(1) This is a petition under Art. 226 of the Constitution in which an order of detention made against the petitioner on 5-12-1959 by the District Magistrate of Delhi under S. 3(1)(a)(ii) read with sub-section (2)(a) of the Preventive Detention Act, 1950, has been challenged inter alia on the ground that it is illegal, mala fide etc.
(2) The petitioner was supplied the ground of detention which may be grouped in the following manner:
1. Grounds Nos. 2 and 4 relate to certain thefts alleged to have been committed by the petitioner in the years 1954 and 1955. In the first case he was convicted and ordered to furnish surety for good behavior under S. 562 of the Criminal Procedure Code. In the second case only the first information report was registered and all that is stated in the grounds is that the investigation reveled that there was a strong suspicion of the petitioner's complicity in the theft.
2. Ground No. 3 related to an offence under S. 13 of the Public Gambling Act for which the petitioner was convicted in 1955, the sentence being a fine of Rs. 20/-.
3. Grounds Nos. 5, 6 13 and 16 relate to alleged proceedings under S. 107/151, Criminal Procedure Code, in all of which he was discharged.
4. Grounds Nos. 7, 15, and 17 relate to certain assaults of a fairly serious nature committed by the petitioner. He was acquitted in the first one. The other one is sub-judice and no challan has been sent up in the third one.
5. Ground No. 8 relates to house trespass in October 1956 in which the petitioner was acquitted.
6. Ground No. 9 relates to an offence under S. 55/109, Criminal Procedure Code, in which the petitioner was order to furnish surety for good behavior.
7. Grounds Nos. 10,11 and 14 relate to allegations of excessive drinking and rowdism in public places. One of those matters is still sub judice and in the other two he was fined Rs. 15/- and Rs. 5/- respectively.
8. Ground No. 12 relates to an offence under S. 8 of the Suppression of Immoral Traffic Act in which the petitioner was sentenced to pay a fine of Rs. 200/- but he was finally acquitted by the appellate Court.
9. Ground No. 18 relates to an alleged offence under S. 19 of the Arms Act which matter is still under investigation.
(3) It has been contended by the learned counsel for the petitioner that the detention order could be sustained as legal only if the grounds are relevant to the maintenance of public order within the meaning of Section 3(1)(a)(ii) of the Act. It is submitted that practically all the activities which are alleged against the petitioner, e.g., thieving, gambling, rowdism, excessive drinking, assaulting people etc. cannot possibly be regarded to be such activities as are in any manner prejudical to the maintenance of public order.
It is further contended that even if some of these activities, namely, those stated in grounds Nos. 7, 13, 15, 16 and 17 are of such a nature as to justify the petitioner being regarded as a dangerous and desperate character or a goonda, the detention order cannot be sustained as legal because the other activities which have already been mentioned are such as have nothing to do with the maintenance of public order and if the subjective satisfaction of the detaining authority is based on those activities which are not relevant to the object of detention, the entire order would be vitiated.
(4) The first question that has to be determined is the meaning of the words 'maintenance of public order' as used in the context of S. 3 of the Act. In Lalu Gope v. The King AIR 1949 Pat 299, a Division Bench of the Patna High Court had occasion to consider this matter while examining the validity of a detention order made under the Bihar Maintenance of Public Order Act, 1957, when certain habitual criminals had been detained. It was observed that prima facie the persons against whom the orders of detention were authorised to be made were persons engaged in activities which were likely to lead to public disorder or domestic violence.
The persons there aimed at were, quite clearly, not habitual criminals convicted and suspected of committing thefts, though habitual criminals were not as such exempt form its provisions if their detention was justified not on the ground that they were habitual criminals but on the ground that their detention was necessary in a crisis for the prevention of public disorder. It was then held that a person could not be detained under the Bihar Act on the ground that he was a habitual criminal convicted and suspected of committing thefts in running goods trains and that if allowed to remain at large, he would again indulge in thefts in railways. According to the learned Judges, committing theft in running goods train was clearly not an Act prejudicial to the maintenance of public order. Neither was it an Act prejudicial to public safety which meant the safety of the community. The observations of Shearer J. at page 301 may be reproduced with advantage:
'In communal and other disturbances it is notorious that goonds become extremely active and that their activities create panic and alarm and add to the prevailing disorder. In such a situation the making of an order of detention against a goonds may well be justified, but it will be justified not on the ground that he is a habitual criminal but on the ground that his detention is necessary in a crisis for the prevention of public disorder.'
In Romesh Thappa v. State of Madras, AIR 1950 SC 124, the real question which came up for consideration was whether disorders involving menace to the peace and tranquillity of the Province and affecting public safety would be matters which undermined the security of the State, the Act under consideration being the Madras Maintenance of Public Order Act, 1949. Patanjali Sastri J., as he then was at page 127 defined 'public order' as an expression of wide connotation and signifying that state of tranquillity prevailing among the members of a political society as a result of the internal regulations enforced by the Government which they had instituted. The following observations at page 128 are also noteworthy:
'The Constitution thus requires a line to be drawn in the field of public order or tranquillity making off, more or less roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance treating for this purpose differences in degree as if they were differences in kind.'
In Umraomal v. State of Rajasthan, (S) AIR 1955 Raj 6, a Division Bench of the Rajasthan High Court after referring to the aforesaid observations in the Supreme Court judgment observed that the personal liberty of the individual was only meant to be curtailed for grave reasons and any and every disturbance of public tranquillity would not come within the ambit of the disturbance of public order and any other interpretation would set at naught the personal liberty of the individual guaranteed to a citizen of India under the Constitution. After giving due consideration to the arguments addressed to me by the learned counsel for the petitioner as well as the State I am inclined, with expect, to agree with the observations made by the Patna and the Rajasthan High Courts.
Merely because a person is a dangerous character or is breaking the law in one manner or the other it does not mean that the maintenance of public order is being threatened unless the activities are of such a nature and the situation prevailing in a particular part of the country is such that if he is not detained, the maintenance of public order cannot be maintained or it would be endangered. If the local police is helpless in securing conviction successfully with regard to a person who is committing thefts and is indulging in gambling, drinking, assaults, etc., it does not mean that resort can be had to the provisions of the Preventive Detention Act in normal conditions unless some special circumstances exist which would show that the maintenance of tranquillity in the community would be prejudiced or endangered unless that person is detained.
(5) Even if it be held that some of the activities which have been referred to before are relevant so far as the maintenance of public order is concerned, I have very little hesitation in holding that such activities as committing thefts, indulging in gambling, excessive drinking etc, can possibly have no relevancy so far as the maintenance of public order is concerned. A very similar case came up before Falshaw J. in Criminal Writ No. 145-D of 1955 decided by him on 24-1-1956 (Punj). The grounds which were supplied revealed a number of activities similar to those which have been alleged against the petitioner.
There were two items 11 and 12 in paragraph 2 in that case which were considered by Falshaw J, to be wholly irrelevant as grounds for ordering detention for maintenance of public order. Ground No. 11 related to theft for which the petitioner there had been convicted and sentenced to nine months' rigorous imprisonment and ground No. 12 related to his standing surety for another notorious bad character and forfeiture of that surety bond for which imprisonment in a civil prison was imposed for a period of 5 months. The learned Judge held the order of detention to be invalid on the ground that the inclusion of those instances which were wholly irrelevant or otherwise invalid must be held to vitiate the grounds as a whole. The order of detention was set aside and the release of the petitioner was ordered.
The learned counsel for the State submits that the view taken by Falshaw J. can no longer be regarded to be correct owing to a decision of the Supreme Court in Dwarka Dass Bhatia v. State of Jammu and Kashmir, (S) AIR 1957 SC 164. A close examination of the observations made therein does not support the conclusion suggested by the learned counsel. It had been clearly laid down by their Lordships previously that 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. Their Lordships went on to observe as follows:
'That is so because the matter being one for subjective satisfaction, it must be properly based on all the reasons on which it 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 objective standards of the Court for the subjective satisfaction of the statutory authority.
In applying these principles, 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 ratio of the decision obviously is that if some ground or reason of a comparatively unessential nature is defective, the order would not be bad but it is not possible to say in the present case that all the grounds which relate to thefts committed by the petitioner, his gambling and drinking activities as also the ground relating to one under the Suppression of Immoral Traffic Act are of a comparatively unessential nature. It cannot, therefore, be said that although they are irrelevant the order based on those grounds as well as on other grounds is a valid order. it cannot be predicated what the subjective satisfaction of the detaining authority would have been on the exclusion of those grounds.
(6) The learned counsel for the State has laid a great deal of emphasis on the fact that the case of the petitioner was placed before the Advisory Board on 13-1-1960 and the Board decided not to order the release of the petitioner. My attention has been invited to a decision of a learned Judicial Commissioner of Tripura in Golam Rafique v. State of Tripura, AIR 1957 Tripura 25. In that case the person who had been detained was stated to be a spy transmitting information to the Pakistan Government. The Advisory Board had considered his case but the detenu never prayed for being produced before the Board and the learned Judicial Commissioner rightly observed that he could not complain that the Board had decided his case without giving proper weight to his contention. The petitioner was also considered to be vague. The learned Judicial Commissioner made the following observations at page 26 of that report which have been pressed into service before me by the learned counsel for the State.
'As the petitioner has been detained under S. 3, Preventive Detention Act, 1950 and his case had already been examined by the Advisory Board and report under S. 10 has duly been submitted, I think the present petition is legally not maintainable.'
It is not possible to say what was in the mind of the learned Judicial Commissioner when he made these observations which must have been made in the light of the facts of the case which he was deciding and of the arguments that were addressed to him; but if it was intended to lay down that once the Advisory Board had examined the case of a detenu under the Preventive Detention Act and submitted a report under S. 10 then no petition under Art. 226 was competent, with respect, it is a view which must be described as altogether opposed to the ambit and scope of Art. 226 of the Constitution and the provisions of the Preventive Detention Act which sets up no such bar and even if the statute had laid down such a bar that would have been wholly ultra vires as is well settled by now because the powers conferred by the Constitution under Art. 226 cannot be curtailed by any provision in a statute unless the Constitution itself is amended.
(7) It may be that some effective legislation is necessary for preventing goondas from indulging in anti-social and criminal activities but that does not mean that resort can be had to the provisions of the Preventive Detention Act in circumstances similar to those present in this case. it is for the legislature to enact some statute to enable the authorities to deal with such characters effectively.
(8) In the result, this petition is allowed and the order of detention is quashed. The petitioner shall be forthwith set at liberty.
(9) Petition allowed.