SCR.A/236/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 236 of 2008 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 ? ========================================================= LALITABEN W/O MOHANBHAI CHHIBABHAI RATHOD - Applicant(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MS DR KACHHAVAH for Applicant. Mr.L.R.Pujari, AGP for the respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 04/03/2008 ORAL JUDGMENT 1. This petition has been filed by the petitioner- externee for quashing and setting aside the order of externment dated 2-1-2007 passed by the Deputy Police Commissioner, Zone 2, Surat City, whereby the SCR.A/236/2008 2/6 JUDGMENT petitioner-externee came to be externed from the limits and jurisdiction of the Police Commissioner, Surat City as well as the limits of Surat Rural, Bharuch, Narmada, Navsari and Valsad Districts as well as the order dated 7-7-2007 passed by the respondent no.2-Joint Secretary, Home Department, Sachivala, Ahmedabad, confirming the said order in appeal. 2. Learned Advocate for the externee has invited my attention to the show-cause notice dated 5-1-2006 issued by the respondent no.3-Deputy Police Commissioner, Surat City. In the said show cause notice, eight offences have been mentioned as registered against the externee. Thereafter, order dated 2-1-2007 was passed by the respondent no.3- Deputy Police Commissioner, Surat City, externing the externee. 3. 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 5-1-2006 whereas the order of externment SCR.A/236/2008 3/6 JUDGMENT was passed by the authority on 2-1-2007 i.e. there is a delay of one year which is not explained by the authorities. He has further submitted that the externing authority has also not considered the provisions and objectives of the Act, and hence in view of the unexplained delay of one year, order of externment deserves to be quashed and set aside. In support of his case, learned Advocate has placed reliance on a decision of this Court in the cse of “Dilaji Bharatbhai Vihol vs. Deputy Commissioner of Police and Anr” reported in 2006(1)GLH 513 wherein it was held as under: “ From the record it appears that in this show cause notice was issued on 16-4-2004 whereas final order of externment was passed on 25-07-2005. Even if we take that meanwhile detention order dated 1-11- 2004 was quashed and set aside by the Hon'ble High Court on 10-3-2005 and considering that fact detaining authority could not have passed the externment order. Therefore, whereas show cause notice was issued on 16-4-2004 and order of detention under PASA Act was quashed and set aside on 10-3-2005 and again there is delay of four months. In my view SCR.A/236/2008 4/6 JUDGMENT authority has not explained delay in passing the order. Therefore, unexplained delay is fatal to the case and therefore order of externment deserves to be quashed and set aside. On this very ground of delay and taking overall view of the matter, particularly,provisions of externment, in my view externing authority must satisfy subjectively that no witnesses are willing to come forward to depose aginst the petitioner before passing the order of externment. In this case the authority has passed order of externment after a great delay which could have been avoided in this behalf. Therefore, the order passed by the externing authority is unreasonable and unjustifiable in this behalf.” 4. On the contrary, the learned A.P.P. has supported the orders of the authorities and has submitted that the authorities are invested with the powers to extern such miscreants from adjoining districts by the provision itself for a period necessary and therefore the order cannot be challenged. However, the learned A.P.P. is not able to controvert the aspect of delay in passing the externment order. SCR.A/236/2008 5/6 JUDGMENT 5. 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 of externment after issuing show cause notice to the externee. 6. 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 5-1-2006 whereas the order of externment was passed on 2-1-2007. Therefore, there is a delay of one year 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.2 raising the very same ground of unreasonable and unexplained delay of one year in passing the order of externment, but the same was not considered by the respondent no.2. On the contrary, by its order dated 7-7-2007 the respondent no.2 confirmed the order of externment passed against the externee which shows non consideration of this vital point by the respondent no.2. Moreover, it transpires SCR.A/236/2008 6/6 JUDGMENT from the record that all the offences are committed in limits of jurisdiction of Surat City only and no offence is reported from the Districts of Bharuch, Narmada, Navsari and Valsad. Hence, in view of the above discussion and view of the decision of this Court in the case of Dilaji Bharatbhai Vihol vs. Deputy Commissioner of Police & Anr., the order of externment deserves to be modified. 7. In view of the above, the application is partly allowed. The order of externment dated 2-1-2007 passed by the Deputy Police Commissioner, Zone 2, Surat City as also the order dated 7-7-2007 passed by the Jt. Secretary, Home Department, Sachivalay, Gandhinagar, against the externee stands modified to the extent that the externee shall be externed from Surat City only for a period of one year. Rule is made asbolute to the aforesaid extent only. Direct service is permitted. (M.D.Shah) lee.