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MADRAS HIGH COURT
K.M. Natarajan and Arumugham, JJ.
Rani- Petitioner
versus
District Magistrate and Ors; - Respondents
W.P. No. 3029 of 1992
Decided on 2.9.1992
Counsel for the parties:
For the Petitioner: Ramasubramaniam for M/s Ram & Ram.
For the Respondents: K. Subramaniam,
Held: In the impugned order, the subjective satisfaction has been mentioned in the following words, namely" And whereas the Government are satisfied that having regard to the circumstances prevailing and which are likely to prevail in the North Arcot Ambedkar District, it is still necessary that the power to make orders detaining the 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) shall be continued to be exercised by the District Magistrate of North Arcot Ambedkar District for a further period of three months from the 18th October, 1991,. "According to the learned Advocate General, the delegation of power was made after taking into consideration the circumstances prevailing and likely to prevail in the jurisdiction of the District Magistrate of North Arcot Ambedkar District and as such the impugned order is in the order satisfying the requirements of Section 3(2) of the Act. He would further submit that before a Bench of this court in W.P. Nos. 2397, 6072 and 7089 of 1991, a similar challenge was made to the Government order and this Court upheld the said contention and allowed the writ petitions thereby invalidated the power delegated to the commissioner of Police in G.O. Ms. No. 939, Prohibition and Excise, dated 15.10.1990. As against the said judgment, the State of Tamil Nadu has filed special Leave Petition (Criminal) Nos. 4118, 4132 and 4182 of 1991 in the Supreme Court and obtained stay of options of the order on 12.3.1992 and the question is now sub judice before the apex court. When this question is now before the apex court, we do not propose to deal with the same. Further, we have asked the Government to produce all the relevant files relating to the impugned G.O. delegating powers under Section 3(2) of the Act and we are prima facie satisfied that the Government after taking into consideration all the circumstances which are necessary for passing the impugned G.O. has issued the impugned G.O. and as such we have no hesitation in holding that the G.O. is not vitiated on this ground also: As regards the contention that in the present G.O. 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, and such a delegation is not authorised by the Act and hence the G.O. is vitiated on the ground of non-application of mind. We do not find any force in the contention as the Act enables the Government to confer the power to detain persons under the Act, also to the District Magistrate and the Commissioner of Police. The absence of the word 'also' in the impugned G.O. would not mean that the Government relinquished the power of detention and the District Magistrate and the Commissioner of Police alone are empowered to do so. But, on the other hand, on a careful reading of the relevant portion of the Act as were as the Government Order, we find that the delegation was made in addition to the power of the Government to detain persons in certain areas. Hence, it cannot be said the G.O. is vitiated on the ground of non application of mind in this regard. (Para 12)
Result: Ordered accordingly.
JUDGMENT
K.M. Natarajan, J. - 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 s
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