IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 171 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE R.P.DHOLAKIA ============================================================ 1. Whether Reporters of Local Papers may be allowed : to see the judgements? 2. To be referred to the Reporter or not? : 3. Whether Their Lordships wish to see the fair copy : of the judgement? 4. Whether this case involves a substantial question : of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : -------------------------------------------------------------- MUKUND MULJIBHAI PATHAK Versus SUB DIVISIONAL MAGISTRATE -------------------------------------------------------------- Appearance: MR RAJESH K SHAH for Petitioner No. 1 MR SAMEER DAVE APP for Respondents. -------------------------------------------------------------- CORAM : MR.JUSTICE R.P.DHOLAKIA Date of decision: 23/04/2002 ORAL JUDGEMENT 1. The present petition is filed by the petitioner against the order 11/2/2002 passed by the respondent No.2 in appeal, confirming the externment order dtd.25/10/2001 passed by the respondent No.1. 2. Heard the learned counsel for the respective parties. 3. Mr.RK Shah learned counsel for the petitioner has submitted that the respondent No.1 externing authority has issued show cause notice to the petitioner on 9/8/2001. The learned counsel for the petitioner has further submitted that thereafter, the externing authority has passed the impugned externment order on 25/10/2001 externing the petitioner from Junagadh district as well as from contiguous districts namely Rajkot, Amreli, Bhavnagar, Porbandar and from the union territory of Div, for a period of one year, illegally and mechanically. The learned counsel for the petitioner has submitted that the externing authority has passed the externment order relying upon the five alleged offences registered against the petitioner. The learned counsel for the petitioner has further submitted that the externing authority has passed the impugned externment order externing the petitioner from contiguous districts, without giving any reasons. He has further submitted that there is no material worth the name against the petitioner for externing the petitioner from contiguous districts. He has further stated that it is true that the externing authority has power to extern the petitioner from contiguous districts, but the powers are required to be used judiciously. The learned counsel for the petitioner has drawn my attention to the show cause notice as well as the impugned order and argued that there is no evidence worth the name for externing the petitioner from contiguous districts and, therefore, there is no reason for externing the petitioner from contiguous districts. The learned counsel for the petitioner tenders the original show cause notice issued by the externing authority dtd.9/8/2001. The same is ordered to be taken on record. In support of his arguments, learned counsel for the petitioner has relied upon the decision of this Court rendered in the case of MUSTUFAMIYA PIRSAHEDMIYA SAIYED VS. STATE OF GUJARAT AND ANR. reported in 1999(1) GLH 913, in which this court in para 8 of the said judgement, has held as under;- "8. Another non-application of mind in the show cause notice is exposed from the concluding portion where the externing authority has mentioned that the petitioner should be externed from districts of Ahmedabad City, Ahmedabad Rural, Gandhinagar, Kheda and Vadodara. No reason has been given in the show cause notice why externment from these districts was proposed when the activities of the petitioner were confined only to the district of Ahmedabad Rural." Further, this Court in para 17 of the said judgement, has held as under :- "17. The externing authority under Section 56 of the Bombay Police 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 proposed for in Section 56 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 Vrajlal Mohanlal vs. District Magistrate, Rajkot and another, reported in 3 G.L.R. 807 can be referred on this point." 4. Having heard the arguments of the learned counsel for the respective parties, considering the evidence on record and ratio laid down by this court in the aforesaid judgement, relied upon by the learned counsel for the petitioner, it is also clear that there is no indication in the order of the existence of the 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, which shows non-application of mind on the part of the detaining authority which vitiates the impugned order and hence the impugned externment order cannot be sustained in the eye of law and requires to be quashed and set aside. 5. For the foregoing reasons, the petition is allowed. The impugned order 11/2/2002 passed by the respondent No.2 in appeal, confirming the externment order dtd.25/10/2001 passed by the respondent No.1 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitte (R.P. DHOLAKIA, J.) Rafik