Khalid @ Aminuddin @ Pahalwan vs Addl. Dy. Commissioner Of Police ...
2004 Latest Caselaw 1418 Del

JUDGMENT

R.C. Chopra, J.

1. This Writ petition under Article 226 of the Constitution of India and under Section 482 of the Code of Criminal Procedure is against an order of externment dated 20.1.2003 passed by Additional Deputy Commissioner of Police, Central Distt., Delhi by which the petitioner was directed to remove himself beyond the local limits of NCT of Delhi for a period of two years and the orders passed by the Lt. Governor of Delhi on 26.2.2003 dismissing the appeal filed by the petitioner against the extermed order.

2. The facts relevant for the disposal of this petition, briefly stated, are that a notice under Section 50 of Delhi Police Act, 1978 (hereinafter referred to as ''the Act'' only) dated 4.12.2001 was issued by Additional Deputy Commissioner of Police to the etitioner to show cause as to why proceedings under Section 47 of the Act may not be initiated against him and why he should not be externed from the local limits of Delhi for a period of two years. The notice was primarily based on the allegations that since 10.12.1996, the petitioner was engaged in commission of illegal acts and offences against persons and property and was using force and violence. It was alleged that his activities were calculated to cause alarm, danger and harm to the person and the property of the people in the area. A list of five criminal cases was given in the notice and it was also stated that he was so desperate and dangerous that his being in the NCT of Delhi or any part thereof was hazardous to the community. It was added that the witnesses were not willing to come forward to give evidence in public against him because of their fear of person and the property at his hands. In the course of inquiry, a supplementary notice was also given to him in which two more cases were also added. After the completion of the inquiry, the impugned order dated 20.1.2003 was passed and the petitioner was externed from Delhi for a period of two years. The appeal filed by the petitioner was dismissed by the Lt. Governor of Delhi.

3. Learned counsel for the petitioner has vehemently argued that the externment of the petitioner from Delhi is unwarranted and illegal inasmuch as the petitioner has been acquitted or discharged in all the cases except one of FIR No.71/2001, which is still pending trial. It is also submitted that the Addl. Dy. Commissioner of Police had no reliable or trustworthy evidence to hold that the witnesses from public were not willing to depose against the petitioner or the presence of the petitioner in Delhi as hazardous or dangerous to general public. It is also argued that the statements of witnesses recorded by the Addl. Dy. Commissioner of Police in camera cannot be relied upon as the petitioner had no opportunity to cross-examine them and show that the were deposing falsely. The statement of SHO also in this regard is assailed and it is stated that his testimony cannot be safely relied upon. In support of his submissions, learned counsel for the petitioner has relied upon the judgments in ''Ishaq Shah v. State and Ors.'' reported in 2003 (2) JCC P-1066, ''Prem Chand v. Union of India'' reported in 1981 Crl L J P-5 and ''Ram Niwas v. Commissioner of Police and ors.'' reported in 2003 (1) JCC P-386.

4. Learned counsel for the State has opposed the prayer of the petitioner mainly on the ground that the acquittal of the petitioner in various cases was mainly on account of the fact that the witnesses were turning hostile due to fear and were not willing to depose against petitioner in Courts. It is also pointed out that the evidence on record shows that while in Jail, even the petitioner had stabbed a person and in that case also, he got acquitted because the injured turned hostile. It is argued that the statements of the witnesses recorded by the Addl. Dy. Commissioner of Police in camera can be relied upon for the reason that the public witnesses are not willing to depose in open against him because of fear of their person and property. It is submitted that the presence of the petitioner in any part of Delhi is dangerous, hazardous and causes alarm to general public. In support of the submissions, learned counsel for the State has relied upon the judgments in ''Surjeet Singh v. State'' reported in JCC 1998 Vol. 1 Delhi page-191, ''Ajay Pal v. State'' reported in 2001(1) JCC P-311 (Delhi), ''Om Prakash v. Addl DCP'' reported in 2002 (1) AD (Delhi P-871, ''Hari Khemu Gawli v. Dy.Commissioner of Police'' , ''Shailender Kaur s. L.G.'' reported in 2001 Crl.L.J. P-2779 and ''Kaushalya v. State'' reported in 1989 CC Cases P-110.

5. In the leading case, on the subject, in ''Prem Chand v. UOI'' (supra) the Apex Court had laid down in no uncertain terms that it was conscious of the difficulties of detection, proof and strain on the Police in tracking down criminals but fundamental rights are fundamental and personal liberty of a person cannot be put at the mercy of the Police. It was held that Sections 47 and 50 of the Act have to be read strictly and every apprehension of the Police is not enough for passing an order of externment.

6. It was held that clear and present danger based on credible evidence must be on record to show that the movements and acts of the person in question are alarming or dangerous or are fraught with violence. In the case of Ishaq Shah v. State and Ors. (Supra Division Bench of this Court had taken the view that the recording of the evidence of the witnesses in camera in such proceedings does not violate the principles of natural justice inasmuch as in case their names are disclosed to the person proceeded against, it would defeat the very purpose of Section 47 of the Act. It was held that Section 47 of the Act permits the competent authority to record evidence in camera and rely upon the evidence so recorded. In the case of Kaushalya v. State(supra), a similar view was taken. The Supreme Court also in the case of ''Panchari Nath Shridhar Rangnakar v. DCP, State of Maharashtra'' rejected an objection against the use of such statements in externment proceedings.

7. The acquittal of the petitioner herein in most of the cases is of no help to him for the reason that the material has been placed on record to show that the acquittals were mainly on the ground that the pubic witnesses were not supporting the prosecution and were turning hostile. This fact satisfactorily conveys that the public witnesses are afraid of the petitioner and have no courage to make depositions against him in Courts. The statements recorded by the Addl. DCP in camera in which the public witnesses have deposed against the petitioner establish that the witnesses are afraid of the petitioner and apprehend harm to their person or property in case they openly depose against him. The statement of the SHO also in this behalf can be safely relied upon as he happens to be the man on the spot and knows better in regard to the criminal propensities of the petitioner. There is nothing on record to show that he has any enmity or ill will against petitioner to initiate false proceedings against him.

8. The impugned order of externment, therefore, is not liable to be interfered with by this court in exercise of powers under Article 226 of the Constitution of India or Section 482 of the Cr.PC. It has to be kept in mind that the adequacy or inadequacy of the material is not a matter to be weighed by the Court and in case the competent authority has some material from which a reasonable inference can be drawn that a person is of desperate character and his movements and acts are capable of causing danger, alarm or harm to the general public, the view adopted by the competent authority has to be sustained and can not be substituted by the view of the Court.

9. This Court is therefore of the considered view that the petitioner has failed to make out any ground enumerated in Section 52 of the Act for assailing the externment order in question.

10. Accordingly, this Court finds no merit in this Writ petition. The same stands dismissed.