SURESH CHHAGANLAL LUHANA Vs. D K DHAGAL

JUDGEMENT

(1.) THE point raised in this petition challenging the order of externment as per Annexure "A" dated March 19, 1982 passed against the petitioner is concluded in his favour by a decision of this High Court rendered more than ten years back in Dana Nathu v. Sub - Divisional Magistrate, 14 GLR 209. It is surprising that the Deputy Commissioner of Police should be unaware of the decision rendered by this High Court in a matter arising out of an order passed by the Sub -Divisional Magistrate, Rajkot, ten years back and he should commit the same mistake in 1982 which the Sub -Divisional Magistrate committed in 1972. That there should be total lack of any method to avoid such an intolerable situation is sufficient to cause dismay to anyone. Can the competent authority not evolve any system to ensure that no technical faults are committed ? To at least ensure in any event that faults already discovered are not re -committed? The information -gap and the system -void can defeat measures bonafide taken in public interest. Is it desirable that the authority concerned should sit with folded hands, blind folded eyes and ears plugged with comforting cotton wool? The position is intolerable and causes dismay. We can only say it is for the department concerned to do something about it if they are serious about it. The impugned order was passed on the ground that the petitioner had been convicted thrice of an offence punishable under the Bombay Prohibition Act, 1949 within a period of three years as envisaged by Section 57(c) of the Bombay Police Act, 1951. A similar order passed by the Sub -Divisional Magistrate, Rajkot, in Dana Nathu's Case was struck down on the ground that the externing authority had failed to consider the extent of the harmful activity of the petitioner and whether it had reached such a degree or extent that in the interest of general public the petitioner was required to be removed from that locality by putting him out of the harm's way so that the community in the locality could remain in peace and trans quality and safety. The externing authority who has passed the impugned order has committed the identical error of not having considered this dimension of the matter. The impugned order does not show that this aspect was present before the mental eye of the externing authority. He should have applied his mind to this aspect and recorded a finding in this behalf. It is inconceivable how he could commit the same error if he was vigilant. At least he ought to have known the decisions rendered by this High Court under Section 57(c) in the past. What is un understandable is that he should not even know of an order passed in a matter arising from Rajkot Division itself in similar circumstances. We have had an occasion to advert to the aspect regarding the necessity for constituting an appropriate legal cell to give guidance in orders passed under the Prevention of Black -marketing And Maintenance of Supplies of Essential Commodities Act in the case of Chandravati Fakirchand v. State 23(1) GLR 760 (1982 GLH 486), wherein it was observed as under:

(2.) THE petition is, therefore, allowed. The impugned order dated 19th March 1982 at Annexure "A" is quashed. Rule is made absolute. xxx xxx xxx