Abdulbhai Mahmadbhai Ghanchi vs State of Gujarat and 2

G.R. Udhwani, J.—The petitioner questions the order dated 01.08.2013 passed by the Joint Secretary, Home Department, Sachivalaya, Gandhinagar in Externment Appeal No. 152 of 2013 and order dated 15.02.2013 passed by the Sub Divisional Magistrate, Viramgam in M.A.G./HDP/Case No. 36 of 2012, whereby the petitioner was externed for a period of one year on the ground that his criminal acts were potential enough to disturb public order. Various contentions were raised including the contention that along with the show-cause-notice, no documents were supplied to the petitioner, thus depriving him an opportunity to make effective representation before the Externing Authority/Appellate Authority.

Countering this submission, the learned APP would contend that no such ground was urged before the Externing Authority or the Appellate Authority and therefore, it was not permissible for the petitioner to raise it before this Court for the first time.

Admittedly, in the show-cause-notice, reference to nine cases lodged against the petitioner was made and it was stated that the petitioner being head strong person, the witnesses were not willing to depose in the said cases. However, in the impugned order, for the first time, various other allegations including the allegation that the petitioner was conducting himself in a manner as would incite the tension amongst Hindus and Muslims were made. The Externing Authority also relied upon the statement of five witnesses to corroborate the fact that the petitioner was a head strong person. The petitioner has made grievance in Paragraph-6 of the petition that no copies of documents came to be supplied to him. No affidavit-in-reply is filed to controvert the said averments made on oath. Even otherwise, as is apparent from the impugned order of externment, the Externing Authority, for the first time referred to five statements of the unnamed witnesses, casting aspersions against the petitioner that he was head strong person. It is therefore clear that the petitioner was not called upon to show cause on the basis of such material and thus was deprived of an opportunity to make effective representation before the Externing as well as Appellate Authority.

The duty is cast upon the Externing Authority to supply the material on which it seeks to rely upon since it is a question of liberty of an individual under Article 21 of the Constitution of India. Such duty must be discharged strictly having not done that, contention as above before this Court under Article 226 of the Constitution of India by State, cannot be countenanced. Accordingly, the impugned orders are quashed and set aside. Rule is made absolute with no order as to costs. Direct Service is permitted.