ASHOKBHAI ZINABHAI RANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) All these three Special Criminal Applications pose a common question as regards the power of appellate authority under sec. 60 of the Bombay Police Act 1951 (Bombay Act No. XXII of 1951) to remand the matter back to the externing authority for issuing fresh notice incorporating the places or the period during which the activities have taken place.

(2.) In all these cases it was alleged that the area of the acts committed by the externee and/or the period during which such acts were committed were not given in the notice issued under sec. 59 of the Bombay Police Act 1951 In short it was the case of the externee that the notice issued under sec 59 is vague and as such no externment order can be sustained on such type of vague notices. It has been held by our High Court and by the Supreme Court that failure to give the area of the operation or the period of such acts committed by the externee will be fatal to the externment order and on that basis various externment orders have been quashed (vide State of Gujarat v. Mehbubkhan AIR 1968 SC 1468; Kathi Harsur Rukhad v. State of Gujarat 1986 GLH 158 (1986 (1) GLR 682); and Babu Kishan Kahar v. Dy. Commi- ssioner of Police Vadodara & Anr. 1986 (1) GLR Vol. XXVII (1) page 553 In view of this settled legal position the appellate authority set aside the externment orders and remanded the matters to the externing authority for issuing fresh notices.

(3.) The main question that is agitated in all these petitions is that the appellate authority has no power to remand the matter as stated above. Mr. Kapadia and Mr. Marshall the learned counsel appearing for the petitioners in all these matters strenuously contended that unless there is a power vested with the authority concerned under sec. 60 the order of remand cannot be sustained and as such such order has to be quashed. It is further contended by the respective counsel that the externing authority was to form the subjective satisfa- ction before it passes the externment order and as such the appellate authority cannot substitute itself and remand the matter directing the externing authority to issue a fresh notice after incorporating in the said notice the period and/or the place during which the acts have taken place. It is further contended that secs. 55 to 60 have to be read together and if that be so we cannot infer the power of remand with the appellate authority constituted under sec. 60 of the Bombay Police Act. Sec. 56 of the Act deals with circumstances under which a person has to be externed Sec. 59 contemplates hearing to be given to the persons to be externed before an order under secs. 55 56 or 57 is passed. Sec. 60 invests the appellate power with the State Government over an order of externment passed by the authorities concerned Sec. 60 reads as follows;