[CASE NUMBER] ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION NO. 6765 of 2017 [ENTITY] Applicant(s) Versus [ENTITY] & 2 Respondent(s) Appearance: MS [ENTITY], ADVOCATE for the Applicant(s) No. 1 MS [ENTITY], ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 3 RULE SERVED BY DS for the Respondent(s) No. 1 - 2 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 05/10/2017 ORAL ORDER
1. Challenge in the present petition preferred under [SECTION] and [SECTION] of the [ACT] is the notice of externment dated 28.8.2017 passed by the respondent - authority.
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 impugned show cause notice issued to the petitioner is without application of mind, wherein the externing authority HC-NIC Page 1 of 4 Created On Sun Oct 08 05:42:30 IST 2017 [CASE NUMBER] ORDER has mentioned that the petitioner should be externed from districts of Ahmedabad, Gandhinagar, Kheda, Mehsana, Sabarkantha. 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 Ahmedabad.
4. Another contention has been that no reason has been given either in the impugned show cause notice why the petitioner was externed from so many districts mentioned above whereas he is resident of district Ahmedabad only. On all such grounds, learned advocate appearing on behalf of the of the petitioner prays to quash the impugned notice.
5. This argument has substance and it discloses non- application of mind by the externing authority for externing the petitioner from the districts mentioned aforesaid. When even the 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. 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 HC-NIC Page 2 of 4 Created On Sun Oct 08 05:42:30 IST 2017 [CASE NUMBER] ORDER district also. That must be indicated by the externing authority. For this full bench decision in [PRECEDENT] and [PRECEDENT] can be referred.
6. Per contra, learned APP submits that the competent authority has issued the impugned notice 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 notice and urged to dismiss the petition.
7. The externing authority under [SECTION] of the [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] 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 [PRECEDENT], reported in 3 G.L.R. 807 can be referred on the point.
HC-NIC Page 3 of 4 Created On Sun Oct 08 05:42:30 IST 2017 [CASE NUMBER] ORDER
8. In view of the foregoing reasons, the petition is allowed. The notice of externment dated 28.8.2017 passed by the respondent - authority is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.
([ENTITY], J.) [ENTITY] HC-NIC Page 4 of 4 Created On Sun Oct 08 05:42:30 IST 2017