JUDGMENT
P.S. Shah, J.
1. By this petition under Article 226 of the Constitution of India the petitioner challenges his detention under an Order dated September 30, 1985, passed by the Commissioner of Police, Thane, under section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug-offenders Act, 1981, (hereinafter called ‘the Act’). This petition was heard by a Division Bench consisting of my learned brothers Jahagirdar and Tated, JJ. Jahagirdar, J., held that the order of detention is based on some of the grounds of detention which are irrelevant and in this view of the matter, set aside the order of detention passed against the petitioner and directed that he be set at liberty. Tated, J., however, disagreeing with the view taken by Jahagirdar, J., held that there is no legal infirmity in the impugned detention order and confirmed the detention order. In this view of the matter, he proceeded to pass an order discharging the rule.
2. In view of the difference of opinion, the Division Bench directed the papers to be placed before the learned Chief Justice for further hearing in accordance with Rule 7 of Chapter XVIII of the Appellate Side Rules read with section 392 of the Code of Criminal Procedure, 1973. As directed by the learned Chief Justice, the matter has been placed before me for hearing of the writ petition in accordance with the said provisions.
3. The contentions urged before the Division Bench as well as before me relate to the validity of the grounds of detention thereof mentioned in sub-paragraph (g) of paragraph (2) and in sub-paragraph (h) of paragraph (2) of the grounds of detention. It may be mentioned that the grounds appearing in paragraphs 2(a) to 2(f) of the grounds of detention disclose bootlegging activities of the petitioner by himself or through his hirelings.
4. The incidents mentioned in sub-paragraphs (g) and (h) of paragraph (2) are relied on by the Detaining Authority to show that they are attributable to the petitioner to show that the prejudicial activities mentioned therein disclose that his activities as a bootlegger affect or likely to affect adversely the maintenance of public order.
5. The ground appearing in sub-paragraph (g) of paragraph (2) in the grounds of detention discloses the bootlegging activities carried on by the detenu, on 13th June, 1985 at about 10 a.m. near Krishna Society at Camp No. 2 in Ulhasnagar. It is stated that on the aforesaid date and time one Chander Meghrajmal Gwalani and his friend Rajesh Dipchand Bellani went into the liquor den of the petitioner near Krishna Society. At that time one Gool @ Gulab, brother of the petitioner and his hirelings Ranjit Vishwanath Iyer and Vada @ Raju Viramal Alamchandani were present there. Chander Gwalani and his friend Rajesh Bellani obtained some illicit liquor for drinking. At that time the petitioner’s hirelings, the said Ranjit Iyer and Vada and his brother Gool had a quarrel with Chander Gwalani on account of the dues of the liquor business. They beat Chander Gwalani with fists, kicks, iron bars, iron pipe and a hockey stick and as a result thereof three of his teeth came out. The petitioner rushed there and incited his brother Gool and his hirelings to further beat the said Chander Gwalani and the petitioner also joined them in beating him with fists. On seeing such violence, Chander Gwalani’s friend Rajesh ran away. While Chander was running away, the petitioner and his brother chased him and beat him with a hockey stick. The matter was reported to the police station and the case was registered for the offences punishable under sections 323, 324 and 325 read with section 34 of the Indian Penal Code. It is further stated in the said paragraph that the petitioner’s hireling Ranjit was arrested on June 14, 1985, and from him a hockey stick and an iron pipe were recovered. The petitioner’s brother Gool and his hireling Vada were also arrested and in connection with these offences the police submitted a charge-sheet in the Court on August 20, 1985.
5. The ground mentioned in sub-paragraph (h) of paragraph (2) states that on an anonymous application received from a social worker of Ulhasnagar, an enquiry was conducted by the Inspector of Police and it was found that the violent and terrorising activities of the petitioner’s illicit liquor business were true. However, witnesses were not willing to disclose their names. The Inspector of Police, however, recorded the statements of various persons. In incident No. 1, one Mr. A is said to have been intercepted by the petitioner and his agent while he was driving his rickshaw and beaten on the ground that the said Mr. A had refused to co-operate with the petitioner in transporting the illicit liquor manufactured by the petitioner. Similarly, statements alleged to have been made by M/s. B & C also disclose incidents which are attributable to the petitioner in his character as a bootlegger as in the case of the incident disclosed in the statement of Mr. A. Both the learned Judges have concurred in holding that these are instances involving question of maintenance of public order and as being directly attributable to the petitioner in his character as a bootlegger. However, as regards incident No. 4 disclosed in sub-paragraph (h) the learned Judges have differed. The incident discloses as follows :
“Mr. D of the vegetable market of Ulhasnagar carries on his business of selling vegetables by parking a handcart. He knows the petitioner as a person who does the business of country liquor in the vegetable market.
On 21st of August, 1985 Mr. D was engaged in the business of selling vegetables in the vegetable market on his handcart. At that time servants who are working with the petitioner in his business went to Mr. D and told him that he should not place his handcart at that place. On this Mr. D told the servants of the petitioner that it was a vegetable market and he will place his handcart there. Consequent to this the servants of the petitioner belaboured the said Mr. D by fists and dragged him towards the petitioner. The petitioner himself also beat Mr. D. as he was not obeying the directions given by petitioner’s servants. Thereafter the handcart of Mr. D was overturned. Mr. D was also threatened that if he made any complaint to the police he would not be left alive.”
7. Mr. Chitnis the learned Counsel appearing for the petitioner had urged before the Division Bench as also before me that the ground mentioned in sub-paragraph (g) of paragraph (2) though discloses the bootlegging activities of the petitioner the incident mentioned therein does not disclose a tendency to affect the maintenance of public order and secondly the grounds mentioned in sub-paragraph (h) which discloses the incident involving one Mr. D is irrelevant and has no nexus with the bootlegging activities of the petitioner. On the other hand, it is contended by Mr. Desai the learned Public Prosecutor that both these grounds are wholly relevant and disclose a tendency to affect the public order as contemplated by the provisions of the Act.
8. Now the preamble of the Act States that it is an Act to provide for preventive detention of Slumlords, Bootleggers and Drug-offenders for preventing their dangerous activities prejudicial to the maintenance of public order. Section (3) provides that the State Government or the competent officer mentioned therein may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. The expression ‘acting in any manner prejudicial to the maintenance of public order’ is detained in Clause (a) of section 2 of the Act. As per the definition ‘acting in any manner prejudicial to the maintenance of public order’ means-in the case of a bootlegger, when he is engaged or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order. The explanation of section 2(1) provides that for the purposes of the said Clause (a), public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely, inter alia, if any of the activities of any of the persons referred to in this clause, directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health. Bootlegger has been defined in Clause (b) of section 2. It is not disputed that the activities attributed to the petitioner fall within this definition. The provisions of section 3 read with the provisions of section 2(a) and 2(b) clearly show that it is not enough for a person to be detained under section 3 to the Act that he should be merely a bootlegger because unless his activities are prejudicial to the maintenance of public order no person can be detained by an order under section 3. It is only when his activities as a bootlegger affect or are likely to affect adversely the maintenance of public order than an order under section 3 of the said Act can be passed. This position of law is also reiterated by various decisions of this Court. To mention a few of them, in Shivaji Bapu Chavan v. Sharwari Gokhale, 84 Bombay Law Reporter, 13, the validity of the Act was under challenge. A Division Bench of this Court observed-
“It is not doubt true that in the explanation the words ‘shall be deemed likely to be affected or shall be deemed to have been affected adversely’ have been used. However, while defining the substantive expression, viz. ‘acting in any manner prejudicial to the maintenance of public order’ qua each of the category of persons the legislature has taken care to lay down that those activities which affect adversely or are likely to affect adversely the maintenance of public order could only be equated with ‘acting in any manner prejudicial to the maintenance of public order’.”
9. In Vishnu Maya Bhoir v. R.D. Tyagi, Commissioner of Police, & others, Criminal Writ Petition No. 878 of 1985, decided on December 13, 1985 (Sawant & Kolse-Patil, JJ.) it was observed:-
“It is clear from Clause (a)(ii) of section (2) and the explanation to Clause (a), that for the detention under the Act, it is not enough that a person is a bootlegger. In order to attract the detention, it is necessary that as a bootlegger he indulges in acts which affect or are likely to affect adversely the maintenance of public order.”
10. In Danial John Salvaraj v. The Commissioner of Police, Pune and another, Criminal Writ Petition No. 400 of 1982 (Dharmadhikari & Joshi, JJ.) it was held that-
“The bootlegging activities coupled with other criminal activities of the detenu, had caused alarm and had created a feeling of insecurity amongst the public residing in the vicinity. Therefore, in our view, it could safely be said that the criminal activities of the detenu which were wide spread and were directly connected with his bootlegging activities had prejudicially affected the maintenance of the public order.”
This shows that the detention under the Act can be justified only if the prejudicial activity is carried on as a bootlegger. In other words, the prejudicial activities must have a nexus with the activity as bootlegging and that the mere bootlegging activity is not enough to direct detention under the Act.
11. In Criminal Writ Petition No. 661 of 1984, Jagdish Sinna Shetty v. Commissioner of Police, Greater Bombay, decided on January 8, 1985, a Division Bench of this Court (Gadgil & Khatri, JJ.) again held on examination of the relevant provisions that for the purpose of bringing the case within the ambit of the Act there must be material before the Detaining Authority that the detenu is a bootlegger and that there must be some conduct or action on the part of the bootlegger when he is engaged in the business of a bootlegger and that conduct or act must prejudicially affect the public order.
12. A reference may also be made to another decision of a Division Bench of this Court (R.A. Jahagirdar and Daud, JJ.) in Criminal Writ Petition No. 819 of 1985, Ramesh Ganpat Ghanekar v. Commissioner of Police, Thane, decided on December 9, 1985. The Division Bench observed-
“But it is not enough for a person to be detained under the said Act to be a bootlegger. This Act which is a law relating to preventive detention has been enacted for the purpose of maintenance of public order. Only a person who acts or is likely to act in a manner prejudicial to the maintenance of the public order can be detained under the said Act. That is why it has been mentioned in section 2(a) that ‘acting in any manner prejudicial to the maintenance of public order’ means, in the case of a bootlegger, when he engaged, or is making preparation for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order. Therefore, it is only when any of the activities of a bootlegger affect or are likely to affect adversely the maintenance of public order and the authority under section 3 is satisfied that it is necessary to prevent him from acting in such manner that an order of detention can be passed under section 3 of the Act.”
13. It is thus clear that the grounds of detention must disclose the bootlegging activity of the person, but the acts attributable to him as affecting maintenance of public order must have a nexus with his bootlegging activity. In other words, apart from showing that he is a bootlegger, the grounds must show that as a bootlegger he indulges in acts which affect the maintenance of public order. Bearing in mind this legal position, I may now proceed to examine the ground in sub-paragraph (g) of paragraph (2) which has been quoted in extenso by me above. In my opinion, this ground cannot be said to disclose an act which adversely affect or is likely to adversely effect the maintenance of public order. The incident discloses that the petitioner was conducting a liquor den. Some persons visited the liquor den for having a drink and were belaboured or manhandled for non-payment of the past dues. Undoubtedly, the incident discloses that some violence was indulged by the petitioner and his associates, but the incident merely involved certain known individuals who had gone to the den of the petitioner for the purpose of drinking and were dealt with because they had failed to pay for the liquor consumed. This is an incident which merely involved individuals and it cannot be said that the acts attributable to the petitioner in the incident were such as would adversely affect or were likely to affect the maintenance of public order.
14. The distinction between law and order and public order is well settled. In Arun Ghosh v. State of West Bengal, , the question that arose for consideration before the Supreme Court was whether the grounds mentioned could be construed to be breach of public order and as such the detention order could be validly made. There the appellant had molested two respectable young ladies threatened their father’s life and assaulted two other individuals. He was detained under section 3(2) of the Preventive Detention Act, 1950 in order to prevent him from acting prejudicially to the maintenance of public order. It was held by the Supreme Court that the question whether a man has only committed a breach of law and order, or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the act upon society. The Supreme Court observed-
“The test is; Does it lead to a disturbance of the even tempo and current of life of the community so as to amount to a disturbance of the public order, or, does it affect merely an individual without affecting the tranquillity of society.”
The Supreme Court found in that case that however reprehensible the appellant’s conduct might be, it did not add up to the situation where it may be said that the community at large was being disturbed and, therefore, it could not be said to amount to an apprehension of breach of public order.
15. In Ram Ranjan Chatterjee v. State of West Bengal, it was observed by the Supreme Court as follows :
“It may be remembered that qualitatively, the acts which affect law and order are not different from the acts which affect public order. Indeed, a State of peace or orderly-tranquillity which prevails as a result of the observance or enforcement of internal laws and regulations by the Government, is a feature common to the concepts of law and order and public order. Every kind of disorder or contravention of law effects that orderly tranquillity. The distinction between the areas of law and order and public order as pointed by this Court in Arun Ghosh v. State of West Bengal, is one of degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. If the contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order only. These concentric concepts of law and order and public order may have a common epicentre, but it is the length, magnitude and intensity of the terror-wave unleased by a particular eruption of disorder that helps distinguish it as an act effecting ‘public order’ from that concerning ‘law and order’.”
16. Now, it is true as held by the Supreme Court in Khudiram Das v. The State of West Bengal, the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the Detaining Authority is based.
17. Now, while considering the question as to whether a particular activity had a nexus with the bootlegging or with the maintenance of public order must obviously depend upon the facts and circumstances of each case. Whether a particular act will or will not create a problem of public order will depend upon various circumstances such as whether it is merely a clash between the individuals, the motivation for the assault, the magnitude and gravity of the incident and so on. In my opinion, having regard to all these factors and taking into consideration the nature of the incident and also bearing in mind the distinction between the disturbance of public order and law and order, it is not possible to hold that this incident can effect the even tempo of the life of the society so as to amount to a disturbance of public order. In my view, therefore, the ground 2(g) is irrelevant. As far as the validity of this ground is concerned, therefore, with respect I am in agreement with the view taken by Jahagirdar, J., and unable to share the view taken by Tated, J.
18. In the view that I have taken with regard to the validity of the ground in sub-paragraph (g) of paragraph (2) it is unnecessary for me to consider the rival contentions urged before me as regards the validity of the other ground relied on by the Detaining Authority. It is well settled that if any one of the grounds on which the order of detention is based is found to be non-existent or irrelevant the entire order gets vitiated since the Court cannot predicate what the subjective satisfaction of the authority would have been on the exclusion of such a ground. In this connection it would be useful to refer to the decision of the Supreme Court in Dwarkadas Bhati v. The State of Jammu and Kashmir, of the Judgment the Supreme Court observed as follows :
“The principle underlying all these decisions in this. Where power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be based on a number of grounds or for a variety of reasons, all taken together, and if some out of them are found to be non-existent or irrelevant, the very exercise of that power is bad. That is so because the matter being one for subjective satisfaction it must be properly based on all the reasons on which is purports to be based. If some out of them are found to be non-existent or irrelevant, the Court cannot predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons. To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the subjective standards of the Court for the subjective satisfaction of the statutory authority. In applying these principle, however, the Court must be satisfied that the vague or irrelevant grounds are such as, if excluded ,might reasonably have affected the subjective satisfaction of the appropriate authority. It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The Court while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders. It is in the light of these principles that the validity of the impugned order has to be judged.”
19. This principle is also borne out by a recent decision of the Supreme Court in Kamalakar Prasad Chaturvedi v. The State of M.P., . The following observations in para-12 of the judgment are pertinent on the point :
“The first two incidents which are of 1978 and 1980 are mentioned as grounds of detention in the order dated 6/5/1983. There can be no doubt that these grounds especially ground No. 1 relating to an incident of 1978 are top remote and not proximate to the order of detention. It is not open to the Detaining Authority to pick up an old and stale incident and hold it as the basis of an order of detention under section 3(2) of the Act. Nor it is open to the Detaining Authority to contend that it has been mentioned only to show that the detenu has a tendency to create problems resulting in disturbance to public order for as a matter of fact it has been mentioned as a ground of detention. Now, there is no provision in the National Security Act, 1980 similar to section 5A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 which says that where a person has been detained in pursuance of an order of detention under sub-section (1) of section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly (a) such order shall not be deemed to be invalid or in operative merely because one or some of the grounds is or are vague, non-existent, non-relevant, not connected or not proximately connected with such persons or invalid for any other reason and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in sub-section (1) of section 3 with reference to the remaining ground or grounds and made the order of detention and (b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds. Therefore, in the present case it cannot be postulated what view would have been taken by the Detaining Authority about the need to detain the petitioner under section 3(2) of the Act if he had not taken into account the stale and not proximate grounds 1 and 2 into consideration in arriving at the subjective satisfaction. We are, therefore, of the opinion that the petitioner’s detention is unsustainable in law. Accordingly, we quash the order of detention and direct that the petitioner be set at liberty forthwith.”
20. It is thus beyond controversy that if the Detaining Authority is found to have taken into consideration even a single ground which is non-existent or irrelevant the entire order must fail. It has to be borne in mind that the Act under which the petitioner is detained does not contain a provision similar to section 6-A in COFEPOSA or a similar provision in the National Security Act in which case a different approach may have been called for.
21. The order of detention being vitiated by reason of irrelevant material being taken into consideration by the Detaining Authority, the detenu is entitled to be set at liberty forthwith. I, therefore, agree with the order proposed by Jahagirdar, J.
22. The matter may, therefore, be placed before the Division Bench for passing the final order in accordance with the provisions of section 392 of the Code of Criminal Procedure.