the material which has been adverse to the petitioner is frustrated."
9. Upon all such authorities, which have been submitted by the learned advocate for the applicants, the authority in case of Asif @ Asif Gando Mehbubmiya Shaikh Vs. State of Gujarat, there were four cases against the petitioner therein, but in the present case there are only two offences and the authority in case of Chauhan Shaukatali Mogalkhan Vs. Sub-Divisional Magistrate, there were more than two offences registered Page 5 of 7 Downloaded on : Fri Sep 04 22:08:53 IST 2020 R/SCR.A/3337/2020 JUDGMENT against the petitioner therein, and the petitions were allowed by quashing the impugned orders. It transpires that two offences are registered upon the petitioner being I-C.R. No.70/2018 for the offences punishable under Sections 379 and 114, of the Indian Penal Code and I-C.R. No.104/2018 for the offences punishable under Sections 392, 397, 342, 452, 506(2), 120(B) and 114 of the Indian Penal Code; and on the basis of aforesaid four judgments, wherein there were more than two offences and the impugned orders were quashed and as in the present case there are only two cases out of which one is compromised and therefore, hardly on one case notice of externment is not just and proper the same also requires to be quashed and set aside.
10. Having heard the arguments advanced by the learned Advocates appearing for the respective parties and the authorities cited by the learned advocate for the applicant, it appears that the subjective satisfaction arrived at by issuing so called notice under the B. P. Act by the authority cannot be said to be legal, valid and in accordance with law, inasmuch as the offences alleged cannot have any bearing on the breach of public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the petitioner cannot be said to be so germane. Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person. The authorities declared the present petitioner as dangerous person, who would enhance and provoke anti social activities, but there should be some subjective satisfaction, without there being subjective satisfaction, how the authority can issue notice to the effect as person for externment.
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11. In view of the aforesaid discussion and the submission, this Court is inclined to exercise discretion in favour of the applicant and therefore, the order of externment dated 24.08.2019 passed by the respondent No.2
- Assistant Police Commissioner, C-Division, Surat City as well as the order dated 03.03.2020 passed by the Additional Secretary, Home Department (Special) in Externment Appeal No.200/2019 are hereby quashed and set aside.
12. The petition is allowed. Rule is made absolute accordingly with no order as to costs.
13. Copy of this order be sent to the concerned Court and concerned Police Station through e-mail / fax or by any other electronic mode.
(DR. ASHOKKUMAR C. JOSHI,J) prk Page 7 of 7 Downloaded on : Fri Sep 04 22:08:53 IST 2020