ORDER
P.K. Misra, J.
1. The present habeas corpus petition has been filed by the wife of the detenu who has been detained as per the detention order dated 13.12.2004, issued by the Commissioner of Police, Tiruchirappalli City. The said order of preventive detention has been passed under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) hereinafter referred to as 'the Act' read with orders issued by the Government in G.O. (D) Ho.258, Prohibition end Excise (XVI) Department, dated 18th October 2004.
2. The grounds of detention disclose that the detenu Jaheer Hussain and his associates were engaged in illegal activities of copying and selling of new cinema films and obscene films without copyright and a case had been, registered under Section 292-A, I.P.C. read with 51-B read with 63B and 52A read with 68A of the Copyright Act on 17.3.2004 and in the said case, the detenu has been released on bail and the matter was pending trial. Subsequently, on 16.12.2004, a complaint was filed by one Sivappusamy alleging that the detenu Jaheer Hussain was engaged in commission of offences of infringement of copy right in relation to obscene film and audio discs. On the basis of the such complaint, the Inspector of Policer VPC, CB CID, Tiruchirappalli, registered a case under Sections 51(a)(i), (b)(i) read with 63, 66, 52A read with 68-A of Copyright Act, 1957 and Section 292-A, I.P.C.
2.1. On the basis of the search warrant issued by the Judicial Magistrate, the police found that the detenu was copying second disc of the new cinematograph film 'Attakssam' and thereafter the detenu apprehended by the Inspector of Police. During search, a Samsung Monitor, CPU, Key Board, Mouse, Video Compact Discs containing Tamil films, VCD comedy/songs. Audio Discs, obscene film discs and obscene film VCD Discs, etc. have been found. The detenu, on enquiry, admitted that he was engaged in copying of cinematograph films and obscene films by getting master CD through unidentified broker. Thereafter, the accused Jaheer Husssin was produced before the Magistrate on 16.12.2004 and was remanded till 30.12.2004.
2.2. On the basis of the aforesaid incident, the Commissioner of Police, who has been authorised under Section 3(2) of the Act came to the conclusion that the detenu Jaheer Husssin was acting in a manner prejudicial to the maintenance of public order being 'video pirate' as contemplated under Section 2(j) of the Act. On the basis of such conclusion, the detenu has been kept under preventive detention by order dated 19.12.2004.
2.3. Such order has been challenged in this habeas corpus petition mainly on the ground that such order of detention has been passed in violation of Articles 14, 19, 21 and 22 of the Constitution of India and the order of detention has been passed mechanically without application of mind. It is further contended that the representation, dated 29.12.2004, has not been disposed of in time. Subsequently, additional affidavit has been filed with a petition seeking for raising additional grounds by challenging the validity of the amendment to the Act 14 or 1982, wherein the provisions relating to preventive detention in respect of 'Video Pirate' have been incorporated. Challenge to the validity of the amended Act is on the ground that Copyright Act is an Act of the Union of India under Entry 49, List I of Schedule VII of the Constitution of India and the State Legislature lacks competence to enact on a subject included within List I. The other ground taken in the additional ground relates to the non-application of mind on the footing that the detenu was arrested on 16.12.2004 at 8.15. a.m. and the sponsoring authority prepared the affidavit on 18.12.2004 and placed it before the detaining authority who passed the order on 19.12.2004, which indicated that there was no application of mind in passing the detention order in a hurried manner without going into the materials furnished by the sponsoring authority.
3. In the counter affidavit filled by the first respondent elating to the original affidavit, of the petitioner, it has been indicated that the order of detention has been confirmed by the Government after careful and independent consideration and after considering the opinion of the Advisory Board and the representations. In the counter affidavit filed on behalf of the second respondent, the allegations relating to the non-application of mind have been denied. Subsequently, additional counter affidavit has been filed on behalf of the first respondent abating the ground relating to the validity of the amending Act has been indicated that the State Government has competence to legislate on preventive detention as per Entry 3 of List III, which relates to 'Preventive Detention' for reasons connected with the security of a State, the maintenance of public order, or with the maintenance of supplies and services essential to the community.
4. In course of hearing of the habeas corpus petition, the learned Senior Counsel for the petitioner has raised the following contentions:
(a) The definition of 'Video Pirate' has been incorporated in Act 14 of 1982 by the Tamil Nadu Amending Act 32 of 2004 and the provision relating to preventive detention of 'Video Pirate' included as per such amendment are beyond the competence of the State Legislature as such provisions relate to legislation on 'Copyright' which is a subject contained in the Union List and hence such amendment is invalid and there is no power to detain any person on the basis of invalid provision.
(b) The order of detention being passed on the affidavit or the sponsoring authority dated 18.12.2004, there has not been no sufficient application of mind on the part of the detaining authority who passed the order hurriedly on 19.12.2004.
(c) The adverse case referred to by the detaining authority in the grounds of detention relates to the case registered on 17.3.2004 by which time the Tamil Nadu Act 14 of 1982 had not been amended and, therefore, the detaining authority should not have relied upon any incident or alleged crime which had occurred prior to the amendment of the Act was effected and prior to the detaining authority to pass the order of detention.
(d) The grounds of detention do not disclose the satisfaction of the detaining authority to the effect that the various acts allegedly committed by the detenu are likely to adversely affect maintenance of public order.
(e) In the grounds in support of the detention order, it has been recited'.... Further it is informed that he has right to make representation to the Chairman, Advisory Board, and such recital clearly indicated that the detaining authority had prejudged the matter and assumed that the order of detention, which was valid only for a period of 12 days, will be confirmed by the Government within such period.
5. The learned Advocate General and the Additional Advocate General appeared for Respondent Nos. 1 and 2 have combated the aforesaid submissions made on behalf of the petitioner.
6. Since much emphasis has been laid by the counsel for the petitioner relating to the validity of the Amending Act it is appropriate to deal with the contention relating to the validity of the Amending Act before going into the other questions raised by the petitioner. Before, however, dealing with the question, it is necessary to refer to the relevant provisions in the Act, which as incorporated as per the Amending Act, namely Tamil Nadu Act 32 of 2004: .
'2(1)(a)(vi) in the case of a video pirate, when he/she is engaged or is making preparations for engaging in any of his/her activities as a video pirate, which affect adversely or are likely to affect adversely, the maintenance of public order.'
'2(1)(j) 'Video pirate' means a person, who commits or attempts to commit or abets the commission of offences of infringement of copyright in relation to a cinematograph film or a record embodying any part of sound track associated with the film, punishable under the Copyright Act, 1957 (Central Act XIV of 1957).'
'3(1) The State Government may, if satisfied with respect to any bootlegger or drug-offender or video pirates or forest offender or goonda or immoral traffic offender or slum-grabber that with a view to prevent 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.'
7. The substratum of the submissions made by the counsel for the petitioner is to the effect that the amendment made to Tamil Nadu Act 14 of 1982 under the Amending Act 32 of 2004 in effect is a legislation relating to the Copy Right Act, 1957 which relatable to Entry 49 of List I of Schedule VII. The definition 'Video Pirate' under Section 2(1)(j) of the Tamil Nadu Act 14 of 1982 as amended by Act 32 of 2004 is clearly a legislation relating to 'Copyright' included in Entry 49 of List I and as such it is beyond the legislative competence of the State Legislature. It is his submission that this amendment is in relation to offences committed under the Copyright Act and such amendment could not have been effected by the State Legislature. He has submitted that the State Legislature has competence to legislate only in respect of subjects included in List II in Schedule VII, which is the State List or in List III in this VII Schedule which relates to concurrent list.
8. Article 245 of the Constitution of India, which is the basic source of legislative power, provides that Parliament may make laws for the whole or any part of the territory of India and the State Legislature may make laws for the whole or any part of the State. The field between Parliament and the State Legislature is delineated by Article 246 of the Constitution. Parliament has exclusive power to make laws with respect to the matters enumerated in List I of the VII Schedule, known as the Union List. Parliament as veil as State Legislatures have authority to make any law in respect of the matters enumerated in List III, called the Concurrent List, but the power of the State Legislature is subject to the power of Parliament. Subject to the above, the State has the power to pass any law in respect of the subject in List II, namely, State List.
9. The principles relating to power of Parliament and State Legislatures are more or less well settled by several decisions of the Supreme Courts, including those reported in Hoechst Pharmaceuticals Ltd. v. State of Bihar and State of W.B. v. Kesoram Industries Ltd. . The former was a decision rendered by three Judges Bench and has been subsequently approved by the latter decision, which is a Constitution Bench decision. The basic, principles culled out from these decisions can be summarised as follows:
The various entries in the three lists are not 'powers' of legislation, but 'fields' of legislation. Parliament cannot enact any law which is relatable to State List and similarly the State Legislature cannot enact any law which is relatable to the Union List. If there is repugnancy due to overlapping found in List II on one hand and List I and List III on the other hand, the State law will be ultra vires. The entries in the lists being topics or fields of legislation, such entries must receive liberal construction and should not be interpreted in narrow pedantic manner and the words and expressions employed in the entries must be given widest possible interpretation. Power to legislate, as to principal matters specifically mentioned in the entries, also includes within its extents the legislate on incidental and ancillary matters. Where the competence of the State Legislature is questioned on the ground that there is an encroachment upon the competence of Parliament to enact law, it has to be found out whether the legislation relates to any of the entries in List I (Union List) or List III (Concurrent List). If it relates to entries in List I, such legislation is obviously invalid. If it relates to List No. III, it has to be found out if there is any existing law enacted by Parliament and if there is any conflict. If there is any conflict, unless the legislation of the State has received the Presidential assent, such State Legislation has to give way to the Central Legislation. If there is any overlapping in the three lists, the doctrine of pith and substance is applied to find out as to which entry the law in question relates and if in pith and substance it relates to any entry within the legislative competence of the particular legislature, that is to say, Parliament or the State Legislature any incidental trenching on the field reserved to other legislature is of no consequence, the Courts is required to look at the substance by taking into account the entire enactment as a whole and the main objects and the scope and effect of the provisions and incidental and superficial encroachments are to be disregarded. The doctrine of occupied field applies only when there is clash between the Union and the Stats List within an area coming within the competence of both and if the impugned legislation substantially falls within the power expressly conferred upon the legislature which enacted the law any incidental encroachment in the field assigned to the other legislature is to be ignored.
10. Keeping in view the aforesaid well settled principle, it has to be examinee as to whether the Amending Act 32 of 2004 is relatable to the Union List or comes within the purview of the State List or the Concurrent List. Relying the definition as per the Amending Act, counsel for the petitioner has submitted that such amendment relates to Copyright Act. We do not think such submission made by the counsel for the petitioner can be accepted in the light of the tests to be applied as per the various decisions of the Supreme Courts. The amended provision does not purport to be a legislation relating to any matter coming within the scope of Entry 49 of List I or any matter already covered under the Copyright Act. The enactment purports to be a provision relating to preventive detention. Entry related to 'Preventive Detention' is referable to Entry 3 of List III which refers to preventive detention excluding Entry 9 in List I. Law on such entry relatable to List III, (law relating to preventive detention with reference to security of a State, the maintenance of supplies and services essential to community) can be enacted either by Parliament or by State Legislature. As observed by the Supreme Courts in State of West Bengal v. Ashok Dey preventive detention for reason other than those mentioned in Entry 3 of List I are included in Entry 3 of List III and such power to legislate includes incidental powers and the concurrent power of the Stats legislature under such entry is co-extensive with that of Parliament subject to the provisions of Article 254 of the Constitution, it is not in dispute that Act 14 of 1982, as originally enacted, is relatable to the power of the States Legislature to enact law on preventive detention. The present amendment is also relatable to such entry.
11. The counsel for the petitioner has however submitted that since such provisions relate to preventive detention relatable to offence under the Copyright Act, it must be taken to be beyond the State Legislative competence. Laws relating to preventive detention as envisaged in List III, Entry 3 can be made with reference to the security of a State, the maintenance of public order or the maintenance of supplies and services essential to community. An order of preventive detention is not a punitive measure, but is only preventive aimed at preventing a person from committing a crime which is likely to prejudicially affect security of a State or the maintenance or public order or the maintenance of supplies and services essential to community. It is of no consequence that while enacting such law, the offence in respect of which such preventive detention law is required to be made is an offence under a Central Act enacted as per Union List or Concurrent List or a State Act enacted either under the State List or under the Concurrent List. In pith and substance the impugned provision of law relates to preventive detention and incidentally, such provision is relatable to an offence under the Copyright Act relatable to Entry 49 of List I. It is not the case of the petitioner that there is a law relating to preventive detention enacted by Parliament occupying the field and there is any conflict.
12. In Rathinam v. State challenge was made in respect of an order of preventive, detention relating to a drug offender coming within the Scope of Act 14 of 1982. The contention raised by the counsel for the petitioner in the said case was that there was a Central Act in the shape of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 occupying the filed on legislation relating to preventive detention and therefore such Act would prevail over the Tamil Nadu Act 14 of 1982. While repelling the said contention, a Division Bench of Madurai Bench of Madras High Courts referred to the decision of the Supreme Courts reported in I.T.C. Ltd. v. State of Karnataka 1985 Supp. SCC 376 and upheld the validity of the provision relating to preventive detention regarding the Drug Offenders on the ground that there was no conflict.
13. The next contention of the counsel for the petitioner is to the effect that the order of preventive detention had been passed hurriedly by the detaining authority without application of mind and without carefully examining the various allegations made in the affidavit of the sponsoring authority. For the aforesaid contention the counsel has submitted that the detenu was arrested on 16.12.2004 and the affidavit was made by the sponsoring authority on 18.12.2004 and the order of detention came to be passed on 19.12.2004 and such tearing hurry indicates lack of application of mind on the part of the detaining authority. We do not think that, such submission can have any substance. The order of preventive detention is passed on the subjective satisfaction of the detaining authority. The affidavit of the sponsoring authority gives various details and it is always open to the detaining authority to accept such affidavit on its face value and there is no requirement that such detaining authority is required to undertake any judicial or quasi-judicial prolonged enquiry and merely because the order of detention is passed within a day is not a ground to hold that there is non-application of mind.
14. The next contention of the counsel is to the effect that the 'adverse case' relates to the alleged incident dated 17.3.2004 and the Act 14 of 1982 was amended to incorporate the present provision relating to 'video pirate' only on 17th November, 2004 and therefore the detaining authority could not have relied upon any incident which had occurred prior to the date of coming into force of the amended provision, as this amending provisions were not retrospective in operation. Such submission made by the counsel for the petitioner is merely to be stated to be rejected. The order of detention has been passed after the amending Act had come into force. Merely because it refers to some incidents which had occurred prior to the amending Act came into force, it cannot be said that the Act has been enforced retrospectively. The order of preventive detention is intended to prevent a person from acting in a manner prejudicial to maintenance of public order in future. There is no embargo upon the detaining authority to rely upon actions in the past to come to such a conclusion. The order of preventive detention is obviously is not punitive in nature. Therefore embargo envisaged under Article 20 of the Constitution of India, prohibiting retrospective operation of penal law, is not at all applicable.
15. The other contention of the petitioner is to the effect that there is nothing on record to indicate about the satisfaction of the detaining authority regarding the compelling necessity to pass an order of preventive detention to prevent the detenu from acting in a manner prejudicial to the maintenance of public order. This submission is again without any substance. A bare perusal of the order passed by the detaining authority clearly records his satisfaction. Such satisfaction is a subjective satisfaction, which is not open to be judicially reviewed on the basis of any objective assessment by the Courts of law.
16. Learned counsel for the petitioner had also contended that in the grounds of detention the detaining authority has observed that it would be open to the detenu to make a representation to the Advisory Board. According to the learned counsel for the petitioner, the occasion to make a representation to the Advisory Board can arise only if the order of detention is approved by the State Government within 12 days and if it is not so approved within 12 days the order of detention itself passed by the delegated authority under Section 3(2) of the Act remains in force only for a period of 12 days and, therefore, by making reference of such opportunity of making a representation to the Advisory Board, the detaining author ity seems to have prejudged the matter by coming to a conclusion that such order of detention passed by him would be confirmed by the State within 12 days. In our considered opinion, such submission is not tenable. The detaining authority has only made it known to the detenu the various opportunities of making representation to different authorities. It has been clearly stated in such ground that the order of detention is required to be approved within 12 days failing which it would lapse. The passage merely means in case the order of detention is approved within 12 days the detenu would have an opportunity of making representation either to the State Government or to the Advisory Board or to both the authorities. It is not understood how by giving such information the detaining authority can be said to have prejudged the issue.
17. Even though in the petition and the additional affidavit, the petitioner had raised certain questions relating to delay in disposal of the representation, no such contention has been pressed into service at the time of hearing. On going through the materials on record, we find that the first, representation had been disposed of promptly enough and nothing has been shown regarding any unreasonable delay in disposal of the subsequent representation.
18. Therefore, for the aforesaid reasons, we do not find any merit in this habeas corpus petition, which is accordingly rejected.