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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 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, 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.

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 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- 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.