MADAN MAGAN PATEL Vs. H R GEHLOT COMMISSIONER OF POLICE SURAT

JUDGEMENT

(1.) This Special Criminal Application is to quash the show cause notice dated 16-12-1986 the Order of the first respondent dated 18-4-1987 and the Order of the second respondent dated 11-6-1987 which are Annexures A `B & E respectively The short facts of this case are that the petitioner herein was externed from the City of Surat and Surat Rural and from the Districts of Bharuch and Bulsar for engaging in the commission of offence involving force and violence punishable under Chapter XII XVI and XVII of the Indian Penal Code. A show cause notice dated 16-12-1986 was issued alleging:

(2.) It is alleged in the notice that the Petitioner was involved in Anti-Social Activities and no witnesses are forthcoming to depose against the Petitioner out of fear for the life and property. The Externing Authority after considering the explanation given by the petitioner and also the oral and documentary evidence produced before him came to the conclusion that the petitioner has committed the offences mentioned in the show cause notice. After satisfying himself that the petitioner is a dangerous and head strong person the externing authority externed the petitioner from the area falling under the jurisdiction of the Surat City Police Commissioner Surat Rural Bharuch and Bulsar districts. The Externing Authority has also observed that if the petitioner is not externed from the nearby districts there in a reasonable apprehension of the petitioner doing the aforesaid acts by continuing his activities from the aforesaid nearby district through his associates and agents by taking advantage of the present instruments of speedy transportations. Aggrieved by the said order of the Externing Authority the petitioner herein preferred an appeal to the Government under Sec. 60 of the Bombay Police Act. The Appellate Authority came to the conclusion that the ground No. 1 of the show cause notice is irrelevant and focussed its attention only on the ground No. 2 of the show cause notice and the 6 incidents mentioned in the ground No. 2. The Appellate Authority after satisfying itself from the record observed that except for the first all other 5 incidents are essentially worthy of belief on the basis of the materials. With his finding the Appellate Authority confirmed the Externment Order passed by the Externing Authority but restricted the order of externment only to the Surat district. Aggrieved by the said orders the petitioner has preferred the abovesaid Special Criminal Application. Mr. Kapadia the learned Counsel appearing for the petitioner mainly contended that the-Externing Authority has taken into consideration irrelevant and non-existing grounds in coming to the conclusion that the petitioner is a dangerous and head strong person and as such he is to be externed from the area mentioned in the Externment Order. This according to Mr. Kapadia vitiates the whole Externment Order since the Externing Authority has mechanically and without application of his mind passed such Externment Order and as such the same has to be quashed. Mr. Divetia the learned Additional Public Prosecutor appearing for the Respondents after citing certain decisions contended that even though the first ground taken into consideration by the Externing Authority is irrelevant the Externing Authority is correct in externing the petitioner since the other ground i.e. ground No. 2 and the 5 incidents mentioned therein are sufficient to pass such an order of externment. It is the further contention of Mr. Divetia that the Appellate Authority has correctly eschewed the first allegation in the Externment Order and has confirmed the Externment Order with a modification that the petitioner will be externed only from the district of Surat.

(3.) We have carefully gone through the records in this case. It is clear from the Affidavit-in-reply filed by the first respondent herein that out of the 9 prohibition cases mentioned as allegation No. 1 Serial Nos. 2 4 5 6 and 7 ended in acquittal and Serial Nos. 1 3 8 and 9 are still pending before the trial Court. It is also clear from the Affidavit-in-reply that the acquittal of certain prohibition cases were before the order in externment was passed. Inspite of that the Externing Authority has stated in his order that all the 9 cases mentioned in the show cause notice are pending trial. The Externing Authority in a cavalier manner even without verifying the details and particulars regarding the 9 prohibition cases has mechanically observed that those cases are pending trial. Further for an order of externment the Externing Authority need not take into consideration prohibition offences. That is why the Appellate Authority has correctly held that ground No. 2 mentioned in the show cause notice and in the Externment Order is an irrelevant material. Thus we are able to see that the Externing Authority has not only taken the irrelevant material along with the other materials but was also under the impression that 9 prohibition cases mentioned in that irrelevant ground No. 1 are pending in trial while as a matter of fact 5 of those cases have ended in an acquittal even before the order of externment was passed.