Judgment

KRISHNA IYER, J.:- Who will police the police? Is freedom of movements 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 counteraction by this Court. But before committing ourselves to any course, we must set out the factual matrix from which the present case springs.

2. 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, Ss. 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.

3. 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 beginnings 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.

4. 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 and psychic distress. Nevertheless, the Act pemits 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 in no doubt that mala fides is fatal, if it is made out. From this angle, Prem Chand Paniwala has turned the focus on police mal-practices 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.

5. Certain facts emerge as fairly probable from the affidavits of both sides. Prem Chand made a living as a Paniwala or vendor of soft drinks near Delite Cinema even as a teenager, which shows that he had very poor beginnings. How did he fall into the thraldom of the local police? He explains it in his affidavit :

"He had a few mobile carts which were used for refrigerating water. These carts used to be parked by the petitioner on the road side due to the indulgence of the police. He was in his teens when he started his avocation and continued for a very long time. Thus, he acquired an alias i. e. Prem Chand Paniwala.

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