Avinash Vs. Lt. Governor of Delhi and Ors. - (High Court of Delhi) (27 Sep 2017)

Sufficiency of the material cannot be called into question

MANU/DE/2976/2017

Criminal

The Petitioner has invoked the writ jurisdiction of present Court under Article 226 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.PC') by impugning the order of the Lieutenant Governor, Delhi whereby the order of Additional Deputy Commissioner of Police, ('Additional DCP’) under Sections 47 & 50 of the Delhi Police Act, 1978 ('DP Act') directing the Petitioner to remove himself beyond the limits of the NCT of Delhi for a period of one year, was confirmed. The process of externment started on 30th April, 2015 when the proposal for externment of the petitioner was received by the DCP. It was proposed that, the Petitioner has been engaging himself in the commission of illegal acts and activities and his movements in the limits of the NCT of Delhi are calculated to cause alarm and danger disturbing societal peace. He is a potential source of harming public at large.

The word 'habitually' mentioned in sub-clause (ii), (iii) & (iv) of sub-section (C) of Section 47 of DP Act is elaborated by explanation which says that a person who within a period of one year immediately preceding the commencement of an action under Section 47 of DP Act is found in not less than three occasions to have committed or to have been involved in any of the acts referred in sub-clauses shall be deemed to have habitually committed that act. The word "habitually" is used only in sub-clause (ii) to (iv) of sub-section (C) of Section 47 of DP Act. Therefore, even if one of the clauses either (a) or (b) or sub clause (i) of clause (C) coupled with the other ingredients are present, the externment order of the competent authority cannot be termed invalid or illegal. Similar view was taken by this Court in Om Prakash v. Additional Deputy Commissioner of Police. A reference to the impugned order would show that, the reasons are covered not only in Sections 47(a) and 47(c)(i) of Act but also in Section 47(c)(ii) of Act and either of the provision followed by further satisfaction of the Competent Authority that, witnesses are not turning up, is sufficient to warrant action against the petitioner.

The Apex Court in State of NCT of Delhi & Another v. Sanjeev @ Bittoo, observed that, The Court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient. It is true that, some material must exist but what is required is not an elaborate decision akin to a judgment. On the contrary, the order directing externment should show existence of some material warranting an order of externment. While dealing with the question mere repetition of the provision would not be sufficient. Reference is to be made to some material on record and if that is done, the requirements of law are met. It is not the sufficiency of material but the existence of material which is sine qua non.

In State of N.C.T. of Delhi and Anr. vs. Sanjeev @ Bittoo, it was observed that, the sufficiency of the material cannot be called into question. All that is needed to be seen is that, there was material on record available which would lead a prudent person to believe that, the requirements under Section 47 & 50 were satisfied. Further, the concerned authority has to assess the material on record objectively after taking into consideration all the relevant facts.

The Additional DCP in the present case came to the conclusion that, the presence of the Petitioner in the NCT of Delhi to be hazardous to society on the basis of the various cases registered against him in the year preceding the issuance of the notice under Section 47 & 50 of the DP Act and the statement of the witnesses recorded in camera by the then Additional DCP. The Petitioner as per the explanation to Section 47 of the DP Act comes within the meaning of a 'habitual offender' and therefore, his externment order was based on material on record and an objective analysis of the evidence on record.

In the present case, the competent authority i.e. Additional DCP after recording evidence and other material on record found that, the Petitioner was involved in several criminal cases punishable under IPC; the presence of the petitioner in the community is hazardous to the society and his continuous presence in the area is leading to cause alarm, harm and danger to the respectable citizens of society. He further came to the conclusion that, the witnesses are unwilling to depose against the petitioner being apprehensive of safety to their person and property and strengthening measures are required to be taken against him. There is no force in the arguments of Petitioner that, there was no sufficient material before the competent authority to pass an order of externment in violation of the fundamental right of the petitioner to leave at his place of residence.

Therefore, the satisfaction of the Additional DCP was based on existing material and relevant facts after following the procedure and safeguards as laid down in Section 47 to 50 of the DP Act. There is no reason to interfere with the order of externment and of the appellate authority which are based on reasons, which have been recorded and well within the parameters of Section 47 to 50 of DP Act. The petition is dismissed.

Relevant : State of N.C.T. of Delhi and Anr. vs. Sanjeev @ Bittoo MANU/SC/0257/2005, Om Prakash v. Additional Deputy Commissioner of Police, MANU/DE/1488/2001: (2002) 61 DRJ 481

Tags : EXTERNMENT PROCEEDINGS VALIDITY