MOHAMAD SABIR MOYUDDIN SHEKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) CHALLENGE in the present petition preferred under Articles 21 and 226 of the Constitution of India is the order dated 29.4.2013 passed by the respondent No. 2 in Hadpari Case No. 133 of 2012 -13 as well as order dated 16.12.2013 passed by the respondent No.1 in Appeal No. 368 of 2013 under section 60 of the Bombay Police Act, 1951 (for short "the Act"). Heard the submissions of learned advocates appearing for the petitioner and learned APP for the respondent State.

(2.) THE petitioner challenged the impugned order on various grounds that the externment order is passed without application of mind. According to the petitioner, the show cause notice issued to the petitioner dated 2.3.2013 is without application of mind, wherein the externing authority has mentioned that the petitioner should be externed from districts of Surat City, Surat Rural, Navsari, Valsad, Bharuch, Narmada and Tapi. No reason has been given in the show cause notice why externment from these districts was proposed when the activities of the petitioner was confined only to the district of Surat.

(3.) THIS argument has substance and it discloses non -application of mind by the appellate authority as well as by the externing authority for externing the petitioner from five districts mentioned aforesaid. When even an externing authority chooses to direct externment from not only the district within which the person against whom the order is passed is seen to be active, but also from contiguous districts, the reason why such externment order should operate even in regard to such contiguous districts should be shown in the notice preceding the order as well as in the order. It must be so, for 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 district also unless it is shown that circumstances warrant such a course. If there is such lacuna in the show cause notice as well as in the impugned order, 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.