Supreme Court of India
Abhay Shridhar Ambulkar vs S.V. Bhave, Commissioner Of Police And ... on 17 December, 1990
Equivalent citations: 1991 AIR 397, 1990 SCR SUPL. (3) 552, AIR 1991 SUPREME COURT 397, 1991 (1) SCC 500, 1991 AIR SCW 34, (1990) 4 JT 759 (SC), 1990 (4) JT 759, 1991 (1) UJ (SC) 347, 1991 CRIAPPR(SC) 99, 1991 ALLAPPCAS (CRI) 73, 1991 SCC(CRI) 222, 1991 UJ(SC) 1 347, (1991) IJR 252 (SC), 1991 CRILR(SC MAH GUJ) 110, (1991) MAD LJ(CRI) 603, (1991) 1 RECCRIR 354, (1991) 2 CRILC 355, (1991) 1 ALLCRILR 34, (1991) 1 CRIMES 290, (1992) 1 BOM CR 351, 1991 ( ) BOM LR 22
Author: K.J. Shetty
Bench: K.J. Shetty, A.M. Ahmadi
PETITIONER:
ABHAY SHRIDHAR AMBULKAR
Vs.
RESPONDENT:
S.V. BHAVE, COMMISSIONER OF POLICE AND ORS.
DATE OF JUDGMENT17/12/1990
BENCH:
SHETTY, K.J. (J)
BENCH:
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.
HEADNOTE:
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]
JUDGMENT: