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2014 DIGILAW 341 (GUJ)

Gangaben Chandubhai Kahar v. State of Gujarat

2014-03-06

S.H.VORA

body2014
JUDGMENT S.H. VORA, J. 1. Rule. Ms. Jhaveri, learned APP waives service of notice of rule for respondents. 2. The challenge in this petition under Article 226 of the Constitution of India are the order of externment dated 3.10.2013 passed by the Externing Authority externing the petitioner from the areas specified in the externment order for 2 years and order dated 23.1.2014 passed by the Appellate Authority modifying the externment order by restricting the area of externment. 3. Learned counsel for the petitioner submits that the orders passed by the authorities are without application of mind inasmuch as power of externment can be exercised upon arriving subjective satisfaction by the authority under provisions of Section 57 of the Bombay Police Act, 1951 and not under provisions of the Bombay Prohibition Act. 4. Learned counsel for the petitioner relying on the decision of the Division Bench of this Court in the case of Vaghari Dhanabhai Bhalabhai vs. State of Gujarat, Vol. XXVI (1) GLR 194 submits that case of the petitioner is squarely covered by the present case and externment order only justified if harm or danger is such as to be injurious to peace and social order and mere conviction does not injure public interest. 5. Ms. Jhaveri, learned APP for the respondent-State of Gujarat submits that powers under Section 56(B) of the Bombay Police Act was exercised in spite of the registration of offences under Sections 66(1) (B), 65(E), 81 etc. of the Bombay Prohibition Act since in fact the petitioner has indulged into such activities, which can be said to be injurious to peace and social order. Learned APP further submitted that there was sufficient material before the authority to pass the order of externment and no interference is called for by this Court in exercise of its power under Article 226 of the Constitution of India. 6. Having heard learned counsel for the parties and perusing the record of the case and what is held by this Court in the case of Vaghari Dhanabhai (supra) and in the case of Aswin Chandulal Jaishwal vs. Deputy Commissioner of Police, 1989 Cr. L.R. (Guj.) 517, that if at all the allegations against the petitioner are that he is indulging in bootlegging activities, action can be contemplated only under Section 57 of the Bombay Police Act. L.R. (Guj.) 517, that if at all the allegations against the petitioner are that he is indulging in bootlegging activities, action can be contemplated only under Section 57 of the Bombay Police Act. If the police could not secure conviction of the petitioner under the Bombay Prohibition Act to enable to take externment proceedings under Section 57 of the Bombay Police Act, alternative cannot be sought by taking action under Section 56 of the Bombay Police Act. However, in the instant case, since the externing authority has exercised power under Section 56(B) of the Bombay Police Act, which was partially confirmed by the Appellate Authority, I am of the considered opinion that this is a fit case to quash and set aside the impugned orders passed by the externing authority as well as Appellate Authority. 7. In view of the above, this petition is allowed and order dated 3.10.2013 passed by the Externing Authority in Hadpari Case No. 3716 of 2013 and order dated 23.1.2014 passed in Hadpari Appeal No. 621 of 2013 by the Appellate Authority are hereby quashed and set aside. Rule is made absolute to the aforesaid extent only. Direct service is permitted.