JUDGMENT
A.P. Shah, J.
1. This is an application filed under Article 226 of the Constitution of India for the issue of a writ in the nature of certiorari to quash and set aside the order of detention dated 4th June, 1997 passed by the Police Commissioner, Brihan Mumbai and to release the detenu who is detained in Nasik Road Central Prison, Nasik.
2. In the exercise of powers conferred under sub-section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (Act No. 55 of 1981), hereinafter referred to as “Act”), the Police Commissioner, Brihan Mumbai passed an order on 4th June, 1997 detaining the detenu Suresh Anant Jadhav with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. Thereafter the detenu was arrested on 18th June, 1997 and was served with the order of detention. The grounds of detention were served on the detenu on 20th June, 1997 together with a vernacular translation thereof. In the meanwhile on 5th June, 1997 the Police Commissioner reported to the State Government about the passing of the detention order. The report was considered by the State Government on 11th June, 1997 and the Government approved the order of detention passed by the Police Commissioner.
3. In the grounds of detention, it is mentioned that the detenu is a weapon wielding desperado committing crimes such as robbery, extortion, assault and criminal intimidation in the areas of Hanuman Tekadi, Golibar, Vakola, Kadamwadi and the adjoining areas of Santa Cruz (East) and that he and his associates were said to be moving in the area armed with deadly weapons such as revolver, sword, knife and chopper. Several incidents which took place between September, 1996 to January, 1997 in which the detenu along with his associates assaulted and intimidated people in the locality and tried to extract large sums of money have been mentioned. In paragraphs 4(a) to 4(a)(x) of the grounds of detention reference is made to an offence registered under Sections 384, 385, 387 read with Section 34, of I.P.C. on the complaint made by a local builder by name Madan Mohan Bathija. It appears that on the complaint of Mr. Bathija, a trap was laid wherein the detenu and his associates were caught red-handed with the fake currency notes provided to the witness who made the payment of extortion money. Several other incidents in which detenu and his associates demanded and extracted money from local businessmen by using force are also mentioned. In that behalf, the detaining authority has relied upon in-camera statements of the witnesses. Relying upon this material, the detaining authority concluded as follows :-
“From the above facts, I am satisfied that you are a dangerous person within the meaning of Section 2(b-1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons’ Act, 1981 (Amended 1996). You have struck terror in the minds of people living and carrying out their daily avocation in the areas of Hanuman Tekadi, Golibar, Vakola, Kadamwadi and areas adjoining thereto in Santacruz (East) in the jurisdiction of Vakola Police Station in Brihan Mumbai. You are a dreaded criminal, and goonda and thereby you have become a perpetual danger to the society at large. Due to you and your associates, peace loving and law abiding citizens of the areas referred to above are experiencing a sense of insecurity and are living and carrying out their daily routine under a constant shadow of fear, whereby even the tempo of life of the society is disturbed. Action taken against you under the ordinary law of the land is found to be ineffective to prevent you from indulging in criminal activities, which are prejudicial to the maintenance of public order in the said localities and areas in Brihan Mumbai.”
It is also mentioned in the detention order that the copies of the documents are enclosed to the grounds of detention and that the detenu has right to make representation to the Central Government and the State Government against the detention order.
4. The Act was enacted by the State Legislature to provide for preventive detention of slumlords, bootleggers and drug offenders for preventing their dangerous activities prejudicial to the maintenance of public order. Section 2(a) as it stood before the amendment in 1996 defines the meaning of expression “acting in any manner prejudicial to the maintenance of public order” and reads as follows :-
2. In this Act, unless the context otherwise requires –
(a) “acting in any manner prejudicial to the maintenance of public order” means –
(i) in the case of a slumlord; when he is engaged or is making preparations for engaging in any of his activities as a slumlord, which affect adversely, or are likely to affect adversely the maintenance of public order :
(ii) in the case of a bootlegger when he is 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;
(iii) in the case of a drug offender, when he is engaged or is making preparations for engaging in any of his activities as a drug offender, which affect adversely, or are likely to affect adversely, the maintenance of public order;”
Explanation :- For the purpose of this 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 or 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.”
Sections 2(b), (e) and (f) define the terms “bootlegger”, “drug-offender” and “slumlord” respectively.
5. By Amendment Act viz. XXXIX of 1996 Section 2(b-1) was inserted to add the category of “dangerous person” in addition to the categories of “slumlords”, “bootleggers” and “drug offenders”. Clause (b-1) defines “dangerous person” to mean a person who either by himself or as a member or leader of a gang, habitually commits or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959. Clause (2)(a) of the Act which defines “acting in any manner prejudicial to the maintenance of public order” has been amended to include Clause (iv) which reads as follows :-
“(iv) in the case of a dangerous person, when he is engaged or is making preparation for engaging in any of his activities as a dangerous person, which affect adversely, or are likely to affect adversely, the maintenance of public order;”
The impugned order of detention has been passed on the detaining authority being satisfied that the detenu is a dangerous person within the meaning of Clause (b-1) of Section 2 of the Act and his activities are prejudicial to the maintenance of public order.
6. Mr. Chitnis, learned counsel appearing for the petitioner, challenged the validity of the amended provisions contained in Clause 2(a)(iv) and 2(b-1) on various grounds. Mr. Chitnis urged that the definition of “dangerous person” contained in Section 2(b-1) is so vague in its content and wide in its extent, that by its application, it is easy for the State Government to deprive a person of his liberty for any fanciful reason which may commend itself to them. The vagueness in the definition is such that any person can be branded as a dangerous person even though activities of such person are not likely to affect the maintenance of public order even in remote manner. Mr. Chitnis urged that the definition confers uncontrolled discretion on the detaining authority to extend the horizon of their power to the detriment of the liberty of the subject. In this connection, Mr. Chitnis drew our attention to the decision of the Supreme Court in the case of State of M.P. v. Baldav Prasad, , where a law was struck down on the ground inter alia that the word “goonda” is of uncertain import, which rendered unconstitutional a law which permitted goondas to be externed. Mr. Chitnis also brought to our notice decision of the Federal Court in Rex v. Basudev, AIR 1950 FC 67 : (1950 (51) Cri LJ 1011) wherein the Federal Court had held that Section 3(1)(i) of the U.P. Prevention of Black Marketing (Tempoary Powes) Act is not within the competence of the Provincial Legislature since the black marketing activities sought to be cured by the said Act was so remote in the chain of relation to the maintenance of public order that preventive detention on account of them cannot fall within the purview of Entry 1 of List II of the Government of India Act, 1935.
7. Mr. Chitnis submitted that the word ‘established’ is used in Article 21 in order to denote and ensure that the procedure prescribed by law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the precise extent of such deprivation. Since the definition of “dangerous person” is vague and indefinite there is violation of Article 21 as well. Mr. Chitnis relied upon the decision of the Supreme Court in A. K. Roy v. Union of India, to support his contention that the definition is violative of Article 21. Mr. Chitnis also argued that by enacting the definition of “dangerous person”, the State Legislature wants to travel beyond the scope of the National Security Act and this definition has been enacted with the sole intention to rope in persons who cannot be detained under the said Act, viz. National Security Act, Mr. Chitnis further argued that the fiction incorporated in the explanation to Section 2(a) travels beyond the legislative scope by creating an artificial fiction to include in its import activities which have no nexus with the public order. The definition of “dangerous person” contained in Clause 2(b-1) as also the explanation to Section 2(a) is, therefore, liable to be struck down as unconstitutional.
8. The constitutional challenge raised by Mr. Chitnis was sought to be reinforced by Mr. Bobde, learned counsel appearing in a companion petition, who also addressed us on the question of constitutional validity of the provisions of the Act. Mr. Bobde urged that the provisions contained in Section 13 of the Act which prescribe the period of detention for one year are invalid inasmuch as it is not the law laid down by the Parliament as contemplated by Article 22(4) of the Constitution, with the result that the extension of detention for a period longer than three months was unconstitutional. According to Mr. Bobde provisions of Section 13 are thus violative of Article 22(4) of the Constitution.
9. In reply, the learned Advocate-General pointed out that the validity of the Act has been upheld by the Division Bench of this Court Shivaji Bapu Chavan v. Sharwari Gokhale . It was also pointed out by the learned Advocate-General that similar grounds challenging the explanation to Section were expressly repelled by the Division Bench. He submitted that the Act has been held to be constitutional by the said decision and is already in the field for more than 16 years. According to him, therefore, it is not permissible to the petitioner to impeach the validity of the Act on any new ground. He submitted that it is easier to discover fresh grounds of attack to sustain the same objection, but that cannot be permitted once the law has been laid down by this Court. He placed heavy reliance on the decision in Delhi Cloth and General Mills Co. Ltd. v. Shambhu Nath Mukherji, . The learned Advocate-General also strongly refuted the submission that the definition of “dangerous person” is vague and indefinite. He submitted that the definition clearly refers to certain criminal activity of habitual offenders and therefore it cannot be branded as vague or indefinite. With regard to the challenge raised by Mr. Bobde, the learned Advocate-General pointed out that the point has been concluded by the decision of the Supreme Court in the State of West Bengal v. Ashok Dey, .
10. In Shivaji Bapu Chavan v. Sharwari Gokhale (supra), the Division Bench of this Court clearly held that in view of the provisions of Article 246 read with Article 254 and the Concurrent List, entry 3 the State Legislature has a power to enact a law providing for preventive detention for the reasons connected with the maintenance of public order, and therefore it cannot be held that the Maharashtra Ordinance III of 1981, travels beyond entry 3 in the Concurrent List. The Division Bench expressly repelled the argument that the Act has been enacted to travel beyond the scope of the National Security Act with a view to rope in persons who cannot be detained under the National Security Act. In that connection, the Division Bench observed :-
“By Section 17 of the Ordinance it is made clear that after the commencement of the Ordinance no order of detention under the National Security Act shall be made in respect of slumlord, bootlegger or drug-offender in the State of Maharashtra on the ground of preventing him from acting in any manner prejudicial to the maintenance of public order. It appears from the preamble to the Ordinance that the public order was adversely affected because of the dangerous activities of these persons. Classification contemplated by the Ordinance is well defined. These persons belong to a special class for whom a special legislation was thought of and therefore it cannot be said that the provisions of the Ordinance result in any hostile discrimination qua persons similarly situated or circumstanced and are therefore, violative of Article 14 of the Constitution.”
The Division Bench also upheld the validity of explanation of Section 2. It was observed :-
“The explanation to Section 2 of the Maharashtra Ordinance III of 1981 does not widen ambit of main section nor it enlarges its scope. The words and expressions used in the latter part of the explanation deal with matters affecting the public generally or the action of the community which could safely be termed as affecting the maintenance of public order. Therefore, it appears that the word “deemed” is used by the legislature in explanation to Section 2 to mean that public order shall be regarded or taken to be affected adversely or likely to be affected adversely if the activities result in the consequences enumerated therein. In true sense of the term, it does not create any legal fiction so as to include things and activities in its import, which have no reasonable nexus with the maintenance of public order …… It will not be correct to say that by incorporating the said explanation to Section 2 the legislature wants to travel beyond the scope of Entry 3 in Concurrent List and include within the import the activities, which are not germane or connected with maintenance of public order. This position is further clear from the definitions of terms “bootlegger, drug offenders and slumlords”. The Ordinance was issued to ensure that the maintenance of public order in the State is not adversely affected by the activities of these known anti-social elements.”
11. In view of this clear pronouncement of law, we find it extremely difficult to accept the submission of Mr. Chitnis that by enacting explanation to Section 2(a) the Legislature has attempted to travel beyond Entry 3 of List III of the Concurrent List. We also do not find any merit in the submission of Mr. Chitnis that the definition of “dangerous person” contained in Section 2(b-1) is vague and indefinite. As per this definition, a person who habitually commits or attempts to commit or abets the commission of any of the offences mentioned therein either by himself or as a member or leader of a gang is a “dangerous person”. The word ‘habitually’ is very significant. A person is said to be a habitual criminal who by force of habit or inward disposition is accustomed to commit crimes. It implies commission of such crimes repeatedly or persistently and prima facie there should be a continuity in the commission of those offences. In Vijay Narain Singh v. State of Bihar, , the Supreme Court explained the meaning of the word ‘habitually’ thus :-
“The expression ‘habitually’ means ‘repeatedly’ or ‘persistently’. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. It connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions.”
This view was reiterated by the Supreme Court in Ayub v. S. N. Sinha, . The definition refers to specific crimes under the IPC and the Arms Act and covers only those persons who habitually commit such crimes either by himself or as member or leader of gang. The explanation to Section 2(a) brings into effect a legal fiction as to the adverse effect on ‘public order’. It provides that if any of the activities of a person referred to in clauses (i)-(iv) of Section 2(a) directly or indirectly causes or is 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 a wide-spread danger to life or public health, then public order shall be deemed to have been adversely affected. Thus it is the fall out of the activity of the “dangerous person” which determines whether ‘public order’ has been affected within the meaning of this deeming provision or not. Section 3 of the Act clearly stipulates that preventive detention can be ordered only upon satisfaction that it is necessary to detain any person with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. We have, therefore, no hesitation to reject the submission of Mr. Chitnis that the definition of “dangerous person” is liable to be struck down on account of vagueness.
12. The decisions relied upon by Mr. Chitnis are clearly distinguishable. In the case of The State of Madhya Pradesh v. Baldeo Prasad, (1961) 2 SCR 970 : (1961 (1) Cri LJ 442), the Supreme Court was considering the validity of Central Province and Berar Goondas Act, 1946, wherein Section 2 defined “goonda” as meaning of hooligan, rough or a vagabond and as including a person who is dangerous to public peace or tranquillity. The Supreme Court held that the definition of “goonda” laid down by the Act which is of an inclusive character, indicated no tests for deciding whether the person fell within the first part of the definition. The Act was also held to be unconstitutional on the ground that it failed to provide sufficient safeguards for the protection of fundamental rights. In Rex v. Basudev, 1950 (52) Cri LJ 1011 (FC) (Supra), the question before the Fedral Court was whether preventive detention provided in Section 3(1)(i) of the U.P. Prevention of Blackmarketing (Temporary Powers) Act, 1947 was valid. The Federal Court observed that Section 3(1) makes no reference to the maintenance of public order. It is directed solely against persons who habitually indulge in blackmarketing. It does not require that the Provincial Government should before directing the detention of a person be satisfied that his actions are likely to disturb a public order. It was observed that black-marketing in essential commodities may at time lead to a disturbance of public order but activities such as these are of remote in the chain of relation to the maintenance of public order that preventive detention on account of these cannot fall within the purview of Entry 1 of List II. We do not find any such infirmity in the definition of ‘dangerous person’ contained in Section 2(b-1) of the Act.
13. Coming then to the argument of Mr. Bobde that the Act is violative of Article 22(4) of the Constitution, learned Counsel submitted before us that Article 22(4) and particularly proviso to the said Article makes it obligatory for the Parliament to prescribe by law the maximum period for which a person may be detained by way of preventive detention. According to Mr. Bobde in the absence of such a law by Parliament, no order of detention can authorise detention of any person for a period longer than three months and on the expiry of three months, all persons detained under the Act must be released. Mr. Bobde also submitted that the Act is void insofar as it violates Article 22(4) and, therefore, is liable to be struck down. Mr. Bobde relied upon the decision of the Supreme Court in Deep Chand v. State of U.P., , in support of his contention that any law made by the Legislature in contravention of fundamental rights contained in Part III of the Constitution is void ab initio in toto or to the extent of contravention of the fundamental rights. We are unable to accept Mr. Bobde’s submission since as rightly pointed out by the learned Advocate General the point is no longer res integra. It has been held by the Supreme Court in the State of West Bengal v. Ashok Dey, , that the State Legislature has every power to make law of preventive detention beyond three months. In paragraph 7 of the judgment, the Supreme Court observed :-
“We are unable to accept this construction of Clause (7) of Article 22. It is noteworthy that Shri Chatterji, learned Counsel for the respondents, expressly conceded before us that Article 22(7) is only an enabling or a permissive provision and it does not impose a mandatory obligation on the Parliament to make a law prescribing the circumstances under which a person may be detained for more than three months as stated therein. But according to him sub-clause (b) and (c) of Clause (7) do contain a mandate to the Parliament which is obligatory. In our view, Clause (7) of this Article on its plain reading merely authorises or enables the Parliament to make a law prescribing (i) the circumstances under which a person may be detained for a period longer than three months; (ii) the maximum period for which a person may in any class or classes of cases be detained under any law providing for preventive detention and (iii) the procedure to be followed by the Advisory Board in an enquiry under Clause (4)(a) of this Article. The respondents’ contention that “may” in the opening part of this Article must be read as “shall” in respect of sub-clauses (b) and (c) though it retains its normal permissive character in so far as Clause (a) is concerned, in the absence of special compelling reasons can be supported neither on principle nor by precedent of which we are aware. On the other hand this Court in S. Krishnan v. State of Madras, , agreeing with the observations of Kania, C.J. in Gopalan v. State of Madras, , held sub-clause (b) of Clause (7) to be permissive. This opinion is not only binding on us but we are also in respectful agreement with it. Apart from the exclusive power of the Parliament to make laws in respect of “preventive detention for reasons connected with defence, foreign affairs or security of India; persons subject to such detention” (vide Article 246(1) and Entry 9, List 1, Seventh Schedule) Parliament and State Legislature have both concurrent powers to make laws in respect of “preventive detention for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community persons subject to such detention” (vide Article 246(2) and Entry 3 in List III of Seventh Schedule). A law made by Parliament in respect of preventive detention falling under Entry 3 of List III has to prevail over a State law on the subject to the extent to which it is repugnant to the State law unless the State law is covered by Article 254(2). Parliament, however, is not debarred by clause (2), as is clear from the Proviso, from enacting a law with respect to preventive detention contemplated in Entry 3 of List III which may have the effect of adding to, amending, varying or repealing such State law. The State Legislature has thus plenary power to make a law providing for preventive detention within the limitations imposed by the Constitution, just noticed. The power of the State Legislature under Article 246 with respect to preventive detention enumerated in Entry 3 of List III is co-extensive with that of Parliament with respect to such preventive detention and it must necessarily extend to all incidental matters connected with preventive detention as contemplated by the entry subject only to the condition that it does not come into conflict with a law made by Parliament with respect to the same matter. There is no provision of the Constitution to which our attention has been drawn nor has any principle of law or precedent been brought to our notice, which would justify a limitation on the power of the State Legislature, as suggested by the respondent, to make a valid law providing for detention under Article 22(4) for a period beyond three months on the ground of absence of a law made by Parliament permitting detention for such period. Had the Constitution intended such a result it would certainly have made an express provision to that effect. Since Article 22 covers the subject of preventive detention both under the law made by Parliament and that made by State Legislature, if State Legislature were intended by the Constitution to function under a limitation in respect of the period of detention one would have expected to find such a limitation expressly stated in this Article. But as we read clause (7) of Article 22 it merely invests the Parliament with an overriding power enabling it, if the circumstances so require, to make a law, providing for preventive detention prescribing the circumstances under which a person may be detained for a period longer than three months without obtaining the opinion of an Advisory Board and also prescribing the minimum period for which any person may be detained under any such law and further prescribing the procedure to be followed by an Advisory Board. It does not prohibit the State Government from making a law either providing for preventive detention for a longer period than three months when there is a provision for securing the opinion of an Advisory Board or prescribing procedure to be followed by such Advisory Board. Such a power with the State Legislature, hedged in by effective safeguards as it is, appears to us to be necessary to enable it to deal with emergent situations necessitating enactments with respect to preventive detention for safeguarding the security of the State against violent activities secretly organised by anti-social and subversive elements with the intention of producing chaos. Security of a State, maintenance of public order and of supplies and services essential to the community demand effective safeguards, in the larger interest of sustenance of peaceful democratic way of life. Article 22, therefore, must be construed on its plain language consistently with the basic requirements of preventing anti-social subversive elements from imperilling the security of States or the maintenance of public order of essential supplies and services therein.”
14. Mr. Chitnis next argued that the incidents mentioned in the grounds of detention even if accepted would only affect maintenance of law and order and they are not of that magnitude to affect public order. We are unable to accept the submission of Mr. Chitnis. The relevant criteria to distinguish in the abstract between acts prejudicial to maintenance of law and order and those which are prejudicial to maintenance of public order are laid down in a number of rulings of the Supreme Court. The question whether a person 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 one of degree and the extent of the reach of the act upon the society. An act by itself is not determinative of its own gravity. In its quality, it may not differ from another but in its potentiality it may be very different. Similar acts in different context affect differently law and order on the one hand and public order on the other. It is always a question of degree of harm and its effect upon the community. Public order is the even tempo of the life in the community taking the country as a whole or even a specified locality. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of the law and order (see Arun Ghosh v. State of West Bengal, ).
15. In the final analysis, one must always return to the facts of the case to see whether the acts perpetrated are of such a nature or of such potentiality as to travel beyond the immediate victims and affect the general or local public. We find that the acts attributed to the detenu are such as would bring him within the ambit of Clause (iv) of Section 2(a) of the Act. It is seen from the grounds of detention that the detenu and his associates are involving in serious crimes like robbery, extortion and assault which is bound to create fear psychosis in the minds of the people residing in the locality who have been made victims of extortion demands by the detenu and his associates. The acts attributed to the detenu had the potentiality to affect the even tempo of the life. We, therefore, overrule the contention of Mr. Chitnis that the grounds communicated to the detenu do not disclose that he is involved in activities which were prejudicial to the maintenance of public order.
16. Mr. Chitnis lastly argued that there was delay in deciding the representation made to the detaining authority viz. the Commissioner of Police. The argument is required to be stated only to be rejected. The right to make representation against a detention order flows from Article 22(5) of a Constitution. But that article does not say to whom such a representation has to be made. Such a representation must be made to the authority who has power to approve, revoke or rescind the order of detention. Under the present Act any detention order made by the empowered officer shall cease to be in force if not approved within 12 days. Therefore, the Act never contemplated that the detaining authority has specific power to revoke and it cannot be inferred that a representation can be made to it within the meaning of Article 22(5). Therefore, the representation to be made by the detenu, after the earliest opportunity was afforded to him, can be only to the Government which has the power to approve or to revoke. Therefore, the question of any delay in deciding the representation does not arise (see Veeraman v. State of T.N., and Amin Mohammed Qureshi v. Commissioner of Police, Greater Bombay, ).
In the result, the petition fails and is hereby dismissed.
Mr. Chitnis makes an oral application for leave to appeal to the Supreme Court. Application rejected.
C.C. expedited.
17. Petition dismissed.