MANUBHAI SUDHABHAI SODHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Special Criminal Application is to quash and set aside the order passed by the respondent No. 2, which is Annexure 'D' to the Special Criminal Application and also the notice Annexure 'B' to the Special Criminal Application. There is a further prayer to quash the order of the respondent No. I, who confirmed the externment order passed by the respondent No. 2. On 27-1-1987, the Deputy Police Commissioner, Surat City, who is the respondent No.2, issued notice under S.56 of the Bombay Police Act, alleging the following charges against the petitioner herein : "

(2.) The second point taken by Mr. Kapadia is that the witnesses are coming forward to give complaint and it is false to state that out of fear created by the dangerous activity of the petitioner, no witness/complainants are coming forward to give evidence against the petitioner herein. In respect of this submission the petitioner has averred in para 10(c) of the petition which is as under : "10(c). The petitioner submits that looking to the FIRs given, the latest case against the petitioner is dated 17-3-1986 wherein the complainant and the witnesses have come forward to file complaint against the petitioner, and therefore, it cannot be said that the witnesses are not coming forward to depose against the petitioner, nor can it be said that the complainant is not coming forward to complain against the petitioner. And, therefore, the apprehension shown by the externing authority that the people are diving in constant fear of injury to their person and property, and therefore, they do not come forward to depose against the petitioner is unwarranted in the facts and the circumstances of' the case."

(3.) The third point urged by Mr. Kapadia is that in the show cause notice the period of activity and the area of activity are not given for many of the instances alleged in the show cause notice and as such the externment order is vitiated. Mr. Kapadia further states that if there is no particulars regarding the time and place of occurrence even in respect of a single incident, the externment order has to be quashed." As regards the first submission made by Mr. Kapadia, learned counsel appearing for the petitioner, the correctness of it can be examined by adverting to the facts and circumstances of the present case. On 26-6-1986 the Police inspector of Athwa Lines Police Station, Surat submitted the proposal for externment of the petitioner. On 30-12-1986 the Superintendent of Police forwarded it to the Deputy Commissioner of Police for issuing show cause notice. On 27- 1 - 1987 the show cause notice was issued. Mr. Kapadia pointed out that from the date on which the proposal was sent, there is absolutely no valid explanation as to why the Superintendent of Police took so much time in forwarding the proposal to the externing authority. Along with the Additional Reply-Affidavit filed by the Superintendent of Police Mr. M. D. Antani, Annexure 'C' is attached to show the reason for the delay in forwarding the proposal. It has to be noted that the externment orders passed under the Bombay Police Act is not like the detention orders wherein after coming to know of a specific incident the immediate action is taken for detention. As far as the externment orders are concerned, such orders are passed after taking into consideration series of events of high-handed behaviour of the externee and also the Car in the mind of the public, witnesses and complainants in not coming forward to give evidence openly. Hence the subjective satisfaction of the externing authority after properly getting information regarding the continued behaviour of the externee, and also the prognosis that if such a person is not externed he will continue to perpetrate the same behaviour in future, is necessary for issuing a notice and also passing the order thereof. In this case the Superintendent of Police forwarded the proposal on 30-12-1986 after getting the proposal from the Police Inspector on 26-6- 1986. Annexure 'C' to the application sufficiently explains the various verifications made by the Superintendent of Police before he forwarded the proposal. It is unnecessary for us to elaborately state all those things mentioned in the Annexure 'C' except stating that the reasons given are sufficient to explain the delay alleged by the learned counsel appearing for the petitioner herein. In support of his contention Mr. Kapadia brought to our notice the decision rendered in special criminal application No.995/86 and No. 959/86 dated 22-6-1987. In this decision the Bench had occasion to consider the legality of the detention order in Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA). On the facts of that case it is clear that the authority concerned came to the definite conclusion regarding the involvement of the detenu as early as December 1985. In spite of that the order of detention was not passed till 26-6-1986. Further, the proposal for detention of detenu was initiated only on 27-3-1986, even though definite involvement of the detenu was very clear as early as December 1985. Thus, at every stage i.e. during the stage of proposal, during the stage of notice and during the stage of passing the detention order there were delays in that particular case. The learned Judges of this High Court after observing that there was absolutely no affidavit by the authorities who are responsible for such delay found that the delay vitiated the detention order. Both on the ground that the said judgment is in respect of a detention act and on the ground that the learned Judges found there was unexplained delay in sending the proposal and passing the detention order, we do not think that the said decision will be of any help to the facts and circumstances of the present case. As correctly put forth by Mr. G. D. Bhatt, learned Assistant Public Prosecutor, there is no time bound programme as in detention laws for the purpose of externing up S.56 of the Bombay Police Act. In para 3 of the Additional Affidavit-in-reply, Shri H. R. Gehlot, Deputy Commissioner of Police has clearly explained the delay, which, in our opinion, is reasonable and acceptable. The main thrust of Mr. Kapadia's argument is that the delay is significant before issuing the show cause notice. We have already discussed the reasons for such a delay in paragraph supra. In the case of Rajendrakumar v. State of Gujarat, reported in AIR 1988 SC 1255 the Supreme Court has also laid down as to when the delay will go to the root of vitiating the detention orders. In that connection the Supreme Court has observed (at page SC 1260; AIR 1988) :