ABHAY SHRIDHAR AMBULKAR versus S.V. BHAVE, COMMISSIONER OF POLICE AND ORS.

Citation: [1990] SUPP. 3 S.C.R. 552 · Decided: 17-12-1990 · Supreme Court of India · Bench: K. JAGANNATHA SHETTY · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
ABHA Y SHRIDHAR AMBULKAR 
v. 
S.V. BHAVE, COMMISSIONER OF POLICE AND ORS. 
DECEMBER 17, 1990 
B 
[K. JAGANNATH SHETIY AND A.M. AHMADI, JJ.] 
c 
D 
E 
F 
G 
H 
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 
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. 
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 
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 
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 
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 
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, 
HELD: The subjective satisfaction for the exercise of power under 
sub-section (3) of Section 3 must be based on circumstaoces prevailing 
A 
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 
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 
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. 
·(Under Article 32 of the Constitution of India). 
WITH 
Special Leave Petition (CRL.) No. 

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