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PETITIONER: PREM CHAND

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT11/11/1980

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. PATHAK, R.S. REDDY, O. CHINNAPPA (J)

CITATION:  1981 AIR  613            1981 SCR  (1)1262  1981 SCC  (1) 639

ACT:      Delhi Police  Act, 1978-Sections  47 and  50-Scope  of- Allegations made  in externment  order vague-order if valid- order should  be passed only when there is clear and present danger based on credible material

HEADNOTE:      Exercising power  under sections 47 and SO of the Delhi Police Act,  1978 (which  clothe the  Commissioner of Police with externment  powers for keeping the capital city free of crime) the  Deputy Commissioner of Police Delhi directed the appellant to  show cause  why he should not be externed from the Union  Territory of  Delhi. The  allegations against him were that  his activities  in the  area  of  police  station Connaught Place  and the  areas adjoining the police station were causing  and were  calculated to  cause harm, alarm and danger to  the residents  of the  said localities  and areas that he  kept a  knife with  him for  unlawful purposes  and threatened residents of that area with dire consequences and deterred them  from reporting  to the police and that he had engaged  himself  in  the  commission  of  offences  against persons and property with force and violence.      In his  petition under  Article 32  of the Constitution challenging the  vires  of  the  externment  proceedings  as arbitrary and  unreasonable restrictions  on his  freedom of movement, the  petitioner stated that over the past 25 years with the  indulgence of the local police he used to park his mobile refrigerated water-carts on the road side in front of a cinema  theatre in  Delhi  and  that  in  return  for  the indulgence shown  to him  by the  police and to keep them in good humour  he yielded  to their  pressure and  gave  false testimony in  as many  as 3000 cases. Even though Courts had dubbed him  as a  stock witness and passed severe strictures and disbelieved  his testimony,  the police did not give him up; that  he had to continue to act as a tool in their hands for the  survival of  his business  and that  lately when he declined to  oblige them  because he  felt that  his wealthy station in  life and  the character-building  stage  of  his children  warranted  giving  up  the  profession  of  stock- witness,  the   police  avenged  themselves  by  threatening externment which would inflict mortal economic injury to him

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if the threat was carried out.      The Assistant  Commissioner  of  Police  in  reply  had stated that before the externment order was passed witnesses had been  examined in camera in support and in opposition of the  allegations   justifying  externment   and  that  on  a consideration of  the materials  placed  before  the  Deputy Commissioner of  Police,  including  the  education  of  his children and  the assurance  given by  the petitioner, final order had been passed directing him to show good conduct for a period of 3 months.      Allowing the petition, ^      HELD: The  Delhi Police Act permits externment provided the action  is bona fide. All power, including police power, must be  informed by  fairness, if it is to survice judicial scrutiny. Mala fides is fatal if it is made out. [1164 D-E] 1263      Sections 47 and 50 of the Act have to be read strictly; any police  apprehension is not enough; some ground or other is not  adequate; there  must be  a clear and present danger based upon  credible material  which makes the movements and acts of  the person  in question  alarming or  dangerous  or fraught with  violence. Like-wise  there must  be sufficient reason to  believe that  the person  proceeded against is so dangerous that  his mere  presence  in  Delhi  or  any  part thereof is  hazardous to  the community  and its  safety.  A stringent test  must be applied by Courts in order that this power is  not abused to the detriment of the citizen Natural justice must  be fairly  complied with and vague allegations such as  those levelled  against the  petitioner and  secret hearings are  gross violations  of Articles  14, 19  and 21. [1267 G-H,

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 3050 of 1980.            (Under Article 32 of the Constitution)      A. S. Sohal and M. C. Dhingra for the Petitioner.      M. M.  Abdul Khader, N. Nettar and M. N. Shroff for the Respondents.      The Judgment of the Court was delivered by      KRISHNA IYER,  J.-Who  will  police  the  police  ?  Is freedom of  movement unreasonably  fettered if policemen are given power  of externment  for  public  peace?  These  twin problems of  disturbing import,  thrown up  by this  bizarre case,  deserve   serious  examination.   The  former  is  as important as  the latter,  especially when we view it in the strange  police  setting  painted  by  the  petitioner.  The constitutional question,  which we  will state presently and discuss briefly,  has become  largely otiose  so far  as the present petitioner  is concerned  because  counsel  for  the State has  assured the  court that  they  will  drop  police surveillance or  any action by way of externment as proposed earlier. The  police methodology, with sinister potential to human liberty described by the petitioner, if true, deserves strong disapproval and constitutional counter-action by this Court. But  before committing  ourselves to  any course,  we must set  out the factual matrix from which the present case springs.      The statutory  starting point  of the  criminal saga of Shri Prem  Chand Paniwala,  the petitioner,  now  threatened with externment  proceedings, is  the Delhi Police Act 1978. Sections 47  and 50  of the said Act clothe the Commissioner of Police  with externment  powers necessary for keeping the

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capital city  crime-free. One  such  power  relates  to  the removal of persons about to commit offences.      The   procedural    prescriptions    and    substantive directions, in  this behalf,  are laid  down  in  the  above provisions. The  Deputy Commissioner  of Police (the DCP for short) in exercise of the said power, 1264 initiated proceedings  against the  petitioner and  directed him to  show cause  why he  should not  be externed from the Union  Territory   of  Delhi.   Paniwala  who,  from  humble beginning as  vendor of aerated water near a cinema theatre, had spiralled  up into  a prosperous dealer in Vasant Vihar, when confronted  by  this  Police  notice,  decided  upon  a constitutional show-down  and came to this Court challenging the vires  of the  externment proceedings  as arbitrary  and unreasonable restrictions  of his  freedom of  movement and, therefore, contrary  to Arts.  14  and  19  and  21  of  the Constitution.      The validity  of the  action, assuming the vires of the Act, involves also a consideration of the mala fides imputed by the  petitioner to  the DCP.  The blow of deportation may fall heavy  on his  fundamental rights admits of no doubt. A flourishing businessman,  happy with  his wife and children, and  settled   in  a   comfortable  locality  in  Delhi,  if transported traumatically  outside the Union Territory would surely suffer  not merely financial mayhem, but also social, domestic and  physical deprivation  virtually  amounting  to economic harakiri an psychic distress. Nevertheless, the Act permits externment,  provided the  action is  bona fide. All power, including  police power, must be informed by fairness if it  is to  survive judicial  scrutiny. Cases  are  legion which leave one ill no doubt that mala fides is fatal, if it is made out. From this angle, Prem Chand Paniwala has turned the focus  on police  malpractice vis-a-vis  his own career; and even  if a  fragment of  what he  has said  be true, the higher officers  of the  Delhi Police will need to look into the goings  on at  the lower level. Here comes the relevance of autobiographical  revelations made  by the  petitioner in more than one affidavit.      Certain  facts  emerge  as  fairly  probable  from  the affidavits of  both sides.  Prem Chand  made a  living as  a paniwala or vendor of soft drinks near Delite Cinema even as a teenager,  which shows  that he  had very poor beginnings. How did  he fall  into the  thraldom of the local police? He explains it in his affidavit:      "He  had  a  few  mobile  carts  which  were  used  for      refrigerating water.  These carts  used to be parked by      the petitioner  on the  road side due to the indulgence      of the  police. He was in his teens when he started his      avocation and  continued for a very long time. Thus, he      acquired an alias i.e. Prem Chand Paniwala.      Due  to   close  association   with  Police  and  their      connivance and  indulgence, the  petitioner thrived. In      this process,  the petitioner became a prey and pawn in      the hands  of the  police. He was persuaded to be their      perpetual stooge and stock witness. 1265      The Petitioner  in the  year 1965, when he was 25 years      old was  involved in  a gambling case by the police and      to mould  him a  permanent stock  witness and  lest  he      should be militant to defy them. Despite his hesitation      and unwillingness  he was  forced to become a permanent      pawn of  the police. This is how, the petitioner landed      himself in the web of the police; he had no alternative      than to  be like  that as  his livelihood was dependent

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    upon the mercy and indulgence of the police". The version of the petitioner is that once he yielded to the pressure of  the Police to give false testimony disclosing a rubberised conscience  and unveracious readiness to forswear himself, there  was escalation  of demands  upon him  and he became a  regular pedlar  of perjury  "on  police  service". Indeed, counsel  for the  petitioner argued  that his client was a  ’stock witness’  because he had to keep the Police in good humour  and obliged  them with  tailored  testimony  in around 3,000 cases because the alternative was police wrath. We were flabbergasted at this bizarre confession but to lend credence to  his assertion  counsel produced  a Few  hundred summonses where  the petitioner was cited as a witness. Were he not  omnipresent how  could he  testify in  so many cases save by  a versatile  genius for loyal unveracity? For sure, the consternation  of the community at this flood of perjury will shake its faith in the veracity of Police investigation and the  validity of  the judicial verdict. We have no doubt that the  petitioner, who  has given  particulars of a large number of  cases where  he had  been cited  as  witness,  is speaking the  truth even assuming that 3,000 cases may be an exaggeration.  In   Justice,  Justices   and  Justicing  and likewise in  the Police  and  Policing,  the  peril  to  the judicial process is best left to imagination if professional perjurers like  the self-confessed Paniwala are kept captive by the  Police, to  P be  pressed into  service for  proving "cases". Courts,  trusting the  Police may act on apparently veracious testimony  and sentence  people into  prison.  The community, satisfied with such convictions, may well believe that all  is well  with law  and order.  We condemn,  in the strongest terms,  the systematic  pollution of  the judicial process  and  the  consequent  threat  to  human  rights  of innocent persons. We hope that the higher authorities in the Department who,  apparently, are  not aware of the nefarious goings-on  at   the  lesser  levels  will  immediately  take measures to stamp out this unscrupulous menace.      The reason  why the petitioner has divulged his role as professional perjurer for the Police is simple and credible, at this  price, the favours of the Police who allowed him to carry on  his soft drinks business on the public street near a cinema house, not otherwise 1266 permissible under the law. The Police blinked at the breach, the petitioner  made good profits and by this mutual benefit pact, the  prosecution got  readymade evidence  and Paniwala joined the  nouveu riche.  He  became  respectable  when  he became  rich  and  when  he  became  respectable  he  became reluctant to  play ’stock  witness’. For  "the more things a man is  ashamed of  the more  respectable  he  is"  (Bernard Shaw). Whenever  he resisted  the demand  for  giving  false evidence the Police implicated him in some case or other and when he  yielded, the  case was allowed to lapse. Indeed, it is surprising that the petitioner himself admits that he was "dubbed as  a stock-witness  and often  disbelieved  by  the courts. Despite  severe strictures passed by the courts, the Police did  not give  him up." Various details are furnished by the petitioner about his deposing on prosecutions for the survival of  his business.  In the  bargain, the  petitioner acquired two  houses in  important localities and built up a lucrative   fruit    juice   business.    There   are   more uncomplimentary revelations  made in  the petition but we do not think  it necessary to set them out. However, the crisis came when  he declined  to oblige with perjury since he felt his wealthy station in life and the character-building stage of his children warranted giving up the profession of stock-

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witness.  The   Police  avenged   themselves  by  initiating externment which  would inflict  mortal economic  injury, if carried out.  This version  of the petitioner has been, in a way,  denied.   It  is   also  true   that   the   Assistant Commissioner, in  his affidavit in reply, has indicated that witnesses have been examined in support and in opposition of the allegations  justifying externment and a final order has been made  by the DCP directing the petitioner "to show good conduct for  a period  of three  months only".  It  is  also stated that  the witnesses were examined in camera, that the DCP had  consideration for  the materials  placed before him "including education  of his children etc. and the assurance given by  him". An  intelligent reading  of the affidavit of the Assistant  Commissioner, along with the vagueness in his denials regarding  material particulars  in the petitioner’s affidavits, leave  us in  grave doubt  about the validity of the Police proceedings.      It is  significant to notice that among the allegations against the  petitioner are  such vague  statements as  your activities in the area of Police Station Connaught Place and other area  adjoining to  the Police Station Connaught Place are causing  and are  calculated to  cause harm,  alarm  and danger to  the residents  of the  said localities and areas. While we  do not delve into details, it is useful to mention that the  Police allegations  are again  vague in respect of the remaining imputations namely: 1267           "That you keep knife with you for unlawful purpose      and threaten the persons residing in the area with dire      consequences and  further deter them from making report      to police.           That you  have engaged  yourself in  commission of      offences against  person  and  property  attended  with      force and  violence for  which the following cases were      registered against you by the Police.. ".      The  petitioner’s   reply  affidavit   makes  startling disclosures about the police methods of implicating innocent people. However, the version of the petitioner can hardly be swallowed   since   he   is   a   self-confessed   perjurer. Nevertheless, it  is not  too much to ask Government to take effective measures  to prevent  Police methods straying into vice. We  hopefully remind  the  State  about  what  Justice Brandieis once observed :           "Crime is  contagious. If the government becomes a      law breaker,  it  breeds  contempt  for  law."  ..  "TO      declare that  in the administration of the criminal law      the end  justifies  the  means  -to  declare  that  the      government may  commit crimes  in order  to secure  the      conviction of  a private  criminal-would bring terrible      retribution.  Against  that  pernicious  doctrine  this      court must resolutely set its face." In the same American decision we have just mentioned Justice Holmes observed; "We have to choose, and for my part I think it a  less evil  that some criminals should escape than that the Government should play an ignoble part."      The provisions  of the statute ostensibly have a benign purpose and  in the  context of  escalation of crime, may be restrictions   which,   in   normal   times   might   appear unreasonable, may have to be clamped down on individuals. We are conscious of the difficulties of detection and proof and the strain  on the  police in  tracking down  criminals. But fundamental rights  are  fundamental  and  personal  liberty cannot be  put at the mercy of the Police. Therefore, Ss. 47 and 50  have to be read strictly. Any police apprehension is not enough. Some ground or other is not adequate. There must

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be a  clear and  present danger based upon credible material which makes the movements and acts of the person in question alarming or  dangerous or  fraught with  violence. Likewise, there must  be sufficient  reason to believe that the person proceeded against  is so  desperate and  dangerous that  his mere presence  in Delhi  or any part thereof is hazardous to the community  and its  safety. We  are clear  that the easy possibility 1268 of abuse  of this  power to the detriment of the fundamental freedoms of  the citizen  persuades  us  to  insist  that  a stringent test  must be  applied. We  are further clear that natural justice  must be  fairly  complied  with  and  vague allegations and secret hearings are gross violations of Art. 14, 19 and 21 of the Constitution as expounded by this Court in Maneka  Gandhi. We  do not go deep into this question for two  reasons:   there  is   another   petition   where   the constitutionality of these identical provisions is in issue. Secondly, the counsel for the State has fairly conceded that no action  will now  be taken  even by  way of  surveillance against  the   petitioner.  In   an  age   when   electronic surveillance and  mid-night rappings at the door of ordinary citizens remind us of despotic omens, we have to look at the problem as  fraught with  peril to constitutional values and not with lexical Laxity or literal liberality.      Having made  these observations,  we leave the question of vires  open for  final investigation,  if  necessary,  in other cases  pending before this Court. We think counsel for the State  was right  in representing that no further action would be  taken against  the petitioner.  We dispose  of the petition as  calling no  longer for directions but emphasise the need  of the  State to  issue clear orders to the Police Department  to  free  the  processes  of  investigation  and prosecution from the contamination of concoction through the expediency of  stockpiling  of  stock-witnesses.  To  police persons who  get rich quick by methods not easily or licitly understandable, is  perhaps a social service. Among the list of wanted persons must be not only the poor suspects but the dubious rich.  To keep  an eye  on their  activities without close shadowing  and  surveillance  may,  perhaps,  lead  to criminal discoveries,  if they  are not  too influential for the police. By this judgment what we mean is not to tell the Police to fold up their hands and remain inactive when anti- social elements  suddenly grow  in wealth but to be activist and intelligent  enough to  track down  those who  hold  the nation’s health, wealth, peace and security in jeopardy. The only insistence  is that  the means  must also be as good as the ends. P.B.R.    Petition allowed. 1269