Abhay Shridhar
Ambulkar Vs. S.V. Bhave, Commissioner of Police & Ors [1990] INSC 389 (17 December 1990)
Shetty,
K.J. (J) Shetty, K.J. (J) Ahmadi, A.M. (J)
CITATION:
1991 AIR 397 1990 SCR Supl. (3) 552 1991 SCC (1) 500 JT 1990 (4) 759 1990 SCALE
(2)1274
ACT:
Preventive
Detention.
National
Security Act, 1980: Section 3(2) & (3)--Deten- tion order--Confirment of
power on Commissioner of Police to exercise powers conferred on the State
Government by sub- section (2) of Section 3--Use of the desjunctive word 'or'
in the order confering power on the commissioner indicates non-application of
mind--Subjective satisfaction can not be lightly recorded by reproducing both
the alternative clauses of the Statute.
HEAD NOTE:
The
petitioner herein was detained pursuant to an order of detention dated
12.2.1990 passed by the Commissioner of Police, Greater Bombay under section
3(2) of the National Security Act, 1980 with a view to preventing him from
acting in any manner prejudicial to the maintenance of public order. The
validity of this order was challenged by the petitioner by means of a Writ
.Petition under Article 226 of the Constitution before the High Court of Bombay
but the same was rejected. Against this judgment he has filed a petition for
special leave to appeal and also a Writ Petition under Article 32 of the
Constitution raising therein a new ground not taken in the High Court namely,
the validity of the Government order dated 6th January 1990 whereby the powers
conferred on the State government by sub-section (2) of section 3 of the Act
were also conferred on the Commissioner of Police, Greater Bombay for the
period commencing 30th January 1990 and ending on 29th April 1990.
It was
argued that the Govt. had issued the order dated 6.1.1990 in a mechanical manner
without applying its mind inasmuch as it was not certain which of the alternate
circumstances, that is those prevailing on the date of the order or those that
are likely to prevail during the three months period for which this power was
being conferred on the commissioner, was relevant for reaching the subjective
satisfaction. There was thus no valid Confirment of power on the Commissioner
to make the detention order.
Dismissing
the SLP but allowing the Writ Petition quashing the Government order dated 6th
January 1990 and consequently the deten- 553 tion order also as being without
authority of law, the court,
HELD:
The subjective satisfaction for the exercise of power under sub-section (3) of
Section 3 must be based on circumstances prevailing on the date of the order or
likely to prevail at a future date. The specification of the period during
which the District Magistrate or Commissioner of Police is to exercise power
under sub-section (2) of Section 3 would depend on the subjective satisfaction as
to the existence of the circumstances in preasenti or futuro. Since very
drastic powers of detention without trial are to be conferred on subordinate
officers, the State Government is expected to apply its mind and make a careful
choice regard- ing the period during which such power shah be exercised by the
subordinate officers, which would solely depend on the circumstances prevailing
or likely to prevail. [557F-558B] The subjective satisfaction cannot be lightly
recorded by reproducing both the alternative clauses of the statute.
The
subjective satisfaction on the prevailing circumstance, or circumstances that
are likely to prevail at a future date is the sine qua non for the exercise of
power. The use of the word 'or' signifies either of the two situations for
different periods. [558B] That, however, is not to say that the power cannot be
exercised for a future period by taking into consideration circumstances
prevailing on the date of the order as well as circumstances likely to prevail
in future. The latter may stem from the former. [558C] The use of the
disjunctive word 'or' in the impugned Government order dated 6th January, 1990 only indicates non-application of
mind and obsecurity in thought. The obsecurity in thought inexorably leads to
obscurity in language. Apparently, the Government seems to be uncertain as to
the relevant circumstances to be taken into considera- tion, and that appears
to be the reason why they have used the disjunctive word 'or' in the impugned
order. [558D-E]
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