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2002 DIGILAW 207 (PNJ)

Narain Singh v. State Of Punjab

2002-02-14

ADARSH KUMAR GOEL

body2002
Judgment Adarsh Kumar Goel, J. 1. This petition seeks a direction for removal of the name of the petitioner from the Surveillance Register No. 10 kept at Police Station Dera Baba Nanak, Police District Batala. 2. It is alleged that the petitioners name has been entered in history sheet No. 48A dated 20.4.1987, which came to the knowledge of the petitioner from the stand of the State in complaint No. 26 of 1997 filed by the petitioner before the Punjab State Human Rights Commission seeking protection of his life and liberty. A copy of letter dated 28.9.1999 from the SSP, Batala to IG (Litigation), Punjab, Chandigarh, containing this information is filed as Annexure P-1. In the said letter, it is stated that the petitioner was listed as hardcore terrorist and secret reports were received by the SSP, Batala and DIG, Border Range, Amritsar from time to time from the office of Addl. DGP (Intelligence), Punjab. It is further mentioned that he was arrested in various cases for committing heinous crimes to create terror, but he was acquitted on account of eye witnesses resiling from their statements because of fear. A DDR No. 50 dated 17.9.1997 was also lodged to the effect he was instigating youth against the nation and a statement given to the press was published in Jag Bani on 20.9.1997 to the effect that he would continue his for the creation of Khalistan as a separate sovereign state. 3. The petitioner has challenged the said entry on the ground that he had been acquitted in 11 cases not by giving any benefit of doubt, but by holding that the prosecution has failed to establish his case against the petitioner has made certain other averments that he was kept in solitary confinement while in custody; his house was raided and in the Human Rights Commission, the stand taken was that history sheet had been opened against him. It is further stated that he never visited Pakistan and did not know Joginder Singh; he was spokesman of Akal Federation, which was not a banned organisation; DDR No. 50 17.9.1997 and FIR No. 57 of 1999 were false. 4. It is further stated that he never visited Pakistan and did not know Joginder Singh; he was spokesman of Akal Federation, which was not a banned organisation; DDR No. 50 17.9.1997 and FIR No. 57 of 1999 were false. 4. It is further stated that under Rule 23.4 of the Punjab Police Rules, Volume III (for short, the Police Rules), the name of a person can be added in the Surveillance Register No. 10 only on six grounds, none of which was existed in the present case. 5. Notice was issued and a reply has been filed by the DSP concerned, wherein it is stated that 22 cases were registered against the petitioner and his name was ordered to be entered in Register No. 10, Part II vide, order dated 20.4.1987 of the then SSP. The other allegations have either been denied or justified. 6. Counsel for the petitioner contended that in absence in conviction, the name of the petitioner could not be included in the Surveillance Register. Reliance is placed on a judgment of this Court in Nupinder Singh v. State of Punjab, 1996(2) Recent Criminal Reports 436 and unreported judgment dated 21.12.2001 in Sarabjit Singh alias Lovely v. State of Punjab, Criminal Misc. No. 29611-M of 1999. The basis of judgment in Sarabjit Singhs case (supra) is that the petitioner had not been convicted even once and therefore, his name could not be entered in the Surveillance Register. Apart from the judgment of this Court in Nupinder Singhs case (supra), reliance is also placed on a judgment in Rajinder Verma v. State of Haryana, 1995(1) Recent Criminal Reports 185. Same view has also been taken in Parvinder Singh Dakha v. State of Punjab, 1988(1) Recent Criminal Reports 274; Parminder Singh v. Senior Superintendent of Police, 1988(1) Recent Criminal Reports 518; Kashmira Singh v. Senior Superintendent of Police, 1988(1) Recent Criminal Reports 676; Mohd. Anis v. Commissioner of Police, 1993(2) Recent Criminal Reports 582; Sashi Kumar @ Mana v. State of Punjab, 2000(1) RCR(Crl.) 171 and Raghubir Singh v. Commissioner of Police, 1988(2) Recent Criminal Reports 217. 7. In Raghubir Singhs case (supra), referring to the decision of the Supreme Court in Dhanji Ram Sharma v. Superintendent of Police, North District, Delhi Police, AIR 1966 S.C. 1766, it was observed that a mere unfounded belief cannot be basis of terming a person "a habitual offender". 8. 7. In Raghubir Singhs case (supra), referring to the decision of the Supreme Court in Dhanji Ram Sharma v. Superintendent of Police, North District, Delhi Police, AIR 1966 S.C. 1766, it was observed that a mere unfounded belief cannot be basis of terming a person "a habitual offender". 8. The contention of the petitioner is that main principle, laid down in all the judgments is that there cannot be any entry in the Surveillance Register without there being a conviction. This contention is not entirely correct. 9. The matter was considered by the Supreme Court in Dhanji Ram Sharmas case (supra), wherein it was observed that under Section 23 of the Police Act, the police was under duty to prevent the commission of offences and to collect and communicate intelligence affecting the public peace. Rule 23 was included in Chapter 23 of the Police Rules, which dealt with the subject of prevention of offences. While Surveillance Register was maintained as per Rule 23.4 of the Police Rules, history sheets are opened under Rule 23.9 of the Police Rules. Under sub-rule (2) of Rule 23.4. of the Police Rules, four category of persons are envisaged, whose names can be entered in Part I of Register No. 10. The same are a) All persons who have been proclaimed under Section 87. Code of Criminal Procedure; b) All released convicts in regard to whom an order under Section 565, Criminal Procedure Code, has been made; c) all convicts the execution of whose sentence is suspended in the whole, or any part of whose punishment has been remitted conditionally under Section 401, Criminal Procedure Code; and d) All persons restricted under Rules of Government made under Section 16 of the Restriction of Habitual Offenders (Punjab) Act, 1918. 10. Under sub-rule (3) of Rule 23.4 of the Police Rules, there are four other categories of persons, who can be entered in Part II of the Register, i.e. a) persons who have been convicted twice, or more than twice of offences mentioned in rule 27.29; b) persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not; c) persons under security under Section 109 or 110, Code of Criminal Procedure; and d) convicts released before the expiration of their sentences under the Prisons Act and Remission Rules without the imposition of any conditions. 11. 11. Category (b) aforesaid shows that a person can be entered in the register whether or not he has been convicted, if he is believed to be habitual offender or receiver of stolen property. Under Rule 23.9(1) of the Police Rules, a history sheet has to be opened for every person entered in the Surveillance Register, but under Rule 23.9(2) of the Police Rules, history sheets can be opened of persons, who are not entered in the Surveillance Register, but who are reasonably believed to be "habitually addicted to crime or to be aider or abettor of such persons." 12. In Dhanji Ram Sharmas case (supra), it was observed as under :- "Reasonable belief of 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 23.9 (2). Mere belief is not sufficient. The belief must be reasonable, it must be based on reasonable grounds. The suspect may or may not have been convicted of any crime. Even apart from any conviction, there may be reasonable grounds for believing that he is a habitual offender." 13 From above extract from the judgment of the Supreme Court in Dhanji Ram Sharmas case (supra), it is clear that the action under Rules 23.4 (3) and 23.9 (2) of the Police Rules can be taken not only against persons, who are reasonably believed to be habitual offenders or receivers of stolen property, whether they have been convicted or not and a history sheet can be opened against a person, who is believed to be "habitually addicted to crime or to be aider or abettor of such persons." This is clear from the bare language of Rules 23.4 (3) (b) and 23.9 (2) of the Police Rules. Only qualification is that the appropriate authority has to apply its mind and to form an opinion that the concerned persons is either habitual offender or receiver of stolen property or habitually addicted to crime or aider or abettor of such person, as the case may be. No doubt, as held by the Supreme Court, the formation of opinion has to be on reasonable basis and must be based on reasonable grounds. No doubt, as held by the Supreme Court, the formation of opinion has to be on reasonable basis and must be based on reasonable grounds. The contention of the petitioner tat without there being conviction, there can be no entry in the Surveillance Register or in history sheet is clearly contrary to the decision of the Supreme Court and decisions of this Court, which are relied on by the petitioner, cannot be said to have laid down any contrary view, as they have been rendered on the basis of facts of the particular cases without reference to the Supreme Court decision in Dhanji Ram Sharmas case (supra). 14. The question is whether an entry made in the Surveillance Register or in history sheet can be challenged by a person on some other ground. The only ground available is that the said entry is not based on any reasonable belief. 15. In Malik Singh v. State of Punjab and Haryana, AIR 1981 SC 760, it was observed that so long as the Surveillance Register is for preventing the crimes, there cannot be any objection, though if it encroaches the privacy of a citizen so as to effect his right of life guaranteed under Article 21 and the right of freedom of movement guaranteed under Art. 19 (1) (d) of the Constitution, the came could not be permitted. It was observed that under Rule 23 of the Police Rules, nature and character of the function involved was also utterly administrative and non-judicial, though there could be no application of the principle of audi alteram partem and any enquiry has to be confidential, and information in history sheets and sources of its information could not be disclosed, though surveillance of persons, who are not mentioned under Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the Courts protection. It was held that it was not necessary to supply the grounds of belief to the persons, whose names are entered in the surveillance register, though such information may have to be furnished to the Court, if an entry is challenged to justify that grounds to entertain such reasonable belief were available. Similar view was taken in Sadhu Ram v. Superintendent of Police, AIR 1971 Punjab 252 and Naurata Ram v. The State, AIR 1966 Punjab 268. Similar view was taken in Sadhu Ram v. Superintendent of Police, AIR 1971 Punjab 252 and Naurata Ram v. The State, AIR 1966 Punjab 268. 16. In the present case, the entry was made on April 20, 1987 i.e. about 15 years ago. The entry has been made in Part II of Register No. 10. which is covered by Rule 23.4 (3) (b) of the Police Rules. Justification given is the alleged visit of the petitioner to Pakistan and his association with the demand for a separate sovereign state of Khalistan. 17. The petitioner claimed that he cannot be reasonably believed to be a habitual offender in view of his acquittal in various cases. The acquittal of the petitioner is a subsequent fact, which was not available when the entry was made. The entry was made on the basis of material, which may have beenbefore the concerned Superintendent of Police at the relevant time. 18. Having regard to all the facts and circumstances of the case, it is not necessary to take a decision, whether the initial entry made 15 years ago was justified or not. 19. The question is whether an entry once made has to continue in perpetuity. A belief is formed for the purpose of these rules in a given situation, which is required to be reviewed on change of the situation. Such a review can be undertaken by the authorities suo moto or on representation being made. 20. Since a lot of time has gone by and whether or not in the changed situation, the review should be carried out is required to be examined by the appropriate authorities. The petitioner will be free to make a representation for the purpose, which will be decided by the concerned authorities within three months of the receipt therefrom. The petition is disposed of accordingly. Order accordinly.