KANTIBHAI BHAGWANBHAI KAHAR Vs. B U GAD

JUDGEMENT

(1.) The petitioner has come forward in this petition for issue of a writ of certiorari or mandamus or any other writ or order or direction to quash the show case notice and the impugned order of externment and also confirmation of the same in appeal by the Government.

(2.) The petitioner was externed by an order dated 3 1.8.1985 by the Deputy Commissioner of Police, Surat City stating that he is externed from the Surat City and its contiguous areas for a period of two years. The contiguous areas mentioned are, apart from Surat City, Surat (Rural), Bharuch and Valsad Districts. The said order of externment was confirmed in appeal by the Government of Gujarat by an order dated 20.12.1985 with the modification that the petitioner was externed from the Surat City only for a period of one year, instead of two years. It is against this order that the present Special Criminal Application has been filed. As many as six allegations have been levelled against the petitioner herein in the show cause notice. It is unnecessary for us to reproduce all the allegations since they prima facie make out a case for externment provided either conditions are satisfied. In the show cause notice, it has been specifically stated that the petitioner was carrying on these activities in the areas of Dumas Road, near Hawai Patti, Bhatar Road, near L.B. Theatre, near Bombay Market, on Varchha road, Rander Pura, Nanpura, Timalia wad, near Hijara wad, Surat etc. Nowhere in the show cause notice, We are able to see as to during which period these activities were carried on by the petitioner and upto which period. The notice simply states that the petitioner is carrying on these activities continuously and is still continuing to do so. Naturally, both the externment order passed by the Deputy Commissioner of Police and the order passed in appeal have no reference to the date of commencement of such activities and, the period during which these activities were carried on by the petitioner herein.

(3.) Mr. Shah for the petitioner, pointing out this infirmity of not mentioning the period of the offences alleged to have been committed by the petitioner, submitted that it goes to the root of the case and as such, the order of externment is vitiated. According to the learned counsel, the externment order must fail on this short ground alone. Failure to mention the period of the offences and as to when exactly it started and continued, in our opinion, will definitely vitiate the externment order. It has been made clear be various judgments given by us in other cases, such as special Criminal Applications Nos. 310 and 311 of 1985 etc. decided on 4.10.1985. All these decisions given by us follow the principles laid down by the Supreme court in A.I.R. 1968, S.C. 1468. In that case, the Supreme Court while rejecting the contention that particulars of the allegations must be given, observed that notices must refer to the period during which the acts are said to have been committed as well as the area where they are said to have been committed. This, according to the Supreme Court, is necessary for the purpose of meeting these allegations by proper defence. If only the period during which acts are committed is stated in clear terms, the petitioner will have an opportunity to plead alibi during the period covered by the notice and the like. Thus, it is clear that the period during which the acts are, said to have been committed is essential requisite which is to be stated in the notice or otherwise, valuable defence which may be put forward by the affected party concerned, will be lest to him. Such infirmity will clearly prejudice the petitioner and failure to mention the same will necessarily result in quashing the order of externment and the notice given for the same. As we have observed in the foregoing paras, it is clear that no such period has been mentioned either in the externment notice or while discussing the same during passing of the externment order. Thus, it is clear that the notice issued for externment is vitiated and naturally, consequential orders passed on the strength of such show cause notice must fail.