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2014 DIGILAW 202 (GUJ)

HITESH RAMSHAKAL VISHWAKARMA v. STATE OF GUJARAT

2014-02-07

S.H.VORA

body2014
JUDGMENT 1. The petitioner, who is the externee, has challenged the order of externment dated 31.7.2013 passed by the respondent No.2 in Hadpari Case No.161 of 2012-13 as well as order dated 30.12.2013 passed by the respondent No.1 in Appeal No.555 of 2013. 2. The Deputy Police Commissioner, Zone III, Surat City issued a notice on 22.12.2012 under section 59 of the Act to the petitioner detenue inter alia alleging in the notice that the petitioner is a dangerous person and doing his activities by using force or violence. There is a specific allegation in the notice that the petitioner detenue was doing all these activities with the help of his associates within the jurisdiction of Limbayat Police Station. 3. 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 31.7.2013 externing the petitioner for a period of two years from the area falling in the Commissionerate of Surat City, Surat Rural, Bharuch, Navsari, Bharuch, Valsad and Tapi. The petitioner preferred appeal under section 60 of the Act. The said order of externment was modified by the appellate authority vide order dated 30.12.2013, whereby the externing authority was pleased to reduce the period of externment from two years to six months and further it was restricted to the limit of Commissionerate of Surat city. 4. Learned advocate Mr. Baghel 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. 5. A specific point is taken by the petitioner in this petition contending that the order of externment has been passed after lapse of seven months from the date of issuance of show cause notice dated 22.12.2013 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 I – C.R. No.245 of 2012 was registered on 7.11.2012 and from the date of such offence, the impugned order came to be passed on 31.7.2013 i.e. after lapse of about eight months. 7. Not only that the alleged offence vide I – C.R. No.245 of 2012 was registered on 7.11.2012 and from the date of such offence, the impugned order came to be passed on 31.7.2013 i.e. after lapse of about eight months. 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 seven months in passing the externment orders subsequent to registration of offence in the month of November, 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 abovementioned registration of offence, whereas the appellate authority relied upon the said offence. This indicates non-application of mind. 9. In view of the foregoing reasons, the petition is allowed. The order of externment dated 31.7.2013 passed by the respondent No.2 in Hadpari Case No.161 of 2012-13 as well as order dated 30.12.2013 passed by the respondent No.1 in Appeal No.555 of 2013 are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.