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SCR.A/1566/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1566 of 2008
======================================
MAHEBUB
ALLARAKHABHAI AJAMREI - Applicant(s)
Versus
STATE
OF GUJARAT THRO' DY SECRETARY, & 1 - Respondent(s)
====================================== Appearance :
MR
HARSHAD K PATEL for Applicant
Ms.
Manisha Lavkumar Shah, Additional Public Prosecutor, for respondent No.1
======================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 18/03/2009
ORAL
ORDER
1 Leave
to amend is granted.
2 Challenge
in this petition under Article 226 of the Constitution of India is the order dated 28.12.2007 passed by the respondent No.2 [Externing Authority] and confirmed in appeal by respondent No.1 vide order dated 1.7.2008, by which the petitioner was externed from the City of Rajkot and other adjoining districts, namely, Rajkot [Rural] and Surendranagar for a period of two years.
3 Mr.
H.K. Patel, learned counsel for the petitioner has contended that exercise of power by the Externing Authority, confirmed by the Appellate Authority, externing the petitioner under Section 56(a) of the Bombay Police Act, 1951 [for short, 'the Act'] is unjust, unreasonable, arbitrary, discriminatory and disproportionate to the alleged illegal activities of the petitioner on the ground that the offence registered under sections 324, 504, 114 and 188 of the Indian Penal Code as back as on 17.7.2005 vide C.R. No.216 of 2005 at Bhagtinagar Police Station has no relevance when the show cause notice was issued to the petitioner on 29.8.2007. That, the above show cause notice was issued almost after period of 2 years and there is no proximity whatsoever with the alleged illegal activities of the petitioner when the power of externment came to be exercised. That, when offence came to be registered vide four different FIRs, namely, viz Prohibition Cases Nos.92 of 2005 {6.5.2005}, 71 of 2006 {25.3.2006}, 72 of 2006 {25.3.2006} and 123 of 2007 {25.5.2007}, under the Bombay Prohibition Act, powers could have been exercised only under section 57 of the Act. That, considering overall material, it cannot be said that offences alleged were of so serious nature for which activities of petitioner can be said to be so grave or illegal causing or calculated to cause alarm, danger or harm to the person property necessitating or warranting exercise of powers under the Act and, therefore, the impugned orders deserve to be quashed and set aside.
4 Learned
Additional Public Prosecutor has contended that powers though exercised under Section 56(a) of the Act, sub-section (a) of Section 56 of the Act only refers to movements or acts of any person causing danger to person or property and, therefore, issuance of show cause notice and the decision thereon by the Authorities below externing the petitioner from the City of Rajkot and adjoining Districts in exercise of the said power cannot be said to be illegal or arbitrary and, therefore, the present petition deserves to be rejected.
5 Considering
overall facts and circumstances of the case and on perusal of the record and the impugned orders passed by the Authorities below, it transpires that there were total five different FIRs registered and the first F.I.R. was pertaining to the offence punishable under sections 323 and 504 of the Indian Penal Code which was registered way back on 17.7.2005. At the same time, the show cause notice issued against the petitioner by the Externing Authority was on 29.8.207, after a period of two years and, therefore, it cannot be said that the registration of the FIR in 2005 could have have bearing in the year 2007 and substantial period had elapsed during which there cannot be any danger much less apprehended one to any person or property. Besides registration of four other FIRs is under the Bombay Prohibition Act and, therefore, the Authority ought to have taken action, if necessary, under Section 57 of the Act, which specifically deals with procedure for externment vis-a-vis the externee who is convicted for the offence punishable under the Bombay Prohibition Act. That is not the case here. Considering the decisions of this Court in the cases of Vaghari Dhanabhai Bhalabhai vs. State, reported in 26(1) GLR 194 and in the case of Haiderali Babubhai Masani vs. J.D. Joshi, Sub-Divisional magistrate, Mahuva, reported in 2003 940 GLR 2836, in my view, the Authorities below have acted without application of mind and the impugned order of externment passed by respondent No.2 is a result of mechanical invocation of power to extern under the Act.
6 For
the reasons aforesaid, this petition is allowed. The impugned order of externment dated 28.12.2007 passed by the respondent No.2 and the order dated 1.7.2008 passed by respondent No.1 in appeal are quashed and set aside. Rule is made absolute. Direct service is permitted.
(ANANT
S. DAVE, J.)
(swamy)
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