Allowed

Bashirahmed Mohmedsafi Qureshi v. State of Gujarat

Gujarat HC16 Mar 2018SCR.A/10141/2017

Case brief

AI extract

What is this about?

The Court quashed an externment order passed by the Gujarat Police after a delay of eight months from the show-cause notice. It held that such unexplained delay indicates a lack of urgent necessity and absence of application of mind, thereby rendering the restrictive order invalid.

What did the court decide?

The externment order dated 20.12.2017 was quashed, set aside, and the rule made absolute; direct service was permitted.

Bashirahmed Mohmedsafi Qureshi Vs State of Gujarat — Writ and Judicial Review | Gujarat HC (2018)

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R/SCR.A/10141/2017 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CRIMINAL APPLICATION NO. 10141 of 2017

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE S.G. SHAH

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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BASHIRAHMED MOHMEDSAFI QURESHI

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Versus

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STATE OF GUJARAT

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Appearance:

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MR.MUFIZAHMED KADRI(7283) for the PETITIONER(s) No. 1 DS AFF.NOT FILED (R)(71) for the RESPONDENT(s) No. 2,3 MR LR PUJARI, APP for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 16/03/2018 ORAL JUDGMENT

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1.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 20.12.2017
passed by the respondent No. 2.

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2. Heard the submissions of learned advocates

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Page 1 of 4

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R/SCR.A/10141/2017 JUDGMENT

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appearing for the petitioner and learned APP for
the respondent State.

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The respondent No.2 issued notice on 8.7.2017 under section 59 of the Gujarat Police Act to the petitioner detenu inter alia alleging in the notice that the petitioner is indulging in activities, due to which the members of public are afraid.

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4.The respondent No.2 has passed the order of
externmenton20.12.2017externingthe
petitioners for a period of two years from the
Ahmedabad City, Ahmedabad District, Gandhinagar,
Kheda and Mehsana districts.

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Learned advocate for the petitioner 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 them that the authorities concerned have mechanically passed the order and externed the petitioner after the delay of nearly eight months from issuance of the notice.

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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
eight months from the date of issuance of show
cause notice dated 8.7.2017. Therefore, the order

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Page 2 of 4

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R/SCR.A/10141/2017 JUDGMENT

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of externment has been passed without considering
the necessity to extern the petitioner after such
lapse of time and therefore, the same are without
any application of mind.

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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.

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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 eight months. The preventive action
should be taken immediately and any delay will
definitely vitiate such an order.

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9.Learned APP has submitted that such fact has

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Page 3 of 4

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R/SCR.A/10141/2017 JUDGMENT

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not been contended in the reply filed by the
petitioner before the competent authority in
response to the show-cause notice and therefore,
it cannot be taken into consideration, and that
competent authority may not be aware about such
fact and therefore, when alternative remedy in
the form of statutory appeal is provided in the
statute, this Court should continue its stand of
dismissing such petition only on the ground of
availability of alternative remedy.

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10.Therefore, I do not find any substance in the
argument by the learned APP for the simple reason
that when order of externment is passed by
respondent No.2 and when show-cause notice is
also given by the same Officer and when
investigating agency is within the control of
such authority, they have no reason to plead
ignorance of the judgment of acquittal by the
competent Court.

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11.In view of the foregoing reason, the petition
is allowed. The externment order dated 20.12.2017
passed by the respondent No.2 are hereby quashed
and set aside. Rule is made absolute to the
aforesaid extent. Direct service is permitted.

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(S.G. SHAH, J.)

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binoy

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Page 4 of 4

Bashirahmed Mohmedsafi Qureshi v. State of Gujarat

Case brief

What is this about?

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Bashirahmed Mohmedsafi Qureshi v. State of Gujarat

Case brief

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