Gujarat High Court
Afzal @ Khajur Allauddin Sheikh vs State Of Gujarat & on 19 December, 2013
Author: S.H.Vora
Bench: S.H.Vora
AFZAL @ KHAJUR ALLAUDDIN SHEIKH....Applicant(s)V/SSTATE OF GUJARAT R/SCR.A/3760/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION NO. 3760 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE S.H.VORA ================================================================ 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 ? ================================================================ AFZAL @ KHAJUR ALLAUDDIN SHEIKH....Applicant(s) Versus STATE OF GUJARAT & 2....Respondent(s) ================================================================ Appearance: MS KD PARMAR, ADVOCATE for the Applicant(s) No. 1 MS JIRGA JHAVERI APP for the Respondent(s) No. 1 RULE SERVED BY DS for the Respondent(s) No. 2 - 3 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.H.VORA Date : 19/12/2013 ORAL JUDGMENT
1. Challenge in the present petition preferred under Articles 21 and 226 of the Constitution of India is the order dated 7.3.2013 passed by the respondent No.3 in Hadpari Case No.95/2012-13 as well as order dated 29.10.2013 passed by the respondent No.2 in Appeal No.247 of 2013 under section 60 of the Bombay Police Act, 1951 (for short the Act ).
2. Heard the submissions of learned advocates appearing for the petitioner and learned APP for the respondent State.
3. The petitioner challenged the impugned order on various grounds that the externment order is passed without application of mind. According to the petitioner, the show cause notice issued to the petitioner dated 3.12.2012 is without application of mind, wherein the externing authority has mentioned that the petitioner should be externed from districts of Surat City, Surat (Rural), Bharuch, Tapi and Valsad. No reason has been given in the show cause notice why externment from these districts was proposed when the activities of the petitioner was confined only to the district of Surat.
Further, statements of witnesses Nos.1 to 3 are parrotlike statements.
4. Another contention has been that no reason has been given either in the show cause notice or in the impugned orders of the externing authority or the appellate authority why the petitioner was externed from so many districts mentioned above whereas he is resident of district Surat only. On all such grounds, learned advocate appearing on behalf of the of the petitioner prays to quash the impugned orders.
5. This argument has substance and it discloses non-application of mind by the appellate authority as well as by the externing authority for externing the petitioner from five districts mentioned aforesaid. When even an externing authority chooses to direct externment from not only the district within which the person against whom the order is passed is seen to be active, but also from contiguous districts, the reason why such externment order should operate even in regard to such contiguous districts should be shown in the notice preceding the order as well as in the order. It must be so, for if a person confined his activities to a particular district there would be no justification to extern him not only from that district, but from the adjoining district also unless it is shown that circumstances warrant such a course. If there is such lacuna in the show cause notice as well as in the impugned order, it is not for the court to fill up lacuna in the material noticed by the externing authority by assuming that there must be some reason for externing from contiguous district also. That must be indicated by the externing authority. For this full bench decision in Sandhi Mamad Kala v. State of Gujarat 14 G.L.R. 384 and Saiyad Husen Saiyad Umar vs. State of Gujarat,1985 (2) G.L.R. 1045 can be referred.
6. Per contra, learned APP submits that the competent authorities have passed the impugned order after considering all the relevant materials and statement of witnesses as well as the fact that the petitioner is involved in other criminal offences, so as to demonstrate that there is likelihood of breach of peace in the area and therefore, the learned APP supported the impugned orders and urged to dismiss the petition.
7. 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 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. In view of the foregoing reasons, the petition is allowed. The order of externment dated 7.3.2013 passed by the respondent No.3 in Hadpari Case No.95/2012-13 as well as order dated 29.10.2013 passed by the respondent No.2 in Appeal No.247 of 2013 are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.
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