Allowed

Mari Appa @ Max S/O Antish Naidu v. State of Gujarat

Gujarat HC7 Aug 2019SCR.A/7269/2019

Case brief

AI extract

What is this about?

The High Court of Gujarat allowed a special criminal application challenging an externment order issued by the Assistant Police Commissioner. The court found the order void for non-application of mind because it extended externment to contiguous districts beyond Surat without a(nb) application of mind and specific reasons, and because it relied on Prohibition Act offences unrelated to the Police A

What did the court decide?

Quashed the externment order dated 24.10.2018 and the appeal order dated 27.05.2019. Rule made absolute. Direct service permitted.

Mari Appa @ Max S/O Antish Naidu Vs State of Gujarat — Service and Employment | Gujarat HC (2019)

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R/SCR.A/7269/2019 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CRIMINAL APPLICATION NO. 7269 of 2019

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE A.Y. KOGJE

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================================================================

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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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================================================================ MARI APPA @ MAX S/O ANTISH NAIDU Versus STATE OF GUJARAT

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================================================================ Appearance:

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MR. KISHAN H DAIYA(6929) for the Applicant(s) No. 1 MR. HARDIK SONI, APP, (2) for the Respondent(s) No. 1 RULE NOT RECD BACK(63) for the Respondent(s) No. 3 RULE SERVED(64) for the Respondent(s) No. 2

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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE

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Date : 07/08/2019 ORAL JUDGMENT

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Challenge in the present petition preferred under Articles 21 and 226 of the Constitution of India is the order dated 24.10.2018 passed by the respondent No.3-Assistant Police Commissioner, D Division Surat in Externment Case No.HDP/78/2018, whereby the petitioner has been exterend from Surat Rural, Surat City, Tapi, Navsari and Bharuch for a period of two years. Against the aforesaid

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Page 1 of 4

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R/SCR.A/7269/2019 JUDGMENT

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order, the petitioner preferred appeal being Hadpari Appeal No.210 of 2018, which has been partly allowed vide order dated 27.05.2019 by the respondent No.2-Additional Secretary Home Department, whereby the respondent No.2 has quashed and set aside the order of externment qua Navsari, Tapi and Bharuch and confirmed the order qua Surat City and Surat Rural only.

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

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The petitioner challenged the impugned order on various grounds that the externment order is passed without application of mind. According to the petitioner, the show cause notice issued to the petitioner dated 30.07.2018 is without application of mind, wherein the externing authorities has mentioned that the petitioner should be externed from city and rural limits of Surat City and Surat Rural, Tapi, Navasari and Bharuch districts for a period of two years . No reason has been given in the show cause notice why externment from this district was proposed, when the activities of the petitioner was confined only to the district of Surat.

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Another contention has been that no reason has been given either in the show cause notice or in the impugned order of the externing authority why the petitioner was externed from so many districts mentioned above whereas she is resident of district Surat only. On all such grounds, learned advocate appearing on behalf of the of the petitioner prays to quash the impugned orders.

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This argument has substance and it discloses non-application of mind by the externing authority for externing the petitioner from the districts mentioned aforesaid. When even the externing authority chooses to direct externment from not only the district within which the person against whom the order is passed is seen to

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Page 2 of 4

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R/SCR.A/7269/2019 JUDGMENT

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be active, but also from contiguous districts, the reason why such externment order should operate even in regard to such contiguous districts should be shown in the notice preceding the orders as well as in the order. It must be so, for if a person confined his activities to a particular district there would be no justification to extern him not only from that district, but from the adjoining district also unless it is shown that circumstances warrant such a course. If there is such lacuna in the show cause notice as well as in the impugned orders, it is not for the court to fill up lacuna in the material noticed by the externing authority by assuming that there must be some reason for externing from contiguous district also. That must be indicated by the externing authority. For this full bench decision in Sandhi Mamad Kala v. State of Gujarat , reported in 14 G.L.R. 384 and Saiyad Husen Saiyad Umar vs. State of Gujarat , reported in 1 985 (2) G.L.R. 1045 can be referred.

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Per contra, learned APP submits that the competent authority has passed the impugned order after considering all the relevant materials and statement of witnesses as well as the fact that the petitioner is involved in other criminal offences, so as to demonstrate that there is likelihood of breach of peace in the area and therefore, the learned APP supported the impugned order and urged to dismiss the petition.

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The externing authority under Section 56 of the Bombay Police Act has power to remove or extern a person not only from the district within which the externing authority has jurisdiction, but also from the districts contiguous to her own district. The criteria for passing such an order is provided for in Section 56 and there must be some indication in the order itself of the existence of circumstances which would lead to the satisfaction of the authority that it was necessary not only to extern a person from his/her own

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R/SCR.A/7269/2019 JUDGMENT

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district but also from the contiguous district. Such circumstances must be qua every area or region from which a person is directed to be externed and there must be some material or indication of such material in the order. The case of Vrajlal Mohanlal v. District Magistrate, Rajkot and another , reported in 3 G.L.R. 807 can be referred on the point.

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The subjective satisfaction stands vitiated in view of the fact that the externing authority has relied upon the offences registered under the Prohibition Act which were registered in the year 2017, whereas the show-cause notice was issued on 30.07.2018. The reliance is placed upon the offences of prohibition yet the order is passed under Section 56(A) of the Bombay Police Act. There is no activity in the contagious districts, yet detention is made applicable to the contagious districts.

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In view of the foregoing reasons, the petition is allowed . The order of externment dated 24.10.2018 passed by the respondent No.3-Assistant Police Commissioner, D Division Surat in Externment Case No.HDP/78/2018 and order dated 27.05.2019 by the respondent No.2-Additional Secretary Home Department in Hadpari Appeal No.210 of 2018 are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.

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(A.Y. KOGJE, J)

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SIDDHARTH

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Mari Appa @ Max S/O Antish Naidu v. State of Gujarat

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Mari Appa @ Max S/O Antish Naidu v. State of Gujarat

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