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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-

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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: