The State of Tamil Nadu & Anr. Vs. Vela @ Velangani @ Johney Abdul Samad Hari @ Harikrishnan
EmailAppeal: Criminal Appeal Nos. 281 of 283 of 1993
(Arising out of SLP Nos. 4118, 4132 & 4182/91)
(Arising out of SLP Nos. 4118, 4132 & 4182/91)
Petitioner: The State of Tamil Nadu & Anr.
Respondent: Vela @ Velangani @ Johney Abdul Samad Hari @ Harikrishnan
Apeal: Criminal Appeal Nos. 281 of 283 of 1993
(Arising out of SLP Nos. 4118, 4132 & 4182/91)
(Arising out of SLP Nos. 4118, 4132 & 4182/91)
Judges: KULDIP SINGH & N.M. KASLIWAL, JJ.
Date of Judgment: Mar 19, 1993
Head Note:
PREVENTIVE DETENTION
Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest-Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1982 :
Section 3(2) – Delegation of powers – Satisfaction of Govt. – Application of mind – By order dated 15.10.1990 State Govt. delegated its powers to the Commissioner Police w.e.f. 18.10.1990 on the ground of circumstances prevailing in the city – Govt. Order dated 15.10.1990 was issued in continuation of the earlier order that was to hold the field till 17.10.1990 – Disjunctive word ‘or’ signify either of the two situations i.e. circumstances prevailing or likely to prevail – High Court quashed the order on the ground that the order could not be made operative from a future date and that there was non- application of mind – Held that since on the date of the order the Commissioner of Police had the powers to issue the detention orders by virtue of the earlier order which was operating and was to continue till October 17, 1990, the Government rightly made the order dated October 15, 1990 operative from October 18, 1990 – Appeals allowed.
Held:
We are of the view that the High Court was factually wrong when it assumed that the power was being delegated to the Commissioner of Police from a future date and in order to deal with the circumstances likely to prevail and not actually prevailing on the date of the issue of the order. It is obvious from the Government order dated October 15, 1990 that it was being issued in continuation of an earlier order which was operative and was to hold the field upto October 17, 1990. Since on the date of the order (October 15, 1990) the Commissioner of Police had the powers to issue the detention orders by virtue of the earlier order dated July 17, 1990 which was operating and was to continue till October 17, 1990, the Government rightly made the order dated October 15, 1990 operative from October 18, 1990. The High Court was totally oblivious of the fact that dehors the Government order dated October 15, 1990 the Commissioner of Police had the powers to issue the detention orders by virtue of the earlier Government order which was to expire on October 17, 1990. Even otherwise it was justified for the State Government to have applied its mind 2/3 days before the expiry of the order dated July 17, 1990 as to whether the power already given to the Commissioner of Police under section 3(2) of the Act was to be extended or not. Under the circumstances no fault can be found with the Government action in issuing the Government order on October 15, 1990 on the ground of “prevailing circumstances” and making it operative from October 18, 1990. (Paras 6 & 7)
Cases Reffered:
1. Abhay Shridhar Ambulkar v. S.V. Bhave, Commissioner of Police & Others, JT 1990 (4) SC 759 = (1991) 1 SCC 500 – Distinguished. (Para 8)
JUDGEMENT:
KULDIP SINGH, J. :
1. Special leave granted in these petitions.
2. The respondents, in these appeals were detained under section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest-Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1982 (the Act). The detention orders were passed by the Commissioner of Police in exercise of power conferred on him under Section 3(2) of the Act. The High Court by the impugned judgment has set aside the detention orders on the ground that the power under section 3(2) of the Act was not validly conferred on the Commissioner of Police and as such he had no authority to issue the detention orders. These appeals by way of special leave are by the State of Tamil Nadu against the judgment of the High Court. Sub-sections (1) and (2) of Section 3 which are relevant are reproduced hereunder:-
“(1) The State Government may, if satisfied with respect to any bootlegger or drug-offender or goonda or immoral traffic offender or slum-grabber that with a view to prevent 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 are satisfied that it is necessary so to do, they 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 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.”
3. In exercise of the powers under section 3(2) of the Act, the State Government issued a Government order dated October 15, 1990 conferring the power of the State Government under section 3(1) of the Act upon the Commissioner of Police, Madras for a period of three months from October 18, 1990. The order is reproduced hereunder:-
“PROHIBITION AND EXCISE (XII) DEPARTMENT
G.O.Ms.No.939 Dated 15.10.90 Purattasi 29, Promodhutha, Thiruvalluvar Anandu 2021 Read:-
1.G.O.Ms.No.25, prohibition and Excise Department dated 18.1.1982
2.G.O.Ms.No.803, Home and Prohibition and Excise(XII) Department dated 17.7.90.
ORDER;-
WHEREAS orders have been issued in G.O. first read above, directing that the power to make orders detaining Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers under sub-section (1) of section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) may also be exercised by the Commissioner of Police, Madras for a period of three months on and from the 18th January, 1982.
AND WHEREAS orders have been issued subsequently amending the G.O. first read above and extending the above period, from time to time by three months at a time; AND WHEREAS the said period, last extended for three months from the 18th July 1990 in the G.O. second read above, expires on the 17th October, 1990.”
4. It is obvious from the language of section 3(2) of the Act that the powers of the State Government under section 3(1) of the Act can only be delegated to the Commissioner Police “if the circumstances prevailing or likely to prevail” necessitate the issuing of such an order. The disjunctive word “or” in Section 3(2) of the Act signifies either of the two situations on the basis of which an order under section 3(2) of the Act can be issued by the State Government. The satisfaction of the State Government for the exercise of the power under sub-section (2) of section 3 of the Act may be based on circumstances prevailing on the date of the order or likely to prevail at a future date. The power can also be exercised by taking into consideration the circumstances prevailing on the date of the order as well as the circumstances likely to prevail in future. In the present case the Government order dated October 15, 1990 was issued on the ground of “circumstances prevailing in the city of Madras” on the date of the issue of the said order.
5. The Government order under Section 3(2) of the Act, reproduced above, was issued on October 15, 1990 but it was made operative from October 18, 1990. According to the High Court the State Government, having based its satisfaction on the “circumstances prevailing in the city of Madras”, could not have made the Government order operative from October 18, 1990 which was a future date. In other words the Government having entertained the satisfaction under section 3(2) of the Act on the basis of the circumstances prevailing on October 15, 1990, it could not have made the order under section 3(2) of the Act operative from a future date. The High Court, therefore, came to the conclusion that there was non-application of mind on the part of the State Government and as such the Government order dated October 15, 1990 was liable to be quashed.
6. We are of the view that the High Court was factually wrong when it assumed that the power was being delegated to the Commissioner of Police from a future date and in order to deal with the circumstances likely to prevail and not actually prevailing on the date of the issue of the order. It is obvious from the Government order dated October 15, 1990 that it was being issued in continuation of an earlier order which was operative and was to hold the field upto October 17, 1990.
7. Since on the date of the order (October 15, 1990) the Commissioner of Police had the powers to issue the detention orders by virtue of the earlier order dated July 17, 1990 which was operating and was to continue till October 17, 1990, the Government rightly made the order dated October 15, 1990 operative from October 18, 1990. The High Court was totally oblivious of the fact that dehors the Government order dated October 15, 1990 the Commissioner of Police had the powers to issue the detention orders by virtue of the earlier Government order which was to expire on October 17, 1990. Even otherwise it was justified for the State Government to have applied its mind 2/3 days before the expiry of the order dated July 17, 1990 as to whether the power already given to the Commissioner of Police under section 3(2) of the Act was to be extended or not. Under the circumstances no fault can be found with the Government action in issuing the Government order on October 15, 1990 on the ground of “prevailing circumstances” and making it operative from October 18, 1990.
8. The judgment of this Court in Abhay Shridhar Ambulkar v. S.V. Bhave, Commissioner of Police & Others (1991) 1 SCC 500 has no relevance to the facts of the present case and as such the High Court was not justified in seeking support from the same.
9. We allow these appeals, set aside the judgment of the High Court and dismiss the writ petitions filed by the respondents detenues before the High Court.
1. Special leave granted in these petitions.
2. The respondents, in these appeals were detained under section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest-Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1982 (the Act). The detention orders were passed by the Commissioner of Police in exercise of power conferred on him under Section 3(2) of the Act. The High Court by the impugned judgment has set aside the detention orders on the ground that the power under section 3(2) of the Act was not validly conferred on the Commissioner of Police and as such he had no authority to issue the detention orders. These appeals by way of special leave are by the State of Tamil Nadu against the judgment of the High Court. Sub-sections (1) and (2) of Section 3 which are relevant are reproduced hereunder:-
“(1) The State Government may, if satisfied with respect to any bootlegger or drug-offender or goonda or immoral traffic offender or slum-grabber that with a view to prevent 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 are satisfied that it is necessary so to do, they 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 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.”
3. In exercise of the powers under section 3(2) of the Act, the State Government issued a Government order dated October 15, 1990 conferring the power of the State Government under section 3(1) of the Act upon the Commissioner of Police, Madras for a period of three months from October 18, 1990. The order is reproduced hereunder:-
“PROHIBITION AND EXCISE (XII) DEPARTMENT
G.O.Ms.No.939 Dated 15.10.90 Purattasi 29, Promodhutha, Thiruvalluvar Anandu 2021 Read:-
1.G.O.Ms.No.25, prohibition and Excise Department dated 18.1.1982
2.G.O.Ms.No.803, Home and Prohibition and Excise(XII) Department dated 17.7.90.
ORDER;-
WHEREAS orders have been issued in G.O. first read above, directing that the power to make orders detaining Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers under sub-section (1) of section 3 of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) may also be exercised by the Commissioner of Police, Madras for a period of three months on and from the 18th January, 1982.
AND WHEREAS orders have been issued subsequently amending the G.O. first read above and extending the above period, from time to time by three months at a time; AND WHEREAS the said period, last extended for three months from the 18th July 1990 in the G.O. second read above, expires on the 17th October, 1990.”
4. It is obvious from the language of section 3(2) of the Act that the powers of the State Government under section 3(1) of the Act can only be delegated to the Commissioner Police “if the circumstances prevailing or likely to prevail” necessitate the issuing of such an order. The disjunctive word “or” in Section 3(2) of the Act signifies either of the two situations on the basis of which an order under section 3(2) of the Act can be issued by the State Government. The satisfaction of the State Government for the exercise of the power under sub-section (2) of section 3 of the Act may be based on circumstances prevailing on the date of the order or likely to prevail at a future date. The power can also be exercised by taking into consideration the circumstances prevailing on the date of the order as well as the circumstances likely to prevail in future. In the present case the Government order dated October 15, 1990 was issued on the ground of “circumstances prevailing in the city of Madras” on the date of the issue of the said order.
5. The Government order under Section 3(2) of the Act, reproduced above, was issued on October 15, 1990 but it was made operative from October 18, 1990. According to the High Court the State Government, having based its satisfaction on the “circumstances prevailing in the city of Madras”, could not have made the Government order operative from October 18, 1990 which was a future date. In other words the Government having entertained the satisfaction under section 3(2) of the Act on the basis of the circumstances prevailing on October 15, 1990, it could not have made the order under section 3(2) of the Act operative from a future date. The High Court, therefore, came to the conclusion that there was non-application of mind on the part of the State Government and as such the Government order dated October 15, 1990 was liable to be quashed.
6. We are of the view that the High Court was factually wrong when it assumed that the power was being delegated to the Commissioner of Police from a future date and in order to deal with the circumstances likely to prevail and not actually prevailing on the date of the issue of the order. It is obvious from the Government order dated October 15, 1990 that it was being issued in continuation of an earlier order which was operative and was to hold the field upto October 17, 1990.
7. Since on the date of the order (October 15, 1990) the Commissioner of Police had the powers to issue the detention orders by virtue of the earlier order dated July 17, 1990 which was operating and was to continue till October 17, 1990, the Government rightly made the order dated October 15, 1990 operative from October 18, 1990. The High Court was totally oblivious of the fact that dehors the Government order dated October 15, 1990 the Commissioner of Police had the powers to issue the detention orders by virtue of the earlier Government order which was to expire on October 17, 1990. Even otherwise it was justified for the State Government to have applied its mind 2/3 days before the expiry of the order dated July 17, 1990 as to whether the power already given to the Commissioner of Police under section 3(2) of the Act was to be extended or not. Under the circumstances no fault can be found with the Government action in issuing the Government order on October 15, 1990 on the ground of “prevailing circumstances” and making it operative from October 18, 1990.
8. The judgment of this Court in Abhay Shridhar Ambulkar v. S.V. Bhave, Commissioner of Police & Others (1991) 1 SCC 500 has no relevance to the facts of the present case and as such the High Court was not justified in seeking support from the same.
9. We allow these appeals, set aside the judgment of the High Court and dismiss the writ petitions filed by the respondents detenues before the High Court.
