Rajasthan High Court - Jaipur
Aruna Bano vs State Of Rajasthan And Ors. on 11 February, 2003
Equivalent citations: 2003CRILJ3963, RLW2003(4)RAJ2318, 2003(3)WLC32
Bench: N.N. Mathur, H.R. Panwar
JUDGMENT Mathur, J.
1. In the instant habeas corpus petition under Article 226 of the Constitution of India, the grievance of Mst. Aruna Bano is that her brother Babloo alias Rustam has been unlawfully taken into custody by the police and detained under the provisions of National Security Act, 1980 (hereinafter referred to as "N.S.A.") in the Central Jail, Bikaner. It appears from the reply to the writ petition that District Magistrate, Bikaner having satisfied on the basis of material placed before him that in order to prevent the detenu from acting prejudicial to the maintenance of public order by impugned order dated 30.1.2002 directed to detain him in Central Jail, Bikaner.
2. The order of detention has been challenged inter alia on the ground that there was no valid conferment of power on the District Magistrate, Bikaner to pass the order of detention. It is submitted by Mr. S.D. Vyas, learned counsel appearing for the petitioner that the State Government without satisfying as to whether in the District of Bikaner circumstances prevailed wherein, it was necessary to exercise the powers under Sub-section (3) of Section 3 of N.S.A. to confer power, on the District Magistrates for exercising powers under Section 3(2) of the N.S.A. Thus, the notification of the State Government dated 6.12.2001 under Sub-section (3) of Section 3 of N.S.A. conferring power on all the District Magistrates in the State of Rajasthan including District Magistrate, Bikaner is illegal and void. In support of the contention, learned counsel has placed reliance o the decision of the Apex Court in Abhay Shridhar Ambulkar v. Commissioner of Police (1), and the Division Bench judgment of this Court in Ram Singh and Ors. v. State of Rajasthan and Ors. (2). This court by order dated 20.1.2003 in order to satisfy as to whether there existed any material to pass an order of conferment under Sub-section (3) of Section 3 of N.S.A. directed the Additional Advocate General to produce the relevant record before this court.
3. Mr. R.P. Vyas, Additional Advocate General has produced the relevant file before us. He has also submitted that the cases cited by the learned counsel has no application to the facts of the instant case. It is further submitted that subjective satisfaction of the Government on prevailing circumstance or circumstances that are likely to prevail in future date cannot be a matter of judicial review. The use of word "or" between circumstances prevailing and likely to prevail signifies either of the two situations for different periods. In the case before the Apex Court, the State of Maharashtra referred to both the situations in the notification. Thus, the Apex Court was of the view that the State Government was uncertain as to the relevant circumstances to be taken into consideration and as such notification suffered from non-application of mind. It is submitted that in the instant case, on being satisfied of the prevailing circumstances in the State of Rajasthan while exercising the power under Sub-section (3) of Section 3 of N.S.A., Government has conferred power on all the District Magistrate in the State of Rajasthan. Thus, the State Government was certain of the prevailing circumstances of the State, which called for exercise of powers under Sub-section (3) of Section 3 of N.S.A. However, in the rejoinder to the reply, it is submitted by Mr. S.D. Vyas that word used "any area within the local limits of the jurisdiction of District Magistrate" is of great significance. Elaborating the contention, it is submitted by Mr. S.D. Vyas that State Government is required to consider the material pertaining to a particular area of the District wherein the circumstances prevailing or likely to prevail which calls for conferring a power on a District Magistrate, Incharge of that area to exercise power under Sub-section (2) of Section 3 of N.S.A. It is further submitted that authorising all the District Magistrates in the entire State of Rajasthan without satisfying prevailing circumstances in an individual District indicates, total non-application of mind by the State Government.
4. In order to appreciate the rival contentions, it is necessary to set out Section 3 of N.S.A. as far as material. It reads :-
"3. POWER TO MAKE ORDERS DETAINING CERTAIN PERSONS-
(1) The Central Government or the State Government may,-
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers or the security of India, or
(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.
(2) The Central Government or 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 security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.
Explanation- For the purposes of this sub-section, "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to Sub-section (1) of Section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980, and accordingly no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.
(3) 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 (2) exercise the powers conferred by the said sub-section :
Provided that the period specified in an order made by the State 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 time by any period not exceeding three months at any one time.
(4) When any order is made under this section by an officer mentioned in Sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate 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 :
Provided that where under Section 8 the grounds of detention are communicated by the officers making the order after five days but not later than ten days from the date of detention this sub-section shall apply subject to the modification that, for the words "twelve days", the words "fifteen days" shall be substituted.
(5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made an such other particulars as, in the opinion of the State Government have a bearing on the necessity for the order."
A reading of the provision clearly shows that the power to make an order of detention primarily rests with the Central or the State Government. The State Government being satisfied with certain circumstances may order the District Magistrate or the Commissioner of Police to exercise the powers under Sub-section (2) of Section 3 of N.S.A. and make an order of detention in respect to matters relating to the security of the State or public order or maintenance of the supplies and services essential to the community against any person within their respective area. The proviso appended to the Section 3 limits the exercise of such power initially to three months. However, such a period can be extended by passing fresh order for further period again not exceeding three months at one time. The power of conferment dated 6.12.2001 reads as follows :-
jktLFkku ljdkj x`g ¼xzqi&9½ foHkkx Øekad % i- 2@17¼1½ x`g&9@80 t;iqj 6-12-2001 %vf/klwpuk% ;r% fo|eku ifjfLFkfr;ksa] vFkkZr jkT; ds fofHkUUk Hkkxksa esa vlkekftd xfrfof/k;ka vc Hkh tkjh djus vkSj dqN ,d vokaNuh; rRoksa }kjk jkT; dh lqj{kk ds izfrdwy vkSj yksd O;oLFkk cuk;s j[krs gq, vkSj vkiwfrZ vkSj lsokvksa ds izfrdwy Hkh dk;Z djrs jgus dks /;ku esa j[krs gq, jkT; dh lqj{kk yksd&O;oLFkk rFkk leqnk; ds fy, vko';d vkiwfrZ vkSj lsokvksa ds izfrdwy dk;Z djus okys vlkekftd rRoksa vkSj O;fDr;ksa dks izHkkoh rjhds ls fuokfjr djus vkSj lkEiznkf;d cyoksa] xq.MkxnhZ] yksd&O;oLFkk] rLdjh&xfrfof/k;ka vkfn tks jktLFkku jkT; ds fofHkUu Hkkxksa esa vc Hkh tkjh gS] dh jksdFkke djus ds fy, fupk;d dk;Zokgh djuk vko';d gks x;k gS A vr% jktLFkku ds lHkh lacaf/kr ftyk eftLVsªVksa dh vf/kdkfjrk dh LFkkuh; lhekvksa ds Hkhrj fo|eku ifjfLFkfr;ksa dks /;ku esa j[krs gq, jkT; ljdkj dk ;g lek/kku gks x;k gS fd jk"Vªh; lqj{kk vf/kfy;e] 1980 dh /kkjk 3 dh mi&/kkjk ¼2½ ds v/khu 'kfDr;ksa dks lHkh ftyk eftLVsªV dks nsuk vkSj mUgsa mudk iz;ksx djus ds fy, izkf/kÑr djuk vko';d gks x;k gS A vr% vc jk"Vªh; lqj{kk vf/kfu;e] 1980 dh /kkjk 3 dh mi&/kkjk ¼3½ ds v/khu iznRr 'kfDr;ksa dk iz;ksx djrs gq, jkT; ljdkj lHkh ftyksa ds ftyk eftLVªsVkssa dks fnukad 11-12-2001 ls 10-3-2002 rd dh dkykof/k ds nkSjku jk"Vªh; lqj{kk vf/kfu;e dh /kkjk 3 dh mi/kkjk ¼2½ }kjk micfU/kr 'kfDr;ksa dk iz;ksx djus dk blds }kjk funsZ'k nsrh gS A jkT;iky ds vkn'k ls] ,l-Mh-
¼,u-ih- 'kekZ½ 'kklu mi lfpo&lqj{kk izfrfyfi fuEu dks vko';d dkZokgh gsrq ,oa lwpukFkZ izf"kr gS A 1- leLr ftyk eftLVªsV & jktLFkku A 2- egkfuns'kd iqfyl & jktLFkku] t;iqj A 3- leLr lEHkkxh; vk;qDr & jktLFkku A 4- leLr mi egkfujh{kd iqfyl jSat & jktLFkku A 5- leLr iqfyl v/kh{kd] jktLFkku A 6- funs'kd] jktdh; dsUnzh; eqnz.kky;] jktLFkku t;iqj dks jktdh; jkti= ds fo'ks"kkad fnukad 6-12-2001 esa izdk'kukFkZ ,oa 100 dkfi;ka bl foHkkx dks fHkatokus gsrq A 7- funs'kd] lwpuk ,oa tu&lEidZ foHkkx] jktLFkku t;iqj dks 10 vfrfjDr izfr;ksa ds lkFk A 8- jf{kr i=koyh A ,l-Mh-
'kklu mi lfpo&lqj{kk
5. It is evident that the power to pass an order of detention primarily rests with the Central or State Government. The State Government, however, being satisfied that in any area within the local limits of the jurisdiction of District Magistrate or Commissioner of Police, there exists certain circumstances prevailing or likely to prevail confer power on such District Magistrate or Commissioner of Police under Sub-section (2) of Section 3 of N.S.A. Such satisfaction of the State Government when solely depends on the circumstances prevailing or likely to prevail in future date, in a local area in the District is a sine-qua-non for the exercise of powers. Since very drastic powers of detention without trial are to be conferred on an officer of District level i.e., District Magistrate or the Commissioner of Police, the State Government is expected to apply its mind on the material available on record. The use of word "any area within the local limits of the jurisdiction of the District Magistrate" is of great significance. It enjoys a duty on the State Government to specify the particular area in a District wherein circumstances prevailing or likely to prevail which calls for conferment of power on an officer at the District level under Sub-section (3) of Section 3 of N..S.A. No doubt limits can be the entire District and even the entire State but there must exist material to show that situation has arisen where the conferment of power on District Magistrate, or Commissioner of Police under Sub-section (3) for entire State or a particular District or part of District has become necessary.
6. In the instant case, perusal of the record, does not show as to what was the material before the authority concerned of the State Government, to satisfy that the circumstances have acquired such a situation in the entire State that it has become necessary to confer power of detention under Sub-section (2) of Section 3 of N.S.A. on all the District Magistrates of the State of Rajasthan. In the State of Rajasthan there are 33 Districts. There is nothing on record to show that in the District of Bikaner there existed circumstances which called for exercise of power under Sub-section (3) of Section 3 of N.S.A. by the State Government. It is true that subjective satisfaction has to be of the State Government. Such satisfaction does not call for interference by this court under exercise of powers under Article 226 of the Constitution of India. It is also well established that where the subjective satisfaction is based on no material it cannot sustain. Thus, the subjective satisfaction of the State Government conferring the powers on the District Collector, Bikaner in exercise of powers under Sub-section (3) of Section 3 of N.S.A. is based on no material to satisfy the existence of prevailing circumstances calling for exercise of powers under Sub-section (2) of Section 3 is illegal and void. In view of this, the notification of the State Government dated 6.12.2001 conferring the powers on all the District Magistrates of the State of Rajasthan as far as it relates to the District Magistrate, Bikaner is concerned, deserves to be quashed and set aside. As a consequence, the order of detention dated 30.1.2002 also deserves to be set aside.
7. Consequently, the writ petition is allowed. The notification dated 6.12.2001 so far as it relates to conferment of power on District Magistrate, Bikaner is concerned, is quashed and set aside. The order of detention of Babloo alias Rustam dated 30.1.2002 is also quashed. The continued detention of Babloo @ Rustam under order of detention dated 30.1.2002 is declared illegal. We are told that on the expiry of detention, the detenu Babloo has already been released.