CHANDRASHEKHAR GIRDHARLAL MEHTA Vs. SUB DIVISIONAL MAGISTRATE JUNAGADH

JUDGEMENT

(1.) Heard Mr.Pravin Gondaliya, learned advocate appearing on behalf of the petitioner and Mr.H.L.Jani, learned APP for respondents. In the present petition, the petitioner has challenged the order of externment passed by the Sub Divisional Magistrate, Junagadh in externment case No.9/2000 dated 14th November, 2000 and order of the appeal dated 12th February, 2001 under Article 226 of the Constitution of India. The respondent No.1 has issued a show cause notice dated 29th April, 2000 to the petitioner and the petitioner has submitted his reply on 3rd July, 2000 and thereafter the order of externment has been passed on 14th November, 2000 under Section 56 of the Bombay Police Act and show cause notice has been issued by the respondent No.1 under Section 59 of the Bombay Police Act, 1951.

(2.) Learned advocate Mr.Pravin S. Gondaliya has submitted that various contentions have been raised by the petitioner challenging the externment order but according to him, it is composite order and not severable and therefore one contention is enough to vitiate the order of externment. Therefore, he submitted that contention raised in ground [D] to the effect that the petitioner has not provided with reasonable opportunity against the allegations made in show cause notice as extract of the statement of the confidential witnesses are not supplied to the petitioner. However, the petitioner by his application dated 19th June, 2000 categorically demanded documents to enable him to have proper defence against the allegations. However, the petitioner has not supplied with demanded documents including the extract of the statements of the confidential witnesses. It is further submitted that the statement of the confidential witnesses are also relied upon and considered by the respondent No.1 and the appellate authority while confirming the order of externment. However, the petitioner is not made aware of all the allegations have been made by the confidential witnesses and therefore, he has been prevented from making effective defence before externing authority and resultantly, principles of natural justice are clearly violated by the externing authority by depriving him of the demanded documents and hence also the order of externment is liable to be quashed and set aside.

(3.) The respondent - authority has not filed any reply to the present petition. In light of this contention raised by the present petitioner, learned advocate Mr.P.S.Gondaliya has specifically pointed out that in show cause notice dated 29th April, 2000, nowhere it is mentioned by the respondent No.2 that statement of secret witnesses are obtained by the concerned authority. However, no whisper has been made and no detail has been given to the effect that any statement of secret witness has been recorded and obtained by the concerned authority and therefore, a show cause notice is silent in respect of the statement of secret witnesses. Therefore, Mr.Gondaliya has submitted that in order of externment at page 23, internal page 2, respondent No.1 has while passing the externment order, considered the statement of the secret witnesses on two occasions, one on page 23 and at page 24. Therefore, Mr.Gondaliya, learned advocate has submitted that fact of recording of statement of secret witnesses not disclosed in show cause notice by the respondent No.1 which has adversely affected the right of making effective reply by the present petitioner against the show cause notice. Therefore, the petitioner was not able to make an effective reply against the show cause notice. He also submitted that even while rejecting the appeal, the appellate authority has also considered the statement of secret witness. Therefore, the respondent No.1 and the appellate authority both have taken into account the statement of secret witness which are record and considered by the concerned authority but this fact was not disclosed by the respondent No.1 while issuing show cause notice to the petitioner. Therefore, reasonable opportunity has not been given in respect of material which has been relied upon and considered against the petitioner and therefore, according to him, order of externment is passed by the respondent No.1 against the principles of natural justice.