ARUNA BANO Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) In the instant habeas corpus petition under Article 226 of the Constitution of India, the grievance of Mst. Aruna Bano is that her brother Babloo alias Rustam has been unlawfully taken into custody by the police and detained under the provisions of National Security Act, 1980 (hereinafter referred to as "N.S.A.") in the Central Jail, Bikaner. It appears from the reply to the writ petition that District Magistrate, Bikaner having satisfied on the basis of material placed before him that in order to prevent the detenu from acting prejudicial to the maintenance of public order by impugned order dated 30-1-2002 directed to detain him in Central Jail, Bikaner.

(2.) The order of detention has been challenged inter alia on the ground that there was no valid conferment of power on the District Magistrate, Bikaner to pass the order of detention. It is submitted by Mr. S. D. Vyas, learned counsel appearing for the petitioner that the State Government without satisfying as to whether in the District of Bikaner circumstances prevailed wherein, it was necessary to exercise the powers under sub-section (3) of Section 3 of N.S.A. to confer power, on the District Magistrate for exercising powers under Section 3(2) of the N.S.A. Thus, the notification of the State Government dated 6-12-2001 under sub-section (3) of Section 3 of N.S.A. conferring power on all the District Magistrates in the State of Rajasthan including District Magistrate, Bikaner is illegal and void. In support of the contention, learned counsel has placed reliance on the decision of the Apex Court in Abhay Shridhar Ambulkar v. Commissioner of Police reported in AIR 1991 SC 397 and the Division Bench judgment of this Court in Ram Singh v. State of Rajasthan, reported in 1994 Raj Cri C 369 : (1994 Cri LJ 512). This Court by order dated 20-1-2003 in order to satisfy as to whether there existed any material to pass an order of conferment under sub-section (3) of Section 3 of N.S.A. directed the Additional Advocate General to produce the relevant record before this Court.

(3.) Mr. R. P. Vyas, Additional Advocate General has produced the relevant file before us. He has also submitted that the cases cited by the learned counsel has no application to the facts of the instant case. It is further submitted that subjective satisfaction of the Government on prevailing circumstances or circumstances that are likely to prevail in future date cannot be a matter of judicial review. The use of word "or" between circumstances prevailing and likely to prevail signifies either of the two situations for different periods. In the case before the Apex Court, the State of Maharashtra referred to both the situations in the notification. Thus, the Apex Court was of the view that the State Government was uncertain as to the relevant circumstances to be taken into consideration and as such notification suffered from non-application of mind. It is submitted that in the instant case, on being satisfied of the prevailing circumstances in the State of Rajasthan while exercising the powers under sub-section (3) of Section 3 of N.S.A., Government has conferred powers on all the District Magistrate in the State of Rajasthan. Thus, the State Government was certain of the prevailing circumstances of the State, which called for exercise of powers under sub-section (3) of Section 3 of N.S.A. However, in the rejoinder to the reply, it is submitted by Mr. S. D. Vyas that word used "any area within the local limits of the jurisdiction of District Magistrate" is of great significance. Elaborating the contention, it is submitted by Mr. S.D. Vyas that State Government is required to consider the material pertaining to a particular area of the District wherein the circumstances prevailing or likely to prevail which calls for conferring a power on a District Magistrate, Incharge of that area to exercise powers under sub-section (2) of Section 3 of N.S.A. It is further submitted that authorising all the District Magistrates in the entire State of Rajasthan without satisfying prevailing circumstances in an individual District indicates, total non application of mind by the State Government.