SCR.A/766/2005 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 766 of 2005 For Approval and Signature: HON'BLE MR.JUSTICE SHARAD D.DAVE ============================================================== 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 ? ============================================================== RAHUL VINUBHAI PATEL - Applicant(s) Versus DEPUTY COMMISSIONER OF POLICE & 1 - Respondent(s) ============================================================== Appearance : MR NM KAPADIA for Petitioner No(s).: 1. None for Respondent No(s).: 1,2. ============================================================== CORAM : HON'BLE MR.JUSTICE SHARAD D.DAVE Date : 21/07/2005 ORAL JUDGMENT 1.By filing this petition under Articles 226 and 227 of the Constitution of India, the petitioner SCR.A/766/2005 2/7 JUDGMENT has prayed for quashing and setting aside the order of externment dated 11.3.2005 passed by respondent no.1 as well as the order dated 21.05.2005 passed by respondent no.2 dismissing the appeal preferred by the petitioner against the order of externment dated 11.3.2005. 2.Being aggrieved by the said order of externment dated 11.3.2005, the petitioner preferred the appeal under Section 60 of the Act before the Secretary, Home Department, Gandhinagar which came to be rejected vide order dated 21.05.2005. Against the aforesaid orders dated 11.3.2005 and 21.05.2005, the present Special Criminal Application is filed by the petitioner under Articles 226 and 227 of the Constitution of India. 3.Heard Mr.N.M.Kapadia, learned advocate appearing for the petitioner and Mr.P.D.Bhate, learned APP for the respondents at length. 4.It is submitted that there is a gross delay in issuing show cause notice since the last offence was registered on 30.5.2004 and even the statements of witnesses refer to the incidents SCR.A/766/2005 3/7 JUDGMENT of August 2004 and the show cause notice came to be issued on 28.10.2004 by the Assistant Police Commissioner, `F' Division, Surat City. It is further submitted that the authority has not supplied the gist of statements of the witness after withholding the identity of the witnesses which has deprived the externee of his right to file effective reply, and, therefore, the same is violative of principles of natural justice and fair play. It is, therefore, requested to allow the present petition. 5.On the other-hand, Mr.Bhate, learned APP has opposed this petition and has tried to justify the show cause notice and the impugned order. He submitted that the criminal cases registered against the petitioner are considered while passing the order. He submitted that the externing authority has recorded the subjective satisfaction while passing the order, and, therefore, it is requested that this Court may not interfere with the impugned order and dismiss the petition. 6.Upon perusal of the scheme of the Act, it SCR.A/766/2005 4/7 JUDGMENT transpires that before passing any order of externment under Section 56 of the Act, the externing authority is required to issue a notice to the proposed externee under Section 59 of the Act which has to be specific and in detail. The issuance of the show cause notice is not a mere formality which is required to be completed before passing the order. In the present case, before passing the impugned order of externment, the petitioner was served with a show cause noice under Section 59 of the Act. The said notice is dated 28.10.2004. In the aforesaid notice, particulars about two instances are given. The petitioner, thereafter, gave reply to the said show cause notice. At this stage, reference is required to be made to the decision in the case of Aswin Chandulal Jaishwal Vs. The Deputy Commissioner of Police, Vadodara City, reported in 1989(2) GLR 1429, in para 9, this Court has observed as under.: “9. Shri Gupta has also stated in his affidavit that the Inspector, Vadi Police Station, Vadodara, had recorded statements SCR.A/766/2005 5/7 JUDGMENT of 11 persons in confidence. He further stated that he had applied mind on the relevant material of the case produced before him, which includes the statement of the persons recorded by the police. It is not stated in the notice that the statements of the witnesses were recorded by the police. If at all any such statements would have been recorded and intended to be relied upon, at least, reference of the statements, without disclosing the names, with the time and place of such alleged illegal activities of the petitioner should have been made in the notice so that the petitioner could have got an opportunity to explain the said circumstances to lead evidence. Without giving him an opportunity to even letting the petitioner know that statements of 11 persons. It is true that general allegations are only required to be made in the notice, but when statements are relied upon for the externment order at least, the person to be affected by such order should be given an SCR.A/766/2005 6/7 JUDGMENT opportunity to explain at least the general nature of allegations to explain the circumstances, which weighed considerably with the Externing Authority, and therefore, also the order vitiates.” 7.In this view of the matter, it is the duty of the respondent authority to give effective and reasonable opportunity to the petitioner by giving statements of witnesses to the petitioner. If the material relied upon by the authority while passing the impugned order is not supplied to the petitioner, it amounts to non-giving effective and reasonable opportunity for filing the reply against the show cause notice. Considering the aforesaid aspect of the matter and considering the fact that the petitioner has not been supplied with statements of the witnesses by which the petitioner is denied his right to give effective reply to the show cause notice, the order of externment passed by the authority is required to be quashed and set aside. Further, there is a delay in issuing the show cause notice as the SCR.A/766/2005 7/7 JUDGMENT last offence was registered on 30.5.2004 and the show cause notice was issued on 28.10.2004, and, therefore, there is a delay in issuing the show cause notice. 8.Under the circumstances, the impugned order of externment dated 11.3.2005 passed by respondent no.1 which is confirmed in appeal vide order dated 21.5.2005 deserves to be quashed and set aside. 9. For the reasons stated above, this petition is allowed. The order of externment dated 11.3.2005 passed by the respondent no. 1 and confirmed in Appeal by the respondent no. 2 vide order dated 21.5.2005 under Section 60 of the said Act are hereby quashed and set aside. Rule is made absolute accordingly with no order as to costs. Direct service is permitted. (Sharad D.Dave,J) pathan