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2018 DIGILAW 172 (GUJ)

Aslam Ajij Shaikh v. State of Gujarat

2018-01-18

S.G.SHAH

body2018
JUDGMENT : 1. Challenge in the present petition preferred under Articles 14, 21 and 226 of the Constitution of India is the show cause notice dated 17.12.2016 issued by the respondent authority in show cause notice bearing No.RB/HDP/104/2016 under Section 56(A)(B) of the Bombay Police Act, 1951 (for short the Act). 2. Heard the submissions of learned advocates appearing for the petitioner and learned APP for the respondent State. 3. The petitioner challenged the impugned show cause notice on various grounds that show cause notice is issued without application of mind, wherein the externing authority has mentioned that the petitioner should be externed from districts of Surat city, Surat Rural, Tapi, Bharuch, Navsari, Dang, Narmada and Valsad. No reason has been given in the show cause notice why, externment from these districts was proposed when the activity of the petitioner was confined only to District of Surat. 4. Another contention has been that no reason has been given in the show cause notice by the externing authority as to why the petitioner was externed from three districts mentioned above whereas, he 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 show cause notice. 5. This argument has substance and it discloses non-application of mind by the externing authority for externing the petitioner from five districts mentioned as aforesaid. When even an externing authority chooses to direct externment from not only the district within which the person against whom the show cause notice issued is seen to be active, but also from contiguous districts, the reason why such show cause notice should operate even in regard to such contiguous districts should be shown in the notice. It must be so, 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 districts also unless it is shown that circumstances warrant such a course. If there is such lacuna in the show cause notice, 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. If there is such lacuna in the show cause notice, 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 14 G.L.R. 384 and Saiyad Husen Saiyad Umar vs. State of Gujarat, 1985 (2) G.L.R. 1045 can be referred. 6. Per contra, learned APP submits that the competent authorities have issued the impugned show cause notice after considering all the relevant materials and statement of witnesses so as to demonstrate that there is likelihood of breach of peace in the area and therefore, the learned APP supported the impugned show cause notice and urged to dismiss the petition. 7. The externing authority under Section 56(B) of the 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 his own district. The criteria for passing such an order is provided for in Section 56(B) 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 own 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. 8. In view of the foregoing reasons, the petition is allowed. The show cause notice dated 17.12.2016 issued by the respondent No.2 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.