BHIM SEN JAIN Vs. S H O

JUDGEMENT

(1.) According to the police' the reports were received against the petitioner that he was carrying on speculation in silver which was prohibited under the Forward Contracts (Regulation) Act, 1952. In respect of the violations of the said Act, nine cases were lodged against him u/Ss. 21 and 22 thereof. Five out of those resulted in discharge or aqcuittal. Four were cancelled by the police itself. 3 cases were instituted after the emergency was imposed. On 3.3.76, S.H.O. Kotwali submitted a report that the petitioner in spite of these prosecutions did not refrain from speculation in silver and other commodities and required to be watched. A history-sheet is required to be prepared so that proper surveillance be kept on him. He requested that his name be directed to be entered in Bundle "A" and in the Register No. 10 Part II. The S. P. agreed with this suggestion on 22.3.76. On 30.3.76 a report was lodged against him in the Kotwali showing that he continued to indulge in speculation. The report was sent to the Forward Transaction Commission, Bombay, and investigation is said to be pending in that case. He had been arrested on 2-2-76, for repeated violation of the said Act and produced before the S.D.M. u/s 110 (f) Cr. P.C. but was discharged on 3.2.76. He was sent for by the Kotwali on 19.3.76 so that his thumb impression could be taken as the same were necessary to be kept in official record. Detention orders under MISA were issued against the petitioner but he went underground until revocation of the emergency. Action againsKt him was taken because he was habitual offender but no restriction was placed on his movement, nor was he shadowed by the police. A watch was of course kept on his activities. No restriction on his business was imposed.

(2.) The petitioner has challenged all these allegations and has stated that he is a propertied person and is an assessee both for income tax and sales-tax. He holds a gold licence issued by the Del Administration. He was appointed by his community to manage its properties and he is the executive member of the Bullion Sarafa Association for the last several years. His sons Sudarshan Kumar and Ramesh Kumar are money-lenders holding a valid licence ; Ramesh Kumar is an income-tax assessee too. Forward Transactions in silver were stopped in the year 1952 but sale and purchase of silver by a person holding a licence was never prohibited. The police ected upon suspicion, but all their raids and cases instituted by them ended in failure. He alleged that on 25-1-76, police officers came and demanded of him Rs. 2,000.00 at the instance of the Youth Congress. He refused & he was taken to the Kotwali on 2-2-76 and arrested u/s. 110(f) and 41 (2) Cr. P.C. on the ground that he was one of the persons who were shouting that they would allow the prices of silver to fall & would carry on business of brokers of silver and would see how the Government controlled the prices of silver. He was produced before he Magistrate and bailed out after several days. In spite of this, police continued to bring pressure on him fora donation of Rs. 2.000.00 and the petitioner had to close his shop. On 19.2.76, the police had raided his house and arrested his son Sudershan Kumar u/s 110 (f) Cr. P. C. on the ground that he was shouting that he would not allow the Government to succeed in controlling the prices of silver and that he himself would not stop speculation in silver. Sudershan Kumar was discharged on 27-9-76 by the order of the S.D.M. when the petitioner appeared in the court on 18-3-78 the police Kotwali arrested him and he was compelled ro give his finger prints. He somehow managed to slip away. The police then obtained orders of detention and warrants of attachments of his property under MISA. It was on 8.3.77, that the detention order was revoked. His wife, Mrs. Shakuntala Devi, made an application in the court of the Metropolitan Magistrate against the attachment of their properties and in reply to the application it was stated that a history-sheet has been recorded in Registrar No. 10. The petitioner made representations, but to no avail. The entry of his name in the Surveillance Register and the preparation of the history-sheet are in contravention of the provisions of the Punjab police Rules and against the rules of natural justice. The action of the police seriously interferes with his liberty and has lowered him in the eyes of everyone. He cannot carry on his business as a Saraf because he is continuously haunted by he police having been dubbed as a bad character. He is neither a criminal by habit nor by dispoition nor has ever indulged in repetition of crimes. There was no material with S.P. to satisfy himself that the petitioner deserved to be mentioned as a bad character He prayed that a writ of mandamus be issued to quash the history sheet and the entry in the Surveillance Register, and direct the respondent not to interfere with with his liberty in any manner.

(3.) Now, the Punjab Police Rule No. 23.4 requires that in Part II of Surveillance Register, the Superintendent of police may have the names of such persons entered as are reasonably believed to be habitual offenders or receivers of stolen property, whether they have been convicted or not. A history-sheet may be prepared either before or after the name of a person is entered in the Surveillance Register if he is reasonably believed to be habitually addicted to crime or to be an aider or an abettor of such person. Rules 23.7 and 23.16 provide for a close watch in respect of a man under surveillance and the village head-man is required to send immediate information to the police regarding the departure and destination of such a person whenever he leaves his home or residence. In Govinda v. State AIR 1975 SC 1373, it was observed that such regulations ill-accord with the essence of personal freedom and verge perilously near unconstitutionality. It was also said that such rules should be confined to crimes involving public peace or security. In Roop Lal Makkar v Thakur Jagdish Singh (1378/73 D./26.10.77) 1978. Rajdhani L R (Note) 48 a division bench of this court held that as a result of these entries a person is virtually condemned in the official records as an undesirable person and unless the surveillance is carried out in such a discreet manner that neither he nor others connected with him are aware of it, it is capable of causing him mental agony and anguish and affects his rights of privacy, interferes with their frame of mind as distinct from any physical restraint on the body. These documents, therefore, attracted a fundamental right to move freely throughout the territory of India and interfered with the life and liberty guaranted by Art. 21. That was also a case in which a number of reports had been received against the petitioner about illegal forward trading by him in certain commodities. The court held that where an order adverse to a citizen could be made on the basis of reaso- nable belief of a State functionary, it is . open to the High Court to examine the order to satisfy itself that the reasonable belief of the functionary was based upon some material which is germane and relevant to the question, even though the court would not be concerned with the sufficiency of it. After examining the material on record, the court found that the impugned order could not be justified either with reference to the narrow construction that must be placed on the relevant rules or with reference to the material on the basis of which the reports were said to have been made. His main' contention Is that there is no material on record for the police officers to entertain a reasonable belief that the petitioner is a habitual offender or habitually addicted to crime. For the definition of the habitual offender we would normally look to section 110 Criminal Procedure Code . which mentions the persons who have to be considered as habitual offenders, but the case of the petitioner is not covered by the provisions of section 110 Cr. P.C. His case is also not covered by the Punjab Habitual Offenders Act, 1962, or by the earlier Act of 1918. To my mind, the police rules have reference to a habitual offender as is described in section 110 Cr. P.C. or as is defined in the Habitual Offenders Act, but the Supreme Court in Kharak Singh v. State of U.P. AIR 1966 S.C. 1966, held that a habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by dispostion formed by repetition of crimes. Reasonable belief by the police officer that the suspect is a habitual offender or is a person habitually addicted to crime is sufficient to justify action under Rule 23.4 (3) (b) and Rule 23.9 (2). Mere belief is not sufficient. It must be reasonable, and based on reasonable grounds. The suspect may or may not have been convicted of any crime. Even apart from my conviction, there may be reasonable grounds for believing that he is a habitual offender. Now, does the material upon which the police officer has acted form a reasonable ground for entertaining such a belief ? No doubt, indulgence in forward transactions is an offence and certainly a white-collar crime, hazardous in its consequences, but whenever the police raided the house of the petitioner, at no time anything was recovered except in one case when he was challanged with seven others. An expert was produced to read the document recovered from the petitioner and he read out certain digits to mean certain other digits. The expert stated that the digits showed the amount of commission received by the petitioner as a broker. The learned magistrate found such reading without any basis, Above all, there was no evidence of the future date to which the transactions related. Out of the attempts made by the police, they could not succeed even once to prove any case against the petitioner. Forward transaction are not totally prohibited, but they have been regulated by the aforesaid Act and therefore, the police shall not be entitled to prepare a history sheet or the surveillance register by simply instituting a number or cases in quick succession and then to make out a case that he is a -criminal by habit formed by repetition of crimes. It is a case not of insufficient grounds, but of no ground at all. There is no doubt that the preparation of such record with its attendent consequences causes substantial injury in mind and reputation and freedom of the petitioner for which he has no other redress available except a direction under Art. 226. It is true that such record is confidential and enables the police to perform its duties with efficiency. It is kept for their guidance and convenience. It may also be true that no restriction was in fact placed upon the petitioner but even then the police cannot prepare such record without strict compliance of the relevant rules. In view of the order that 1 am making, I need not go into whether all this was being done because he refused to pay money for family planning compaign and proclaimed that the prices of silver shall not be allowed to be controlled.