2006 Supreme(SC) 455

2006(4) Supreme 610
SUPREME COURT OF INDIA
(From Delhi High Court)
S.B. Sinha and P.K. Balasubramanyan, JJ.
Lt. Governor, NCT & Ors.—Appellants
versus
Ved Prakash @ Vedu—Respondents
Criminal Appeal No. 530 of 2006
(Arising out of SLP (Crl.) No. 5212 of 2005)
Decided on 5-5-2006
Counsel for the Parties :
For the Appellants : Mrs. Mukta Gupta, T.A. Khan and Mrs. Anil Katiyar Advocates.
For the Respondent : Harjinder Singh, Sr. Advocate, Ms. Vandana Sharma and S.V. Deshpande, Advocates.

IMPORTANT POINT
A proceeding under Section 47 of the Delhi Police Act stands on a different footing and the authorities are not bound to disclose the cases in which the witnesses had not deposed against the proceedee out of fear or because of threat etc.

Headnote:Delhi Police Act, 1978—Sections 47, 48 & 50—Externment proceedings —Validity—An order of externment was passed against respondent directing his removal beyond the limits of the National Capital Territory of Delhi for a period of two years—Order challenged on ground that the notice issued against the externee was vague—High Court held that the allegations made in the notice satisfy the statutory requirement—However, the Court opined that in the show cause notice in regard to the criminal cases the names of the witnesses who were said to be reluctant to or did not come forward to depose against the respondent on account of fear, had not been disclosed, therefore, the principles of natural justice have been violated—Whether High Court was justified in holding that the authority was bound to disclose the cases in which the witnesses had not deposed against the respondent out of fear or because of threat etc.—(No)—Impugned order of the High Court need not be given effect to—Period of externment has since expired.

       Held : The law operating in the field is no longer res integra which may hereinafter be noticed :

       (i)In a proceeding under the Act all statutory and constitutional requirements must be fulfilled.

       (ii)An externment proceeding having regard to the purport and object thereof, cannot be equated with a preventive detention matter.

       (iii)Before an order of externment is passed, the proceedee is entitled to an opportunity of hearing.

       (iv)The test of procedural safeguards contained in the Act must be scrupulously complied with.

       (v)The satisfaction of the authority must be based on objective criteria.

       (vi)A proceeding under Section 47 of the Delhi Police Act stands on a different footing than the ordinary proceeding in the sense that whereas in the latter the details of the evidence are required to be disclosed and, thus, giving an opportunity to the proceedee to deal with them, in the former, general allegations would serve the purpose.(Para 17)

       The High Court ordinarily should insist production of the entire records including the statement of the witnesses to express their intention to keep their identity in secret so as to arrive at a satisfaction that such statements are absolutely voluntary in nature and had not been procured by the police officers themselves.(Para 18)

       We have noticed hereinbefore, that the High Court itself held that the allegations made in the notice satisfy the statutory requirement but, in our opinion, the High Court was not correct in coming to the finding that the third Appellant was bound to disclose the cases in which the witnesses had not deposed against the Respondent out of fear or because of threat, etc. If an attempt is made to communicate the cases in which witnesses were not forthcoming due to the activities of the proceedee, the same would violate the secrecy required to be maintained and would otherwise defeat the purpose for which Section 47 of the Act had been enacted.(Para 19)

       An order of externment must always be restricted to the area of illegal activities of the externee. The executive order must demonstrate due application of mind on the part of the statutory authority. When the validity of an order is questioned, what would be seen is the material on which the satisfaction of the authority is based. The satisfaction of the authority although primarily subjective, should be based on objectivity. But Sufficiency of material as such may not be gone into by the writ court unless it is found that in passing the impugned order the authority has failed to take into consideration the relevant facts or had based its decision on irrelevant factors not germane therefor. Mere possibility of another view may not be a ground for interference. It is not a case where malice was alleged against the third Appellant.(Para 20)

       The High Court and this Court undoubtedly jealously guard the fundamental rights of a citizen. While exercising the jurisdiction rested in them invariably, the courts would make all attempts to uphold the human right of the proceedee. The fundamental right under Article 21 of the Constitution of India undoubtedly must be safeguarded. But while interpreting the provisions of a statute like the present one and in view of the precedents operating in the field, the court may examine the records itself so as to satisfy its conscience not only for the purpose that the procedural safeguards available to the proceedee have been provided but also for the purpose that the witnesses have disclosed their apprehension about deposing in court truthfully and fearfully because of the activities of the proceedee. Once such a satisfaction is arrived at, the superior court will normally not interfere with an order of externment. The court, in any event, would not direct the authorities to either disclose the names of the witnesses or the number of cases where such witnesses were examined for the simple reason that they may lead to causing of further harm to them. In a given case, the number of prosecution witnesses may not be many and the proceedee as an accused in the said case is expected to know who were the witnesses who had been examined on behalf of the prosecution and, thus, the purpose of maintaining the secrecy as regards identity of such persons may be defeated. The court must remind itself that the law is not mere logic but is required to be applied on the basis of its experience.(Para 21)

       Although it is not possible for us to lay down the law in precise terms as the facts of each case are to be considered on their own merit, we have endeavoured to lay down the broad propositions of law. We would, therefore, record our disagreement with the view of the High Court.(Para 23)