SCR.A/2237/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 2237 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 ? ========================================================= SAGAR @ SWAMI MUNINDAR CHORASIYA - Applicant(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR JV MEHTA for Applicant(s) : 1,MS KRISHNA B MEHTA for Applicant(s) : 1, MR SP HASURKAR, APP for Respondent(s) : 1, None for Respondent(s) : 2, NOTICE NOT RECD BACK for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 23/12/2008 ORAL JUDGMENT 1. Rule. Learned APP Mr. S.P. Hasurkar waives service of Rule on behalf of the respondent – State. SCR.A/2237/2008 2/5 JUDGMENT 2. The petitioner has filed this Application with a prayer to issue appropriate writ, order of direction to quash and set aside the order of Externment bearing No.Kramank/PCB/HDP/51/2002 dated 16.3.2002 passed by the respondent No.3 – Deputy Police Commissioner, Zone – VI, Ahmedabad, which was served on the petitioner on 16.11.2008. The petitioner has also prayed for interim relief against the order of externment. 3. Heard learned Advocate Mr. J.V. Mehta for the petitioner and learned APP Mr. Hasurkar for the respondent – State. 4. On 21.11.2008 this Court issued Notice to the D.C.P., Zone-6 and in response to the said Notice D.C.P. Mr. Vasava remained present. He was heard. He has also tendered Affidavit in reply which was ordered to be placed on record. 5. Learned Advocate Mr. Mehta has contended that the respondents are totally negligent. The order of externment against the petitioner was made on 16.3.2002 which was served upon the petitioner only on 16.11.2008 i.e. after a long period of about 6 years. He has also drawn the attention to the duties of D.C.P. and the Police Inspector in the SCR.A/2237/2008 3/5 JUDGMENT Commissionerate area. He has also read the provision of Section 71 of the Bombay Police Act and contended that the respondents have breached the provision of Section 68 of the BP Act. Mr. Mehta has also relied upon the provisions of Section 141 of the B.P. Act. He has contended that the order of externment was passed on 16.3.2002 and the same was served only on 16.11.2008. Therefore the respondents have breached the principles of natural justice and the respondents have committed wrong in light of the provisions of the B.P. Act. 6. Learned APP Mr. Hasurkar has gone through the Affidavit in Reply submitted by the Deputy Police Commissioner and contended that, no doubt, a gross error committed by the Authority in serving the externment order, but, only because of delay in serving the order, it cannot be vitiated. 7. I have gone through the averments made in the petition. I have also gone through the Affidavit in reply filed by the D.C.P., Zone-6. It is on record that the order which was signed on 16.3.2002 has been served upon the petitioner only on 16.11.2008. It is a clear negligence on the part of the SCR.A/2237/2008 4/5 JUDGMENT Authority and clear breach of fundamental right of the petitioner. The Affidavit of the Authority has not properly explained the delay in serving the order to the petitioner. It appears that the order is a non-speaking order and passed without application of mind. It is true that, in externment proceeding, preventive action is required to be taken immediately and inordinate delay would vitiate the order. 8. In the case of PREM CHAND v/s. UNION OF INDIA & ORS., reported in AIR 1981 SC 613, it has been held by the Hon'ble Supreme Court, as under : But fundamental rights are fundamental and personal liberty cannot be put at the mercy of the Police. Therefore, Ss. 47 and 50 have to be read strictly. Any police apprehension is not enough. Some ground or other is not adequate. There must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence. Likewise, there must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in Delhi or any part there of is hazardous to the community and its safety. We are clear that the easy possibility of abuse of this SCR.A/2237/2008 5/5 JUDGMENT power to the detriment of the fundamental freedoms of the citizen persuades us to insist that a stringent test must be applied. We are further clear that natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of Articles 14, 19 and 21 of the Constitution. 9. In the present case, from the above observation and discussion, it appears that the Authority has committed gross negligence in serving the order of externment belatedly and no explanation is given by the Authority for such delay of about six years in serving the externment order to the applicant. Therefore, the order is vitiated and the same requires to be quashed and set aside. 10. In the result, this application is allowed. The order of externment dated 16.3.2002 bearing No. Kramank/PCB/51/2002 passed against the applicant is hereby quashed and set aside. Rule made absolute accordingly. (Z.K.SAIYED, J.) sas