Charanjit Talwar, J.
1. The petitioner herein, Bali Ram Sharma, is seeking directions, first for cancellation for his history-sheet maintained by Police Station, defense Colony and secondly, that his name be struck off from Part II of the Surveillance Register (Register No. 10) maintained by the Police authorities of Delhi as per Chap. 23 of the Punjab Police Rules, as applicable to Delhi, (herein called 'the Rules').
2. The petitioner is a citizen of India. He claims to be an agriculturist; he is assessed to income-tax as well as wealth-tax. He used to deal in antiques and handicrafts under the name and style of 'M/s. Sharma Antique & Fine Art' at E-18, South Extension Part II, New Delhi. According to him, he closed this business in the year 1974 after the promulgation of the Antiquities and Art Treasures Act, 1972. At present he claims to be looking after his agriculture farm at Chattarpur, Mehrauli. His wife Mrs. Sneh Lata Sharma, however, is running a shop of handicrafts at Jorbagh Market, New Delhi.
3. The petitioner's grievance is that after the Antiquities and Art Treasures Act came into force, a Deputy Superintendent of Police of C.I.D. Crime Branch of Delhi Police, Shri Avtar Singh, started harassing the antique dealers including the petitioner. Thereupon, on a report being made of the harassment to the then Minister of Home Affairs, the matter was referred to the Central Bureau of Investigation. The petitioner alleges that the police officials of the C.I.D. Crime Branch of Delhi suspected the petitioner to be the brain behind the complaint of corruption made against them and hence he became the subject of the police wrath. He was given threats of being involved in false criminal cases. His allegation is that consequently, after the promulgation of the Maintenance of Internal Security Act, 1974, he was detained under S. 3 of the said Act by the District Magistrate, Delhi, at the behest of the police. The petitioner challenged his detention by a writ of habeas corpus and alleged personal mala fides against the said Shri Avtar Singh, Deputy Superintendent of Police, of the Crime Branch, who was imp leaded as respondent No. 5 in that petition. However, before the writ petition came up for final hearing. On the recommendation of the Advisory board, the Delhi Administration revoked the order dated 29th November 1974, of the petitioner's detention.
4. Thereafter, the petitioner was detained under COFEPOSA in December 1975. The case of the petitioner is that he had been detained on 'trumped up charges'. He claims that to substantiate the cooked-up and false grounds for his detention during the Emergency, the police authorities brought into existence the personal file of the petitioner containing material which was baseless and non-existent.
5. The petitioner alleges that in furtherance of their efforts to harass and involve the petitioner in cases of violation of Antiquities & Art Treasures Act, the local police raided his home at Chhatarpur. Mehrauli on 25th September 1975, and seized some pieces of idols. The first information report No. 304 was registered at police station Mehrauli against him under Ss. 379/411, I.P.C. on that day. This case was investigated by the said Shri Avtar Singh. It is stated that as the recovered articles could not be connected with any theft case, after four years of investigation, on a report made under S. 173 of the Cr.P.C. the case was cancelled by a local Metropolitan Magistrate vide his order dated 16th November 1979, Thereupon, the seized property was returned to the petitioner. Apart from the above said case, it is alleged that the police falsely implicated him in two other criminal cases; one under the Punjab Excise Act by Police Station defense Colony registered after the raid at his farm after he was taken into custody on 25th September 1975. The allegations in that case were that from his house-search 15 bottles of beer and three bottles of whisky were found, which although licit yet the quantity was in excess of permissible limit. However, the petitioner has been acquitted by the trial Court on the finding that the case was false, by its judgment passed on 20th April, 1977. The second case was registered earlier to the raid at his farm. This case was under S. 7 of the Essential Commodities Act. The allegations were that he had stored 61 bags of wheat in a godown in defense Colony in contravention of the provisions of the said Act. In that case also, he has been acquitted on 12th May, 1976. The petitioner has filed copies of the judgments, acquitting him in those two cases.
6. The contention of the petitioner is that after falsely involving him in cases of theft of idols and for being in possession of liquor and with a view to justifying his detention during Emergency, the respondents have in utter violation of the provisions of the Rules, opened his history sheet at Police Station, defense Colony. On the basis of the said history sheet, his name has been brought illegally on the surveillance register.
7. The respondents in the writ petition are the Station House Officer, Police Station, defense Colony, New Delhi; Commissioner of Police, Delhi, and Superintendent of Police, South District, defense Colony, New Delhi. In opposition to the writ petition, an affidavit of Shri Vijay Kumar, Station House Officer of the Police Station defense Colony, has been filed. It is pleaded therein that the petitioner is involved in dubious activities and a number of cases have been registered against him. While denying that the cases registered against him were false and cooked-up it is admitted that he has been acquitted in the cases under Excise Act and the Essential Commodities Act. It is further admitted that the theft case has been cancelled by the Court as being untraced. The respondents in the counter-affidavit have averred that apart from the three cases mentioned by the petitioner, another case under S. 411 of the I.P.C. has been registered against the petitioner under First Information Report No. 166 dated 19th May, 1980, by police station Mehrauli. The said case is stated to be under investigation. The petitioner in his rejoinder-affidavit alleges that this case is also false and that the allegation of the police that he is engaged in the smuggling of antiques is unwarranted. The case of the respondents is that the history sheet of the petitioner was opened with a view to keeping him under surveillance and in order to nip the evil in the bud (paragraph 14 of the counter-affidavit).
8. The entry of the petitioner's name in the surveillance register is justified as he is a habitual offender and has been involved in many cases 'though he could not be successfully prosecuted because of his financial and influential status' (para 22 of the counter-affidavit). It is denied by the respondents that the petitioner has been harassed or subjected to any restraint as alleged by him. It is submitted that he has been allowed to carry on his lawful trade. Controverting the grounds taken in the petition for quashing of the entry in the surveillance register the respondents claim that 'the activities of the petitioner are not congenial to the society and are anti-social'. It is further averred that secret surveillance of any person, much less that of the petitioner, does not infringe his personal activity and is not against the spirit of the Constitution.
9. The first contention of Shri K. K. Sud learned counsel for the petitioner, that the rules contained in Rr. 23.4, 23.5, 23.7 and 23.9 of the Rules (Chapter 23), as applicable to Delhi, authorising the opening of history-sheets and entering of names in the surveillance register, are ultra virus the Constitution, has no force. This very contention was repelled by a Division Bench of this Court, to which one of us (Talwar, J.) was party, in Peter Samuel Wallace v. Inspector General of Police, New Delhi, 1981 Cri LJ 1195, following the law laid down by their Lordships of the Supreme Court in Govind v. State of Madhya Pradesh : 1975CriLJ1111 and Malak Singh v. State of Punjab and Haryana, 1981 Cri LJ 320. It was held by this Court : 'Rr. 23.4, 23.5, 23.7 and 23.9 of the Punjab Police Rules are valid and constitutional'.
10. Shri Sud next contended that opening of history sheet of the petitioner and subsequently entering his name in the surveillance register is in violation of the Rules inasmuch as there were no grounds for opening of the history sheet and the Superintendent of Police did not record definite reasons for his reasonable belief that the petitioner was a habitual offender while directing his name to be entered in Part II of the Register as per Rr. 23.4 and 23.5(2) of the Rules.
11. There appears to be force in the contention of Shri Sud.
12. Rule 23.5(2) of the Rules provides for opening of the history sheet. However, R. 23.4(1) which provides for maintenance of surveillance register No. 10 requires inter alias that the Superintendent of Police is required to record definite reasons for his reasonable belief that the person whose name is to be entered, if not convicted already, is a habitual offender. The Superintendent of Police is not required to record his reasons where the person is a pervious convict or a proclaimed offender. Admittedly, the petitioner does not fall in that category. As noticed above, out of the four cases, in which he was involved he has been already acquitted in three. The fourth one is still at the stage of investigation. thereforee, it was incumbent upon the respondents to prove that there were sufficient grounds for the reasonable belief of the Superintendent of the petitioner to be entered in the surveillance register and that those reasons were recorded by him.
13. The history sheet of the petitioner which has been maintained by the police station before us. A perusal thereof shows that on 31st December 1975, it was suggested that his name be entered in the register for the purpose of surveillance.
14. Sodhi Teja Singh informed us that the said note has been made by the superintendent of Police although the note in question does not give the designation of the officer making it. The note reads as under :-
'He has been detained under COFEPOSA - warrant issued by the Administration of Delhi. He is in Jail. In view of his activities I suggest that he may be kept in Bundle A of the H.S. for the purposes of surveillance. S.D.P.O/ Sd/- S.H.O/DC. 31-12-75.'
15. The above order merely takes note of the fact that at the time when it was made the petitioner had been detained under COFEPOSA. That fact by itself cannot be termed as a 'sufficient ground' for the 'reasonable belief' of the Superintendent of Police concerned. In any case he has not given any definite reasons for his reasonable belief which he was mandatorily required to give for directing that the petitioner's name be entered in the surveillance register. The detention of the petitioner under COFEPOSA cannot be equated to his being a habitual offender or a proclaimed offender or a receiver of stolen property. No reasons, much less definite reasons, have been given by the Superintendent of Police concerned. In that view of the matter it has to be held that the respondents have failed to show that there was any sufficient ground for their alleged belief that the petitioner was determined to lead a life of crime. Accordingly, I hold that the impugned entry of the petitioner's name in the surveillance register (Part II) is illegal.
16. However, the allegation of the petitioner that the history sheet was opened mala fide or that it was in violation of the Rules has not been made out. The case of the petitioner that is was opened because of malice of one Shri Avtar Singh, Deputy Superintendent of police has not been proved. A perusal of the history sheet shows that the first entry in it was recorded on 30th August 1973. On the petitioner's own showing he had been arrested under the provisions of Essential Commodities Act on that day. The allegations were that he had stored 61 bags of wheat in a godown in defense Colony in contravention of the provisions of that Act. Shri Avtar Singh at that time was nowhere in the picture. A raid in the farm of the petitioner was conducted on 25th September 1975, by the said police officer. The opening of the history sheet, thereforee, can, in no manner, be attributed to any motive on the part of Shri Avtar Singh. Further, there are no allegations that he is being harassed or that his movements are in any way restricted or he is being prevented from carrying out his day-to-day social or business activities because of the opening of the history sheet.
17. I am, thereforee, of the view that it is not a fit case where direction be issued for closing the history sheet of the petitioner.
18. The result is that the writ petition is accepted to the extent that the name of the petitioner is not liable to be maintained in the Surveillance register. The said entry, thereforee, be struck off from Part II of the Surveillance Register forthwith. No order as to costs.
Dalip K. Kapoor, J.
19. I agree.
20. Ordered accordingly.