JUDGMENT
Khan, J.
1. Petitioner is challenging externment order passed
by Additional DCP dated 16.5.2001 asking him to remove
himself outside Delhi and Lt. Governor’s order dated
18.7.2001 rejecting his appeal.
2. A show-cause notice was issued to petitioner under
Section 50 of Delhi Police Act on 25.10.2000 charging him
of including in illegal activities and criminal offences
punishable under Chapter XII IPC, resorting to force and
violence, causing danger and alarm to person and property.
He was also informed that six FIRs (Nos. 594, 605, 628, 647,
440 and 756) under Section 379 IPC stood registered against
him and that witnesses were not willing to come forward to
openly depose against him.
3. Petitioner replied to this notice on 13.11.2000
denying the allegations. He also led some defense evidence
to show that he was engaged in lawful business along with
his father who was the President of Fruit & Vegetable
Wholesalers Association, Tilak Nagar and was not involved
in any criminal activity prior to his arrest on 2.9.2000 in
one of the cases. Additional DCP rejected his explanation
holding amongst other things that he was involved in six
cases punishable under Chapter XII IPC and that he had
personally examined some witnesses in camera who had
refused to depose against him in the open for their safety
and passed the impugned externment order. Petitioner took
appeal against this but failed. Hence this petition.
4. Petitioner’s case is that he was a law abiding
citizen engaged in lawful business. His father was also a
respectful person and President of an Association. He had
no past criminal record and was not engaged in any criminal
activity prior to his arrest on 2.9.2002 or after his
release on bail in one of the cases. He also asserts that
police had on their own asked for his discharge in three
out of six cases registered against him taking away the
very basis of the externment order. The LG’s order
rejecting his appeal also suffered from non-application of
mind as it did not deal with the pleas raised by him.
5. Respondent has justified the order of externment
reiterating that petitioner was involved in six criminal
case under Section 397 IPC. Even though he was discharged
in three cases, he had continued his criminal activity
justifying the impugned order.
6. Section 47 of DPA empowers the Police Commissioner
to remove a person outside Delhi limits when it appears to
him that (a) his movements were causing or were calculated
to cause danger, alarm or harm to the person or property;
or (b) where he had reasonable ground to believe that he
had engaged or was about to engage himself in commission of
offences involving force or violence or offences punishable
under Chapters XII, XVI, XVII, XXII of IPC; or (c) if such
person was so desperate and dangerous as to render his
being at large hazardous to the community; or (d) was
habitually intimidating to other persons by acts of
violence or by show of force; or (e) was habitually
committing affray, alarm or breach of peace or riot, or was
threatening people for illegal gains for himself and
others; or (f) was passing indecent remarks against women
and girls AND in the opinion of the Commissioner, witnesses
were 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.
7. The power was exercisable by the Police
Commissioner or the competent delegatee on anyone of the
prescribed grounds and on formation of opinion that
witnesses were not willing to come forward to depose
against such person for fear of danger to their person and
property. Though his satisfaction was subjective, it was
to be based on some material but its sufficiency or
otherwise was not subject to judicial scrutiny. In other
words, Commissioner’s satisfaction was to arise from any
one of the situations contemplated by provisions of Section
47 accompanied by his opinion that witnesses were not
willing to come forward to depose against the person sought
to be externed. If his order was based on no material or
mere apprehension and failed to reflect formation of any
opinion regarding unwillingness of witnesses to come
forward to depose against such person concerned, it would
not sustain.
8. Dealing with corresponding Sections of Bombay
Police Act, Supreme Court held in Hari v. Dy. Commissioner
of Police as under:-
“These are all matters which can’t be examined
by this court in an objective way when the
legislature has provided for subjective
satisfaction of the authorities or officers who
have been entrusted with the duty of enforcing
those special provisions of the Act…..
It is not for us to examine afresh the
material and to be satisfied that the order
impugned is correct. But the materials placed on
the record of this case shown at least one thing
namely that the petitioner had not been a victim
of an arbitrary order.”
9. Later the Apex Court held in Prem Chand v. Union
of India as under:-
“Section 47 and 50 have to be read strictly.
Any police apprehension is not enough. Some
ground or the 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. Likewise, there must be
sufficient reason to believe that 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 easy possibility of abuse of power to
the detriment of fundamental freedom of citizens
persuades us to insist that stringent test must be
applied. We are clear that natural justice must
fairly be complied with and vague allegation and
secret hearings are gross violations of
constitutional guarantees.”
10. Tested on all this, it does not appear to us that
impugned externment order was passed arbitrarily or had no
basis. Petitioner wants to be left off the hook merely
because he had earned acquittal in three out of six
criminal cases. But that by itself was not enough to
invalidate the externment order so long as it satisfied the
requirements of Sections 47 and 50 of DPA. An acquittal
could result in various circumstances and could not be
taken as a proof of accused having shed his criminal past
or propensity. This court in Kaushalya v. State 1989
C.C. Cases 110 (HC) observed:-
“The acquittal in the cases could be because
of the reason that there may not be sufficient
evidence to bring the charge home to the accused.
The witnesses may not be available or willing to
depose in open court against the accused. A
judicial notice can be taken of the fact that in
cases where the accused is a bad character, the
witnesses are terrified and they are not willing
to become witnesses to the crime and even if they
become witnesses, they are not willing to testify
against the accused in the open court. Our
experience is that in a case where a bad character
is involved, even if the witnesses come they on
material facts do not support the prosecution
case.”
11. Therefore, all told, it can’t be said or held that
impugned order was passed in excess or abuse of the power
conferred on the Commissioner or in breach of the relevant
statutory provisions. It is also not petitioner’s case
that requisite safeguards guaranteed under relevant
provisions of DPA were not observed by the Authority. The
impugned order which we found to be a reasoned and detailed
one could not be upset even if it was assumed that
Appellate Authority had failed to deal with all the issues
raised by petitioner in his Appeal.
12. This petition accordingly fails and is dismissed.
