Abbas Husain v. Dy. Police Commr. Surat — 1986 DIGILAW 109 (GUJ)

GOKULAKRISHNAN, C. J. ( 1 ) THIS Special Criminal Application is to quash and set aside the show cause notice (Annexure a to the Special Criminal Application), the impugned order of externment (Annexure b to the Special Criminal Application) and the order in appeal (Annexure c to the Special Criminal Application ). ( 2 ) THE petitioner was issued with a show cause notice under Section 59 of the Bombay Police Act stating that he has committed acts coming under S. 56 (a) and (b) and as such he has to be externed from the jurisdiction of the Surat City Police Commissioner, Surat Rural and contiguous area of Broach and Valsad Districts for a period of two years from the date of the proposed externment order. The allegations levelled against the petitioner in the show cause notice are as follows :" (1) That you are a violent and strong- headed person. And that you and your accomplices commit dangerous offences like - hurt, grievous hurt, held out threat, robbery and indulge in anti-social offences like black marketing in Cinema tickets. (2) That you have associated in committing offences involving force and violence as are described under Chapter XVI of the Criminal Procedure Code and that you are likely to commit the same. (3) That you and your accomplices have been caught with committing serious offences with lethal weapons like knife, razor blades, etc. (4) That you commit robbery on public roads, by holding out threat to the passers by, by showing knife and like lethal weapons. (5) That you commit indecent assault on women, passing through the roads and the streets. (6) That you yourself and through your, agents (accomplices) do unsocial activities like black marketing in Cinema tickets at Kinnari, Ajanta and Shree talkies. And that you have been associated with such offences. (7) That you have been associated since 1980 in committing offences involving force and violence, more particularly prescribed in : (1) I. P. C. Secs. 326, 324, 504, 114 (2) I. P. C. Secs. 302, 323, 504, 34 and B. P. Act Sec. 135. (3 ). I. P. C. Secs. 323, 504 and 114. (8) That you commit the aforesaid offences in the locality of Ringroad, Kannari talkies, Man Darwaja, Kamela Darwaja, etc. etc. 326, 324, 504, 114 (2) I. P. C. Secs. 302, 323, 504, 34 and B. P. Act Sec. 135. (3 ). I. P. C. Secs. 323, 504 and 114. (8) That you commit the aforesaid offences in the locality of Ringroad, Kannari talkies, Man Darwaja, Kamela Darwaja, etc. etc. (9) That you commit above stated dangerous activities and witnesses do not come forward to give testimony of the above stated activities in open (Court) against you, because of their fear from you for their person and property". Finally the notice states that the petitioner has to show cause as to why he should not be externed from the area of the jurisdiction of the Police Commissioner, Surat City, Surat Ruraland Districts of Broach and Valsad and that if he is not externed from the aforesaid area, he, with the aid of his associates and agents, will carry on his aforesaid activities and is likely to be involved in such offences in view of the speedy transportation of the present times. The externing authority, after taking into consideration all relevant materials including the evidence let in on behalf of the petitioner herein, came to the conclusion that the petitioner has to be externed. Hence on 30-12-1985, the externing authority, who is the Deputy Commissioner of police, Surat City, passed an order externing the petitioner from the area of Surat City, Surat Rural and Districts of Broach and Valsad for a period of two years. He has also observed that if the petitioner is not externed from the contiguous districts of Broach and Valsad, he is likely to carry on his activities through his associates and agents in this age of speedy transportation. Aggrieved by the said order, the petitioner preferred an appeal to the Government of Gujarat under Section 60 of the Bombay Police Act. The Home Department of the Government of Gujarat, after hearing the counsel for the petitioner and in exercise of the power under sub-section (3) of section 60, varied the order of externment and instead directed the petitioner to execute a. bond for good character in a sum of Rs. 500/- stating that he will not commit any heinous act or offence for a period of two years. This order was passed on 11-2-1986. As against these orders and the show cause notice, the petitioner has come forward with the present Special Criminal Application. Mr. 500/- stating that he will not commit any heinous act or offence for a period of two years. This order was passed on 11-2-1986. As against these orders and the show cause notice, the petitioner has come forward with the present Special Criminal Application. Mr. Kapadia, the learned counsel appearing for the petitioner, submitted that there is no period mentioned in the show cause notice and even if some area is mentioned in allegation No. 7 of the show cause notice, it will qualify only to the offences mentioned in that particular allegation No. 7 in the show cause notice. The learned counsel further contended that in all the offences mentioned in allegation No. 7 of the show cause notice, the petitioner has been acquitted and as such the order of externment cannot stand since the externing authority has mechanically passed this order without adverting to the fact that the petitioner has been acquitted in all these offences. The learned counsel further contended that even though in the show cause notice it is stated that offences coming under section 56 (a) and (b) have been committed, the allegations in the notice do not spell out offences, both under section 56 (a) and (b) of the Bombay Police Act. The next argument put forth by Mr. Kapadia is that there is no specific conclusion by the externing authority to the effect that unless the petitioner is externed, it will be a nuisance to the public, he being a dangerous and strong-headed person. In the absence of such conclusion, Mr. Kapadia, the learned counsel appearing for the petitioner, submits that the order of externment and the subsequent order passed by the appellate authority has to be quashed. Finally, the learned counsel submits that there is delay in passing the order of externment. According to the learned counsel, the argument in this case was over before the Externing Authority on 13-5-1985 and the externment order was passed after a delay of 7 months and 17 days, i. e. on 30-12-1985. This, according to the learned counsel for the petitioner, vitiates the whole proceedings and as such the order of externment and the subsequent order passed by the appellate authority has to be set aside. ( 3 ) WE have carefully gone through the records in this case and also other particulars including the order passed by the externing authority and the appellate authority. ( 3 ) WE have carefully gone through the records in this case and also other particulars including the order passed by the externing authority and the appellate authority. The allegations in the notice clearly spell out offences contemplated under section 56 (a) and (b ). It is unnecessary for us to repeat those allegations since we have already extracted them in paragraph supra. Suffice it to say that allegation No. 7 of the allegations in the show cause notice refers to the period of committing the offences mentioned in the show cause notice. We are not able to appreciate the argument of Mr. Kapadia to the effect that the period mentioned therein refers only to the allegations contained in paragraph 7 of the allegations in the show cause notice. A reading of allegation No. 7 in the show cause notice it clearly spells out that it refers to all the allegations contained in the show cause notice and allegation No. 7 only clarifies and reiterates the offences mentioned in allegations Nos. 1 to 6 of the allegations mentioned in the show cause notice. Thus, we are not able to appreciate both the arguments to the effect that the allegations do not spell out the offences, both under section 56 (a) and (b) of the Bombay Police Act and that the period has not been mentioned in the show cause notice regarding the offences committed by the petitioner concerned. We are also not able to appreciate the argument that the period refers only to the allegation under clause 7 and not to the allegations in clauses 1 to 6. Thus, we are of the definite view that the show cause notice specifically states the period during which the offences mentioned in the allegations 1 to 7 have been committed by the petitioner herein and allegation 8 of the show cause notice clearly gives the area in which the petitioner is committing such offences. Those areas have been already extracted while we have extracted the allegations in the show cause notice in the paragraph supra. The argument of Mr. Those areas have been already extracted while we have extracted the allegations in the show cause notice in the paragraph supra. The argument of Mr. Kapadia to the effect that there is no specific conclusion by the externing authority to the effect that the petitioner is a nuisance and as such he has to be externed since he is a dangerous and strong-headed person cannot be appreciated in view of the clear averments in the show cause notice to the effect that the petitioner commits dangerous activities and witnesses do not come forward to give testimony of such activities out of fear for their person and property. Apart from these specific allegations, the notice as such clearly makes out that the petitioner is a dangerous and strong-headed person who is a source of nuisance to the locality. Coming to the question of delay, we have carefully gone through the averments of the petitioner in paragraph NN of his petition. This is countered in the reply given by the respondent concerned at paragraph 21 of his reply. It is a clear case where the authorities have taken 7 months and 17 days subsequent to the argument, to pass the externment order. The reason given by the authority concerned is that the prior person who heard the argument had gone to Hyderabad for training and thereafter the person who passed the externment order got it assigned to him and that he passed the externment order only on 30-12-1985. There is an inordinate delay apart from the fact that the person who passed the externment order has not even heard the arguments advanced on behalf of the petitioner herein. Definitely such an order passed so late as this will vitiate the externment order passed by the authorities concerned. No doubt in this case the appellate authority has directed only the execution of the bond. Even this, is to keet peace in that locality as a preventive measure and this is available to the authorities concerned as per section 56 of the Bombay Police Act. It can either remove the person concerned outside the area or direct that person to conduct himself as shall seem necessary in order to prevent violence and alarm. If such a delay is fatal for the externment order, such delay is fatal also to an order for getting a bond as provided under Section 56 of the Act. It can either remove the person concerned outside the area or direct that person to conduct himself as shall seem necessary in order to prevent violence and alarm. If such a delay is fatal for the externment order, such delay is fatal also to an order for getting a bond as provided under Section 56 of the Act. Such preventive actions whether it is by externment or by getting a bond should be taken immediately and any inordinate delay will definitely vitiate such action taken as a preventive measure. Inasmuch as we have found that the delay in passing the order is inordinate and that too by a person who has not heard the arguments, will definitely vitiate the order passed by the authorities concerned. ( 4 ) FOR all these reasons we set aside the order passed by the externing authority as well as the appellate authority. Rule made absolute. Bond to be cancelled. Order accordingly. .