M.B. Sharma, J.
1. The above numbered four habeas corpus petitions are being disposed of by this common order because, though separate orders of detention . made under Sub-section (2) of Section 3 of the : National Security Act, 1980 (for short, the NS Act) are under challenge, but most of the grounds which have been raised in challenging the detention orders are common or at any rate they are identical.
2. We will first of all give the facts of the four cases and then will take up the arguments advanced by the learned Counsel for the petitioners.
Ram Singh v. State of Rajasthan and Anr. D. B. Habeas Corpus Petition No. 7045/1992
3. This petition relates to the detention of Kishan Singh and has been filed by his younger brother Ram Singh. Kishan Singh is an Ex-constable in Rajasthan Police. He left the service in the year 1981. The District Magistrate Jaisalmer on October 3, 1992, made an order under Section 3 of the NS Act. The said order was made in exercise of the powers conferred on him under Sub-section (2) of Section 3 of the NS Act. Alongwith the order Annr. 2, the grounds of detention Annr. 3 were also simultaneously prepared and served on Kishan Singh. It will be seen from a perusal of the grounds of detention that the ground No. 1 is in respect of an incident said to have taken place in the intervening night of July 30/31, 1987 and it recites that 19 kattas of illicit 'charas' had been recovered from the boundary of village Bhojka. A case No. 83 / 31-7-1987 under Ss. 21 and 22 of NDPS Act, Section 110 of the Customs Act, Section 55/112 of the MV Act was registered and after investigation a charge-sheet was filed on July 24, 1990 which is under trial and the case is pending. Ground No. 2 is in respect, of some entries in the general diary of Police Station Nachna and though the details of the aforesaid entries have not been given, but it recites that from time to time various entries in the general diary have been made in relation to his contact with the intelligence agency of Pakistan i.e. FIEU and with the help of the aforesaid agency the detenu was smuggling narcotic drugs and arms. The detenu was also extending financial help to his collaborators and through them he was sending smuggled goods to Delhi, Bombay and Jaipur etc. Ground No. 3 is in respect of some history-sheet said to have been opened against the detenu in police station Nachna and according to the history-sheet the detenu was involved in smuggling the goods, mainly of narcotic drugs and is also a source of Pakistan intelligence agency and the detenu was also smuggling arms and secret Indian informations were being sent to Pakistan through the spies and smugglers. Ground No. 4 recites that in the village crime book of village Ghantiyali the various officers have made entries to the effect that the detenu was involving himself in smuggling of narcotic drugs and was in contact with Pakistan Intelligency Agency i.e. FIEU and was also making available secret Indian informations to Pak spies and was also extending help to Pak Nationals and the activities of the detenu were against the security of the State. Ground No. 5 is in respect of some secret informations with the intelligence branch of CID(BI) of Distt. Jaisalmer in accordance with which the detenu was involved in smuggling of narcotic drugs and in passing secret Indian informations to Pakistan and he was also in contact with Pak Nationals and their intelligence agencies. The detenu was also harbouring those who entered India illegally. Ground No. 6 is in respect of some informations being kept by Military Intelligence and BSF intelligence.
4. Copies of the informations so far as grounds Nos. 3 to 6 are concerned were not supplied to the detenu on the ground that they are secret and confidential and it will not be in the public interest under Section 8(2) of the NS Act to furnish their copies.
5. After aforesaid six grounds it is also mentioned that for sometime in the border areas a sense of insecurity was prevailing and the intelligence agencies of Pakistan. IASI and FIEU were making all efforts to break peace into the country and smuggling arms and ammunitions as it appeared from the seizure of smuggled arms from Ahmedabad in the Gujarat State on July 25, 1992.
6. On the basis of the aforesaid grounds the detaining authority was satisfied that the said activities of the detenu are prejudicial to the National security. Neither the detention order nor the grounds of detention recited or informed the detenu that he has a right to make a representation to the detaining authority and or Central Government or the Advisory Board.
7. It will be seen that the said information appears to have beers furnished by the Superintendent of Police Jaisalmer under his letter dated June 27,1992. The said detention order dated October 3, 1992 was approved/ confirmed by the State Government on October 13, 1992 as required under Sub-section (4) of Section 3 of the NS Act. Ram Singh made a representation on December 30,1992 to the President of India which was rejected on June 16, 1993. The detention order, according to the detenu, is said to have been managed by Rajiv Disot, Superintendent of Police, Jaisalmer because in the month of Februrary, 1992 the said Superintendent of Police had seized some gold-biscuits allegedly found lying in an abandoned place and it was widely rernoured that the police officers did not report complete seizure and some of the gold-biscuits were retained by them. The detenu made vocal uttrances to this incident which in turn enraged Shri Rajiv Dasot. The Superintendent of Police managed false entries in the daily diaries of police station, Nachna including the entries in village crime note book of Ghantiyali dated August 15, 1992.
Aachar Khan v. State of Rajasthan, D. B. Habeas Corpus Petition No. 7703/1992.
8. This petition relates to the detention of Kambhira alias Kabir Bhai s/o Kadudkhan r/ o Hivadi Distt. Jaisalmer and has been filed by his younger brother Aachar Khan. According to the petitioner the detenu Kambhira alias Kabir Bhai is a supporter of Congress party and during the elections he has been openly helping the candidates sponsored by Congress party and therefore the other political parties, moreso, BJP has always seen strong political antagonist in him and they have always been planning to cut-across his political influence. The Panchayat elections have been announced and the BJP workers/leaders have been conspiring to render the local muslim individuals of political significance ineffective. Therefore, the petitioner has strong reason to believe that the local BJP leaders put pressure upon the district administration to book the political opponents under various detention laws. It is in the aforesaid back ground that the order under Sub-section (2) of Section 3 of the NS Act was made by the District Magistrate, Jaisalmer on October 3, 1992. The said order was confirmed/approved by the State Government in; exercise of its power under Sub-section (4) of Section 3 of the NS Act. Alongwith the order of detention dated October 3, 1992 the grounds of detention were also served on the detenu. A perusal of the aforesaid grounds (Annr. 2) will show that the ground No. 1 is in respect of an incident dated July 17, 1985 and it is said that on that date on the boundary of village Karnanion ka Par (Sangad ka Par) in resect of an encounter in between BSF and the smugglers a case No. 25/85 under Ssection 307/ 332/353, I.P.C. was registered and after investigation a charge-sheet No. 13/86 was submitted in the Court and the detenu was acquitted in that case. Ground No. 2 again is in respect of an encounter alleged to have taken place in between the BSF and smugglers on September 14, 1986 on the boundary of Mauja Sundara when the smugglers made an attempt to enter the Indian territory and a case No. 39/86 under Sections. 307, 353 and 332, I.P.C, Sections. 17, 18 and 21 of the NDPS Act and Section 25 of the Arms Act was registered and after investigation a charge-sheet was filed in the Court and the Court in the absence of any evidence acquitted the detenu under its judgment dated July 18, 1988. Ground No. 3 is in respect of an incident dated July 19,1987 and it is said that on that date in village Devikot where the police personnels were on duty, they were stopped and pushed, as a result of which a case No. 13/87 under Sections. 353, 341 and 34, I.P.C. was registered against the detenu and a charge-sheet was filed and the case is under trial. Ground No. 4 is in relation to certain entries in the general diary of police station Sangad by various officers and according to those entries the detenu is top-class rouge and a leader of smugglers' gang. He was involved in the smuggling of narcotic and anti-national activities. Ground No. 5 again is in respect of some history-sheet said to have been opened against the detenu in police station Sangad various entries were made in it by the officers from time to time and according to the same the detenu was involved in smuggling of narcotic drugs and arms. Ground No. 6 is in respect of entries in village crime note-book of village Rivadi-Gandai, according to which the petitioner was involved in smuggling of narcotics and arms and was extending financial help to smugglers and was in contact with suspicious Pak-nationals. Ground No. 7 is in respect of some informations of the District Intelligence Branch, CID(BI) according to which the detenu was in contact with smugglers and was involved in smuggling of goods and was also instrumental in passing secret Indian informations to Pakistan. Ground No. 8 is in respect of military intelligence according to which the detenu was loyal to Pakistan and was harbouring Pak-spies. He was also involved in smuggling activities. Ground No. 9 is in respect of some confidential and secret informations with the Customs Department according to which the detenu was illegally going to Pakistan and was smuggling Narcotics and has been arrested on many times in cases of smuggling. Ground No. 10 is in respect of some confidential and secret informations according to which the detenu was involved in smuggling of narcotics and in sending smuggled goods to Bombay and Delhi etc, The detenu was having an active gang of smugglers which gang carries arms.
9. Copies of the aforesaid secret informations referred to in Grounds Nos. 5 to 10 have not been made available to the detenu on the ground that their disclosure is not in public interest. Neither in the order of detention nor grounds of detention it appears to have been informed to the detenu that he has a right to make representation either to the detaining authority and/or Central Government and/ or to the Advisory Board and it does not appear that any representation was made by the detenu.
Deen Mohammad v. State of Rajasthan, D. B. Habeas Corpus Petition No. 7717/1992
10. This petition is in respect of detention of one Bhagya alias Bhagey Khan son of Karim, r/o Bahala, Police Station Mohan-garh, Distt. Jaisalmer and has been filed his younger brother Deen Mohammad. According to the petitioner, his brother is a supporter of the Congress party and it is at the behest of the local leaders of BJP that the order of detention has been made against him on October 3, 1992 under Sub-section (2) of Section 3 of the NS Act by the District Magistrate Jaisalmer. The said order of detention was confirmed/approved by the State Government on October 13, 1992 (Annr. 4) under Sub-section (4) of Section 3 of the NS Act. Along with the order of detention the grounds were formulated and were served on the detenu. The grounds are contained in Annr. 2 on which the subjective satisfaction of the detaining authority is said to have been based. The first ground is in respect of an incident in the year 1977. According to it the detenu had gone to Pakistan without a Visa and when he returned to India a case No. 12/ 25-6-77 under Section 3/6 of the Passports Act was registered against him and a charge-sheet was filed, but the detenu was acquitted. The ground No. 2 relates to some incident dated August 12, 1979 and the said ground recites that the detenu had given a beating to one Babhal with a lathi and a complaint case No. 14/79 under Sections. 147, 148, 149, 323, 447, I.P.C. was registered and a charge-sheet No. 2/ 80 was filed in the Court and the case is pending trial. Ground No. 3 is in respect of some incident of August, 1980 and it says that the detenu had gone to Pakistan without a Visa and a case No. 20/80 under Section 3/6 of the Passport Act and a charge-sheet was filed but under order dated January 21, 1985 the proceedings were dropped by the Court. Ground No. 4 is in respect of an incident dated January 27, 1983 according to which the detenu and Ors. had given beating to Ibrahim and Ors. and a case was registered and a charge-sheet was filed in February 28, 1983 which is pending trial. The Ground No. 5 is again in respect of the detenu going to Pakistan on June 13,1984 without a Visa and returned from Pakistan alongwith smuggled goods and a case was registered and a charge-sheet was filed against him on November 30, 1984 and the case is pending trial. Ground No. 6 is in respect of the detenu going to Pakistan without passport on his return there was an encounter with BSF and a case under Section 3/6 of Passport Act as well as Section 307, I.P.C. was registered against him and a charge-sheet was filed on November 18, 1988. The case is pending trial. Ground No, 7 is in respect of entries in general diary of Police Station Mohangarh by various police officers wherein it has been entered that the detenu was involved in smuggling of narcotic drugs and arms and was also an agent of Pak Intelligence Agency (FIEU) and was passing secret Indian informations to Pak Intelligence agencies. Ground No. 8 is in respect of history-sheet said to have been opened against the detenu and the entries made therein by polie officers to the effect that the detenu was going to Pakistan illegally and he is involved in smuggling of narcotic drugs. Ground No. 9 is in respect of entries in the village crime note book by various officers to the same effect as stated as contained in Ground No. 8. Ground No. 10 is that as per confidential information in the intelligence branch of CID(BI) the detenu was involving himself in smuggling of anti-national activities. Ground No. 11 is in respect of military informations according to which the detenu was involved in spying activities and smuggling of goods. Ground No. 12 is in respect of information furnished in respect of detenu by BSF and Customs Department to the same effect. It does not appear that any representation was made by the detenu. Savraf v. State of Rajasthan, D. B. Habeas Corpus Petition No. 2863/93
11. This petition has been filed by Savraf on behalf of his elder brother Hazi Menoo. It is the case of the petitioner that it is at the behest of local BJP leaders that on the report of Superintendent of Police, Jaisdmer, an order under Section 3(2) of the NS Act was made on January 30, 1993. The said order of detention was confirmed/approved by the State Government on February 1, 1993 vide Annr. 2 in exercise of its powers conferred under Sub-section (4) of Section 3 of NS Act, Along-with the detention order grounds of detention were also served and a perusal of the aforesaid grounds will show that Ground No. 1 is in respect of some history-sheet opened and kept at police station Sam and entries were made therein by the officers from time to time and according to the said entries the detenu was smuggling goods, mainly narcotic drugs. He was also harbouring Pak agents and Pak nationals and was passing secret informations of the country to them. The detenu was also indulged in smuggling. The Ground No. 2 is in respect of some informations furnished by the CID (BI) according to which the detenu was primarily involved in smuggling of narcotic drugs. He was illegally going to Pakistan and was harbouring Pak nationals and was also passing secret Indian informations to Pakistan. Ground No. 3 is in respect of military intelligence informations according to which the detenu was smuggling goods and was working as spy for Pakistan and his activities are prejudicial to the national security. The Ground No. 4 is in respect of village crime note book according to which the detenu was involved in smuggling 'charas' heroin etc. He was going to Pakistan illegally and has contact with Pak agents and was harbouring them and he was also involved in smuggling arms and was a source of Pak intelligence and was passing secret Indian informations to them. The Ground No. 5 is in respect of entries in the general diary of police station Sam to the effect that the detenu was harbouring Pak nationals and spies and was passing secret Indian informations to them. The ground No. 6 is in respect of some incident two months prior to July 5,1985 and is to effect that the detenu had gone to Pakistan without a Visa and had returned to India with 34 Pathan muslims illegally. A case was registered but in the absence of any proof he was equated. Copies of the informations on which the grounds were based were not furnished to the detenu on the ground that their disclosure will not be in public interest Under Sub-section (2) of Section 8 of the NS Act.
12. It will be seen from a perusal of the grounds of detention in the aforesaid four cases formulated by the detaining authority, the District Magistrate, Jaisalmer, that so far as the detention of Hazi Menoo is concerned in grounds of detention which were formulated and served on him alongwith the detention order, there is no specific case or instance and the grounds are entries in history-sheet at the Police Station, intelligence report of CID(Bl) and intelligence report of Customs and Military and also entries in village crime note book. There is some instance of two months prior to July 5, 1985 wherein also a charge-sheet was filed sometime in the year 1985 and in the absence of evidence the detenu was acquitted as far back as on February 12,1990. So far as other detenu are concerned, it will be suffice to say that the grounds of detention so far as, none of the cases are of the year after 1987 and the grounds are identical and they relate to the alleged entries in history-sheet maintained at the police station, entries in the village crime note-book, intelligence report of Customs and/ or Military to the effect that The detenu was indulging in smuggling, was visting Pakistan in contravention of the Passport Act, was harbouring Pak nationals and no details have been given and even copies of the material have not been furnished on the ground that their disclosure will not be in public interest in view of Sub-section (2) of Section 8 of the NS Act.
13. Learned counsel for the petitioners have challenged the aforesaid detention orders inter alia on the grounds that there is delay in passing the detention orders and formulation of grounds of detention; some of the grounds are stale and could not furnish any material for subjective satisfaction of the detaining authority; copies of the intelligence report of various agencies have not been furnished nor the facs and materials such as date, time, place and month have been given and thereby the detenus have been deprived of making effective representation under his right under Article 22(5) of the Constitution; inasmuch as the grounds which are construed are vague and subjective satisfaction of the detaining authority is based on extraneous consideration and therefore is vitiated; neither in the detention order nor in the grounds of detention it was recited that the detenu, can make a representation to the detaining authority and/or Central Government and/or to the Advisory Board and the detenu was not even told and the conferment of the power on the District Magistrate, Jaisalmer under Sub-section (2) of Section 3 of NS Act in exercise of the powers under Section 3 of the said Act is invalid and the District Magistrate on the basis thereof had no jurisdiction to make the detention orders.
14. The law is settled that after introduction of Section 5A of NS Act by Act No. 60 of 1984 w.e.f. June 21, 1984, if the grounds of detention are severable then the order of detention shall not be deemed to be invalid and inoperative merely because some of the grounds are vague, non-existent, not relevant, not connected or not proximately connected with such persons or invalid for any other reason whatsoever. The grounds of detention have already been referred to in the earlier part of this order and there can be hardly any dispute that if the other grounds which relate to be alleged entries in the history-sheet or village crime note book and intelligence report of Customs authorities, State Intelligence or Military intelligence or BSF intelligence authorities for any reason cannot be or should not be taken into consideration then the orders of detention having been made in 1992 in three cases and in 1993 in one case, the grounds being stale and not proximate, cannot stand. Learned counsel for the petitioner contends that copies of entries in the history-sheet or the entries in village crime note-book, or the copies of intelligence reports of various agencies were not furnished or at any rate material facts were not furnished to the detenus to enable them to make effective representation under Article 22(5) of the Constitution of India. It was contended by the learned Counsel for the petitioners that the detention orders are vitiated because the right to make effective representation was denied to each of the detenus.
15. Learned Addl. Advocate General on the other hand contended that in view of the provisions of Sub-section (2) of Section 8 of the NS Act it was not necessary for the detaining authority to disclose facts which it considers to be against the public interest to disclose. Learned counsel for the respondents in this connection has referred to a case of this Court in Nabia alias Nawab v. The District Magistrate, 1993 Cri LR (Raj) 367 wherein this Court said that the disclosure of a confidential report and the source of information used in the ground or utilised for making the order of detention is not necessary to be supplied to the detenu and what is necessary for making an effective detention is the disclosure of the material facts and not the copies of the reports and the source thereof. There can be no dispute so far as this proposition is concerned, but to enable the detenu to make effective representation it is necessary to supply the material facts as to when the detenu is said to have harboured Pak nationals and few instances containing the time, date place and month or year as far as possible should be given. The Apex Court in the case of State of Punjab v. Jagdev Singh Talwandi, (1984) 1 SCC 596 : (1984 Cri LJ 177) held that if the detenu contents that he has been denied the opportunity to make effective representation, the burden to establish that proper opportunity was afforded to the detenu rests strictly on the State. The Apex Court further said that the detenu is not entitled to be informed of the source of information received against him or the evidence which may have been collected against him, for example, the evidence corroborating that the report of the CID is true and correct. His right is to receive every material particular without which a full and effective representation cannot be made. If the order of detention refers to or relies upon any document, statement or other material, copies thereof have of course to be supplied to the detenu. But the furnishing of the CID report of which a truncated extract was furnished to the respondent, was a superfluous exercise in the light of the facts of that case. In that case in the grounds of detention formulated basic or material facts were mentioned such as the place, date and time of the alleged meeting, the occasion on which the meeting was held, the approximate number of persons who were present at the meeting and the various statements made by the respondent Talwandi in his speech. In the facts of that case the Court said that as the aforesaid particulars mentioned in the grounds of detention comprise the entire gamut of facts which it was necessary for the respondent to know in order to make a well-informed representation, the inadequacies from which the supplementary particulars furnished to the detenu along with the grounds suffer, cannot affect that position because they do not introduce any obscurity in the facts stated in that ground or detract from the substance of the allegations mentioned in that ground. We need not further dwelve on the arguments of the learned Counsel for the detenu because only one ground contended by him about the conferment of powers on the District Magistrate alone is sufficient to allow all the four habeas corpus petitions.
16. It was contended by the learned Counsel for the detenu that the detention order was made by the District Magistrate, Jaisalmer and it was approved by the State Government later on under Sub-section (4) of Section 3 of the NS Act. According to the learned Counsel the District Magistrate can only be authorised for specified period not exceeding three months by the State Government to exercise the powers under Sub-section (2) of Section 3 of the NS Act, only if having regard to the circumsances prevailing or likely to prevail in any area within the local limits of the jurisdiction of the District Magistrate the State Government is satisfied that it is necessary so to do. It was contended by the learned Counsel for the detenu that there is no material and was no satisfaction of the State Government when the power was conferred, on the District Magistrate, Jaisalmer or for that matter all the District Magistrate in Rajasthan that the conferment of the powers under Sub-section (2) of Section 3 of NS Act was necessary having regard to the circumstances prevailing or likely to prevail. Learned counsel for the petitioners contends that by the expression 'the circumstances prevailing' is meant the existing circumstances and by the expression 'likely to prevail' is meant the circumstances to prevail in future and even in a case where the State Government is satisfied that the conferment of such power is necessary, there has to be a specific order whether as a result of the circumstance prevailing or as a result of circumstances likely to prevail in future the said conferment of power under Sub-section (2) of Section 3 of the NS Act is necessary. We had called for the file from the Addl. Advocate General and we have perused it and we can straightway say that the conferment and exercise of the powers by the District Magistrate does not appear to be in accordance with the provisions of Sub-section (2) of Section 3 of the NS Act. Learned counsel for the respondent has placed before us a copy of the order dated May 31, 1993 which was issued conferring the powers on the District Magistrate, Jaisalmer or for that matter all District Magistrates during the relevant period. The said order reads as under--
^^jk'Vh; lqj{kk vf/kfu;e 1980 1980 dkdsUnzh; vf/kfu;e] la[;k 65 dh /kkjk 3 dh mi/kkjk 3 ds v/khu 'kfDr;ksa dkiz;ksx djrs gq, jkT; ljdkj ,r~n}kjk jkT; ds leLr ftyk eftLVsVksa dks mDr vf/kfu;edh /kkjk 3 dh mi/kkjk 2 esa of.kZr 'kfDr;ksa dk fnukad 7&6&93 ls6&9&93 rd iz;ksx djus dk funsZ'k nsrh gS A
jkT;iky ds vkns'k ls]
g-
izeq[k 'kklu lfpo] x`g
The perusal of the file shows that identical orders were issued even for the period in question authorising the District Magistrates to exercise the powers under Sub-section (2) of Section 3 of the NS Act. Therefore, we can say that when the four detention orders were made by [the District Magistrate, Jaisalmer, they were made in exercise of the powers conferred under aforesaid order. A bare reading of the aforesaid extracted order of the State Government will show that there is no mention that the State Government was satisfied that having regard to the circumstances prevailing or even likely to prevail in any area within the local jurisdiction of Distt. Magistrate, Jaisalmer it was satisfied that it was necessary to do so and therefore it by order directs the District Magistrate that within the period specified in the order he may, if satisfied as provided in Sub-section (2) of Section 3 exercise the powers conferred by the said sub-section. From a perusal of the file one glaring fact, and we may say that it is a sorry state of affairs, that the cases of preventive detention are being dealt with by the detaining authorities and even the approval of the orders issued by the District Magistrates is being done just in a casual and slip-shod manner came to our notice. The State Government should approve the orders made by the District Magistrate after application of its mind and a perusal of various note-sheets showed to us, makes it clear that the authority approving the detention i.e. Home Commissioner has not recorded that he has gone through the entire material and therefore was satisfied and approved the detention order. There is no application of mind and there has to be application of mind even in approving the detention order in case the detention order has been made by the District Magistrate duly authorised under Sub-section (2) of Section 3 of NS Act. The application of mind should be apparent from a perusal of file and it has been seen and is being seen not only in this case but other cases which have come to this Court there are note-sheets prepared by others, other than the detaining authority, and the detaining authority simply has put his/her signatures over various note-sheets. Sooner this practice is stopped and mind is applied in the matter of preventing detention which is a necessary evil, better it will be, otherwise, the Courts may hold the detention to be illegal. The Apex Court in the case of Jagdev Singh Talwandi (1984 Cri LJ 177) (supra) in para 171 has said--
This Court has observed in numerous cases that, while passing orders of detention, great care must be brought to bear on their task by the detaining authorities. Preventive detention is a necessary evil, but essentially an evil, Therefore, deprivation of personal liberty if at all has to be on the strict terms of the Constitution. Nothing less. We will utter the oft-given warning yet once more in the hope that the voice of reason will be heard.
Despite the aforesaid observations of the Apex Court time and again the detaining authorities are not acting in a manner in which they are required to act and as it appears to us from a perusal of the file their attitude is just casual. The Government must seriously consider establishing an independent section to deal with the matter of detention, that Section should compile the complete case law, act in accordance with law and the detaining authority must apply its independent mind and should not simply sign the note-sheets it must record its own satisfaction.
17. Dealing with the conferment of powers under Sub-section (3) of Section 3 of the NS Act, the Apex Court in the case of Abhay Shridhar Ambulkar v. Section V. Bhave, Commissioner of Police, AIR 1991 SC 397 has said that the conferment of power has to be specific either with regard to the circumstances prevailing or likely to prevail and not for both. In that case even the order dated January 6, 1990 of the State Government conferring power on the Commissioner of Police recorded the satisfaction of the Government of Maharashtra that having regard to the circumstances prevailing or likely to prevail in the Greater Bombay Police Commissioner ate, it is necessary that during the period commencing on January 30, 1990 and ending on April 29, 1990, the Commissioner of Police should exercise the powers conferred by Sub-section (2) of Section 3 of the said Act and then the order was (para 3)--
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 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.
Even then the Apex Court said that the order was invalid and by the aforesaid conferment of the power the Commissioner had no jurisdiction. Referring to the first paragraph of the said order which has not been extracted by us but only a reference has been made, the Apex Court said that the said paragraph contains only the reproduction of the terms of Sub-section (3) of Section 3, but Sub-section (3) refers to two independent circumstances, namely--(i)the prevailing circumstances and (ii)the circumstances that are likely to prevail. The Apex Court further said that the former evidently means circumstances in present that is prevalent on the date of order and the latter means the anticipated circumstances in future. If the Government wants that the District Magistrate or the Commissioner 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 be satisfied with the circumstances that are likely to prevail during that period. This seems to be the mandate of Sub-section (3). The Apex Court said that the subjective satisfaction of the detaining authority cannot be lightly recorded by reproducing both the alternative clauses. The Court said (para 8) --
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 prevailing on 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 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 impugned order is still worse and as said earlier not only it does not record the satisfaction of the State Government as required under Sub-section (3) of Section 3 of the NS Act, but even it does not say that the District Magistrate, if satisfied as provided under Sub-section (2) of Section 3 of that Act, may exercise the powers under that sub-section. We are, therefore, of the opinion that the authorisation is illegal and invalid and on the basis of that authorisation the District Magistrate, Jaisalmer had no jurisdiction and could not exercise the powers of detaining authority under Sub-section (2) of Section 3 of the NS Act.
18. Consequently, we hereby allow all the four habeas corpus petitions and quash and set aside the detention orders dated October 3, 1992 and January 30, 1993 and direct that all the four detenue, namely, Kishan Singh, Kambhira alias Kabir Bhai, Bhagya alias Bhagey Khan and Hazi Menoo, shall be released forth-with if not required to be detained in connection with any other case.