Nasirkhan Gulabkhan Pathan vs State of Gujarat and Others

S.G. Shah, J.—By way of the present petition, under Articles 226 and 227 of the Constitution of India, the petitioner has challenged an order dated 15/12/2012 passed by Deputy Police Commissioner, Surat city, in Externment Case No. 120 of 2012, by which, the petitioner has been externed for a period of one year from different districts namely Surat [Rural], Bharuch, Valsad, Navsari, Vadodara and Tapi, as well as he has challenged the order passed by the Addl. Secretary, Home Department, Gandhinagar dated 6/7/2013 by which, appeal preferred by the petitioner being Externment Appeal No. 61 of 2013 is dismissed. Brief facts emerges from the record are as under:

2.1 The petitioner was served with a notice issued by Deputy Police Commissioner, Surat city u/s 59 of the Gujarat Police Act, 1951, calling upon the petitioner to show cause as to why an order shall not be passed u/s 56(a) of the Bombay Police Act, since several offences were registered against him. The case was registered as Externment Case No. 114 of 2012 by the Deputy Police Commissioner, Surat city. The petitioner submitted his reply dated ../10/2012.

2.2 The Deputy Police Commissioner, Surat city, after considering the facts, came to the conclusion that petitioner is required to be externed for a period of one year from certain districts which are referred hereinabove and passed an order dated 15/12/2012 and externed the petitioner for a period of one year.

2.2.1. The petitioner challenged the said decision before the State of Gujarat by preferring Externment Appeal No. 64 of 2013. The appeal was heard by Addl. Secretary, Home Department, Gandhinagar and the same was dismissed by order dated 06/07/2013. Hence, the present petition.

Mr. Atit D. Thakore, learned Advocate for the petitioner submitted that the notice as well as orders issued and passed by the Authorities are of totally non-application of mind. The Deputy Police Commissioner, Surat city had issued notice to the petitioner u/s 56(a) of the Act, however has considered other aspects which do not fall within purview of Section 56(a) of the Act. He has submitted as per section 56(a), if is found that movements or acts of any person causing or calculated to cause alarm, danger or harm to a person or property, an order can be passed u/s 56(a) of the Act. While issuing notice as well as deciding the matters, the Authorities have taken into consideration five offences which are registered which falls either Chapters 16, 17 or 21 of the Indian Penal Code. If the authority has considered the externment proceedings for the said offences, the notice ought to have been issued under the provisions of Section 56(b) of Bombay Police Act. He submitted that if the orders of Deputy Police Commissioner, Surat city and Appellate Authority are perused, the same is totally non-application of mind.

He further submitted that offence registered at C.R. No. I-150/2012 with Mahidharpura Police Station is concerned, it is a solitary offence and the petitioner has been falsely involved therein. Hence, it is a clear non application of mind. In support of his submission, he has relied upon a decision of this Court in the case of Hussainmiya Alias Jago Razakmiya Qadri Vs. State of Gujarat, He submitted that in the said decision this Court has held that if the Authority has taken any action under the Bombay Police Act other than the provision mentioned in the Show-cause notice, like one in the present case, this Court has quashed and set aside the externment order passed by the Authority.

Heard Ld. APP for the respondents.

Notice dated 20/09/2012 issued by Deputy Police Commissioner, Surat city, u/s 59 of the Act and makes it clear that the petitioner was called upon to show cause as to why he should not be externed under 56(a) of the Act. Notice also discloses that the offence was registered against the petitioner in 2012 and the same is registered either under Chapters 16, 17 and 21 of the Indian Penal Code.

It appears from the said order dated 15/12/2012 passed by Deputy Police Commissioner, Surat city, by which, the petitioner is externed, that the Authority has considered the offence registered against the petitioner which is mentioned in the notice. On perusing the order passed by Appellate Authority, it also appears that the Appellate Authority has also considered the said offences u/s 56(b), which empowers the authority to issue notice for the offences mentioned therein. However the petitioner was called upon to reply for the alleged action u/s 56(a) of the Act. It has been held by this Court in the case of Shri Hussainmiya @ Jago Razakmiya Qadri (supra), if the notice is issued u/s 56(a) of Bombay Police Act and where the externment order shows that the powers u/s 56(b) of the Act, has been exercised, the same is non-application of mind and therefore, it can be said that subjective satisfaction recorded by the authority, before passing the order of externment, is vitiated.

The competent authority has at some places referred the provisions of the Gujarat Police Act and at some places Bombay Police Act. It also confirms that there is non-application of mind while passing such punitive order. In support of my decision to quash and set aside the impugned order of externment, I rely upon the following decisions:

I. Gopalji Laxmanji Rathod Vs. State of Gujarat and Others,

II. Jagdish Shamjibhai Makwana Vs. Sub-Divisional Magistrate, Bhavnagar and Another,

In view of the above facts and in view of the above judgment, I am of the opinion that the petition requires consideration and accordingly is allowed. The orders dated 15/12/2012 and 6/7/2013 passed by the Authority as well as Appellate Authority are hereby quashed and set aside. Rule is made absolute. Direct Service is permitted.