KHEMIBEN Vs. DEPUTY POLICE COMMISSIONER

JUDGEMENT

(1.) Through this petition the petitioner seeks to challenge to order dated 21.3.1996 passed by the Deputy Police Commissioner, Traffic Branch, Ahmedabad City, whereby the petitioner was externed from the entire area coming under Ahmedabad City Police Commissioner and the rural area adjourning Ahmedabad, Gandhinagar, Kheda and Mehsana districts and the order dated 16.7.1996 passed by the Home Department of Government of Gujarat.

(2.) The present Special Criminal Application was filed in this Court on 31.7.1996 and on 1.8.1996 Rule returnable for the date of 26.8.1996 was issued and an affidavit-in-reply dated 5.10.1996 had been filed on behalf of the respondents on 5.10.1996. When the matter came up before this Court the learned Counsel for the petitioner Mr. A.S. Dave raised the question that the externment order had been passed after considerable delay which has not been explained. It is submitted that the show cause notice for externment under Sec. 59 of the Bombay Police Act, 1951 issued by the Assistant Police Commissioner, 'E' Division, Ahmedabad City on 2.2.1995. Thereafter the petitioner filed reply to this show cause notice on 2.3.1995 and examined fifteen witnesses in support of his case. It is therefore submitted by Mr. Dave that the examination of the witnesses was over in September, 1995 and thereafter he did not seek any adjournment. Yet the final order was passed on 21.3.1996, and since then he is under Externment. However the petitioner had preferred an appeal before the Appellate Authority i.e. Home Department and this appeal was rejected on 16.7.1996 by the Home Department and only thereafter the present petition was filed. Mr. Dave has specifically taken the ground of delay in passing the externment order in para 15 of the petition.

(3.) However, it was found that the affidavit-in-reply dated 5.10.1996 filed on behalf of the respondents is conspicuously silent about the question of delay raised by the petitioner in para 15 of the petition. In this view of the matter, Mr. Neegam Shukla, appearing on behalf of the respondent was granted time to file an additional affidavit and the query was made to Mr. Dave to show as to whether point with regard to delay in passing the externment order and it had been urged before the Appellate Authority or not and in case it had not been taken whether the petitioner was allowed to raise this point in the writ proceedings if it requires investigation of any facts.