Lingam vs Union of India and State of Tamil Nadu

V.S. Sirpurkar, J.—The petitioner herein challenges an order dated 10.8.98 passed by the District Magistrate and District Collector, Virudhunagar under the provisions of Section 3(2) of the National Security Act, detaining him, as he was found indulging in activities prejudicial to the maintenance of public order.

Along with the order of detention number of reasons were given. However, it is not necessary to go into those grounds and the details thereof, as the learned counsel has urged only one point.

The learned counsel urges that the concerned officer who has passed the order did not have any jurisdiction or powers to pass the order, as the notification which has been quoted in the order did not exist.

In order to appreciate the contention of the learned counsel, it would be proper to reproduce paragraph 3 of the impugned order which is as follows:

Now therefore in exercise of the powers conferred by sub section (2) of section 3 of the National Security Act 1980 (Central Act No. 65 of 1980) read with the order issued by the Government in G.O. Ms. No. 1165 Public (Law and Order-F) Department, dated 20.7.98 under sub-section (2) of section 3 of the said Act I hereby direct that the said Thiru Lingam aged 19/98 S/O. Nadesan Door No. 31, Muthuveeramman Koil Street, Mugavoor, Rajapalayam Taluk, Virudhunagar District be detained at the Central Prison, Vellore.

The learned counsel submits that though the order is correctly passed under the provisions of Section 3(2) of the National Security Act, the concerned authority has misquoted the Section under which G.O.Ms. No. 1165 dated 20th July, 1998 was promulgated. According to the learned counsel, the notification should shave been promulgated only under sub-section (3) of Section 3 of the National Security Act and not u/s 3(2) as reflected in the order. The argument is that there cannot be any notification issued, (empowering the District Magistrate or the allied authorities to pass the detention order) u/s 3(2) of the National Security Act. That power comes to the authority u/s 3(3) of the Act. And as such the authority has acted on non-existing notification and therefore without having a jurisdiction to pass orders under the Act. The learned counsel relies on a Division Bench judgment of this court in W.P. 1150 of 1991 etc., dated 13.8.1991 by K.M. Natarajan and Somasundaram, JJ.

The learned Public Prosecutor, however, contests this and points out that the order has been correctly passed using the provisions of Section 3(2) of the National Security Act. The learned Public Prosecutor took us to the section and pointed of that the powers u/s 3(2) of the National Security Act were for the purpose of maintenance of public order and that precisely was the object of the present order also. It is therefore contended on behalf of the Public Prosecutor that the concerned officer has correctly read the provisions of the Act while passing the order and has correctly exercised those powers. According to the learned Public Prosecutor merely quoting an incorrect section in respect of the notification would not by itself render the whole order fatal nor can it be said to be non-application of mind.

It is indeed true that the power to make any order, detaining a person lies with the Central Government or the State Government for the eventualities covered u/s 3(1) and Section 3(2) of the National Security Act. It is again to be seen that in this case the object of passing of the order was to prevent the detenu from acting in any manner prejudicial to the maintenance of public order which is one of the eventualities covered u/s 3(2) of the National Security Act. Even a glance at the grounds would suggest that the concerned authority wanted to detain the detenu for preventing him from acting prejudicially to the maintenance of public order. Thus in so far as the user of the power is concerned, there is nothing wrong. It was obvious to the concerned authority. Therefore the authority was aware that the powers u/s 3(2) of the National Security Act could be used only by the Central Government and that the District Magistrate and Commissioner of Police could be empowered to pass such orders under the provisions of Section 3(3) of the National Security Act. We have seen the order passed by the Government in G.O.Ms. No. 1165 dated 20th July, 1998. All those details are correctly quoted. It is obvious that the authority concerned was aware of the order passed by the State Government, empowering him to pass order u/s 3(2) of the National Security Act. It is merely the last portion which has gone wrong in as much as the concerned authority has quoted as if G.O.Ms. No. 1165 was passed under sub-section (2) of Section 3 and not under sub-section (3) of Section 3 (which would have been a correct position). Once the authority has correctly used its powers in the light of correct provision of law and has also believed that it was adequately empowered to pass that order under the provision of Section 3(2) of the National Security Act, giving the minutest possible details of the empowering order passed by the State Government, merely because there is one misquotation as regards the powers of the State Government under which the said order has been passed, it cannot be said that there has been non-application of mind on the part of the concerned authority or that any prejudice has been caused to the detenu on that account. After all the authority has correctly read the law and has taken adequate care of quoting the G.O.Ms. No. 1165 which would show that the concerned authority was well aware of his own powers.

The reliance placed on the Division Bench Judgment is also of no consequence and in that case the order itself was passed under the incorrect provisions of Act 14 of 1982. There it was not the case of incorrect quotation regarding empowering order and on facts also that case was entirely different. We have already held that in this case the order has been passed, quoting the correct provisions of the National Security Act. In that view, the reliance placed on the Division Bench judgment is uncalled for.

Again it is not the case of the detenu that this particular authority was not at the relevant time duly empowered to pass the order. The learned Public Prosecutor has pointed out the original order which suggests that the concerned authority had the necessary powers.

We are, therefore, of the opinion that the mere misquotation, as regard the provision under which the Government Order has been passed, would not vitiate the detention order, as factually the concerned officer was armed with sufficient power to pass the order. No other contention was raised before us. The petition has no merits and is dismissed.