Vipul @ Dharmesh Chimanlal Raychura vs State of Gujarat and Others

Z.K. Saiyed, J.—By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order of externment dated 20.7.2009 passed by the respondent No. 2 in exercise of powers u/s 56 of the Bombay Police Act (hereinafter referred to as ''the Act''), whereby the petitioner has been externed from the limits of Porbandar, Junagadh, Rajkot and Jamnagar Districts for a period of two years from the date of the said order as well as the order dated 15.3.2010 passed by the Additional Secretary, Home Department, Gandhinagar, whereby the petitioner''s appeal u/s 60 of the Act has been dismissed.

Ms Banna Datta, learned advocate for the petitioner, has submitted that the impugned order of externment suffers from various infirmities. It is submitted that the show cause notice as to why the petitioner should not be externed from the limits of Porbandar, Junagadh, Rajkot and Jamnagar Districts was issued on 13.5.2009. Hence, the said order suffers from the vice of delay. Secondly, it is contended that the learned respondent No. 2 has placed reliance on the five cases. It is further submitted that there is nothing on record to show that the activities of the petitioner were in any manner prejudicial to the maintenance of public order. The learned advocate for the petitioner has placed reliance on the decision in the case of Dafer Rahman Zarar v. State of Gujrat reported in 1999(1) GLH 425 , in support of her submissions. Reliance is also placed on the decision of this Court in the case of Rajput Ranjitsing Jatubha Vs. Vinay Vyas, Sub-Divisional Magistrate and Others,

Mr. H.L. Jani, learned Assistant Government Pleader, has opposed the petition and has submitted that the petitioner is involved in five offences punishable u/s 66(1) and 85(1), 3 of the Bombay Prohibition Act being CR No. (1)III-91/2005, (2) III-105/2007, (3) III-79/2008, (4) III-132/2008, and (5) III- 139/2008, and that, the statements of the witnesses really made out a case that the activities of the petitioner caused disturbance to the public order. It is, accordingly, submitted that the impugned order of externment is just, legal and proper, and no intervention is called for by this Court.

A perusal of the impugned order of externment shows that the Externing Authority has referred to five offences registered against the petitioner. Thereafter, the Externing Authority has referred to three statements of anonymous witnesses and on the basis of the said three statements, the concerned officer has come to the conclusion that the activities of the petitioner are prejudicial to the maintenance of public order, based on which the Externing Authority has passed the impugned order of externment.

The Division Bench of this Court in the case of Rajput Ranjitsing Jatubha (supra) has in the facts of the said case observed that a mere look at the allegations show that they suffer from the vice of vagueness viz. (i) no period is mentioned during which the alleged nefarious activities have been carried on by the petitioner and (ii) no area or location is shown where such activities are carried on. These infirmities should be treated to be fatal infirmities. It was further observed that due to these infirmities the petitioner got no reasonable opportunity to show cause against the proposed externment on the allegation contained in the show cause notice. It is further observed that if the grounds are inoperative in law on account of vagueness, the entire proceedings emanating from them would fall through.

Applying the verdict of the Division Bench to the facts contained in the present show cause notice at Annexure-A to the petition, it can safely be said that the notice is vague inasmuch as it does not disclose the period and area of petitioner''s alleged nefarious activities which has not only rendered the notice invalid but also rendered the impugned order invalid. As a result thereof, the impugned order of the Externing Authority cannot be sustained.

Before the Appellate Authority also, the petitioner has raised various grounds noted hereinabove, however, the same have not been taken into consideration. The Appellate Authority has merely relied upon two offences registered against the petitioner as well as the statements of the anonymous witness to come to a conclusion that there was no infirmity in the order of externment at Annexure-C. In the circumstances, the order of the Appellate Authority also suffers from the vice of not taking into consideration the contentions raised on behalf of the petitioner.

For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned order of externment dated 20.7.2009 passed by the respondent No. 2, and also, the order dated 15.3.2010 passed by the respondent No. 1, externing the externee, are hereby quashed and set aside. Rule is made absolute.

Direct Service is permitted.