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Judgment
The petitioner, who is the externee, has challenged; in the present petition preferred under Articles 21 and 226 of the Constitution of
India; the externment order dated 6.4.2016 passed by the respondent No. 2, which is served on 16.3.2017.
Heard the submissions of learned advocates appearing for the petitioner and learned APP for the respondent State.
The Deputy Police Commissioner, Surat City, issued notice on 30.5.2015 under section 59 of the Gujarat Police Act to the petitioner detenu inter alia alleging in the notice that the petitioner is dangerous persons and doing the activities by using force or violence. There is a specific allegation in the notice that the petitioner detenu was doing all these activities with the help of their associates within the jurisdiction of Salabatpura Police Station.
The respondent No.2 has passed the order of externment on 6.4.2016, which is served on 16.3.2017, externing the petitioners for a period of one year from the Surat City and Surat [Rural], Bharuch, Tapi, Navsari and Valsad districts.
Learned advocate for the petitioner contended that there is delay in passing the externment order passed by the externing authority and therefore, the order of externment should be quashed. It is also submitted by them that the authorities concerned have mechanically passed the order and externed the petitioner after the delay of nearly 11 months from issuance of the notice.
A specific point is taken by the petitioner in this petition contending that the order of externment has been passed after lapse of about 11 months from the date of issuance of show cause notice dated 30.5.2015. Therefore, the order of externment has been passed without considering the necessity to extern the petitioner after such lapse of time and therefore, the same are without any application of mind.
In court''s considered opinion, there is much force in the arguments advanced on behalf of the petitioner. In externing a person which is in public interest, the authorities are expected to act promptly and if the matter is delayed, the same will exhibit that there is no urgent need and no necessity to extern a person from a particular locality or a district. The externment order restricts or curtails the freedom of the movement of a person concerned and therefore, any lapse/delay on the part of authority concerned cannot be permitted and the benefit will go to the party concerned and on that ground, the externee will be entitled to the benefit of quashing of such order of externment.
It is true that mere delay in passing
externment order cannot be fatal to quash such an order, but in Court''s opinion, delay must be explained. In the present case, there is delay of nearly about 11 months. The preventive action should be taken immediately and any delay will definitely vitiate such an order.
Learned APP has submitted that such fact has not been contended in the reply filed by the petitioner before the competent authority in response to the show-cause notice and therefore, it cannot be taken into consideration, and that competent authority may not be aware about such fact and therefore, when alternative remedy in the form of statutory appeal is provided in the statute, this Court should continue its stand of dismissing such petition only on the ground of availability of alternative remedy.
Therefore, I do not find any substance in the argument by the learned APP for the simple reason that when order of externment is passed by Dy.Commissioner of Police and when show-cause notice is also given by the same Officer and when investigating agency is within the control of such authority, they have no reason to plead ignorance of the judgment of acquittal by the competent Court.
In view of the foregoing reason, the petition is allowed. The externment order dated 6.4.2016, which is served on 16.3.2017 passed by the respondent No.2 are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.