Prem Chand Paniwala v. Union of India

12_62 A· PREM CHAND _v._ UNION 0~ INDIA AND ORS. _November_ 11, 1980 B [V. R. KruSHNA IYER, R. S. PATHAK & 0. CH!NN*PPA REDDY, JJ.] _Delhi Police Act, 1978-Section.s_ 47 _and_ _So-Scope_ _of-Allegations_ _made_ _itt externment order vague-Order if valid- Order should be passed or;ly when_ _there_ _is_ _clear and present danger based_ _011_ _credible material._ c D E F G H Exercising power under sections 47 and 50 of the Delhi Police Act,. 1978 (which clothe the Commissioner of Police with externment powers for keeping the capital city free of crime) the Deputy Commissioner of Police Delhi directed the appellant to show cause why he should not be externcd from the Union Territory of Delhi. The allegations against him were that his activities in the area of poli~ station Connaught •Place and the areas adjoining the police station were causing and were calculated to cause harm, alarm and danger to the residents of the said localities and areas that he kept a kcife with him for unlawful purposes and threatened residents of that area with dire consequences and deterred them from reporting to the police and that he had engaged himself in the commission of offences against persons and properly with force and violence. In bjs petition under ArticJe 32 of the Constitution challenging the vires of the externment proceedings as arbitrary and unreasonable restrictions on his freedom of movement, the petitioner stated that over the past 25 years with the indulgence of the local police. he used to park his mobile refrigerated water-carts on the road side in front of a cine.ma theatre in Delhi and that in return for the indulgcnee shown to him by the police and to keep them in good humour he yielded to their pressure and gave false testimony in as many as 3000 cases. Even thQugh Courts had dubbed him as a stock witness and passed severe strictures and disbelieved his testimony, the police did not give him up; that he had to continue to act as a tool in their bands for the survival of his. business and that lately when he declined to oblige them because ho felt that his wealthy s-tation in life and the character-building stugo of his children warranted giving .up tho prorc.ssion of stock-witnoss, the police avenged themselves by threatening extcrnment which would inflict mortal cconomi<; injury to hin1 if tho threat was carried out. The Assistant Commissioner of Police in reply had stated that before the externment order was passed witnesses had been examined in camera in support and in opposition · of the allegations justifying cxternment and that on a consideration of the materials placed before the Deputy Commissioner of Police, including the education of his children and tho assurance given by the petitioner, final order had been passed directing him to show good conduct f or a period of 3 months. Allowing the petition, HELD : The Delhi Police Act permits e.x.ternment provided tbe action is _bona_ _fide._ All power, including police power, must be informed by fairne~s. if it is to survice judicial scrutiny. _Mala_ _fides_ is fatal if it is made out. [11640-E] PR¥M CHAND _V._ UNION OF INDIA _(Krishna l_ _yer,_ J.) 1263 Sections 47 and 50 of the Act have to be read. strictly; anr police apprehension is not enough; some ground or other is not adequate; there must be a clear and present danger based upon credible material which makes lhe movements and acts of the person in question alarming or dangerous or fraught with violence-. Like-wise there must be sufficient reason to believe that the person proceeded against is so dangerous that his mere presence in Delhi or any part thereof is hazardous to the community and its safety. A stringent test must be applied by Courts in order that this power is not abused to the detriment of . the citizen. Natural justice must be fairly complied with and vague allegations such as those levelled against the petitioner and secret hearings are gross violations of Articles 14, 19 and 21. (1267 G-H; ' '-- ORIGINAL JuRISDICTION : Wri~ Pe~ition No. 305.0 of 1980. (Under Article. 32 of the ~onstituti9n) _A._ _S. 'Sohal_ and _M._ C. _Dhingra_ for the Petitioner. _M:_ _M._ _Abdul Khader,_ _N._ _Netttar_ and _M._ _N._ _Shroff_ for the Re~pondents. The Judgment of the Court was delivered by A · B c D KRisHNA IYER, J.-Who will police the police? Is freedom of movement unreasonably fettered if policemen are given power of externment for public peac~? 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 E 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 con- ~ cerned because counsel for the State bas · assured the court that they will drop polic~ surveillance or any action by way of externment as proposed earlier. The police methodology, with sinister F potential to human liberty described by th~ petitioner, if true, deserves strong disapproval and const.i:tut.ional counter-action by this Court. But before committing ourselves to any course, we must set out the factual matrix from ~hich the present case springs. ... The statutory starting point of the criminal saga of Shri Prem Chand Paniwala, the petitioner, now threatened with cxternmcnt 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 t)Ie remoyal of persons about to commit offences. G The procedural prescriptions and substantive directions, _m_ this H behalf, ·are laid doWn in the above provisions. The Deputy Com ~i~s~~ncr 9! ~oli_s_e (tAe D_CP. !or ~hart) .in eJFerci~e of the said power, . ·--- •... - .:. A B D E c SUPREME COURT REPORTS [1981] 1 S.C.R. initiated proceedings against the petitioner and directed him to show cause why he should not be externed from _ t?e . Union Territory of Delhi. Paniwala who, from humble bcgmnmg as vendor of aerated water J\Car a cinema theatre, had spiralled up into a prosperous dealer in Vasant Vihar, when confronted by this Polic~ notice, decided upon a constitutional show-down and came to this Court - challenging the vires of the cxtcrnment 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_ _fide.<J_ 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 outsid~ the Union Territory would surely, suffer not merely financial mayhem, but also social, domcsti'C and physical deprivation virtually amounting to economic · harakiri · an psychic distress. Nevertheless, the Act permits cxtcrnmcnt, provided the action is _bona fide._ All power, including police power. must be informed by fairness if it is to survive judrcial scrutiny. Cases arc legion which leave one jn no doubt that _mala_ _fides_ is fatal, if it is made out. From this angk. Prcm Chand Paniwala has turn..:d the focus on police mal-practices _vis-a-vi.J_ his own career; and ewn if a fragment of what he has said be true, the higher cJ!ftccrs of the Di!lhi Police will nc~d to look into the goings on at the lower kvd. Here comes the relevance of autobiographical revdations mad~ by the petitioner in more than one affidavit. Certain facts emerge as fairly proba9le from the affid:1vits of both !>ides. Prcm Chand made a living as a _paniwala_ or vendor r•f ' soft drinks ncar Dditc Cinema even as a tccnagerJ which shows that he haLl \'cry poor bcginning'i. How JiLl he fall into tho thraldom of the locul police? 1 fc explains it in hh nffidavit : "lk had u few mobil~t c:~rts which were used for refrigerating w::ttc;r .. These carts used to b" parked by the petitioner on the roaJ ~Jtk due to the indulgence of the police. He was in his teem whl.!n he started ·his ayocation anJ continued for a very long time. Thus, he acquired an alias i.e. }?rein Chartd Paniwall. I i' ._,~ : I . _:_ _:_ I #### :-1 '· _[} ]_ ~"': I ! j I . . i ( J ., # 1 ~ n Dll<! to close assocbtion with Police and their conniv•Utce and inJuJgenc.:, the petitkmer thrived. In this process, tiN pctitioMr became :1 prey anJ ~awn in the h:1nds of the pl)lic~. II~> wt~s pmuadcd t~ be thel! pcrpdual stooge und stock wrtness. '·, ( - ~ ' - ' PREM CHAND _v._ UNION OF INDIA _(Krishna lyer,_ J.) 1265 The Petitioner in the year 1965, when he was _25_ years old was involved in a gambling case by the police and to mould liim a permanent stock witness and lest he should be militant to defy them. Despite his hesitation and unwillrngness be was forced to become a permanent pawn of the poJice. This _is_ hOw, the petitioner Jimded himself in the web of the police; he had no alternative than to be like that as _his_ liveHhood was dependent upon the mercy and indulgence of the police". The version of the petitioner is that once he yielded to th~ pressure · of the Police to give false testimony disclosing a rubberised conscience. and unveracious readiness· to forswear himself, there was escalation of demands upon him and he became. a regular pedlar of perjury "on police service". Indeed, counsel for the petitioner argued 'fhat his client was a 'stock witness' because he had to keep the Police in good humour and obliged them with tailored testimony in around 3.000 cases because the alternative was police wrath. We were flabbergasted at this bizarre confess-ion but to lend cre'dcnce _to_ liis assertion counsel produced a lfew hundred stunmons'es where the petitioner wa.S cited as a witness. Were he not omnjprec;ent how could he testify in so many cases save by a versatile genius for loyal B c D ' E F G H •• _· {.._ ~ _I"_ unveracity? For sure, the consternation ·of the community at this flood of perjury will shake its faith in the veracity of PoJi~e investigation and the validity of the judicial verdict. We have no doubt that the petitioner, who has given particulars of a large number of cases where he had .been cited as witness, is speaking ~he truth even assuming that 3,000 cases- may be an exaggeratio.n. In Justice, Justices and Justicing and likewise in the Police and Policing, the peril to the judicial process is best left to imagination if professional perjurers like the self-confessed Paniwala are kept captive by the Police, to be pressed into service for proving "cases". Courts,. trusting the · Police may act on apparently• veracious testimony and sentence . ' people into prison. The community, satisfied with such convictions, may well believe that an is well with law and order. We condemn, in the strongest terms, the systematic pollution of the judicial process and the consequent .threat 'to human rights of innocent persons. We ]lope that the higher authorities in the Department who, apparently, arc not aware of the nefarious goings-on at the lesser levels will immediately take . meas·ures to stamp out . this . \ unscrupulou·s menace. _)_ The ' reason why the petitioner has divulged his role ·as profes~ 'sionnl 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 ###### Dl.ISiness on the public street near a cinema house, not otherwise 12~·.6 SUPREME COURT REPORTS [1981] 1 S.C.R. A B c D E F G H 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 Tespectable be 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 w.ltne.'>~ 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 petiti-on but we do not think it necessary to set them out. However, the crisis came when he declined .to oblige with p::rjury since he felt his- wealthy station in life and the characterbuilding stage of his children warranted giving up the profession of stock-·..vitness. - The Police avenged tl1emselves by initiating externmeat 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 vaHdity of the Police proceedings. It is· significant to Mtice that among the allagations against the petitioner are such vague statements as your activities in the area of Police Stati:on Connaught Place and other area adjoining to the Police Station Connaught Place are causing and are calculated to cause harm, alarm and danger to the residents of the said localities and areas. While we do not delve into details, it is useful to mention that the Police allegations arc again vagu.e rn respect of the remaining imputations namely :, . ~ ### . /,. ··---..._ ##### . . ' .• '< ... That you have engaged yourself in commission of offences against person and property attended with force ap.d violence for which the following cases were register~ against you by the Police ...•... • ". Tiie 'petitioner's reply affidavit makes startling disclosures .about tlie police ·methods of iri:J.plicating innocent people. However, the yersion of the petitioner cari hardly be swallowed since ' he is a self-. confessed perjurer. Nevertheless, it is not too. much to ask Government to take effective measures to pre\;'ent Police methods straying into vice. We .hopefully remind the State about what Justi:ce Brandieis once observed : ( [1] ) "Crime is contagious. If the government becomes a law breaker, it breeds contempt for Jaw:" ...... _"TQ_ declare that in the administration of the criminal law the end. justifies the means - to declare that the government may commit crimes in order to secure the conviction of a private crimuial - would bring terrible retribution. Against that pernicious doctrine this court must resoluiely set its face." In t11e same American de<;ision we have just mentioned Justice Holmes observed; "We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government si1ould play an ignoble part." The provisions of the statute ostensibly have a benign purpose and in tpe context of escalation of crime, may be restrictions which, in normal times might appear unreasonable, may have to be clamped down on individuals. We are conscious of the difficulties of detec-. tion and proof and the strain on the police in tracking down criminals. But fundamental rights are fundamental and personal liberty cannot be put at the mercy of the Police. Therefore, Ss. 47 and _50_ have to be read strictly. Any police apprehension is not enough. Some ground or other is not adequate. There must be a clear and present danger baSed upon credible material which makes the movements arid acts of the person in question alarming or dangerous or fraught with violence. Likewise, there must be sufficient reason to believe· ~li at the person proceeded against is so desperate and dangerous that _his_ mere presence in Delhi or any part thereof is hazardous to fhc community and its safety. We are clear that the easy possibility (l) _Olmstead v.:u._ S. 277'US 438 [1928].' .. _)_ . B· D · E H ••• _,J_ ... •• • - ... . ' - .. - · .... •1.. .,. : ~REM CHAND _v._ umoN .OF iNmA _(KriShnalyer,_ J.) _1i6'i_ "That you keep knife ~ith you for unlawful purpose and A · threaten the persons residing in the area with dire consequences and further dete~ them from making report. ~o police. .! ., ..... 1268 SUPREME COURT REPORTS [1981] 1 S.C.R. A B c D E F G of abuse of this power to the detriment of the fundamental freedoms of the citizen persuades us to insist that a stringent test must be applied. We are further clear that natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of Art. 14, 19 and 21 of the Constitution as expounded by thls Court in _Maneka Gandhi(_ _[1]_ _)._ We do. not go deep into this question for two reasons : there is another petrtion where the constitutionality of these identical provisions is in issue. Secondly, the counsel ·for the State has fairly conceded that no actio_n will now be taken even by way of surveillance against the petitioner. In an age when electronic surveillance and mid-night rappings at the door . of ordinary citizens remind us of despotic omens, we have to look at the problem as fraught with peril to constitutional values· and not with lexical laxity or literal liberality. Having . made these observations, we leave the question of _vires_ open for final investigation, if necessary, in other cases pending before this Court. We think counsel for the State was right in representing that no further action would be taken against the peti-tioner. We dispose of the petition as calling no longer for directions but emphasise the need of the State to issue clear orders to the Police Department to free the process'ses of investigation and prosecution from the contamination of concoction through the expediency of stockpiling of stock-witnesses. To police persons who get ri~h quick by methods not easily or licitly understandable, is perhaps a social service. Among the list of wanted persons must be not only the poor suspects· but the dubious rich. To keep an eye on their activities without close shadowing and surveHlance may, perhaps, lead to criminal discoveries, if they are not too influential for the pcllce. By this judgment what we mean is. not to tell the Police to · fold up their hands 'and remain inactive when anti-so~ral elements s~ddenly grow in wealth but to be activist and iptelligent enough to · , track down those who hold tlie nation's health, wealth, peace and secmity in jeopardy. The only insistence is that the means must : also be as good as the ends. P.B.R. _Petition._ _allowed:_ (1) _Maneka Gandhi_ v. _Union_ _of_ _India_ [1978) 1 SCC 248. ##