1. The petitioner, who is the externee, has challenged the order of externment dated 1.9.2015 passed by respondent No.1 in Externment Appeal No.185 of 2015 as well as the order dated 6.4.2015 passed by respondent No.2 by externing a petitioner for a period of one year from Bhavnagar city/district, Botad, Rajkot, Amreli, Surendranagar and Ahmedabad districts.
2. The respondent No.2 issued a show-cause notice u/s.56(a) of the Bombay Police Act (hereinafter referred to as the Act) to the petitioner - detenue inter alia alleging as to why he should not be externed for a period of two years from the territory of Bhavnagar city/district, Botad, Rajkot, Amreli, Surendranagar and Ahmedabad districts.
3. On 6.4.2015, respondent No.2 passed order externing the petitioner from Bhavnagar city/district, Botad, Rajkot, Amreli, Surendranagar and Ahmedabad districts for a period of two years. Being aggrieved by the said order, the petitioner challenged the said order before the Appellate Authority by way of filing Externment Appeal No.185 of 2015. The said appeal came to be partly modified on 1.9.2015 and the order passed by the respondent No.2 came to be modified by externing the petitioner from the territory of Bhavnagar city/district, Botad, Rajkot, Amreli, Surendranagar and Ahmedabad districts for a period of one year.
4. Mr.Patel, learned advocate appearing for the petitioner has relied upon the judgement delivered by this Court in the case of Aswin Chandulal Jaishwal V/s. Dy.Commissioner of Police, Vadodara City & Anr. reported in 1989(2) GLR 1429 and submits that the orders impugned in the petition are passed u/s.56(a) of the Bombay Police Act. He would submit that the cases registered against the petitioner are pending and the petitioner has not been convicted and, therefore, the authority has passed an order u/s.56(a) of the Bombay Police Act. The authority could have passed an appropriate order u/s.59 of the Act and could not have passed an order u/s.56(a) of the Act. Therefore, such order is bad in the eye of law. Learned advocate for the petitioner has also relied upon the judgements delivered by this Court in the case of Dafer Rahman Zarar V. State of Gujarat and Ors. reported in 1999(1) G.L.H. 425 as well as in the case of Premjibhai Devjibhai Mewada V. State of Gujarat and Ors . reported in 2006(3) G.L.H. 105 and submitted that in the above-mentioned judgement, there was three FIRs against the petitioner whereas the order of externment was passed considering more two cases. In the present case, there are three cases pending against the present petitioner whereas the order of externment was passed considering more five cases.
5. Mr.Mehta, learned Additional Public Prosecutor appearing for the respondents, has opposed this petition.
6. I have heard learned advocates appearing on behalf of the respective parties and the orders impugned in the present petition. In my opinion, ratio laid down by this Court in the case of Aswin Chandulal Jaishwal (supra) is applicable in the present case, especially in para-10, which deals with the power of the police officer for passing order of externment when the person is indulged in bootlegging activities. The impugned order is passed u/s.56(a) of the Act and not u/s.57 of the Act. Para-10 of the said judgement delivered in the case of Aswin Chandulal Jaishwal (supra) reads as under:
"10. If at all the allegations against the petitioner are that he is indulging in bootlegging activities, action can be contemplated only under Sec.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 Sec.57 of the Bombay Police Act, alternative cannot be sought by taking action under Sec.56 of the Bombay Police Act. As discussed above, it appears that the activities of the petitioner as a bootlegger are required to be stopped. Considering the notice, it transpires that the anti-social activity of bootlegging is required to be controlled and the petitioner is sought to be removed from the harms way for that purpose so that social culture and the social order may not be affected and other persons also may not follow the petitioner in indulging in such business. We have observed that even no material allegation of general nature based on any particular instance and stating the time and place at which such incident had occurred, is stated either in the notice or in the order. For all these reason, we allow the Special Criminal Application and set aside the externment order. Rule is made absolute."
7. I have also considered the facts of the present case as well as the facts of the case of Premjibhai Devjibhai Mewada V. State of Gujarat and Ors . reported in 2006(3) G.L.H. 105 which are identical. Hence, considering the overall facts and circumstances of the case, the present petition is allowed. The order of externment dated 1.9.2015 in Externment Appeal No.185 of 2015 passed by respondent No.1 as well as the order dated 6.4.2015 passed by respondent No.2 by externing a petitioner for a period of one year from Bhavnagar city/district, Botad, Rajkot, Amreli, Surendranagar and Ahmedabad districts are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.
