( 1 ) THE above acquittal appeal arises out of the judgment and order dated 2/12/1980 in Criminal Case No. 407 of 1980 passed by the learned J. M. F. C. Anjar-Kachchh whereby the respon- dent-accused Luhar Mithu @ Harun Ismail who came to be tried for the offence under Sec. 142 of Bombay Police Act 1951 (for short hereafter referred to as `police Act) came to be acquitted

( 2 ) THE accused was admittedly externed out of the area of Kachchh district and all adjoining districts by the externment order dated 16/10/1979 passed under Sec. 56 of the Police Act by the learned Sub-Divisional Magistrate Anjar for two years. The accused hat also admittedly entered Anjar town without any prior permission and was arrested on 6/08/1980 by P. S. I. Mr. V. S. Patel. Thus for the alleged breach of externment order a complaint came to be filed for offence under Sec. 142 of the Police Act against the accused who was ultimately chargesheeted for the same to stand the trial.

( 3 ) AT the trial the accused pleaded not guilty and further sub- mitted that he had come to Anjar town from Palanpur on receiving information that the health of his father was bad.

( 4 ) THE trial Court after recording and appreciating the evidence acquitted the accused mainly relying upon a Full Bench decision in the case of Sabuddin Shaikh Mansur v. J. S. Thakar reported in (1968) IX GLR 142 (for short hereafter referred to as P. B. Decision Supra ).

( 5 ) HENCE this acquittal appeal by the aggrieved State.

( 6 ) MR. D. K. Trivedi learned Addl. P. P. appearing for the State submitted that the impugned order of acquittal on face of it is illegal as the said F. B. decision (Sabuddins case) (supra) is not applicable at all to the instant case as the same is with reference to the unamended Sec. 56 of the Police Act where the word `specially empowered was very much in existance. Submits Mr. Trivedi that the word `specially earlier appearing in Sec. 56 of the Police Act subsequently appears to have been deleted by an amendment by virtue of Sec. 11 of the Bombay Police (Gujarat Amendment) Act 1977 that is Gujarat Act No. 16 of 1978 (for short referred as the said Amending Act ).

( 7 ) AS against this Mr. B. R. Parikh learned Advocate (appointed) has supported the order of acquittal. He in the alternative further submitted that if it is held that the trial Court has committed an error in relying upon the F. B. decision (Sabuddins case) (supra) even then it will be too harsh to convict and sentence the accused after 9 years.

( 8 ) NOW in order to appreciate the correctness and legality of the submission made by Mr. Trivedi let us advert first to Sec. 142 of the Police Act for which the accused came to be tried. This Sec. 142 in substance pertains to the penalty for entering without permission to the area from which a person is directed to remove himself or for over-staying. It also provides for punishment on being convicted. That part of Sec. 142 of Police Act reads as under :sec. 142 Without prejudice to the power to arrest and remove a person in the circumstances and in the manner provided in Sec. 62 any person who (a) xxx. . . . . . xxx. . . . . . xxx. . . . . . xxx. . . (b) xxx. . . . . . xxx. . . . . . xxx. . . . . . xxx. . . shall on conviction be punished with imprisonment for a term which may extend to two years but shall not except for reasons to be recorded in writing be less than six months and shall also be liable to fine.

( 9 ) NOW lot me next advert to that part of the prosecution evidence which refers to the complained a breach of the said externment order dates 16/10/1979 passed under Sec. 56 of the Police Act. The prosecution in this regard has examined one Mr. B. M. Bhatt P. W. 6 who was Sub-Divisional Magistrate Anjar at the relevant point of time. He has stated that he has been empowered by the State Govern- ment to pass the order of externment under Sec. 56 of the Police Act by virtue of a Notification dated 30/09/1978 Ex. 20 issued by Home Depa