ABHAY SHRIDHAR AMBULKARversusS.V. BHAVE, COMMISSIONER OF POLICE AND ORS.

                    ABHA Y SHRIDHAR AMBULKAR
A                               v.
           S.V. BHAVE, COMMISSIONER OF POLICE AND ORS.

                                DECEMBER 17, 1990

B            [K. JAGANNATH SHETIY AND A.M. AHMADI, JJ.]

              Preventive Detention.

              National Security Act, 1980: Section 3(2) & (3)-Detention
        order-Confirment of power on Commissioner of Police to exercise
        powers conferred on the State Government by sub-section (2) of Section
c       3-Use of the desjunctive word 'or' in the order confering power on the
        commissioner indicates non-application of mind-Subjective satisfac-
        tion can not be lightly recorded by reproducing both the alternative
        clauses of the Statute.

D              The petitioner herein was detained pursuant to an order of deten-
        tion dated 12.2.1990 passed by the Commissioner of Police, Greater
        Bombay under section 3(2) of the National Secnrity Act, 1980 with a
        view to preventing him from acting in any manner pr_judicial 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
E       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 Jannary 1990 whereby the
        powers conferred on the State government by sub-section (2) of section
F       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. bad 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
G       during the three months period for which this power was being confer-
        red on the commissioner, was relevant for reaching the subjective
        satisfaction. There was thus no valid Confirment of power on the Com-
        missioner to make the detention order.

            Dismissing the SLP but allowing the Writ Petition quashing the
    H   Government order dated 6th January 1990 and consequently the deten-

                                           552


                                                                                    •
                     A.S. AMBULKAR v. S.V. BHAVE                        553

tion order also as being without authority of law, the court,                  A

      HELD: The subjective satisfaction for the exercise of power under
sub-section (3) of Section 3 must be based on circumstaoces 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 Poilce is to exercise power under sub-section (2) of           B
section.!_would depend on the subjective satisfaction as to the existence
of the circumstaoces 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 regarding the period during which such power shall be exercised
by the subordinate officers, which would solely depend on the circums-         c
tances prevnillng or likely to prevail. [557F-558B]

      The subjective satisfaction cannot be ilgbtly recorded by repro·
ducing both the alternative clauses of the statute. The subjective
satisfaction on the preveillng circumstaoce, or circnmstaoces that are
likely to prevail at a future date is the sine qua non for the exercise of     D
power. The use of the worn.'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 circumstaoces prevail·
inil on the date of the oi-der as well as circumstaoces like!y to prevail in   E
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 obseciJrlty in thought. The obseciJrlty in thought inexorably leads
to obsciJrlty In langwlg_e. Apparently, the Government seems to be             F
uncertain as to the relevant circumstaoces to be taken into consideration,
and that appears to be the reason why they have used the disjunctive
word 'or' in the impugned order. [558D-E]

    CRIMINAL APPELLATE JURISDICITON: Writ Petition
(CRL.) No. 1248of 1990.                                                        G

      ·(Under Article 32 of the Constitution of India).
                                  WITH
      Special Leave Petition (CRL.) No. 1407 of 1990.
                                                                               H
A
    554         SUPREME COURT REPORTS               [1990] Supp. 3 S.C.R.

        From the Judgment and Order dated 18/19.7.1990 of the
    Bombay High Court in Crl. W.P. No. 340 of 1990.
                                                                               -
         Raja B. Thakare, Avadhut Chimalkar and D.M. Nargolkar for
    the Petitioner.

B       P.K. Goswamy, Additional Solicitor General, A.S. Bhasme,
    Maninder and A.N. Kirpal for the Respondents.

          The Judgment of the Court was delivered by

         K. JAGANNATHA SHETTY, J. Abbay Sridhar Ambulkar-
  Petitioner has been detained under the National Security Act. 1980
c ("The Act"). The order of detention dated 12th February 1990 was
  issued by the Commissioner of Police, Greater Bombay, who is the
  first respondent in these cases. The order was issued under Section
  3(2) of the Act.with a view to preventing the petitioner from acting in
  any manner prejudicial to the maintenance of public order. The
D grounds of detention have been served to the petitioner along with the
  detention order. The petitioner challenged the validity of his detention
  in the High Court of Bombay by means of a Writ Petition under
  Article 226 of the Constitution. The High Court has dismissed the writ
  petition. Against the judgment of the High Court, Special Leave Peti-
  tion (Cr!.) No. 1407 of 1990 has been preferred. Simultaneously, the
E petitioner has filed writ petition (Cr!.) No. 1248 of 1990 under Article
  32 of the Constitution challenging the same order of detention by
  raising a new ground which has not been taken before the High Court.

          We have heard counsel for the petitioner, perused grounds of
    detention and the judgment of the High Court. The High Court has
F   properly considered all the questions raised and we are in agreement
    with the conclusion reached by the High Court. The Special Leave
    Petition is, therefore, rejected.

          This takes us to the Writ Petition in which an additional question
    has been raised. The question relates to the validity of the Govem-
G   men! order dated 6th January 1990 pursuant to which the Commis-
    sioner of Police made the detention order. It would be convenient to
    set out that order hereunder.

                                        "ORDER

H                                                   Dated 6th January 1990
             A.S. AMBULKAR v. S.V. BHAVE [SHETJ'Y, J.J              555

           59. National Security Act, 1980                                 A

           No. NSA-2390/1/SPL-3(B) -Whereas the Government of
           Maharashtra is satisfied that having regard the circumst-
           ances prevailing or likely to prevail in the Greater Bombay
           Police Commissionerate, it is necessary that during the         B
           period commencing on 30th January, !990 an ending on the
           29th April, 1990, the Commissioner of Police and the said
           Commissioner should also exercise the powers conferred
           by sub-section (2) of Section 3 of the National Security Act,
           1980 (65 of 1980) (hereinafter referred to as "the said
           Act").
                                                                           c
                 Now therefore, in exercise of the powers conferred
           by sub-section (3) of the Section 3 of the said Act, the
           Government of Maharashtra hereby directs that for the
           period commencing on the 30th January 1990 and ending
           on 29th April 1990 the Commissioner of Police, Greater
                                                                           D
           Bombay may also if satisfied as provided in sub-section (2)
           of Section 3 of the said Act exercise the powers conferred
           on the State Government by sub-section (2) of Section 3 of
           the said Act.

                 By order and in the name of Governor of Maharashtra."
                                                                           E
      On 12th February 1990, the Commissioner of Police in exercise
of the powers conferred by sub-section (2) of Section 3 of the Acfread
with Government order dated 6th January 1990, passed the order of
detention which has been challenged in this case.
                                                                           F
      The essence of the attack of counsel for the petitioner is that
there was no valid conferment of power on the Commissioner to make
the d•!tention order. Counsel submitted that the Government issued
the order dated 6th January 1990 without applying its mind and it
simply reproduces the wordings of sub-section (3) of Section 3. The
satisfaction of the Government for conferring power on the Commis-
                                                                           G
sioner for the period in question purports to have been reached on the
circumstances prevailing on the date of the order or likely to prevail
during the three months period in question. The Government was not
certain which of the alternate circumstances was relevant for reaching
the subjective satisfaction and seems to have acted in a mechanical
manner without application of mind.                                        H
     556         SUPREME COURT REPORTS                (1990] Supp. 3 S.C.R.

          In order to appreciate these submissions it is necessary to set out
A   Section 3, so far as material. It reads:

                "3. Power to make orders detaining certain persons-

                (1) xxxxx                     xxxxx                     xxxxx
B
                (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 al)y manner prejudicial to
                the security of the State or from acting in any manner pre-
                judicial to the maintenance of public order or from acting
                in any manner prejudicial to .the maintenance of supplies
c               and services essential to the community it is necessary so to
                do, make an order directing that person be detained.

                (3) If, having regard to the circumstances prevailing or
                likely to prevail in any area within the local limits of the
D               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 s11ch
                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 confer-
                red by the said sub-section:
E
                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 Govern-
                ment may, if satisfied as aforesaid that it is necessary so to
                do, amend order to extend such period from time to time
F
                by any period not exceeding three months at any one
                time."

          The power to make an order of detention primarily rests with the
    Central Government or the State Government. The State Government
    however, being satisfied with certain circumstances may order that the
G
    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
H   instance exceed three months but it may extend such period from time
              A.S. AMBULKAR v. S.V. BHAVE [SHETIY, J.J                557

 to time making fresh order for a further period again not exceeding
                                                                             A
 three months at one time. It may be noted that the conferment of this
 power on the District Magistrate or the Commissioner or Police is not
 to the exclusion of but in addition to the powers of the Government of
 exercise its own power.

         The first paragraph of the order dated 6th January 1990 states      B
  that Government was satisfied that having regard to the circumstances
  prevailing or likely to prevail in Greater Bombay Police Commissio-
  nerate it is necessary that during the period commencing on 30th
  January 1990 to 29th April 1990 that the Commissioner should also
  exercise the powers conferred under sub-section (2) of Section 3 of the
  Act. This is indeed no more than a reproduction of the terms of sub-
  section (3) of Section 3. But sub-section (3) refers to two independent    c
  circumstances namely:· (i) the prevailing circumstances, (ii) the cir-
  cumstances 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 futuro. If the
  Government wants that the District Magistrate or the Commissioner          D
  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 b.e
  satisfied with the circumstances that are likely to previal during that
· period. This seems to be the mandate of sub-section (3).                   E

       The subjective satisfaction for the exercise of power under sub-
 section (3) of Section 3 must be based on circumstances prevailing at
 the date. of the order or likely to prevail at a future date. The period
 during which the District Magistrate or the Commissioher of Police, as
 the case may be, is to exercise the power provided by sub-section (2) of    F
 Section 3 is to be specified in the order which would depend on the
 existence of circumstances in praesenti or at a future date. It the sub-
 jective 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 confer-
 ment of power is considered necessary because of circumstances likely to    G
 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 exis-
 tence of the circumstances in praesenti or futuro. Since very drastic       H
    558          SUPREME COURT REPORTS               [1990] Supp. 3 S.C.R.

A 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 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
B
   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 either 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 previling on
C- 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 date 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
D 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
   inexcrably leads to obscurity in language. Apparently, the Govern-
   ment seems to be uncertain as to the relevant circumstances to be
   taken into consideration, and that appears to be the reason why they
F have used the disjunctive word "or" in the impugned order.

         In the result, we allow the writ petition, quash the Government
    order dated 6th January, 1990. Consequently, the detention order of
    the petitioner is also quashed as being without authority of law.

    R.N.J.                                                  Petition allowed.