Delhi High Court
Om Prakash vs Addl. Deputy Commissioner Of Police on 20 December, 2001
Equivalent citations: 2002CRILJ2138, 95(2002)DLT339, 2002(61)DRJ481
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. The petitioner is aggrieved by the dismissal of his appeal against the order of externment against him dated 9.2.2001 passed under Section 47/50 of the Delhi Police Act (for short the Act).
2. The petitioner states that he is running a cable business in Shahdra and that he is being victimised as a result of his refusal to act as a stock witness in criminal cases. A show cause notice dated 11.5.99 was issued by the then Addl.Dy.CP, North East District, Delhi under Section 47/50 of the Act where a list of 20 cases against the petitioner was given. it was stated in the notice that petitioner was engaged in the commission of crime involving offences punishable under IPC, NDPC & Arms Act. The notice states that the petitioner's being large in Delhi or any part thereof is hazardous to the community and that witnesses are not willing to come forward to give evidence in public against the petitioner by reason of apprehension on their part as regards, the safety of their person and property.
3. An order was thereafter passed on 9.2.2001 under Section 47/50 of the Act directing the petitioner to remove himself beyond the territorial limits of Government of NCT of Delhi for a period of two years w.e.f. 11.2.2001. The order also states that it has been found that movements and acts of the petitioner are causing and calculated to cause alarm, danger and harm to person or property and that he is so dangerous and desperate as to render him at large in Delhi or any part thereof is hazardous tot he community. The reply of the petitioner was considered while passing the order. It is further recorded in the externment order that the respondent was found involved/arrested in a case relating to FIR No. 136 dated 8.6.2000 under Section 25 of the Arms Act. A supplementary notice was also served on the petitioner asking him to reply to the same but he failed to do so. Independent witnesses are stated to have been examined by the Addl.Dy.CP who also perused the statements recorded by ACP, Seelampur, Delhi "in camera".
4. The petitioner aggrieved by the said order filed an appeal which was dismissed by the Lt.Governor, Delhi vide order dated 21.3.2001. Before the said appellate authority it was contended on behalf of the petitioner that he had not been convicted in any of the cases registered against him and reliance was placed on the judgment of the Supreme Court in Prem Chand(Paniwala) v. Union of India and Ors. to contend that secret hearings are violative of principles of natural justice and constitutional provisions. It was thus contended that the externing authority having relied on statements recorded "in camera", impugned order was liable to be set aside. After considering the submissions of the counsel, the appeal was dismissed by the Lt.Governor. The contention of the counsel for the petitioner herein advanced before the Lt.Governor in respect of "in camera" evidences recorded was repelled by relying on the judgment of the Supreme Court in the case of Pandharinath Shridhar Rangnekar v. Dy.Commissioner of Police, State of Maharashtra and State of Maharashtra v. Salem Hasan Khan since statements recorded "in camera" could be relied upon by the externing authority.
5. The appellate order also referred to the judgment of the Division Bench of this court in Ajay Pal Singh v. State (NCT of Delhi) and Ors. in Crl. Writ No. 924/2000 decided on 2.2.2001 where law in this behalf is stated to have been summarised taking into consideration the latest judgment of the Supreme Court in Phulwari Jagdamba Prasad Pathak(Smt.) v. R.H. Mendonca and Ors., .
6. We have heard Mr. M.C. Dhingra, learned counsel for the petitioner and Mr. Akshay Bipin, learned counsel for the respondent. The contentions advanced on behalf of the petitioner before us are more or less similar as was sought to be advanced before the appellate authority. It has been contended by Mr. Dhingra, learned counsel for the petitioner, that the statutory requirements stipulated in explanation under Section 47 of the Act are not met inasmuch as all the cases referred to are stale and more than three years old while the explanation requires at least three cases to be within one year preceding the commencement of the proceedings under Section 47/50 of the Act. It is also contended that the petitioner has not been convicted of a single offence. The petitioner is also aggrieved by the "in camera" proceedings and the same plea is raised before us relying on the Supreme Court judgment in Prem Chand's case (supra).
7. The Supreme Court in Prem Chand's case(supra) had held that Section 47 and 50 of the Act have to be read strictly and mere apprehension is not enough. It was thus held that there must be sufficient reason to hold that the persons proceeded against are so dangerous that their stay in Delhi is hazardous to the community.
8. In P.S. Karnakar's case(supra) while dealing with the Bombay Police Act, the Supreme Court had held that although a proposed externee is entitled before an order of externment to know the material of allegations against him he is not entitled to be informed of the specific particulars relating to the material allegations. Similarly in Salem Hussain's case (supra) it was held that complete disclosure of particulars in the very nature of things will frustrate the purpose of externment proceedings. The Division Bench of this court in Ajay Pal Singh's case (supra) had occasion to consider whether the authority was under obligation to supply copies of the statements recorded in camera. The Division Bench held that there was no violation of principles of natural justice in such a case as the very purpose of the enactment of Section 47 of the Act would be frustrated because the section is meant to deal with the desperate kind of criminals who do not allow the witnesses to appear in courts and the witnesses do not come forward to depose against them for the fear or appraisal.R efference was also made in this behalf to an earlier Division Bench judgment of this court in Surjit Singh v. State and Anr. 1998(1) JCC 191. The plea that statement recorded "in camera" could not have been used by externing authority nor could be the basis for arriving at subjective satisfaction was also negatived in Ajay Pal Singh's case(supra) relying on the decision of the Supreme Court in Phulwari Jagdamba's case(supra).
9. We are in full agreement that the views expressed by the Division Bench and are in fact bound by the same. The plea of the learned counsel for the petitioner that the factum of the statement of witnesses being recorded "in camera" being used for the externment proceedings being bad in law cannot thus be accepted. It may be relevant to add that even in Dhiraj v. State of NCT 2000(2) JCC 306 this view has been reiterated and non-supply of evidences recorded "in camera" was found not to be violative of principles of natural justice. As has been recorded earlier the very purpose of said externment proceedings is to eastern persons in the situation mentioned under Section 47 of the Act and it deals with the situations where the fear and terror created by such persons in the society prevents the witnesses from deposing against him. We thus find no merit in this plea advanced on behalf of learned counsel for the petitioner.
10. As noted hereinbefore the learned counsel for the petitioner has also relied on the explanation to Section 47 of the Act to contend that there should have been at least three incidents in the previous one year for any action to be taken under Section 47 of the Act which was not the position int he present case as the incidents were alleged to be stale other than one incident. The explanation to Section 47 is as under:-
"A 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 acts referred to in this section shall be deemed to have habitually committed that act."
11. A reading of the explanation clearly shows that it defines when a person shall be deemed to have habitually committed that act. The word habitual has been used in Section 47 (c), (ii), (iii) & (iv). The reference to the externment order would show that the reasons for the externment of the petitioner are under Section 47(a), (b) and (c)(i) of the said Act. Thus the explanation would have no application int he facts of the present case. The plea advanced by the learned counsel for the petitioner is thus not sustainable.
12. We find no force in the submissions advanced by the petitioner. There is no reason to interfere with the order of externment dated 9.2.2001 and the appellate order dated 21.3.2001 which are based on reasons which have been recorded and fall within the parameters of requirements of Section 47/50 of the Act.
13. The petitioner is without any merit and the same is accordingly dismissed.