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SCR.A/2302/2009 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2302 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
RAKESH
NATWARBHAI PATEL - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MS
SUBHADRA G PATEL for
Applicant(s) : 1,
MR KL PANDYA, APP for Respondent(s) : 1,
RULE
SERVED BY DS for Respondent(s) : 2,
None for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 04/12/2009
ORAL
JUDGMENT
Rule.
Learned APP Mr.K.L.Pandya waives service of rule on behalf of the
respondents.
The
present petitioner has challenged the order passed by the Deputy
Commissioner, Zone-2, Surat, dated 16.3.2009 externing the petitioner
for a period of two years from the areas of Surat City, Surat Rural,
Bharuch, Narmada, Tapi, Navsari and Valsad on the basis of two
offences under the provisions of the Bombay Prohibition Act which was
registered against him. The said order was challenged by the
petitioner before the Addl.Secretary, Home Department, Govt.of
Gujarat, by way of filing appeal being Externment Appeal No.75 which
was also dismissed by the said authority by his order dated
30.9.2009. Both these orders under challenge in this Special Criminal
Application.
2. Learned
advocate for the petitioner submitted that only two offences are
registered against the petitioner under the Prohibition Act. It is
further submitted by him that the order dated 16.3.2009 is passed by
the Deputy Commissioner of Police under Section 56 of the Bombay
Police Act, 1951 which clearly shows that there is non application
of mind and therefore, both the orders are required to be quashed and
set aside. Relience is placed by the learned advocate on a decision
rendered by this Court in Special Criminal Application No. 83 of 2009
decided on 18.3.2009 in the case of Kalavatiben Mukeshkumar Vadi v.
State of Gujarat. In para 6 of the said judgment, it is held as
under:
6)
Having heard learned counsel for the parties and perusing the record
of the case and what is held by this Court in the case of Vaghari
Dhanabhai (supra) and in the case of Aswin Chandulal Jaishwal v. The
Deputy Commissioner of Police, reported in 1989 Cr.L.R. (Guj.) 517,
that if at all the allegations against the petitioner are that he
is indulging in bootlegging activities, action can be contemplated
only under Section 57 of the Bombay Police Act. If the police could
not secure conviction of the petitioner under the Bombay Prohibition
Act to enable to take externment proceedings under Section 57 of the
Bombay Police Act, alternative cannot be sought by taking action
under Section 56 of the Bombay Police Act . However, in the instant
case, since the externing authority has exercised power under Section
56(B) of the Bombay Police Act, which was partially confirmed by the
Appellate Authority, I am of the considered opinion that this is a
fit case to quash and set aside the impugned orders passed by the
externing authority as well as Appellate Authority .
3. In
the opinion of this Court, the said decision squarely covers the
facts of the case on hand and therefore, the petition is allowed and
the impugned orders passed by both the authorities below are quashed
and set aside. Rule is made absolute.
D.S.permitted.
Sreeram. (M.D.Shah,
J.)
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