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SCR.A/452/2010 1/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 452 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
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 ?
=========================================================
SABIRKHAN
YUSUFKHAN PATHAN - Applicant(s)
Versus
ADDITIONAL
SECRETARY & 2 - Respondent(s)
=========================================================
Appearance
:
MS
BANNA S DUTTA for
Applicant(s) : 1,
MS TK PATEL, ADDL.PUBLIC PROSECUTOR for
Respondent(s) : 1,
RULE SERVED BY DS for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 06/04/2010
ORAL
JUDGMENT
1. By
way of the present petition under Articles 14, 16 and 226 of the
Constitution, the petitioner challenges the notice dated 13.8.2008
issued by Assistant Police Commissioner, G Division, Ahmedabad
City-respondent no.3 [Annexure:A], order dated 4.4.2009 passed by the
Deputy Police Commissioner, Zone-6, Ahmedabad City, [Annexure:E] and
the order dated dated 28.1.2010 passed by the Additional Secretary,
Home Department-respondent no.1 in Externment Appeal No. 120 of 2009.
2. It
is submitted by learned advocate Ms. Banna Datta appearing for the
petitioner that the petitioner is involved in three offences as per
notice at Annexure:A to the petition. First offence mentioned is Ist
CR No. 79 of 2005 for the offence punishable under Sections 143, 144,
145, 147, 148, 149, 151, 186, 332, 336, 353, 506[2] of Indian Penal
Code and under Section 135[i] of the Bombay Police Act, 1951. Second
offence registered against the petitioner as mentioned in the notice
is Prohibition CR No. 5083/07 for the offence punishable under
Sections 66[b], 65[a][e] and 81 of the Bombay Prohibition Act, 1949,
while third offence registered against the petitioner is Prohibition
CR No. 5055/08 for the offence punishable under sections 66[b],
65[a][e] and 81 of the Bombay Prohibition Act. Learned advocate
submitted that the competent authority has considered stale cases of
2005 and 2007 while the petitioner is already acquitted in the
prohibition case being Prohibition CR No. 5055/08. Thus, there is
complete non-application of mind by the competent authority in
passing the externment order. Considering the aforesaid aspect of the
matter, the petition deserves to be allowed and the notice dated
13.8.2008 issued by respondent no.3, order dated 4.4.2009 passed by
Deputy Police Commissioner, Zone-6, Ahmedabad City and the order
dated 28.1.2010 passed by the respondent no.1 in Externment Appeal
No. 120 of 2009 be quashed and set aside.
3. Ms.
T.K. Patel, learned APP, representing the respondents, while opposing
the writ petition and averments made therein, submitted that there is
no infirmity in the order passed by the competent authority and the
competent authority has taken into consideration the entire material
on the record of the case before passing the order of externment as
provided under the Bombay Police Act and the rules framed thereunder.
Thus, learned APP submitted that the petitioner has not made out a
case for grant of relief as prayed for in the petition and the
petition is devoid of merit and deserves to be dismissed.
4. I
have heard the learned advocates of both the sides at length and in
great detail. I have considered the averments made in the petition
and perused the show cause notice dated 13.8.08 at Annexure:A to the
petition, wherein, three offences are mentioned, being Ist CR No.
79/05 for the offence punishable under Sections 143, 144, 145, 147,
148, 149, 151, 186, 332, 336, 353, 506[2] of Indian Penal Code and
under Section 135[i] of the Bombay Police Act, second offence being
Prohibition CR No. 5083/07 for the offence punishable under Sections
66[b], 65[a][e] and 81 of the Bombay Prohibition Act and third
offence being Prohibition CR No. 5055/08 for the offence punishable
under sections 66[b], 65[a][e] and 81 of the Bombay Prohibition Act.
I have perused the order dated 4.4.09 passed by the Deputy
Commissioner of Police, Zone-6, Ahmedabad City and the order dated
28.1.2010 passed by the Additional Secretary, Home Department, by
which the Additional Secretary, Home Department has confirmed the
order dated 4.4.09 passed by the Dy. Police Commissioner, Zone-6,
Ahmadabad City. The offences which are mentioned in the the order
passed by the competent authority are for the years 2005, 2007 and
2008. It has been contended by the learned advocate for the
petitioner that in prohibition case which was registered in the year
2008, the petitioner is acquitted and since reference is made of
cases of 2005 and 2007, they can be said to be stale cases and there
was complete non-application of mind by the competent authority in
passing the order of externment. There is lot of force in the
submission canvassed by the learned advocate on behalf of the
petitioner and the State has not controverted the aforesaid
averments made in the petition by filing appropriate affidavit in
reply. Thus, even the averments made in the petition have remained
uncontroverted. In view of the aforesaid facts and circumstances of
the case, the notice dated 13.8.2008 issued by respondent no.3, order
dated 4.4.2009 passed by the Deputy Police Commissioner, Zone-6,
Ahmedabad City as confirmed by the order dated dated 28.1.2010
passed by the respondent no.1 in Externment Appeal No. 120 of 2009,
in my view, deserve to be quashed and set aside.
5. For
the foregoing reasons, the petition is allowed. Notice dated
13.8.2008 issued by respondent no.3, order dated 4.4.2009 passed by
the Deputy Police Commissioner, Zone-6, Ahmedabad City and the order
dated 28.1.2010 passed by the respondent no.1 in Externment Appeal
No. 120 of 2009 are hereby quashed and set aside. Rule is made
absolute.
[H.B.
ANTANI, J.]
pirzada/-
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