Bombay High Court
Lawrence Kaitan Koli vs S.V. Bhave, Commissioner Of Police on 21 February, 1991
Equivalent citations: (1991)93BOMLR103
JUDGMENT
S.W. Puranik J.
1. The petitioner-detenu has been detained by an order dated July 12, 1990 issued by the 1st respondent under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug-Offenders Act, 1981 (hereinafter referred to as "the M.P.D.A. Act"). The petitioner detenu was detained on July 27, 1990 in pursuance of the said order. He has been committed for detention at Nashik Road Central Prison, Nashik. The petitioner-detenu was served with order of detention along with the order of committal to prison, the grounds of detention and the documents on the basis of which the order of detention came to be issued.
2. Shri U.N. Tripathi, learned advocate appearing for the petitioner, has challenged the order of detention on various grounds. However, he has restricted his submissions only to ground 6 J. of the petition as amended. Briefly stated, it is his contention that the impugned order of detention passed by the Commissioner of Police, Greater Bombay, the 1st respondent to this petition, is without authority of law inasmuch as there was not valid conferment of power on the said authority by the Stale Government. He contends that while issuing the order of delegation and conferment, the State Government has not applied its mind to the circumstances prevailing or the alternative circumstances that were likely to prevail in future. He pointed out that while issuing the order of conferment the Stale Government has bodily lifted the words and phraseology from Section 3(2) of the M.P.D.A. Act. He relied upon the latest view expressed by the Supreme Court in the case of Abhay Shridhar Ambulkar v. S.V. Bhave, Commissioner of Police Judgment Today (1990) (4) S.C. 759 : (1990) 93 Bom. L.R. 22 (S.C.).
3. Shri S.G. Page, learned Public Prosecutor appearing for the respondents, vehemently opposed the grounds contended on behalf of the petitioner. According to him, the Supreme Court decision in Ambulkar's case relied upon by the petitioner was on a different set of facts. Secondly, in the instant case, the order of conferment was only for a limited period of three months, and the said period having elapsed, the impugned notification of conferment no longer subsists and, therefore, the petitioner cannot challenge the said order of conferment. He also submitted that under Sub-section (3) of Section 3 of the M.P.D.A. Act, the order issued by the detaining authority has been confirmed within 12 days by the State Government and as such the order of the 1st respondent has merged into an order of the State Government and is not open to challenge. Lastly, it is submitted that the word "or" used in Sub-section (2) of Section 3 of the M.P.D.A. Act should be read as "and" which would be the correct interpretation conveying the meaning and object of the provision.
4. In order to appreciate the above submissions, it is necessary to reproduce Section 3 of the M.P.D.A. Act:
3. (1) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.
(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order such District Magistrate or Commissioner of Police may also, if satisfied as provided in Sub-section (1), exercise the powers conferred by the said sub-section:
Provided that the period specified in the order made by the Stale Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to lime by any period not exceeding three months at any one time.
(3) When any order is made under this section by an officer mentioned in Sub-section (2), he shall forthwith report the fact to the Slate Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government.
5. In the instant case, by Order No. DDS. 1390/1/SPL. 3(B) dated July 9, 1990, the Government of Maharashtra issued the following order:
Whereas, the Government of Maharashtra is satisfied that having regard to the circumstances prevailing or likely to prevail in the Police Commissionerate of Greater Bombay it is necessary to direct that during the period commencing on 9th July 1990 and ending on 8th October 1990, the Commissioner of Police of the said Commissionerate should also, if satisfied as provided in Sub-section (1) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug-Offenders Act, 1981 (Mah. LV of 1981), exercise the powers conferred by the said sub-section;
Now, therefore, in exercise of the powers conferred by Sub-section (2) of the said Section 3, the Government of Maharashtra hereby directs that for the period commencing on the 9th day of July 1990 and ending on the 8th day of October 1990, the Commissioner of Police of the said Commissionerate may also exercise the powers conferred by Sub-section (1) of the said Section 3.
6. The main challenge in this petition is to the above order of conferment.
7. Section 3 of the M.P.D.A. Act is para materia identical to Section 3 of the National Security Act, 1980.
8. The Supreme Court in Writ Petition (Criminal) No. 1248 of 1990-Abhay Shridhar Ambulkar v. S.V. Bhave, Commissioner of Police-decided on December 17, 1990 (supra) was dealing with a challenge to the order of detention issued under Section 3(2) of the National Security Act. In the said petition, the essence of the attack of counsel for the petitioner in that case was that there was no valid conferment of power on the Commissioner to make the detention order. It was alleged that the order of conferment was issued without applying its mind by the State Government and it simply reproduces the wordings of Sub-section (3) of Section 3.
9. Their Lordships of the Supreme Court thereafter proceeded to analyse the entire scheme of Section 3 of the National Security Act, Their Lordships of the Supreme Court have observed as follows (at page 24 of 93 Bom. L.R. 22):
The power to make an order of detention primarily rests with the Central Government or the Stale Government. The Slate Government, however, being satisfied with certain circumstances may order that the District Magistrate or the Commissioner of Police may also make an order of detention in respect of matters relating to the security of the State or Public Order or maintenance of supplies and services essential to the community against any person within their respective areas. The State Government can make such an order which shall not in the first instance exceed three months but it may extend such period from lime to time making fresh order for further period again not exceeding three months at one lime. It may be noted that the conferment of this power on the District Magistrate or the Commissioner of Police is not to the exclusion of but in addition to the powers of the Government to exercise its own power.
10. Their Lordships of the Supreme Court have also further observed as follows (at p. 24 of 93 Bom. L.R. 22):
...But Sub-section (3) refers to two independent circumstances, namely: (i) the prevailing circumstances, (ii) the circumstances that are likely to prevail. The former evidently means circumstances in praesenti that is prevalent on the date of The order and the latter means The anticipated circumstances in future. If the Government wants that the District Magistrate or the Commissioner of Police should also exercise the powers for the current period, it has to satisfy itself with the prevailing circumstances. If the Government wants that the District Magistrate or the Commissioner of Police should also exercise the powers during the future period, it must be satisfied with the circumstances that are likely to prevail during that period. This seems to be the mandate of Sub-section (3).
The subjective satisfaction for the exercise of power under Sub-section (3) of Section 3 must be based on circumstances prevailing at the dale of the order or likely to prevail at a future date. The period during which the District Magistrate or the Commissioner of Police, as the case may be, is to exercise the power provided by Sub-section (2) of Section 3 is to be specified in the order which would depend on the existence of circumstances in praesenti or at a future dale. If the subjective satisfaction is based on circumstances prevailing at the date of the order, the choice of period, which must not exceed three months, would have to be determined from the date of the order. If the conferment of power is considered necessary because of circumstances likely to prevail during the future period, the duration for the exercise of power must be relatable to the apprehended circumstances. Therefore, 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 presenti or future. Since very drastic power 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 regarding the period during which such power shall be exercised by the subordinate officers, which would solely depend on the circumstances prevailing or likely to prevail. The subjective satisfaction cannot be lightly recorded by reproducing both the alternative clauses of the statute. The subjective satisfaction on the prevailing circumstances, 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 cither of the two situations for different periods. 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. For example, there may be disturbances on the dale of the order and the same situation may be visualised at a future date also in which case the power may be conferred on the subordinate officers keeping both the factors in mind; but in that case the two circumstances would have to be joined by the conjunctive word 'and' not the disjunctive word 'Or'. The use of the disjunctive word 'or' in the impugned Government order only indicates non-application of mind and obscurity in thought. The obscurity in thought inexorably leads to obscurity in language. Apparently, the Government seems to be uncertain as to the relevant circumstances to be taken into consideration, and that appears to be the reason why they have used the disjunctive word 'or' in the impugned order.
11. Since the Supreme Court has interpreted Section 3 of the National Security Act and found from the scheme the correct interpretation which is succinctly laid down in the said ruling and in view of the fact that Section 3 of the M.P.D.A. Act. 1981, is para materia similar to Section 3 of the National Security Act, 1980, we have no hesitation to hold that at the time of conferment of power upon a District Magistrate or a Commissioner of Police, the Government must be satisfied on one or the other of the alternate circumstances, namely, the circumstances prevailing at the lime of the order or the circumstances which, according to the Government, are likely to prevail in future. The use of the disjunctive word 'or' clearly indicates a wavering mind on the part of the Suite Government which would vitiate the order of conferment.
12. In the present case, the Order No. DDS. 1390/1/SPL.3(B) dated July 9, 1990 issued by the Home Department (Special) and published in the Maharashtra Government Gazette, Part IV-B, dated July 19, 1990, is, therefore, vitiated for non-application of mind.
13. It, therefore, follows that since there was no valid conferment of power on the 1st respondent, then the order of detention issued on July 12, 1990. Annexure 'A' to the petition, in pursuance of the order of conferment dated July 9, 1990, is void ab initio.
14. The contention of the learned Public Prosecutor that the State Government had approved the said order under Sub-section (3) of Section 3 of the M.P.D.A. Act does not hold any water. If the order itself is void ab initio, no amount of approval by the Government will make it valid. The power of approval as provided under Sub-section (3) of Section 3 of the M.P.D.A. Act is in the nature of superintendence or revisional power of the State Government in order to have a check on the authorities to whom a drastic and wide power of the State Government has been delegated. However, mere approval by the Suite Government would not validate an order which is void ab initio.
15. The contention of Shri Page that while reading Sub-section (2) of Section 3 of the M.P.D.A. Act the disjunctive word 'or' should be read as 'and' does not appeal to us. The Legislature in its wisdom has formulated the wordings of Section 3(2) of the M.P.D.A. Act in such a way that the State Government can issue orders of conferment if it is satisfied that cither there are circumstances prevailing or that circumstances are likely to prevail in future. The State Government has to choose cither of the two circumstances mentioned above. Moreover, where the wording and phraseology used in a provision is unambiguous and clear, there is no necessity to enter upon the exercise of interpretation of the disjunctive word 'or' and read the same as 'and'. Even otherwise, the use of the word 'and' in that place would cover two types of situations which is plainly not the intention of the Legislature. The use of the disjunctive word 'or' also does not in any way affect the main object of the statute. This aspect need not be dwelt upon inasmuch as the Supreme Court in the above-referred citation has discussed this aspect in detail.
16. On consideration of the submissions of both the parties, we are satisfied that the order of conferment upon the 1st respondent is vitiated by non-application of mind by the State Government and the same being bad, the order of detention issued by the 1st respondent is void ab initio.
17. In the result, therefore, the petition succeeds. The impugned order of detention dated July 12, 1990 passed against the detenu is quashed and set aside. Rule is made absolute. The detenu be released forthwith, if not otherwise required.