SOMABHAI BABUBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present petition under Article 226 of the Constitution of India is filed for quashing and setting aside the impugned order dated 02.08.2018 passed by respondent No.2 herein.

(2.) The case of the petitioner is that pursuant to the solitary offence registered against the petitioner being IC. R.No.84 of 2017 before the Puna Police Station, Surat for the offences punishable under Sections 302, 143, 147, 148, and 149 of the IPC and Section 135 of the Gujarat Police Act, a show cause notice came to be served under Section 59 of the Bombay Police Act, 1951 on 25.06.2018 with a view to extern the petitioner for a period of two years from areas falling from commissionerate areas of Surat City and Surat Rural, Navsari, Valsad, Tapi, Dang, Bharuch and Narmada districts. The petitioner has also examined the witnesses to prove his innocence but authority, without considering the same, has passed an order of externment on 02.08.2018 externing the petitioner from areas falling from commissionerate areas of Surat City and Surat Rural, Navsari, Tapi and Bharuch districts for a period of one year. Though it was submitted before the authority that, for a solitary offence, this externment step is not permissible, the petitioner has been wrongly roped in the prosecution, still, however, despite the fact that on account of this private dispute public at large is not affected at all, an order of externment came to be passed. The same is being apparently bad, straight way writ petition came to be filed before this Court, which appears to have been admitted on 17.09.2018. With this background, the petition has come up for consideration before this Court finally.

(3.) Mr.B.C.Dave, learned advocate appearing on behalf of the petitioner has vehemently contended that order in question reflects non-application of mind and is also in complete violation of principles of natural justice. Learned advocate has contended that the order suffers from the vice of non-application of mind in view of the fact that material circumstances which were brought before the authority have not at all been dealt with nor any subjective satisfaction, on such contention, is reflecting in an order and further despite the fact that there is absolutely no material with respect to other areas, the authority has straightway, in an arbitrary manner, has passed an order externing the petitioner from several areas which are incorporated in an order and that too for a substantial period of one year completely. In this view of the matter, the order ex facie reflects arbitrariness as well as suffers from vice of non-application of mind and favourable circumstances appear to have not been considered and dealt with. It is in this view of the matter order requires to be quashed and set aside. Learned advocate for the petitioner has further contended that even the offence for which petitioner has been attributed is of a private nature and the case is pending and, therefore, on account of occurrence of even such solitary incident the public at large is not getting affected. As a result of this, stringent powers of externment ought not to have been utilised against the petitioner. Learned advocate has further contended that powers are always coupled with conscious duty not to act arbitrarily and has to act on the touchstone of constitutional mandate and as such principle has been violated, the order in question requires to be corrected. Learned advocate for the petitioner in support of his case has relied upon the decision of this Court rendered in Special Criminal Application No.1383 of 2018 decided on 02.08.2018. No other submissions have been made.