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CASE NO.:

Appeal (crl.) 530 of 2006

PETITIONER:

Lt. Governor, NCT & Ors.

RESPONDENT:

Ved Prakash @ Vedu

DATE OF JUDGMENT: 05/05/2006

BENCH:

S.B. Sinha & P.K. Balasubramanyan

JUDGMENT:

J U D G M E N T

[Arising out of SLP (CRL.) No. 5212 of 2005]

S.B. SINHA, J :

Leave granted.

An externment proceeding was initiated against the Respondent herein

in terms of Section 47 of the Delhi Police Act, 1978. The said proceeding

was initiated inter alia on the ground that his movements and acts had been

causing alarm, danger and harm to person and property.

It is not in dispute that the following criminal proceedings were

instituted against the Appellant:

S.No.

FIR No.

Date

Section of Law

Police

Station

1.

124

29.04.82

308/34 IPC

Kalyan Puri

2.

123

02.03.84

452/324/34 IPC

Kalyan Puri

3.

469

08.11.85

308/506/427/323/34

IPC

Kalyan Puri

4.

73

19.02.91

307/506/34 IPC

Kalyan Puri

5.

15

09.01.93

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147/148/149/323 IPC

Trilok Puri

6.

480

10.08.93

304-A IPC

Trilok Puri

7.

4

05.01.99

452/342/323/354/427/34

IPC

Trilok Puri

8.

309

11.09.99

354/509/323/506/34

IPC

Trilok Puri

9.

310

12.09.09

452/308/34 IPC

Trilok Puri

10.

396

29.10.01

458/323/427/506 IPC

Trilok Puri

Whereas the Respondent was convicted in relation to the instances

and/ or the first information reports detailed at Sr. No. 4 and 9 hereof, in

other cases, he was acquitted except in the cases detailed at Sr. Nos. 1 and

10 under Sections 308/34 and 458/323/427/506 of the Indian Penal Code

respectively which are said to be still pending.

In the show cause notice issued to the Respondent, it was alleged:

"That your movement and acts causing and

calculated to cause alarm, danger harm to the

person or property. There are reasonable grounds

to believe that you engage or likely to engage in

the commission of offence punishable under

Chapter XVI, XVII, XXII or IPC. Is it a fact that

you were not involved in a single isolated incident

but indulged in criminal activities since 1982 and

continued and dangerous so as to render you being

at large in Delhi or in any part thereof is hazardous

to the community.

That the witnesses are not willing to come

forward to give evidence in public against you by

reasons of apprehension on their part as regards the

safety of their person or property. There are

reasonable grounds to believe that you are likely to

engage yourself in the commission of offence like

those in para (i) above.

You are likely called upon to explain as to

why an order for externment out of the limits of

the National Capital Territory of Delhi for a period

of two years in accordance with the provisions of

Section 47 of Delhi Police Act, 1978 be not passed

against you."

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Respondent filed a show cause. He also examined witnesses on his

own behalf. According to him, he had been implicated in many false cases.

As the officials of the Delhi Police were inimically disposed towards his

brother, they had implicated him in many false cases without any just or

sufficient cause.

On or about 31.12.2003, a supplementary notice was issued by

Appellant No. 3 purported to be under Section 50 of the Delhi Police Act in

continuation of the previous notice dated 7.8.2003.

On or about 7.4.2004 an order of externment was passed against the

Respondent directing his removal beyond the limits of the National Capital

Territory of Delhi for a period of two years with effect from 13.4.2004.

Having regard to the contentions raised at the bar, at the outset, we

may notice Sections 47, 48 and 50 of the Delhi Police Act read:

"47. Removal of persons about to commit

offences.--

Whenever it appears to the Commissioner of

Police\027

(a) that the movements or acts of any person are

causing or are calculated to cause alarm, danger or

harm to person or property; or

(b) that there are reasonable grounds for believing

that such person is engaged or is about to be

engaged in the commission of an offence involving

force or violence or an offence punishable under

Chapter XII, Chapter XVI, Chapter XVII or

Chapter XXII of the Indian Penal Code or under

section 290 or sections 489A to 489E (both

inclusive) of that Code or in the abetment of any

such offence; or

(c) that such person\027

(i) is so desperate and dangerous as to render his

being at large in Delhi or in any part thereof

hazardous to the community; or

(ii) has been found habitually intimidating other

persons by acts of violence or by show of force; or

(iii) habitually commits affray or breach of peace

or riot, or habitually makes forcible collection of

subscription or threatens people for illegal

pecuniary gain for himself or for others; or

(iv) has been habitually passing indecent remarks

on women and girls, or teasing them by overtures;

and that in the opinion of the Commissioner of

Police witnesses are not willing to come forward to

give evidence in public against such person by

reason of apprehension on their part as regards the

safety of their person or property, the

Commissioner of Police may, by order in writing

duly served on such person, or by beat of drum or

otherwise as he thinks tit, direct such person to so

conduct himself as shall seem necessary in order to

prevent violence and alarm or to remove himself

outside Delhi or any part thereof, by such route

and within such time as the Commissioner of

Police may specify and not to enter or return to

Delhi or part thereof, as the case may be, from

which he was directed to remove himself.

Explanation.\027A person who during a period

within one year immediately preceding the

commencement of an action under this section has

been found on not less than three occasions to have

committed or to have been involved in any of the

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acts referred to in this section shall be deemed to

have habitually committed that act.

48. Removal of persons convicted of certain

offences.--

If a person has been convicted\027

(a) of an offence under Chapter XII, Chapter XVI

or Chapter XVII of the Indian Penal Code; or

(b) of an offence under section 3 or section 4 of the

Delhi Public Gambling Act, 1955, or under section

12 of that Act in so far as it relates to satta

gambling or on two or more occasions under any

other provision of that Act (including section 12 of

that Act in so far as it does not relate to satta

gambling); or

(c) of any offence under the Suppression of

Immoral Traffic in Women and Girls Act, 1956; or

(d) of any offence under section 25, section 26,

section 27, section 28 or section 29 of the Arms

Act, 1959; or

(e) of any offence under section 135 of the

Customs Act, 1962; or

(f) of any offence under section 61, section 63 or

section 66 of the Punjab Excise Act, 1955, as in

force in Delhi; or

(g) on two or more occasions of an offence

under\027

(i) the Opium Act, 1878; or

(ii) the Dangerous Drugs Act, 1930; or

(iii) the Drugs and Cosmetics Act, 1940; or

(iv) section 11 of the Bombay Prevention of

Begging Act, 1959, as in force in Delhi; or

(h) on three or more occasions of an offence under

section 105 or section 107 of this Act,

the Commissioner of Police may, if he has reason

to believe that such person is likely again to

engage himself in the commission of any of the

offences referred to in this section, by order in

writing, direct such person to remove himself

beyond the limits of Delhi or any part thereof, by

such route and within such time as the

Commissioner of Police may specify and not to

enter or return to Delhi or any part thereof, as the

case may be, from which he was directed to

remove himself.

50. Hearing to be given before order under

section 46, 47 or 48 is passed.--

(1) Before an order under section 46, section 47 or

section 48 is made against any person, the

Commissioner of Police shall by notice in writing

inform him of the general nature of the material

allegations against him and give him a reasonable

opportunity of tendering an explanation regarding

them.

(2) If such person makes an application for the

examination of any witness to be produced by him,

the Commissioner of Police shall grant such

application and examine such witness, unless for

reasons to be recorded in writing, the

Commissioner of Police is of opinion that such

application is made for the purpose of causing

vexation or delay.

(3) Any written explanation put in by such person

shall be filed with the record of the case.

(4) Such person shall be entitled to be represented

in the proceeding before the Commissioner of

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Police by a counsel.

(5) (a) The Commissioner of Police may for the

purpose of securing the attendance of any person

against whom any order is proposed to be made

under section 46, section 47 or section 48 require

such person, by order in writing, to appear before

him and to furnish a security bond with or without

sureties for attendance during the inquiry.

(b) The provisions of sections 119 to 124 (both

inclusive) of the Code of Criminal Procedure,

1973, shall, so far as may be, apply in relation to

the order under clause (a) to furnish security bond.

(6) Without prejudice to the foregoing provisions,

the Commissioner of Police, while issuing notice

to any person under sub-section (2) may issue a

warrant for his arrest and the provisions of sections

70 to 89 (both inclusive) of the Code of Criminal

Procedure, 1973, shall, so far as may be, apply in

relation to such warrant.

(7) The provisions of section 445, section 446,

section 447 or section 448 of the Code of Criminal

Procedure, 1973, shall, so far as may be, apply in

relation to all bonds executed under this section."

The proposal to initiate an appropriate proceeding under the Act was

considered in the noting / proceeding dated 7th August, 2003 of Respondent

No. 3 herein, which reads as under:

"Two public witnesses appeared before Shri V.V.

Chaudhary the then Additional Deputy

Commissioner of Police/ East to depose against

Ved Prakash @ Vedu s/o Shri Prem Singh, r/o S-4,

Pandav Nagar, Delhi. Camera statements

recorded. On the basis of the material placed

before me and after discussing the same with ACP

Kalyan Puri and S.H.O./ Pandav Nagar and after

having gone through the statement of camera

witnesses, I am satisfied that sufficient grounds

exist for proceeding against the respondent under

Section 47, DP Act."

It is not in dispute that the provisions of Section 56 of the Bombay

Police Act is in pari materia with Section 45 of the Delhi Police Act.

Interpretation of the said provision of the Bombay Police Act came up for

consideration before a Bench of this Court in Pandharinath Shridhar

Rangnekar v. Dy. Commissioner of Police, State of Maharashtra, [AIR 1973

SC 630] wherein inter alia the following contentions were raised:

"(iii) The externing authority must pass a reasoned

order or else the right of appeal would become

illusory.

(iv) The State Government also ought to have

given reasons in support of the order dismissing

the appeal. Its failure to state reasons shows non-

application of mind;"

Chandrachud, J., as the learned Chief Justice then was, opined:

"\005An order of externment can be passed under

clause (a) or (b) of Section 56, and only if, the

authority concerned is satisfied that witnesses are

unwilling to come forward to give evidence in

public against the proposed externee by reason of

apprehension on their part as regards the safety of

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their person or property. A full and complete

disclosure of particulars such as is requisite in an

open prosecution will frustrate the very purpose of

an externment proceeding. If the show-cause

notice were to furnish to the proposed externee

concrete data like specific dates of incidents or the

names of persons involved in those incidents, it

would be easy enough to fix the identity of those

who out of fear of injury to their person or

property are unwilling to depose in public. There is

a brand of lawless element in society which is

impossible to bring to book by established

methods of judicial trial because in such trials

there can be no conviction without legal evidence.

And legal evidence is impossible to obtain,

because out of fear of reprisals witnesses are

unwilling to depose in public. That explains why

Section 59 of the Act imposes but a limited

obligation on the authorities to inform the

proposed externee "of the general nature of the

material allegations against him". That obligation

fixes the limits of the co-relative right of the

proposed externee. He is entitled, before an order

of externment is passed under Section 56, to know

the material allegations against him and the

general nature of those allegations. He is not

entitled to be informed of specific particulars

relating to the material allegations."

The Court referring to its earlier decision in Hari Khemu Gawali v.

The Deputy Commissioner of Police, Bombay and Another [1956 SCR 506]

and State of Gujarat v. Mehboob Khan Osman Khan [1968 (3) SCR 746]

rejected the contention that the notice issued against the externee was vague.

As regards points (iii) and (iv), as noticed hereinbefore, it was stated:

"14. The third and fourth point have the same

answer as the second point just dealt with by us.

Precisely for the reasons for which the proposed

externee is only entitled to be informed of the

general nature of the material allegations, neither

the externing authority nor the State Government

in appeal can be asked to write a reasoned order in

the nature of a judgment. If those authorities were

to discuss the evidence in the case, it would be

easy to fix the identity of witnesses who are

unwilling to dispose in public against the proposed

externee. A reasoned order containing a discussion

of the evidence led against the externee would

probably spark off another round of tyranny and

harassment."

In State of Maharashtra and another v. Salem Hasan Khan [AIR 1989

SC 1304], this Court followed the dicta in Pandharinath Shridhar Rangnekar

(supra).

In State of NCT of Delhi and Another v. Sanjeev Alias Bittoo [(2005)

5 SCC 181], this Court yet again held:

"25. As observed in Gazi Saduddin case

satisfaction of the authority can be interfered with

if the satisfaction recorded is demonstratively

perverse based on no evidence, misreading of

evidence or which a reasonable man could not

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form or that the person concerned was not given

due opportunity resulting in prejudice. To that

extent, objectivity is inbuilt in the subjective

satisfaction of the authority.

26. The material justifying externment can also

throw light on options to be exercised. If referring

to the materials, the authority directing externment

also indicates the option it thinks to be proper and

appropriate, it cannot be said to be vitiated even

though there is no specific reference to the other

options. It is a matter of legitimate inference that

when considering materials to adjudicate on the

question of desirability for externment, options are

also considered and one of the three options can be

adopted. There cannot be any hair-splitting in such

matters. A little play in the joints is certainly

permissible while dealing with such matters."

The High Court by reason of the impugned judgment rejected the

contention raised on behalf of the Respondent that the show cause notice

was vague or unspecific stating:

"\005They do contain the general nature of the

material allegations against the petitioner. Details

of the cases in which he was involved are listed

and a general allegation about his being a danger

to person and property, has been levelled. The

petitioner understood the drift of these allegations

and replied to them suitably. In the light of these, I

am of the opinion that the charges and grounds

detailed in the show cause notices are not vague or

vitiated."

However, having held so, the learned Judge proceeded to consider the

matter as to whether there existed any evidence in support of the allegations

made against the externee or not. It relied upon a Division Bench decision

of the High Court in Bhim Singh v. Lt. Governor of Delhi & Anr. [2002 (2)

JCC 1132] and opined that in view of the fact that in the show cause notice

in regard to the criminal cases the names of the witnesses who were said to

be reluctant to or did not come forward to depose against the Respondent on

account of fear, had not been disclosed, the principles of natural justice have

been violated. It was further held that the authorities had not applied their

mind stating:

"\005This minimal requirement of objective

material, as well as application of mind to it is

vitally necessary in opinion formation under

Section 47 of the Act. As the decision in Ishaque

suggests, the record should clearly suggest or

support the satisfaction and should show in which

cases the witnesses had declined to appear on

account of apprehension to their safety. No doubt,

a list of cases appears in both the show cause

notices. However, no attempt has been made in

the notices to connect as to in which of those cases

witnesses were not forthcoming due to the

petitioner's activities\005"

The law operating in the field is no longer res integra which may

hereinafter be noticed:

(i) In a proceeding under the Act all statutory and constitutional

requirements must be fulfilled.

(ii) An externment proceeding having regard to the purport and object

thereof, cannot be equated with a preventive detention matter.

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(iii) Before an order of externment is passed, the proceedee is entitled

to an opportunity of hearing.

(iv) The test of procedural safeguards contained in the Act must be

scrupulously complied with.

(v) The satisfaction of the authority must be based on objective

criteria.

(vi) A proceeding under Section 47 of the Delhi Police Act stands on a

different footing than the ordinary proceeding in the sense that

whereas in the latter the details of the evidence are required to be

disclosed and, thus, giving an opportunity to the proceedee to deal

with them, in the former, general allegations would serve the

purpose.

The High Court ordinarily should insist production of the entire

records including the statement of the witnesses to express their intention to

keep their identity in secret so as to arrive at a satisfaction that such

statements are absolutely voluntary in nature and had not been procured by

the police officers themselves.

We have noticed hereinbefore, that the High Court itself held that the

allegations made in the notice satisfy the statutory requirement but, in our

opinion, the High Court was not correct in coming to the finding that the

third Appellant was bound to disclose the cases in which the witnesses had

not deposed against the Respondent out of fear or because of threat, etc. If

an attempt is made to communicate the cases in which witnesses were not

forthcoming due to the activities of the proceedee, the same would violate

the secrecy required to be maintained and would otherwise defeat the

purpose for which Section 47 of the Act had been enacted.

An order of externment must always be restricted to the area of illegal

activities of the externee. The executive order must demonstrate due

application of mind on the part of the statutory authority. When the validity

of an order is questioned, what would be seen is the material on which the

satisfaction of the authority is based. The satisfaction of the authority

although primarily subjective, should be based on objectivity. But

Sufficiency of material as such may not be gone into by the writ court unless

it is found that in passing the impugned order the authority has failed to take

into consideration the relevant facts or had based its decision on irrelevant

factors not germane therefor. Mere possibility of another view may not be a

ground for interference. It is not a case where malice was alleged against the

third Appellant.

The High Court and this Court would undoubtedly jealously guard

the fundamental rights of a citizen. While exercising the jurisdiction rested

in them invariably, the courts would make all attempts to uphold the human

right of the proceedee. The fundamental right under Article 21 of the

Constitution of India undoubtedly must be safeguarded. But while

interpreting the provisions of a statute like the present one and in view of the

precedents operating in the field, the court may examine the records itself so

as to satisfy its conscience not only for the purpose that the procedural

safeguards available to the proceedee have been provided but also for the

purpose that the witnesses have disclosed their apprehension about deposing

in court truthfully and fearfully because of the activities of the proceedee.

Once such a satisfaction is arrived at, the superior court will normally not

interfere with an order of externment. The court, in any event, would not

direct the authorities to either disclose the names of the witnesses or the

number of cases where such witnesses were examined for the simple reason

that they may lead to causing of further harm to them. In a given case, the

number of prosecution witnesses may not be many and the proceedee as an

accused in the said case is expected to know who were the witnesses who

had been examined on behalf of the prosecution and, thus, the purpose of

maintaining the secrecy as regards identity of such persons may be defeated.

The court must remind itself that the law is not mere logic but is required to

be applied on the basis of its experience.

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The High Court in support of its findings has placed strong reliance

upon a judgment of this Court in Gazi Saduddin v. State of Maharashtra and

Another [(2003) 7 SCC 330] wherein this Court stated:

"In view of the findings recorded by the High

Court there is no need for us to examine the case

on facts but since the learned counsel for the

appellant persisted and took us through the entire

evidence present on the record including the

statement of three witnesses recorded by the police

in-camera, we might record our findings on facts

as well. A perusal of the statements of three

witnesses spells out that he had threatened the

witnesses with dire consequences for their failure

to participate in the demonstration organised by

him. It has been stated by the witnesses that the

appellant used to give threats and beating to poor

persons in the locality and had created a terror in

the locality. The appellant was instigating the

residents on communal lines and created

disharmony amongst them. He was harassing the

public in general and disturbed the public

tranquillity and security of the locality. That the

appellant had given beating to two of the witnesses

and snatched Rs 700 and Rs 300 respectively

from them at the point of a knife. The third witness

has also stated that the appellant was in the habit of

beating people and threatening them as a result of

which a terror was created in the minds of the

residents of Manjurpura, Harsh Nagar and Lota

Karanja areas. That he was communal and

spreading hatred amongst the communities. It was

also stated by him that he had given beating to him

and threatened him that if he did not help him in

teaching a lesson to the Hindu community then he

would not spare his life."

It was further held:

"\005Primarily, the satisfaction has to be of the

authority passing the order. If the satisfaction

recorded by the authority is objective and is based

on the material on record then the courts would not

interfere with the order passed by the authority

only because another view possibly can be taken.

Such satisfaction of the authority can be interfered

with only if the satisfaction recorded is either

demonstratively perverse based on no evidence,

misreading of evidence or which a reasonable

person could not form or that the person concerned

was not given due opportunity resulting in

prejudicing his rights under the Act."

Even in Sanjeev Alias Bittoo (supra), it was observed:

"Section 47 consists of two parts. First part relates

to the satisfaction of the Commissioner of Police

or any authorised officer reaching a conclusion

that movements or acts of any person are causing

alarm and danger to person or property or that

there are reasonable grounds for believing that

such person is engaged or is about to be engaged in

commission of enumerated offences or in the

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abetment of any such offence or is so desperate

and dangerous as to render his being at large

hazardous to the community. Opinion of the

officer concerned has to be formed that witnesses

are not willing to come forward in public to give

evidence against such person by reason of

apprehension on their part as regards safety of

person or property. After these opinions are

formed on the basis of materials forming

foundation therefor the Commissioner can pass an

order adopting any of the available options as

provided in the provision itself. The three options

are: (1) to direct such person to so conduct himself

as deemed necessary in order to prevent violence

and alarm or (2) to direct him to remove himself

outside any part of Delhi or (3) to remove himself

outside the whole of Delhi."

Although it is not possible for us to lay down the law in precise terms

as the facts of each case are to be considered on their own merit, we have

endeavoured to lay down the broad propositions of law. We would,

therefore, record our disagreement with the view of the High Court.

The period of externment has since expired. In that view of the

matter, we direct that the impugned order of the High Court need not be

given effect to.

For the reasons aforementioned, this appeal is allowed and disposed

of with the aforementioned observations. There shall be no order as to costs.