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Case Number

Crl. W. No. 176 of 2001

Advocates

Mr. M.R Chawla, Advocate for the Petitioner.
Ms. Mukta Gupta, Standing Counsel for the Respondent.

Judges

Usha Mehra
Mahmood Ali Khan, JJ.

Acts

SECTION 47 DELHI POLICE ACT 1978
Excise Act as per provision made in Section 48(f)
u/s 61 of the Punjab Excise Act
u/s 61 of Punjab Excise Act,
Sec. 61 of Punjab Excise Act
Section 61/1/14 Excise Act,
PUNJAB EXCISE ACT

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Smart Summary

Judgment Summary — Dheeraj Kumar v. Competent Authority (Externment under Section 47, Delhi Police Act, 1978)

Factual and Procedural Background

The petitioner, Dheeraj Kumar, challenged an externment order made under Section 47 of the Delhi Police Act, 1978, which externed him beyond the limits of North East District, Delhi for six months. The order was passed by the Additional Deputy Commissioner of Police (Addl. DCP) dated 5th February, 2001, effective from 7th February, 2001. The Addl. DCP had issued a show cause notice under Section 50 of the Act dated 25th January, 2000; the petitioner appeared before the Addl. DCP on 17th February, 2001, furnished a bail bond, and submitted a reply (dated in the record as 9th March, 2080 in the opinion). The order permitted attendance at court dates and prohibited the petitioner from entering the North East District without written permission. The petitioner appealed under Section 51 of the Act to the Lt. Governor of Delhi; the appeal was dismissed by order dated 7th March, 2001. The present writ petition challenged the externment order on several grounds.

Legal Issues Presented

Whether reliance on cases registered under the Excise Act as the basis for the show cause notice and externment was a valid ground for externment under Section 47 of the Delhi Police Act?
Whether administrative instructions (a circular) prohibiting initiation of externment proceedings against persons involved in excise matters precluded the competent authority from initiating externment proceedings?
Whether evidence recorded "in camera" could be used against the petitioner without supplying copies of that evidence to him, and whether non-supply violated principles of natural justice?
Whether the petitioner could be said to be "desperate" or "dangerous" such that externment under Section 47 was justified (i.e., whether the competent authority had sufficient subjective satisfaction)?

Arguments of the Parties

Petitioner's Arguments

All five cases relied upon by the respondent in the Section 50 notice were registered under the Excise Act; administrative instructions prohibit externment proceedings against persons involved in excise matters, so externment could not be initiated.
Witnesses whose statements were recorded "in camera" were not furnished to the petitioner; therefore those statements could not be used against him and non-supply breached principles of natural justice.
The petitioner was not a desperate or dangerous person and his movements did not pose a hazard to the public at large.

Respondent's Arguments (as reflected in the opinion)

The competent authority legitimately relied on the record before it (including cases under the Excise Act) to form a subjective satisfaction under Section 47; excise-related activities can be indicative of danger to society and thus fall within the ambit of Section 47.
A prior DCP (Headquarters) circular dated 11.9.1998 had been modified by an order dated 28.9.2000 to permit externment proceedings in certain circumstances (convictions under the Excise Act per Section 48(f)), and administrative instructions do not override statutory powers vested in the Commissioner of Police or his delegates.
Recording of evidence "in camera" is permissible under Section 47 and does not amount to a breach of natural justice; the competent authority may rely on such evidence to form subjective satisfaction. The respondent relied on precedents holding that camera-recorded evidence may be used in externment proceedings.
The material on record (including a statement by a witness who feared to depose publicly) substantiated a finding of the petitioner's desperate character and danger to the public; the petitioner was given opportunity to lead defence evidence but did not do so.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shailender Kaur v. Lt. Governor & Others, Crl. W. No. 1041/2000 (decided 27th April, 2001)	Holds that persons involved in excise offences (e.g., under Section 61 of the Punjab Excise Act) by the nature of such activities may cause danger to society; such matters can be considered under Section 47/48 of the Delhi Police Act.	The court relied on this decision to reject the petitioner's contention that excise cases could not form part of the material for externment. The reasoning and quoted passages from Shailender Kaur supported weighing excise involvement as relevant to the finding of danger and the competence to extern.
Surjit Singh v. State and Anr., 1998 (1) JCC [Delhi] 191	Used to support the proposition that evidence recorded "in camera" in extrordinary externment-type proceedings is permissible and may be relied upon.	The court cited this case among others to hold that non-supply of camera-recorded evidence did not violate natural justice in the context of Section 47 proceedings and that such evidence could legitimately be relied upon by the competent authority.
Ajay Pal Singh v. State (NCT of Delhi) & Ors., Crl. W. No. 924/2000 (decided 2nd February, 2001)	Also cited in support of the permissibility and reliance on "in camera" evidence in externment proceedings.	The court relied on this authority to reinforce that recording and reliance on in-camera testimony is permissible under the Act and does not automatically amount to a breach of natural justice.
Phulwari Jagdamba Prasad Pathak (Smt.) v. R.H. Mendonca & Ors., (2000) 6 SCC 751	Supreme Court authority cited for the proposition that camera/in-camera proceedings and the protection of witness identity may be permissible in certain contexts relevant to externment-like proceedings.	The court treated this as supporting precedent that in-camera testimony can be relied upon and its non-disclosure to the person sought to be externed does not automatically vitiate the proceedings under Section 47.

Court's Reasoning and Analysis

The court began by framing the key legal boundary: the period of externment and the subjective satisfaction of the competent authority are matters beyond the purview of writ jurisdiction; the court's task was limited to whether, on the facts, an externment order could permissibly have been made.

The court addressed the three primary grounds of challenge sequentially.

Excise cases as basis for externment: The court found no merit in the submission that reliance on excise cases was inappropriate. It referred to the High Court decision in Shailender Kaur, which held that involvement in excise offences may by their nature produce danger to society and so fall within clause (a) of Section 47; further, Section 48 allows externment action against persons convicted of specified offences (including those under provisions of the Punjab Excise Act as in force in Delhi). The court concluded that facts and circumstances, including excise-related cases, could legitimately be considered by the Commissioner of Police or delegated officers in passing an externment order where credible evidence exists.
Effect of administrative circular(s): The petitioner relied on a DCP (Headquarters) circular dated 11.9.1998 which purported to bar externment proceedings based on excise involvement. The court observed that a modification dated 28.9.2000 limited that bar by permitting proceedings where persons were convicted under the Excise Act as per Section 48(f). The court emphasized that an administrative circular cannot override statutory powers; the Commissioner of Police (or delegates) retain statutory authority to consider excise-related matters when passing orders under Sections 46–48 of the Act. The court therefore rejected the contention that the administrative circular debarred the authorities from acting.
In-camera evidence and principles of natural justice: The court held there was no violation of natural justice in not supplying copies of in-camera evidence to the petitioner. It reasoned that Section 47 is intended to deal with desperate criminals in extraordinary situations where witnesses may be prevented from deposing for fear of reprisal; disclosing the identity of such witnesses would frustrate the purpose of the provision. The court held that recording proceedings in camera is permissible under Section 47 and that the competent authority may rely upon such material to form the requisite subjective satisfaction. The court cited Surjit Singh, Ajay Pal Singh, and Phulwari Jagdamba Prasad Pathak in support of this view.

On the facts, the court noted that the Addl. DCP recorded a statement from a person who stated he could not make the statement publicly because of fear, which the court regarded as supporting the finding of the petitioner's desperate character. The petitioner had been given opportunities to produce defence witnesses but had failed to do so. The court emphasized that appreciation of evidence and formation of subjective satisfaction are the province of the externing authority; the High Court will not sit as an appellate fact-finding forum to re-evaluate that subjective judgment when sufficient material exists on record.

Holding and Implications

Holding: The writ petition was dismissed. The court found no infirmity in the externment order dated 5th February, 2001 and thereby upheld the order of externment.

Implications:

Direct effect on the parties: The petitioner remains subject to the externment order previously passed by the Addl. DCP (externed beyond North East District, Delhi for the prescribed period and subject to the conditions contained therein); the petitioner's appeal to the Lt. Governor had already been dismissed and the High Court dismissed the writ petition.
Administrative circulars do not override statutory powers: The court reaffirmed that administrative instructions (such as the DCP headquarters circular dated 11.9.1998) cannot oust the statutory power vested in the Commissioner of Police or officers delegated with his powers; where statutory provisions permit consideration of particular offences (including certain excise offences), those matters may be taken into account in externment proceedings.
Permissibility of in-camera testimony: The court confirmed that in-camera recording and reliance on such testimony in externment proceedings under Section 47 is permissible and does not per se violate principles of natural justice, given the protective purpose of such procedures for witness safety in extraordinary situations.
No new legal precedent beyond application: The court applied existing principles and precedent to the facts; the decision upholds established lines of authority rather than announcing a novel legal rule.

This summary is confined strictly to the material and reasoning contained in the provided opinion and does not add or infer facts or law beyond that text.

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Dheeraj v. State (Nct Of Delhi).

Usha Mehra, J.— The petitioner Dheeraj Kumar has assailed the order of his externment passed by respondent under Section 47 of the Delhi Police Act, 1978 (hereinafter called the Act) for a period of six months. The order has been assailed, inter alia, on the grounds that five cases were relied by the respondent in its notice under Section 50 of the Act and all of those cases were registered under the Excise Act. That as per the administrative instructions issued by the respondent a person could not be externed if he is involved in excise matters. Since the petitioner has been shown to be involved in excise matters, the externment proceedings could not be initiated against him. Secondly the witnesses recorded in “camera” could not be used against him because no copy of that evidence was supplied to him. And finally he is neither desperate nor dangerous nor his movements are hazardous to the public at large.

2. In order to appreciate the challenge raised in this petition the brief facts of the case are that the petitioner is resident of Azad Gali, Badarpur, P.S Welcome, Delhi. A report was received from SHO of Police Station Welcome indicating the criminal activities of the petitioner. The Addl. Deputy Commissioner of Police (North-East District) after going through the report of the SHO issued show cause notice dated 25th January, 2000 to the petitioner under Section 50 of the Act indicating the summary of allegations. In response to that show cause notice petitioner appeared before the Addl. Deputy Commissioner of Police on 17th February, 2001. Contents of the notice were explained to him. He after understanding the contents of the notice furnished the bail bond. He was asked to file reply in response to the show cause notice under Section 50 of the Act. On 9th March, 2080 he submitted his reply to the notice. He was asked to produce defence witnesses, if any, but he failed to do so despite number of opportunities having been afforded to him. Thereafter on the basis of the material available on record, the Addl. Deputy Commissioner of Police passed the impugned order under Section 47 of the Act, dated 5th February, 2001 thereby ordering the externment of the petitioner beyond the limit of North East District, Delhi for a period of six months w.e.f 7th February, 2001. He was further directed not to enter or return to area of North East District, Delhi within the said period without written permission of the competent authority. He was, however, permitted to attend the court at North East District, Delhi on all dates of hearing and thereafter would remove himself outside the limits of North East District. He was further directed not to visit any other place except the Court premises and the relaxation was given only for the date of hearing in the Court for coming and going out of the limits of the North East District, Delhi. Order was duly explained to him and he was informed that he had a right to file appeal against the said order.

3. Petitioner preferred an appeal under Section 51 of the Act before the Lt. Governor of Delhi. By an order dated 7th March, 2001, the Lt. Governor of Delhi, Appellate Authority, dismissed his appeal. Appellate Authority found no infirmity in the order of the Addl. Deputy Commissioner of Police.

4. It is in this background we have to see whether any case is made out for interfering with the impugned orders. It is a well settled principle of law that so far as the period of externment is concerned that is subjective satisfaction of the Competent Authority. It is beyond the purview of writ jurisdiction. What we have to see is whether the order of externment in the circumstances of this case could have been passed?

5. As already pointed out the order has been assailed primarily on three counts; namely (i) that the basis for issuing notice were five cases under the Excise Act which according to counsel for the petitioner could not have been the basis of coming to the conclusion that petitioner is desperate or dangerous. We find no merits in this submission. In similar circumstances in the case of Shailender Kaur… v. Lt. Governor & Others…, Crl. W. No. 1041/2000 decided on 27th April, 2001 this Court held that even where a person is involved in excise cases by very nature of their activities is calculated to cause danger to society. It was observed:—

“Illegal trafficking and sale of liquor is, undoubtedly, a menace to the public interest, tranquillity, peace and safety. Those who indulge in offences covered by Sec. 61 of Punjab Excise Act by very nature of their activities and associations cause and their acts is calculated to cause danger and harm to the persons and property. Therefore, their acts and movements will fall within the ambit of clause (a) of Sec. 47. This view finds strength from the provision of Sec. 48 whereby action for externment could be taken against a person who has been convicted of certain offences specified in the Section including the offences u/s 61 of the Punjab Excise Act as in force in Delhi. Such cases, therefore, cannot be excluded from the material and evidence available against the person against whom the externment order is proposed.

It will be perfectly legal and within the power of the Commissioner of Police and the DCP/Addl. DCP who have been delegated the powers of the Commissioner of Police, to take all the facts and circumstances including the cases covered by the Punjab Excise Act into consideration. He can pass order of externment if adequate credible evidence and material is before him to satisfy him reasonably that the conditions precedent to the passing of the order of externment are in existence.”

6. Mr. M.R Chawla, counsel for the petitioner then contended that Deputy Commissioner of Police (Hqrs.) vide circular dated 11th September, 199S has held that no case of externment could be initiated on the basis of excise cases. Therefore, for this reason also the impugned order is bad in law. We find no substance in this submission also. While rejecting a similar plea this Court in the case of Smt. Shailender Kaur (Supra) observed as follows:—

“The learned counsel for the petitioner has placed strong reliance on a circular issued by the DCP (Headquarters) on 11.9.1998 The respondent, on the other hand had referred to another circular issued by the DCP (Headquarters) on 28.9.2000 which has modified this order. Both the circular and the modification order are extracted as under:—

CIRCULAR DATED 11.09.1998

“No. 24/98.C&T AC

Henceforth no externment proceeding shall be initiated against person is involved in the cases u/s 61-1-14 ExAct.

This issue with the approval of C.P, Delhi.”

ORDER DATED 28.9.2000

“In modification of this Hqrs., circular No. 26/98.C&T, AC-V, issued vide No. 23161-200.C&T, AC-V, dated 11.9.98, regarding externment proceedings against the persons involved in the cases under Section 61/1/14 Excise Act, it is specified that externment proceedings be initiated against the persons convicted under the Excise Act as per provision made in Section 48(f) in the Delhi Police Act.”

Indeed the DCP (Headquarters) issued a circular that proceedings for externment be not taken against the persons involved in the offences u/s 61 of the Punjab Excise Act. The modification order has, on the other hand, modified the above circular only to the extent that the proceedings may be initiated against the persons who are convicted under the Excise Act in accordance with the provisions of Section 48(f) of the Act. But the circular or the externment order will not take away the statutory power vested in the Commissioner of Police in taking into consideration the cases u/s 61 of the Punjab Excise Act, along with other facts and material for passing externment order after the other conditions are also fulfilled. The administrative order will not over-ride the statutory provision. The Commissioner of Police may be ignoring the administrative instructions of its own office but that would not deprive him of exercising the legal powers which are vested in him to decide the question involved under this provision.

We are, therefore, of the considered view that the circular dated 11.9.1998 does not debar the Commissioner of Police or the officers who have been delegated powers by him for taking action under the provisions of Sections 46, 47 & 48 of the Act on the basis of involvement of the persons concerned u/s 61 of Punjab Excise Act, as it is in force in Delhi.” (italic is ours)

7. Therefore, on this count also we find no force in the submission of Mr. M.R Chawla.

8. Mr. Chawla then contended that copy of the evidence recorded in “camera” ought to have been supplied to the petitioner. He ought to have been aware as to who made those statements. We find no substance in this contention also because there is no violation of the principle of natural justice in non supply of evidence recorded in “camera”. In case names of such witnesses are disclosed to the accused person then the very purpose of enactment of Section 47 of the Act would be frustrated because this Section is meant to deal with the desperate type of criminals under extra-ordinary situations who do not allow witnesses to appear against them and so witnesses do not come to depose against them for fear of repraisal. Therefore, recording of camera proceedings is neither illegal nor bad. It is permissible under Section 47 of the Act and the Competent Authority is justified in relying on the same and confirming the subjective satisfaction for passing the externment order. In support reliance can be placed on the following decisions: Surjit Singh v. State and Anr., 1998 (1) JCC [Delhi] 191, Ajay Pal Singh v. State (NCT of Delhi) & Ors., Crl. W. No. 924/2000 decided on 2nd February, 2001 and Phulwari Jagdamba Prasad Pathak (Smt.) v. R.H Mendonca and Ors., (2000) 6 Supreme Court Cases 751.

9. As regards criminal activities of the petitioner that was the subjective satisfaction of the competent authority under the Act. In fact perusal of record show those stood substantiated on the record. The Addl. Deputy Commissioner of Police before passing the impugned order recorded the statement of one person. He deposed that he could not make the statement against petitioner in public because of his fear. This shows the desperate character of the petitioner.

10. Since the activities of the petitioner were dangerous to the public at large and there was apprehension of breach of tranquillity and peace of the area, the competent authority arrived at a subjective satisfaction in passing the impugned orders. We see no infirmity in the same nor any merits in the plea raised by the petitioner. Petitioner was afforded full opportunity to lead defence evidence but he failed to do so. So far as the appreciation of evidence is concerned that is the sole subjective satisfaction of the externing authority. This court is not sitting in appeal over the same. Perusal of the record shows that there was sufficient material available on record before the competent authority to arrive at the subjective satisfaction.

11. For the reasons stated above, we find no infirmity in the impugned order. It does not suffer from any infirmity. The writ petition is accordingly dismissed.

Dheeraj v. State (Nct Of Delhi).

Judgment Summary — Dheeraj Kumar v. Competent Authority (Externment under Section 47, Delhi Police Act, 1978)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's Arguments (as reflected in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Dheeraj v. State (Nct Of Delhi).

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