SCR.A/2415/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 2415 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= ASHOK SHIVLAL @ SAVJIBHAI VAISYA,THRO'RAXIT KISHOR VAISYA - Applicant(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR H.S.MULIA for Applicant(s) : 1, MR LR PUJARI PUBLIC PROSECUTOR for Respondent(s) : 1, RULE SERVED BY DS for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 28/01/2008 ORAL JUDGMENT 1.0 By way of this petition, the externee has challenged the order dated 12.08.2006 passed by SCR.A/2415/2007 2/4 JUDGMENT respondent No.3 as well as order dated 29.11.2006 passed by respondent No.1. 2.0 The externee has challenged the order of externment on various Counts. However, learned Advocate for the externee, has restricted his arguments to the aspect of delay in passing the order of externment, only. He has submitted that the order of externment passed by the externing authority is bad in law on the ground that show-cause notice was issued on 09.01.2006 whereas the order of externment was passed by the Authority on 12.08.2006 i.e. there is delay of about eight months in passing the order of externment which is not explained by the Authorities. He has further submitted that the externing authority has also not considered the provisions and objects of the Act, and hence, in view of the unexplained delay of about eight months, the order of externment deserves to be quashed and set aside. 3.0 Heard. Considering rival side contentions the only question that needs to be addressed by this Court is whether there was delay in passing the order SCR.A/2415/2007 3/4 JUDGMENT of externment after issuing show-cause notice to the externee or not. 3.1 In my view externing authority before passing the order of externment, must satisfy subjectively that no witnesses are willing to come forward to depose against the externee. In the case on hand show-cause notice was issued on 09.01.2006 whereas the order of externment was passed on 12.08.2006. Therefore, there is a delay of about eight months which has not been explained by the authority while passing the order of externment. It may also be noted that even the externee had filed an appeal before the respondent No.1 raising the very same ground of unreasonable and unexplained delay of about eight months in passing the order of externment, but, the same was not considered by the respondent No.1. On the contrary, by its order dated 29.11.2006 the respondent No.1 confirmed the order of externment passed against the externee which shows non consideration of this vital point by the respondent No.1. Hence, in view of the above discussion the order of externment deserves to be quashed and set aside. SCR.A/2415/2007 4/4 JUDGMENT 4.0 In view of the above, the application is allowed. The order dated 12.08.2006 passed by the Deputy Police Commissioner, Ahmedabad-respondent No.3 as well as order dated 29.11.2006 passed by the Additional Secretary, Home Department, Sachivalaya, Gandhinagar-respondent No.1 are quashed and set aside. Rule is made absolute. Direct service is permitted. (M.D. Shah, J.) Umesh/