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Gujarat High Court

Mohammed Salim @ Sohel Mohammedsharif ... vs State Of Gujarat on 24 August, 2022

Author: A. S. Supehia

Bench: A.S. Supehia

       R/SCR.A/405/2022                              ORDER DATED: 24/08/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CRIMINAL APPLICATION NO. 405 of 2022
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         MOHAMMED SALIM @ SOHEL MOHAMMEDSHARIF SHAIKH
                             Versus
                       STATE OF GUJARAT
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Appearance:
MR GULSHAD G PATHAN(10115) for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MS KRINA CALLA, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                      Date : 24/08/2022
                       ORAL ORDER

1. Rule. Learned APP waives service of notice of rule for the respondent-State.

2. The present petition has been filed seeking quashing and setting aside the impugned order dated 25.10.2021 passed in Externment Appeal No.51 of 2021 by the Secretary, Home Department.

3. On 17.03.2021, the petitioner had served with a show cause notice issued by the respondent no.2 under Section 56(k) of the Gujarat Police Act, 1951 externing him from Ahmedabad City and its surrounding districts being Ahmedabad Rural, Gandhinagar, Kheda, Mehsana for a period of two years from the service of externment order.

4. By the order dated 17.03.2021, initially the petitioner was externed for 2 years from Ahmedabad City, Ahmedabad Rural, Gandhinagar, Kheda and Mehsana districts, however, in appeal, the Appellate Authority has restricted the same for Ahmedabad district (City).

5. Learned advocate Mr.Pathan appearing for the petitioner has Page 1 of 4 Downloaded on : Sun Dec 25 00:09:29 IST 2022 R/SCR.A/405/2022 ORDER DATED: 24/08/2022 submitted that the petitioner cannot be externed for two offences, which are registered under the Animal Cruelty Act and hence, the impugned order may be set aside. It is submitted by him that the first authority had placed reliance on the statements of 9 witnesses, however, the same are vague and general in nature. Thus, he has submitted that the impugned order may be set aside.

6. Per contra, learned APP Ms.Krina Calla, has submitted that the impugned order does not require any interference since the petitioner has been appropriately externed in view of the offences registered against him.

7. I have heard the learned advocates appearing for the respective parties.

8. The petitioner was initially externed by the order dated 17.03.2021 for a period of 2 years from Ahmedabad City, Ahmedabad Rural, Gandhinagar, Kheda and Mehsana in Appeal, the Appellate Authority has restricted such externment only for Ahmedabad district. The externment order is premised on the two offences registered against the petitioner under the Animal Cruelty Act. In the second offence, under Section 429 of the Indian Penal Code, 1860 (for short "the IPC") along with Animal Cruelty Act is registered. The first authority has placed reliance on the statements of 9 witnesses. A bare perusal of the aforesaid statements of the witnesses reveal that the same are not precise and are lack in particulars as to when the incident has occurred. It is not disputed that the first offence has been registered under the Animal Cruelty Act in the year 2018, wherein the second offence has been registered in the year 2020.

R/SCR.A/405/2022 ORDER DATED: 24/08/2022

6. At this stage, I may refer to the decision of the Coordinate Bench in the case of Nana @ Raju Totaram Dusane (Sonara) vs. State Of Gujarat & 2 other(s), 2021 (1) GLR 460 after considering the array of judgments on an analogous issue, the Coordinate Bench has held thus:-

"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 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."

R/SCR.A/405/2022 ORDER DATED: 24/08/2022

7. This Court has set aside the externment order by recording the facts that persons, who faced even four offences under the IPC, in their cases, the order of externment has been set aside. The respondent authority, while externing the petitioner, has to record a subjective satisfaction that the single offence, which is registered under Section 429 of the IPC and Animal Cruelty Act would be enough to declare him a dangerous person, who would be a menace to the society and his activity may disturb the public law and order at large. The petitioner cannot be declared a dangerous person, who would enhance and provoke the anti social activities only on registration of a single offence under Section 429 of the IPC and Animal Cruelty Act hence, the impugned order and notice are hereby quashed and set aside. Rule is made absolute. Direct service is permitted.

(A. S. SUPEHIA, J) ABHISHEK/188 Page 4 of 4 Downloaded on : Sun Dec 25 00:09:29 IST 2022