JUDGMENT
Malik, J.
(1) The petitioner is aggrieved of a notice under section 47/50 of the Delhi Police Act dated nil calling upon the petitioner to show cause as to why he should not be externed from the limits of the Union Territory of Delhi for a period of two years as also a history sheet opened against him consequent to which an entry was made in the surveillance register.
(2) The notice under section 47/50, Delhi Police Act, was issued by Smt. Kiran Bedi, the then Deputy Commissioner of Police, North District. A number of grounds have been pressed in support of the challenge thrown to the impugned order. Smt. Kiran Bedi, the then Deputy Commissioner of Police, has submitted an affidavit in person. There is also an affidavit of the S.H.O. Police Station Subzi Mandi, on record. Broadly speaking, all the facts have been admitted. In my view, the whole controversy falls within a very narrow compass inasmuch as the basis for proceeding against the petitioner under section 47/50 of the Delhi Police Act, in fact, is F.I.R. No. 343 dated 11th of September 1986 under sections 12/9/55 of the Gambling Act. Earlier to this, as evidenced by the notice, which is undated, 22 cases have been cited mostly under the Gambling Act, Excise Act and quasi-executive provisions of the Criminal Procedure Code. The last case under section 107/151 is of 1973. In fact, the last F.I.R. is of 1968. Right from 1968 till 1986 the authorities concerned did not find it necessary to issue a notice under section 47/50 of the Delhi Police Act for externment of the petitioner as in all probability he was not found to be a person as contemplated by section 47 of the Delhi Police Act. It was only after F.I.R. 343 of Police Station Subzi Mandi dated 11th of September 1986 that the impugned notice under section 47/50 of the Delhi Police Act was issued to the petitioner. It would appear that on 11th of September 1986 when this case was registered the petitioner was taken into custody but on his being produced before the court of the Metropolitan Magistrate he was admitted to bail. He was, however, not released on bail as alleged by the petitioner and was instead served this undated notice under section 47/50 of the Delhi Police Act and was taken to the office of the Deputy Commissioner of Police who thereafter lodged him again in jail in default of bail. The notice had called upon the petitioner to appear before the Deputy Commissioner of Police on 26th of September 1986 at 10 A..M. for showing cause against the proposed action.
(3) At this stage I must take notice of the fact that the notice has made mention of the fact that the moments and acts of the petitioner are causing or are calculated to cause alarm, danger and harm to the person and property and his presence in Delhi is hazardous to the community. It further makes mention of the fact that the witnesses are not prepared to come forward to depose against the petitioner in public due to fear of their person and property. It is in this mechanical manner that the requirements of law have been incorporated in the notice without indicating as to what is the basis for this belief. I have already mentioned the fact that the basis for this belief could not be the cases against the petitioner before 1968, because at no stage these were made use of for arriving at a satisfaction as contemplated by section 47. In short, therefore, it is actually the case under the Gambling Act of 1986 which has been made basis for this action. This does not appeal to any reasonable or prudent man. The mechanical repetition of the requirements of law is of no consequences as that would amount to clear non-application of mind. The notice does not mention as to who are the witnesses in the case and who are not forthcoming for fear at the hands of the petitioner. This notice moreover was issued in 1986 September and we are now in November 1988. in any case. it has become too State in time and cannot be sustained.
(4) The second aspect of the case is in regard to the history sheet which according to the S.H.O. Police Station Subzi Mandi has been opened against the petitioner on 5th of January 1956. This was done on the ground that the petitioner was a man of desperate and notorious character and had a long criminal history to his credit. The case of the petitioner is that in none of the cases the petitioner was convicted. Shri Ishwar Singh, S.H.O. Police Station. Subzi Mandi, in his affidavit states that the petitioner was convicted in two cases. He does not, however, mention the details about those two cases. According to the rules. the police is entitled to open a history sheet in case it arrives at a reasonable conclusion that a person is habitually addicted to crime. The stress is on the expression “reasonable belief” and the reasonable belief must always be based on some probative material and which must be the belief of a reasonable and prudent person. It is indeed correct that conviction is not necessary for opening a history sheet but then to me it looks very odd that in arriving at a reasonable satisfaction a competent authority should ignore the findings of the court discharging or acquitting an accused person. As a matter of fact these findings must necessarily be taken into consideration before arriving at a reasonable satisfaction. In any case, be that what it is, the fact of the matter is that at the time of the opening of the history sheet against the petitioner all that the competent authority has done is to approves recommendation regarding opening of a history sheet against the petitioner. This is specifically stated by Shri Ishwar Singh, S.H.O. Police Station Subzi Mandi, in his affidavit. The requirement of law as laid down in Peter Samual Wallace vs. Inspector General of Police, New Delhi and others, 1981 Criminal Law Journal p. 1195 (1) is that the order approving opening of history sheet and ordering the entry in the surveillance register must be passed after recording the reasons for the same. In the case supra it was held that if the Superintendent of Police merely approves recommendations of his subordinate it will not satisfy the requirements of law and if no reasons are recorded for making such an order it would be assumed that there are no grounds to believe that the person was determined to lead a life of crime. In the present case, on their own showing no reasons have been advanced by the D.C.P. for ordering opening of the history sheet and entering the name of the petitioner in the surveillance register. All that has been done is to approve a recommendation to this effect by the subordinates. When a power is conferred on a particular person the legislature assumes that the power conferred would be used on due application of mind. But if the person authorised to act under law only approves what his subordinate thinks fit and proper it will be an act of total non-application of mind. On this ground, therefore, alone the history sheet opened against the petitioner in January 1956 stands vitiated.
(5) Apart from what has been stated above, I must point out that right from 1968 to 1986, a period during which no crime was committed by the petitioner, this history sheet was never subjected to any review. This only shows how mechanically these matters are being dealt with.
(6) For the reasons stated above, I would therefore allow this petition and quash the impugned notice under section 47/50 of the Delhi Police Act as also the history sheet opened against the petitioner on 5th of January 1956. Consequently, his name should also be removed from the surveillance register.