JUDGMENT Abhay S. Oka, J.
1. On 28th June, 2005, the Counsel appearing for the parties were put to notice that this petition of the year 2004 challenging the order of externment will be heard finally at admission stage. Accordingly, on 28th June, 2005 this petition was fixed on 12th July, 2005. Though an Affidavit-in-reply dated 5th August, 2004 was already filed on 12th July, 2005, time was granted to the respondents to file additional reply till 14th July, 2005. On 14th July, 2005 again time was granted till 21st July, 2005. In the meanwhile on 18th July, 2005 affidavit-in-reply was filed by the respondent No. 2. On 3rd August, 2005, submissions were heard and the petition was kept on 9th August, 2005 for dictation of judgment. On 9th August, 2005 some documents were tendered by the learned A.P.P. and therefore, the Counsel appearing for the parties were heard and today this petition is kept for judgment.
2. A show-cause notice dated 2nd October, 2002 was issued by the respondent No. 2 to the petitioner calling upon the petitioner to show cause as to why he should not be externed under the provisions of Section 57(a)(i) of the Bombay Police Act, 1951. It was urged in the show cause notice that serious crimes have been registered against the petitioner. Reliance was placed on the 11 offences registered against the petitioner from the year 1994 to 2002. It was stated that in case of offence registered in the year 1999, the petitioner has been convicted. A reply was submitted by the petitioner to the said show cause notice. Order of externment has been passed on 5th April, 2004 by the respondent No. 1. An appeal was preferred by the petitioner for challenging the order of externment which came to be dismissed by order dated 29th June, 2004 passed by the respondent No. 1 - State Government.
3. Shri Marwadi, the learned counsel appearing for the petitioner submitted that the order of externment has been passed after expiry of a period of 18 months from the date on which show cause notice was issued. He submitted that the respondent No. 1 has relied upon nine offences which have been registered against the petitioner between the period from 1994 to 1998. He pointed out that in case of one offence registered in the year 1999, the petitioner has been convicted and the appeal against the order of conviction has been admitted by this Court. He pointed out that last offence relied upon in the show cause notice is registered in the year 2002 and in connection with the said offence, the petitioner has not been arrested. He submitted that the order of externment could not have been passed on the basis of offences which are registered against the petitioner from the year 1994 to 1999. He submitted that the offence registered in the year 2002 cannot be the basis of the order of externment as the petitioner has not been arrested in connection with the said offence. He submitted that because of the gross delay in passing the order, the live link between the order of externment and the charges which are levelled against the petitioner has been snapped.
4. The learned A.P.P. has opposed the petition by pointing out that the delay in passing the order has been satisfactorily explained by the respondent No. 2 in his affidavit dated 18th July, 2005. The learned A.P.P. submitted that as the delay has been properly explained, on that ground, the order cannot be set aside. The learned A.P.P. submitted that in connection with the offence which was registered against the petitioner in the year 2002, he has been arrested on 30th May, 2005. The learned A.P.P. on 9th August, 2005 in her further submissions submitted that the offences alleged against the petitioner are of very serious nature and therefore, it was necessary to initiate preventive action. The learned A.P.P. submitted that only because of delay in passing the order, live link between the preventive action and the allegations against the petitioner is not snapped.
5. In support of the contention of the petitioner on the basis of the alleged delay in passing the order of externment, the reliance has been placed by the learned Counsel for the petitioner on the decision of the Gujarat High Court reported in 1990 CH.L.J. page 279, Laxmansingh Vir Bahadursingh Gurkha v. State of Gujarat and Anr.. Relevant part of the said decision of the Gujarat High Court in paragraph 10 reads thus :
"10. Applying the general test laid down by the Supreme Court even in more drastic action of detention, it may be conveniently observed that in the externment proceedings in which the notice is served and the time is taken by the proposed externee in examining the witnesses; in submitting the explanation and also in submitting the written or oral arguments by the Advocate of the proposed externee, it is required to be excluded in considering the delay. Apart from the fact that the notice is served and the case passes through the various stages maintaining the continuity of the proceedings till the date of passing of the externment order, clearly establishes that the concerned authority had not given up the proceedings of externment. It may be that due to various reasons some delay might be caused in passing the final order, but till it is established that the allegations are stale or no live-link exists between the allegations made in the notice and the final order, or that the allegations are illusory or that there is no real nexus between the grounds and the impugned order, the order cannot be set aside on the ground of delay, specially when no statutory time bound programme is fixed under the provisions of the Act. The Court should consider the explanation tendered by the concerned authorities and if reasonable explanation is tendered, establishing the live-link and not stale as discussed above, the order cannot be held to be vitiated only on the ground of delay. The submission of Mr. Bhatt learned Counsel for the petitioner, therefore, deserves to be repelled."
(Emphasis supplied) A reference will also have to be made to the decision of the Division Bench of this Court reported in 7991 Mh.L.J. page 833, Dilip Laxman Kokare v. S. M. Ambedkar and Anr.. Before the Division Bench the challenge was to the order of externment and there was delay of about 1 1/2 years in passing the order of externment. While considering the effect of the delay in passing the order of externment, in paragraph 3 of the decision, the Division Bench observed as under:
"3. As against this Mr. Chopda, learned A.P.P. for the respondents has drawn our attention to the affidavit of the Deputy Commissioner of Police, Zone-II, filed in reply to the petition. The authorities contend that the delay of approximately I 1/2 years was occasioned by the petitioner. Unfortunately, certain vague statements have been set out in the affidavit, cumulatively indicating that it was because of the delay on. the part of the petitioner and his learned Advocate that the externment proceedings could not be completed. In our view, such an explanation cannot be availed of by the externing authorities for the reason that proceedings by way of an externment order are essentially preventive by nature and the very essence of such proceedings is that they must be expeditiously completed. If the object of externing a particular person is in order to remove him from the scene of his obnoxious activities which are having a detrimental effect in that area, the entire objective gets frustrated if the proceedings are allowed to drag on for an abnormally long period and it cannot then be said, that there exists a live link between the charges that are levelled and the preventive action that is completed. The enquiry officer was not at all helpless if the petitioner and/or his learned counsel kept delaying the matter, as alleged. The petitioner was only entitled to a reasonable opportunity of showing cause and if this facility was being misused by dilation of the proceedings, it was the duty of the concerned authority to have enforced due expediency instead of allowing matters to drift.
(Emphasis supplied) In paragraph 4 of the said decision the Division Bench has further observed :
"4. It needs to be reiterated in these cases that the law visualizes a situation where an offender has become so persistently troublesome or dangerous to society around him that his physical presence in that area has to be done away with in the public interest. Delay in implementation, therefore, runs counter to and frustrates the objective behind these provisions. More importantly, a reviewing authority such as a Court, is unable in cases of gross delay, to ascertain as to whether the situation complained about is still in existence at the latter point of time when the order was passed. In the likely event of the wrongdoer at least in a few cases, having completely ceased indulgence in the offensive acts after service of the preliminary notice, and a prolonged period of good behaviour having followed the earlier activity that was complained of, the passing of an adverse order even if earlier justified may no longer be valid. Alternatively, in the case of hardened and habitual offenders, with whom the police are most concerned, it is imperative that their activities are curbed at the earliest point of time. Dragging on enquiries for months and years will subject society to the torture from the offenders right through that long period and seriously undermine public confidence in the administration opening it to the inevitable charge of collusion. The casual and cavalier manner in which these proceedings were hitherto conducted, will have to be replaced by sense of purpose and vigour. In serious matters of public security, such as these, speed is the watchword, where the eye should be guided by the clock rather than the calendar, if at all there is honesty of approach."
(Emphasis supplied) In another decision of this Court reported in 1998 All MR (Cri.) page 1257, Hansraj Kanji Maru v. Deputy Commissioner of Police and Anr. this Court held that delay of 8V2 months in passing the order of externment was not fatal in view of the satisfactory explanation given by the authorities.
6. In the present case the delay is of about 18 months. A specific ground of delay was urged before this Court during the course of hearing and that is the reason why the affidavit dated 18th July, 2005 has been filed for explaining the delay. While considering the delay it must be kept in mind that all the offences which are relied upon in the order of externment save and except the one offence, relate to the period between 1994 and 1999. Only one offence is of the year 1999 for which the petitioner was convicted. It is specifically stated in the petition that the appeal against the order of conviction has been admitted in this Court and the said fact is not disputed in any of the affidavits filed by the respondents.
7. It is also to be borne in mind that the order of externment has been passed by the respondent No. 1 who is the Deputy Commissioner of Police on 5th April, 2004. Though there are two affidavits of the respondent No. 2 filed in the petition, there is no affidavit filed by the respondent No. 1 for explaining the delay in passing the order. The respondent No. 2 in his affidavit filed on 18th July, 2005 has stated that apart from inquiry against the petitioner, he was handling many important matters and therefore, he could complete the inquiry and submit his report to the respondent No. 1 only on 15th January, 2004. He has stated that the Deputy Commissioner of Police i.e. respondent No. 1 thereafter made enquiries and passed order dated 5th April, 2004. It is pertinent to note that there is no reference in the order of externment passed by the respondent No. 1 (Deputy Commissioner of Police) to any enquiry made by the respondent No. 2. There is nothing on record to show that why there is delay of 1 1/2 years on the part of the respondent No. 1 in passing the order of externment. There is no explanation for the delay on the part of the respondent No. 1. The delay in passing order of externment by itself is not fatal. However, there has to be some satisfactory explanation for the delay and the delay should not result in snapping live link. In my view, in both the affidavits which are on record, there is no explanation for the delay. It is not the case of respondents that the petitioner delayed the proceedings. The delay is very long and therefore, the authorities were under an obligation to explain the same. In view of the unexplained delay, it will have to be seen whether the live link is snapped.
8. It is tried to be submitted by the learned A.P.P. that the competent authority has relied upon the F.I.R. registered against the petitioner on 12th February, 2002 and therefore, the livelink is not snapped. It is pertinent to note that in the petition, a specific averment has been made that the said offence of the year 2002 has been registered by the Police against about 1000 persons who had participated in a rally of a successful candidate in an election and till the date of passing of the order of externment, the petitioner was not arrested in connection with the said offence. In the first affidavit-in-reply filed on 5th August, 2004, there is no denial of the assertion that the petitioner was not arrested in connection with the said case registered in the year 2002. The order of externment passed on 5th April, 2004 records that the petitioner was available during the enquiry made on the basis of the show cause notice. It is not the case that the petitioner was absconding. On 9th August, 2005, certain documents were placed on record by the learned A.P.P. showing that there is an entry in the station diary that in connection with the said offence registered on 12th February, 2002, the petitioner was arrested on 30th May, 2005. Surprisingly this entry is not referred to in the affidavit dated 18th July, 2005 filed by the respondent No. 2. A copy of the said F.I.R. is placed on record. The offence relates to a procession taken out by about 900 to 1000 workers of a political party after declaration of result of the election of the Municipal Corporation. Thus even assuming that the petitioner was arrested on 30th May, 2005, the fact remains that for the offence registered on 12th February, 2002, the petitioner was not arrested till the year 2004 when the order impugned was passed. Thus, if offence registered in 2002 is ignored, then the last offence registered against the petitioner is of 1999. There is nothing on record to show that after 1999 the petitioner continued with his alleged prejudicial activities till April, 2004. It is obvious that the delay resulted in snapping the live link between the preventive action and the allegations against the petitioner.
9. In my view, considering the facts and circumstances of the case, the order is vitiated because of delay in passing the same. As stated earlier delay is not at all explained. Hence, the petition must succeed and pass the following order :
(i) The petition is allowed in terms of prayer Clause (b).
(ii) Parties to act on an authenticated copy of this order.