RANI Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) THIS writ petition is filed by one Ram, wife of the detenu Ganesan, under Article 226 of the Constitution of India, seeking for the issuance of a Writ of Habeas Corpus quashing the order of detention passed by the District Magistrate and Collector of North Arcot Ambedkar District, Veil ore, the first respondent herein and set the detenu at liberty. The detenu come to the adverse notice as a forest offender in view of the single case referred to in the preamble of the grounds of detention and was detained on the basis of the ground case by the first respondent in exercise of the power conferred 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 (Tamil Nadu Act 14 of 1982), here in after referred to as the Act, with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order.

(2.) THE facts which led to the passing of the impugned order are set out in detail in the grounds of detention which was duly served on the detenu, and in view of the plea taken in the writ petition, we do not feel it necessary to reiterate the same in this order. Though various grounds are raised in the writ petition, learned counsel for the petitioner, Mr. Ramasubramaniam confined his argument on two grounds. The learned counsel requests the Court to decide the question regarding the validity of the Government order under which the power was delegated to the first respondent to pass the impugned order under section 3(1) of the Act, as a preliminary point. Hence, in the first instance the said question was taken up as preliminary issue. G.O. Ms. No. 245 Prohibition and Excise (XII) Department dated 18.10.1991, under which the power of detention was delegated by the State Government to the first respondent is challenged on the following ground. At the time when the Act came into force, the Act was in force with regard to Bootleggers, Drug Offenders, Goondas Immoral Traffic Offenders and Slum Grabbers and not for Forest Offenders. 'Forest Offender' was introduced by an amendment in the year 1988 by Act 1 of 1988 on 13.1.1988. Hence', the term 'forest offender' could not have been present and is not present in G.O. Ms. No. 25 Prohibition and Excise Department dated 18.1.1982. In the present G.O. Ms. No. 245 Prohibition and Excise (XII) Department dated 18.10.1991, it has been specifically stated that even in G.O. Ms. No. 25 Prohibition and Excise Department dated 18.1.1982 the 'Forest Offender' has been present and it shows non -application of mind by the Government in delegating the powers without seeing the contents of the original Government Order. It is further contended that as Per Section 3(1) of the Act the power to make an order of detention primarily rests with the State Government. But, the State Government if satisfied in certain circumstances may order the District Magistrate or the Commissioner of Police also to make an order of detention to prevent the detenu from acting in any manner prejudicial to the maintenance of public order. In the present G.O. Ms. No. 245 Prohibition and Excise Department dated 18.10.1991, under which the delegation to pass the impugned order was given, the word 'also' has been removed, so as to mean that the District Magistrate alone has got the power to clamp the order of detention and the Government have relinquished the power vested with them. Such a delegation is not authorised by the Act and it is due to non -application of mind and it has to be quashed. It is further contended that the Act specifically enumerates that the State Government has to identify the area within the local limits of the District Magistrate or Commissioner of Police. If a District Magistrate or a Commissioner of Police to exercise the powers conferrer under Section 3(2) of the Act, the circumstances prevailing or likely to prevail in the specified area are to be mentioned in the Government Order. The Act does not authorised a blanket delegation to the District Magistrate or the Commissioner of Police without specifying the area to which the delegation applies. When it comes to the delegation of powers, the State Government has to identify the area of disturbance having regard to the circumstances prevailing in that area to delegate the powers. In the absence of clear demarcation of the area to which the delegation applies, the delegation made in G.O. Ms. No. 245 Prohibition and Excise (XII) Department dated 18.10.1991 is bad in law. Further, in the absence of existence of circumstances expressly stated on the date of the order or likely to prevail on later date, the circumstances for which dangerous activity is sought to be prevented in exercise of the said power, the G.O. Ms. No. 245 prohibition and Excise (XII) Department dated 18.10.1991 is bad and invalid in law.

(3.) TAMIL Nadu Act 14 of 1982 enables the Government to confer the powers to detain persons under the Act also to the District Magistrate and the Commissioner of Police. The absence of the word 'also' in the delegation of powers, referred to by the petitioner, does not in any way affect the order of detention which is otherwise valid. Further, it is not correct to say that there was non -application of mind on the part of the Government on that score. In any event, the absence of the word 'also' will not be fatal to the order of delegations passed by the Government. It is submitted that it can be seen from the section that the allegation to the District Magistrate or the Commissioner of Police, may be on account of the circumstances prevailing or likely to prevail in the area concerned, and further the expression "circumstances prevailing" which is the subjective satisfaction of the Government, would cover the entire period of three months during which the Government order was to be in force and that the prevalence of the circumstances is one of the prerequisites for the issue of the Government Order. It is submitted that the decision in Abhay Shridhar Ambulkar v. S. V. Bhave and others1 was rendered while considering the validity of an