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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.