Joseph v. State Of Gujarat

ORAL JUDGMENT

The petitioner, who is the externee, has challenged in the present petition preferred under Articles 21 and 226 of the Constitution of India, the externment order dated 10/2/2014 passed by the respondent No. 2 as well as order dated 3/5/2014 passed by the respondent No. 1 in Externment Appeal No. 51 of 2014 under section 60 of the Bombay Police Act, 1951 (for short “the Act”).

2. Heard the submissions of learned advocate appearing for the petitioner and learned APP for the respondent State.

3. The Asst. Police Commissioner, “A” Division, Vadodara city, issued notice on 12/7/2013 under section 59 of the Act to the petitioner detenu inter alia alleging in the notice that the petitioner is a bootlegger and doing his activities by using force or violence. There is a specific allegation in the notice that the petitioner detenu was doing all these activities with the help of his associates within the jurisdiction of Fatehganj Police Station.

4. In response to the show cause notice, the petitioner submitted his explanation. After examining the explanation, the respondent No. 2 has passed the order of externment on 10/2/2014 externing the petitioner for a period of two years from the districts Vadodara [Rural], Anand, Bharuch, Narmada and Panchmahals. The petitioner preferred appeal under section 60 of the Act. The said order of externment was modified by the appellate authority vide order dated 3/5/2014, whereby the authority was pleased to reduce the period of externment from two years to one year.

5. Learned advocate Ms. Patel contended that there is delay in passing the externment order passed by the externing authority and therefore, the order of externment should be quashed. It is also submitted by him that the authorities concerned have mechanically passed the order and externed the petitioner after the delay of nearly seven months.

6. A specific point is taken by the petitioner in this petition contending that the order of externment has been passed after lapse of about seven months from the date of issuance of show cause notice dated 12/7/2013. Therefore, the order of externment has been passed without considering the necessity to exetern the petitioner after such lapse of time and therefore, the same is without any application of mind. Not only that the alleged offence vide Prohibition C.R Nos. III-93/2012, 148/2012 and 324/2012 were registered with Fatehganj Police Station and from the date of such offences, the impugned order came to be passed on 10/2/2014.

7. In court's considered opinion, there is much force in the arguments advanced on behalf of the petitioner. In externing a person which is in public interest, the authorities are expected to act promptly and if the matter is delayed, the same will exhibit that there is no urgent need and no necessity to extern a person from a particular locality or a district. The externment order restricts or curtails the freedom of the movement of a person concerned and therefore, any lapse/delay on the part of authority concerned cannot be permitted and the benefit will go to the party concerned and on that ground, the externee will be entitled to the benefit of quashing of such order of externment.

8. It is true that mere delay in passing externment order cannot be fatal to quash such an order, but in Court's opinion, delay must be explained. In the present case, there is delay of nearly about seven months in passing the externment order subsequent to registration of offences in the year 2012. The preventive action should be taken immediately and any delay will definitely vitiate such an order. Further, show cause notice is silent with respect to above mentioned registration of offences, whereas the appellate authority relied upon the said offences. This indicates non-application of mind.

9. In view of the foregoing reasons, the petition is allowed. The externment order dated 10/2/2014 passed by the respondent No. 2 as well as order dated 3/5/2014 passed by the respondent No. 1 in Externment Appeal No. 51 of 2014 are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.