PESALA NOOKARAJU v. THE GOVERNMENT OF ANDHRA PRADESH & ORS

Citation: [2023] 11 S.C.R. 520, 2023 INSC 734

Court: Supreme Court of India

Bench: DR. DHANANJAYA Y. CHANDRACHUD, CJI, J.B. PARDIWALA AND MANOJ MISRA, JJ.

Judgment text

SUPREME COURT OF INDIA PESALA NOOKARAJU v. THE GOVERNMENT OF ANDHRA PRADESH & ORS. Criminal Appeal No. 2304 of 2023 [2023] 11 S. C. R. 520 : 2023 INSC 734 CASE DETAILS PESALA NOOKARAJU v. THE GOVERNMENT OF ANDHRA PRADESH & ORS. (Criminal Appeal No. 2304 of 2023) AUGUST 16, 2023 [DR. DHANANJAYA Y. CHANDRACHUD, CJI, J. B. PARDIWALA AND MANOJ MISRA, JJ. ] HEADNOTES Issue for consideration: Whether the Division Bench of the High Court rightly declined to interfere with the order of preventive detention passed against the appellant detenu by the District Collector in exercise of his powers u/s. 3(2) of the Andhra Pradesh Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders and Land Grabbers Act, 1986. Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders and Land Grabbers Act, 1986 - s.

3(2) - Preventive detention - Appellant indulging in distributing, storing, transporting and selling ID Liquor which causes huge damage to the public health as well as public peace and tranquility - Order of preventive detention passed by the District Collector in exercise of powers u/s. 3(2) - High Court upheld the detention order - Correctness: Held: It cannot be said that the detention order passed for 12 months at a stretch could be termed as without jurisdiction and contrary to the mandate of sub-section (2) of s. 3 - Period as mentioned in s. 3(2) refers to the period of delegation of powers and it has no relevance at all to the period for which a person may be detained - Period of three months stipulated in Art. 22(4) (a) is relatable to the initial period of detention up to the stage of receipt of report of the Advisory Board and does not have any bearing on the period of detention, which is continued subsequent to the confi rmatory order being 520 PESALA NOOKARAJU v.

THE GOVERNMENT OF 521 ANDHRA PRADESH & ORS. passed by the State Government on receipt of the report of the Advisory Board - Furthermore, detaining authority specifi cally stated in the grounds of detention that selling liquor by the detenu and the consumption by the people of that locality was harmful to their health - Such statement is an expression of his subjective satisfaction that the activities of the detenu is prejudicial to the maintenance of public order - Thus, no error of law in the impugned judgment of the High Court. [Paras 23, 38, 71 and 72] Andhra Pradesh Prevention of Dangerous Activities of Boot- leggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders and Land Grabbers Act, 1986 - s. 3(2) - Interpretation: Held: s. 3(2) has nothing to do with the period of detention - s. 3(2) is with respect to the delegation of powers by the State Government upon the District Magistrate or Commissioner of Police, as the case may be, for exercise of powers u/s.

3(2) - Period as mentioned in s. 3(2) refers to the period of delegation of powers by the State Government and it has no relevance at all to the period for which a person may be detained - Thus, s.

3(2) provides that if the State Government is satisfi ed having regard to the circumstances prevailing in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, it is necessary to empower the District Magistrate or the Commissioner of Police, as the case may be, to exercise the powers of the State Government to order detention of a person as provided by sub-section (1), then the State Government may by an order in writing direct that during such period as may be specifi ed in the order, the District Magistrate or the Commissioner of Police may also, if satisfi ed as provided in sub-section (1) exercises the powers of the State Government as conferred by sub-section (1) - Proviso to sub-section (2) thus, has nothing to do with the period of detention of a detenu - Maximum period of detention is prescribed u/s.

13 which lays down that the person may be detained in pursuance of any detention order made under the Act which has been confi rmed u/s. 12. [Paras 23, 26, and 39] Constitution of India - Art. 22(4)(a) - Relevance of Art. 22(4)(a): Held: Reading of Art.

22(4)(a) would clearly indicate that no law providing for preventive detention shall authorize the detention of a person for a period beyond three months - Thus, an order of detention cannot be for a period longer than three months unless, the Advisory Board has reported before the expiration of the said period of three months that there is, in its 522 opinion such suffi cient cause for detention - If the Advisory Board does not give its opinion within a period of three months from the date of detention, in such a case, the order of detention beyond the period of three months would become illegal and not otherwise - If within the period of three months, the Advisory Board opines that there was no suffi cient cause for such detention then, the State Government would have to release the detenu forthwith - Thus, Art.

22(4)(a) in substance deals with the order of detention and has nothing to do with the delegation of the power of detention by the State Government to an Offi cer as stipulated u/s. 3(2) - Period of three months stipulated in Art.

22(4)(a) is relatable to the initial period of detention up to the stage of receipt of report of the Advisory Board and does not have any bearing on the period of detention, which is continued subsequent to the confi rmatory order being passed by the State Government on receipt of the report of the Advisory Board - Continuation of the detention pursuant to the confi rmatory order passed by the State Government need not also specify the period of detention; neither is it restricted to a period of three months only - If any period is specifi ed in the confi rmatory order, then the period of detention would be upto such period, if no period is specifi ed, then it would be for a maximum period of twelve months from the date of detention - State Government need not review the orders of detention every three months after it has passed the confi rmatory order.

[Paras 41-44] Andhra Pradesh Prevention of Dangerous Activities of Boot- leggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders and Land Grabbers Act, 1986 - Preventive detention - Appellant indulging in distributing, storing, transporting and selling ID Liquor - Four FIRs against detenu, if suffi cient to arrive at a subjective satisfaction that activities of detenu as a boot-legger is prejudicial to the maintenance of public order: Held: For determining the connection of ground of detention with the maintenance of public order, the object of detention, is not an intrinsic quality of the act but rather its latent potentiality - Thus, for determining whether the ground of detention is relevant for the purposes of public order or not, merely an objective test based on the intrinsic quality of an act would not be a safe guide - Potentiality of the act has to be examined in the light of the surrounding circumstances, posterior and anterior for the off ences under the Prohibition Act - Just because four cases have been registered against PESALA NOOKARAJU v.

THE GOVERNMENT OF 523 ANDHRA PRADESH & ORS. the detenu under the Prohibition Act, by itself, may not have any bearing on the maintenance of public order - If the liquor sold by the detenu is dangerous to public health then under the Act 1986, it becomes an activity prejudicial to the maintenance of public order, thus, it becomes necessary for the detaining authority to be satisfi ed on material available - Detaining authority specifi cally stated in the grounds of detention that selling liquor by the detenu and the consumption by the people of that locality was harmful to their health - Such statement is an expression of his subjective satisfaction that the activities of the detenu is prejudicial to the maintenance of public order - Not only that, the detaining authority also recorded his satisfaction that it is necessary to prevent the detenu appellant from indulging further in such activities and this satisfaction has been drawn on the basis of the credible material on record.

[Paras 64, 65 and 71] Preventive Detention - Essential concept - Discussed. [Paras 16 and 17] Preventive Detention - Concept of 'law and order' and 'public order' - Distinction between. [Para 64] Writ of Habeas Corpus - Purpose - Discussed. [Paras 21 and 22] LIST OF CITATIONS AND OTHER REFERENCES Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh, (2015) 13 SCC 722:[2014] 6 SCR 750 - Held not correct law. Haradhan Saha v. The State of W. B. and others 1974 Cri. L. J. 1479; T. Devaki v. Government of Tamil Nadu (1990) 2 SCC 456 : [1990] 1 SCR 836; Secretary to Government of Tamil Nadu Public (Law and Order) Revenue Department and Another v. Kamala and Another (2018) 5 SCC 322 : [2018] 3 SCR 854; Commissioner of Police and Another v. Gurbux Anandram Bhiryani (1988) Supp SCC 568; Makhan Singh v. State of Punjab AIR 1952 SC 27 : [1952] SCR 368; Harpreet Kaur Harvinder Singh Bedi v. State of Maharashtra (1992) 2 SCC 177 : [1992] 1 SCR 234; Abhay Shridhar Ambulkar v. S. V.

Bhave, the Commissioner of Police AIR 1991 SC 397 : [1990] 3 Suppl. SCR 552; Navalshankar Ishwarlal Dave v. State of Gujarat AIR 1994 SC 1496 : [1993] 3 SCR 676; Abdul Razak v. State of Karnataka, ILR 2017 Kar 4608 (FB); Brij Bhushan and Another v. The State of Delhi, (1950) SCR 605; Romesh Thappar v. The State of Madras, (1950) SCR 594; 524 SUPREME COURT REPORTS [2023] 11 S. C. R. Dr. Ram Manohar Lohia v. State of Bihar and Others, (1966) 1 SCR 709; Arun Ghosh v. State of West Bengal, (1970) 1 SCC 98 : [1970] 3 SCR 288; Pushkar Mukherjee & Others The State of West Bengal, AIR 1970 SC 852 : [1969] 2 SCR 635; Babul Mitra alias Anil Mitra v. State of West Bengal & Others, (1973) 1 SCC 393; Dipak Bose alias Naripada v. State of West Bengal, (1973) 4 SCC 43; Kuso Sah v. The State of Bihar & Others, (1974) 1 SCC 185 : [1974] 2 SCR 195; Ashok Kumar v. Delhi Administration & Others, (1982) 2 SCC 403 : [1982] 3 SCR 707; Commissioner of Police & Others, v. C. Anita (Smt.

), (2004) 7 SCC 467 : [2004] 3 Suppl. SCR 701; Rashidmiya @ Chhava Ahmediya Shaik v. Police Commissioner, Ahmedabad & Anr. , (1989) 3 SCC 321 : [1989] 3 SCR 182; Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad City & Anr. (1989) Supp (1) SCC 322 : [1988] 3 Suppl. SCR 1081 - referred to. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2304 of 2023. From the Judgment and Order dated 07. 03. 2023 of the High Court of Andhra Pradesh at Amravati in WP No. 33638 of 2022. Appearances: Ms. Bhabna Das, Krishna Dev Jagarlamudi, Aaditya Mishra, Advs. for the Appellant. Mahfooz Ahsan Nazki, Polanki Gowtham, Ms. Niti Richhariya, K V Girish Chowdary, Ms. Rajeswari Mukherjee, Meeran Maqbool, Advs. for the Respondents. JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT J. B. PARDIWALA, J. : 1. Leave granted. 2.

This appeal is at the instance of a detenu, preventively detained under Section 3(2) of the Andhra Pradesh Prevention of Dangerous PESALA NOOKARAJU v. THE GOVERNMENT OF 525 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J. ] Activities of Boot-leggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders and Land Grabbers Act, 1986 (1 of 1986) (for short, 'the Act 1986') and is directed against the order passed by a Division Bench of the High Court of Andhra Pradesh dated 07. 03. 2023 in Writ Petition No. 33638 of 2022 fi led by the appellant herein by which the Division Bench rejected the writ petition and thereby declined to interfere with the order of preventive detention passed by the District Collector, Kakinada District, Andhra Pradesh dated 25. 08. 2022 in exercise of his powers under Section 3(2) of the Act 1986. FACTUAL MATRIX 3. The order of detention dated 25. 08. 2022 passed by the respondent No.

2 reads thus :- "ORDER OF DETENTION (UNDER SECTION 3(2) OF "THE ANDHRA PRADESH PREVENTION OF DANGEROUS ACTIVITIES OF BOOTLEGGERS, DACOITS, DRUG OFFENDERS, GOONDAS, IMMORAL TRAFFIC OFFENDERS AND LAND GRABBERS ACT, 1986"). Read:- 1) Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders and Land Grabbers Act,1986. 2) G. O. Rt. No. 1089, General Administration (SC-I) Dept. , Dated 09. 06. 2022 3) Superintendent of Police, Kakinada District C. No. 78/DSE0/SEB/ 2022, Dated 05. 08. 2022. Whereas information is laid before me that Sri Pesala Nookaraju, S/o. Bulliyya, Age: 46 Years, Caste: SC (Mala), R/o N. S. Venkatapuram, Tuni Mandal, Kakinada District is an habitual offender and committing offences against AP Prohibition (Amendment) Act, 2020 and was arrested in 4 cases i. e.

from January, 2021 to March, 2022, is indulging himself in committing the off ences of distributing, storing, Transporting and selling ID Liquor which causes huge damage to the public health as well as public peace and tranquility, 526 SUPREME COURT REPORTS [2023] 11 S. C. R. these acts are in contravention of Section 7(B) read with 8(B) of A. P. Prohibition (Amended) Act, 2020, which comes under the category of "BOOTLEGGER" as defi ned U/Sections 2 (b) of "The Andhra Pradesh Prevention of Dangerous activities of Bootleggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders and Land Grabbers Act, 1986. The details of cases are as follows: 1) SEB Station, Tuni Cr. No. 13/2021, Dated: 06. 01. 2021, U/sec. 7 (B) R/w 8 (B) of AP Prohibition (Amendment) Act, 2020. 2) SEB Station, Tuni Cr. No. 376/2021, Dated: 13. 08. 2021, U/sec. 7 (B) R/w 8 (B) of AP Prohibition (Amendment) Act, 2020. 3) SEB Station, Tuni Cr. No. 532/2021, Dated: 30. 09. 2021, U/sec.

7 (B) R/w 8 (B) of AP Prohibition (Amendment) Act, 2020. 4) SEB Station, Tuni Cr. No. 213/2022, Dated: 09. 03. 2022, U/sec. 7 (B) R/w 8 (B) of AP Prohibition (Amendment) Act, 2020. Hence, it is necessary to make an order invoking powers conferred under Sec. 3 (2) of the Act (Act No. 1 of 1986) directing that Sri Pesala Nookaraju, S/o. Bulliyya, Age: 46 Years, Caste: SC (Mala), R/o N. S. Venkatapuram Village, Tuni Mandal, Kakinada District to be detained in Central Prison, Rajamahendravaram, East Godavari District with immediate eff ect, with a view to prevent him from acting in any manner prejudicial to maintenance of public health and public peace &tranquility. Whereas, I am satisfi ed with the above material and information that the person named Sri Pesala Nookaraju, S/o Bulliyya, Age: 46 Years, Caste: SC (Mala), R/o N. S.

Venkatapuram, Tuni Mandal, Kakinada District is acting and also calculated to act in a manner prejudicial to the maintenance of public order and it is necessary to prevent him from acting further by directing the said person to be detained. Therefore, I, Dr. Kritika Shukla, I. A. S. , Collector & District Magistrate, Kakinada District in exercise of the powers conferred upon me under Sub Section 2 of Section 3 of the A. P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders and Land Grabbers Act, 1986 PESALA NOOKARAJU v. THE GOVERNMENT OF 527 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J. ] read with G. O. Rt. No. 1089 General Administration (SC-I) Dept. Dated 09. 06. 2022 do hereby direct under Sub Section (1) of Section 3 of the said Act that Sri Pesala Nookaraju, S/o Bulliyya, Age: 46 Years, Caste: SC (Mala), R/o N. S.

Venkatapuram Village, Tuni Mandal, Kakinada District shall be detained in Central Prison, Rajamahendravaram, East Godavari District until further orders to be received from the Government. " 4. The grounds of detention dated 25. 08. 2022 furnished to the appellant herein along with the order of detention referred to above read thus:- "Whereas information laid before me reveals that you Sri Pesala Nookaraju, S/o Bulliyya, Age: 46 Years, Caste: SC (Mala), R/o N. S. Venkatapuram, Tuni Mandal, Kakinada District an habitual offender and is committing offences against A. P. Prohibition (Amendment) Act, 2020 time and again though several cases were booked against you. It is evident that you were arrested in four cases from January, 2021 to March, 2022. You have been distributing, storing, Transporting and selling ID Liquor in and around of N. S. Venkatapuram village and surrounding places of Tuni Mandal which causes huge damage to the public health as well as public peace and tranquillity.

The following are the Grounds for Detention: GROUND No. 1 (Cr. No. 13/2021, dated 06. 01. 2021 of U/s 7(B) r/w 8(B) of A. P. Prohibition (Amendment) Act- 2020 of SEB Station, Tuni, Kakinada District. On 06. 01. 2021, at about 06. 00 A. M. , while the Sub Inspector, Special Enforcement Bureau, Tuni along with staff conducting raids for detection of Proh. & Excise off ences at N. S. Venkatapuram Village of Tuni Mandal and found one person with one mica hand bag in his right hand, near Ambedkar statue of SC Peta. On seeing the Police Party, he left the mica bag which is in his hand and tried to ran away. SI SEB stopped the person with the help of the constables and the Enforcement Sub-Inspector sent one constable to secure mediators but he come back and informed that nobody is came forward to stood as mediators. Then Sub-Inspector SEB 528 SUPREME COURT REPORTS [2023] 11 S. C. R. got opened the bag and found one polythene cover containing fi ve (5) liters of I. D. liquor.

When enquired with the accused about his identity particulars, he voluntarily disclosed that his name is Pesala Nookaraju S/o Bulliyya, Age: 45 Years, Caste: SC (Mala) R/o N. S. Venkatapuram Village, Tuni Mandal and explained him that the possession, transportation, selling of ID liquor is an off ence under A. P. Prohibition (Amendment) Act, 2020 and arrested the accused and registered the case against the accused and seized the ID arrack. Then drawn 300 ml I. D liquor as sample for the purpose of chemical examination, from the seized ID arrack into a separate bottle and sealed the sample bottle and mica bag with the remaining ID liquor and pasted identity slips duly signed by the SI SEB and staff and seized ID Liquor, under the cover of special report drafted on the spot, by the Enforcement Sub Inspector.

The sample was sent to Chemical Examiner, Kakinada for analysis and the same was analysed and the Chemical Examiner opined that "It is illicitly Distilled liquor unfi t for human consumption and injurious to health" and issued an analysis report vide. C. E. No. 366/2021 in Sl. No. 5890 dated 04. 03. 2021. GROUND No. 2 (Cr. No. 376/2021, dated 13. 08. 2021 of U/s 7(B) r/w 8(B) of A. P. Prohibition (Amendment) Act- 2020 of SEB Station, Tuni, Kakinada District. On 13. 08. 2021, at about 09. 30 A. M. , while the Sub Inspector, Special Enforcement Bureau, Tuni along with staff conducting raids for detection of Proh. & Excise off ences in N. S. Venkatapuram village of Tuni Mandal and found one person standing with one gunny bag to his right shoulder near Ambedkar statue of SC Peta. On seeing the Police Party, he left the Gunny bag which is in his hand and tried to ran away.

SI SEB stopped the person with the help of constables and the Enforcement Sub-Inspector sent one constable to secure mediators but he came back and informed that nobody is came forward to stood as mediators. Then Sub Inspector SEB got opened the bag and found three polythene covers each containing 10 liters total 30 liters of I. D. liquor. When enquired with the accused about PESALA NOOKARAJU v. THE GOVERNMENT OF 529 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J. ] his identity particulars, he voluntarily disclosed that his name is Pesala Nookaraju S/o Builiyya, Age: 45 Years Caste: SC (Mala), R/o N. S. Venkatapuram Village, Tuni Mandal and explained him that the possession, transportation, selling of ID liquor is an off ence under A. P. Prohibition (Amendment) Act 2020 and arrested the accused and registered the case against the accused and seized the ID arrack. Then drawn 300 ml I. D.

liquor as sample for the purposeof Chemical Examination, from seized arrack into a separate bottle and sealed the sample bottle and mica bag with the remaining ID liquor and pasted identity slips duly signed by the SI SEB and staff and seized ID liquor, under the cover of Special Report drafted on the spot, by the Enforcement Sub- Inspector. The sample was sent to Chemical Examiner, Kakinada for analysis and the same was analysed and the Chemical Examiner opined that "It is illicitly Distilled liquor unfi t for human consumption and injurious to health" and issued an analysis report vide C. E. No. 2381/2021 in Sl. No. 41632 dated 10. 11. 2021. GROUND NO. 3 (Cr. No. 532/2021, dated 30. 09. 2021 of U/s 7(B) r/w 8(B) of AP Prohibition (Amendment) Act- 2020 of SEB Station, Tuni, Kakinada District): On 30. 09. 2021, at about 08. 05 P. M. , while the Special Enforcement Bureau, SHO, Tuni along with Technical wing sub-Inspector and staff conducting raids for detection of Proh.

& Excise off ences at near Ambedkar statue of SC Peta N. S. Venkatapuram village of Tuni Mandal and found one person came by walk with one mica bag in his right hand, on seeing the Police Party, he left the mica bag which is in his hand and tried to ran away. SI SEB stopped the person with the help of constables and the Enforcement Sub Inspector sent one constable to secure mediators but he come back and informed that nobody is came forward to stood as mediators. Then Sub Inspector SEB got opened the bag and found one polythene cover containing 10 liters I. D. liquor. When enquired with the accused about his identify particulars, he voluntarily disclosed that his name is Pesala Nookaraju S/o Bulliyya, Age: 45 Years, Caste: SC (Mala) R/o N. 530 SUPREME COURT REPORTS [2023] 11 S. C. R. S. Venkatapuram Village, Tuni Mandal and explained him that the possession, transportation, selling of ID liquor is an off ence under A. P.

Prohibition (Amendment) Act 2020 and arrested the accused and registered the case against the accused and seized the ID arrack. Then drawn 300 ml I. D. liquor as sample for the purpose of chemical examination, from the seized ID arrack in to a separate bottle and sealed the sample bottle and mica bag with the remaining ID liquor and pasted identity slips duly signed by the SI SEB and staff and seized I. D. liquor, under the cover of Special Report drafted on the spot, by the Enforcement Sub-Inspector. The sample was sent to Chemical Examiner, Kakinada for analysis and the same was analysed and the Chemical Examiner opined that "It is illicitly Distilled liquor unfi t for human consumption and injurious to health" and issued an analysis report vide C. E. No. 2796/2021 in Sl. No. 45126 dated 27. 11. 2021. GROUND No. 4 (Cr. No. 213/2022, dated 09. 03. 2022 of U/s 7(B) r/w 8(B) of AP Prohibition (Amendment) Act- 2020 of SEB Station, Tuni, Kakinada District): On 09. 03. 2022, at about 10.

00 A. M. , while the Special Enforcement Bureau, SHO Tuni along with staff conducting raids for detection of Proh. & Excise off ences at near Ambedkar statue of SC Peta N. S. Venkatapuram Village of Tuni Mandal and found one person came by walk with one mica bag in his right hand, on seeing the Police Party he left the mica bag which is in his hand and tried to ran away. SI SEB stopped the person with the help of constables and the Enforcement Sub Inspector sent one constable to secure mediators but he come back and informed that nobody is came forward to stood as mediators. Then Sub Inspector SEB got opened the bag and found one polythene cover containing 10 ltrs I. D. liquor. When enquired with the accused about his identity particulars he voluntarily disclosed that his name is Pesala Nookaraju S/o Bulliyya, Age: 46 Years Caste: SC (Mala) R/o N. S. Venkatapuram Village, Tuni Mandal and explained him that the possession, transportation, selling of ID liquor is an off ence under A. P.

Prohibition (Amendment) Act 2020 and arrested the accused PESALA NOOKARAJU v. THE GOVERNMENT OF 531 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J. ] and registered the case against the accused and seized the ID arrack. Then drawn 300 ml I. D. liquor as sample for the purpose of chemical examination from the seized ID arrack into a separate bottle and sealed the sample bottle and mica bag with the remaining ID liquor and pasted identity slips duly signed by the SI SEB and staff and seized ID liquor under the cover of Special Report drafted on the spot by the Enforcement Sub-Inspector. The sample was sent to Chemical Examiner, Kakinada for analysis and the same was analysed and the Chemical Examiner opined that "It is illicitly Distilled liquor unfi t for human consumption and injurious to health" and issued an analysis report vide C. E. No. 851/2022 in Sl. No. 13027 dated 04. 04. 2022.

Thus I am satisfi ed from the material placed before me that you fall under the category of "BOOTLEGGER" as defi ned in Sec. 2(b) of "The Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders and Land Grabbers Act, 1986" and you are a fi t person to be detained U/Sec 3(2) of the said Act and accordingly I will issue orders with a view to preventing you from acting in any manner prejudicial to the maintenance of the public order. " 5. Thus, from the aforesaid, it is evident that the District Collector, Kakinada District was subjectively satisfi ed based on the materials on record that the activities of the appellant detenu were prejudicial to the maintenance of public order. According to the detaining authority i. e. the respondent No.

2, the appellant is a "bootlegger"as defi ned under Section 2(b) of the Act 1986 and with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it was felt necessary that the appellant be preventively detained. 6. The appellant detenu being aggrieved by the order of preventive detention preferred Writ Petition No. 33638 of 2022 in the High Court of Andhra Pradesh seeking a writ of Habeas Corpus. The High Court vide its impugned order declined to interfere and accordingly rejected the writ petition. 532 SUPREME COURT REPORTS [2023] 11 S. C. R. 7. In such circumstances referred to above, the appellant is here before this Court with the present appeal. SUBMISSIONS ON BEHALF OF THE APPELLANT 8. Ms. Bhabna Das, the learned counsel appearing for the appellant detenu, in her written submissions has stated thus:- "I. A Preventive Detention Order Can Only Be Issued For 3 Months At A Time 1.

1 The Petitioner herein has been preventively detained in terms of an order dated 25. 08. 2022 issued by the District Collector, Kakinada, under S. 3(2) of the AP Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders and Land Grabbers Act, 1986 (the "AP Act"). While the order dated 25. 08. 2022 did not specify any period of detention, the State Government, vide GO dated 18. 10. 2022, directed that the Petitioner shall be detained for a period of 12 months at a stretch. 1. 2 The above orders are contrary to the proviso to S. 3(2) of the AP Act, which states that "... the period specifi ed in the order made by the Government under this sub-section shall not in the fi rst instance, exceed three months, but the Government may, if satisfi ed as aforesaid that it is necessary to do so, amend such order to extend such period from time to time by any period not exceeding three months at any one time". 1.

3 This provision has been interpreted by this Hon'ble Court in Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh, (2015) 13 SCC 722, to mean that a detention order can only be in force for 3 months in the fi rst instance. The Government can extend the period for not more than 3 months at a time so that there is periodic assessment and review as to whether continuous detention of a person is necessary. Consequently, a detention order passed for 12 months at a stretch was quashed as being deterrent to the rights of the detenue [para 12-15]. This judgment has subsequently been followed by this Hon'ble Court in order dated 17. 04. 2017 in Criminal Appeal No. PESALA NOOKARAJU v. THE GOVERNMENT OF 533 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J. ] 727/2017 titled 'S. Penchalamma v. State of Andhra Pradesh & Ors. ' and Lahu Shrirang Gatkal v. State of Maharashtra, (2017) 13 SCC 519. In the present case, the Petitioner has now spent about 10.

5 months in detention without any review as to whether his continued detention is necessary. 1. 4 The State has contended that the proviso to S. 3(2) refers to the period for which the State Government can delegate its powers to a District Magistrate or Commissioner of Police, relying on the judgments of Harpreet Kaur v. State of Maharashtra, (1992) 2 SCC 177; T. Devaki v. Government of Tamil Nadu, (1990) 2 SCC 456; and Aravind Choudhary v. State of Telangana, order dt. 05. 05. 2017 in Crl. Appeal No. 924/ 2017. It is submitted that these judgments are inapplicable in the facts of the present case. 1. 5 First, all the judgments cited by the Respondents were concerned with the validity of detention orders passed directly under S. 3(1) of the concerned statute [see para 2 of Harpreet Kaur; para 1 of T. Devaki, and page 2 of Aravind Chaudhary]. An argument was raised in these cases that the detention orders [under S.

3(1)] could not be issued for a period exceeding 3 months as per the proviso to S. 3(2). It was in this context that the fi ndings in paras 33 of Harpreet Kaur, para 8 of T. Devaki and in Aravind Choudhary were rendered. These fi ndings cannot therefore be applied to orders issued in exercise of delegated powers under S. 3(2) of the Act. This is evident from the observation of this Hon'ble Court in Aravind Choudhary that: "... the limit of three months is applicable to Section 3(2) of the above said Act and not to Section 3(1). This is clear from three judge Bench judgment of this Court in 1990 (2) SCC 456 T. Devaki Vs. Government of Tamil Nadu... ". On the other hand, the detention order in Cherukuri Mani was issued by the District Magistrate [para 2] i. e. under S. 3(2) of the AP Act, and hence this judgment is directly on the point. 1. 6 Secondly, the interpretation sought to be advanced by the State renders the proviso to S. 3(2) meaningless. In terms of S.

3(3) of 534 SUPREME COURT REPORTS [2023] 11 S. C. R. the AP Act, the offi cer under S. 3(2) is required to "forthwith" report the detention order and grounds to the Government and "no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the Government". S. 3(3) therefore checks the issuance of preventive detention orders in exercise of delegated powers by immediately subjecting them to scrutiny and confi rmation by the State Government. 1. 7 Restricting the time period for which the State Government can delegate its powers to such an offi cer to 3 months at a time neither curbs any mischief nor serves any fruitful purpose. This is so since an order under S. 3(2) is much shorter-lived, and lapses in 12 days unless approved by the Government. Pertinently, as per S.

3(2) and 3(3) of the Preventive Detention Act, 1950 (repealed), on which the State statutes are modelled, also such orders were valid for 12 days. However, no time period was specifi ed therein for delegation of powers by the Central Government. It is therefore absurd that such a condition should be imposed on the State Government. Accordingly, the proviso to S. 3(2) can be given a meaningful object and purpose only if the limitation of 3 months at a time is applied to the period of detention, and not to the period of delegation. 1. 8 Thirdly, Art. 22 of the Constitution places some importance on curtailing the period of preventive detention to 3 months unless certain stringent conditions are satisfi ed. Art. 22(4) stipulates that no law can provide for preventive detention for a period longer than 3 months unless the opinion of an Advisory Board is obtained. Further, Art.

22(7)(a) requires the Parliament to pass a law prescribing the circumstances under which persons can be detained for longer than 3 months without obtaining the opinion of an Advisory Board. The proviso to S. 3(2) and its interpretation in Cherukuri Mani are therefore expressions of the notion that a preventive detention order ought to be reviewed after 3 months, a limitation inherent in Art. 22 itself. 1. 9 Lastly, if there is any ambiguity in a provision in a preventive detention statute or the same is capable of two possible interpretations, PESALA NOOKARAJU v. THE GOVERNMENT OF 535 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J. ] then the construction which enures to the benefi t of the detenue and furthers the protection to life and liberty guaranteed under Art. 21 must be favoured. Preventive detention law/Art. 22 is merely an exception to the rule under Art. 21, and must therefore be confi ned within narrow limits. Consequently, the interpretation of S.

3(2) proviso in Cherukuri Mani ought to be preferred over the judgments relied upon by the Respondents. Reference may be had to the following case law: (a) M. Ravindran v. Intelligence Officer, Directorate of Intelligence, (2021) 2 SCC 485. (b) Rekha v. State of Tamil Nadu, (2011) 5 SCC 244 [paras 13-17 & 21]. II. The Detention Order is Based on Stale Material 2. 1 It is a settled position of law that an order of preventive detention can only be based on criminal antecedents which have a proximate nexus with the immediate need to detain an individual. An order based on stale incidents is therefore not sustainable. Reliance is placed on the following judgments: (a) Khaja Bilal Ahmed v. State of Telangana & Ors. , (2020) 13 SCC 632 [paras 21-23 & 28] (b) Mallada K. Sri Ram v. State of Telangana & Ors. , 2022 SCC OnLine SC 424 [paras 11-15]. 2. 2 In Mallada K. Sri Ram, the detention order dated 19. 05. 2021 was based on 2 FIRs dated 15. 10. 2020 and 17. 12. 2020.

The detenue was released on bail in the 1st FIR on 08. 01. 2021 and in the 2nd FIR on 11. 01. 2021 [paras 4 & 5]. This Hon'ble Court was pleased to quash the said detention order on the ground that it was passed nearly 7 months after the 1st FIR and 5 months after the 2nd FIR, and was therefore based on stale material and demonstrated non-application of mind [para 11]. This judgment is squarely applicable in the facts of this case. 2. 3 The detention order dated 25. 08. 2022 in the present case is based on the following FIRs against the Petitioner: (a) FIR No. 1/(2021)-Tuni-13 dated 06. 01. 2021, lodged 1 year 7 months and 20 days prior to the detention order. The Petitioner was released on bail in this matter on 08. 01. 2021. (b) FIR No. 8/(2021)-Tuni-376 dated 13. 08. 2021, lodged 1 year and 12 days prior to the detention order. The Petitioner was released on bail in this matter on 18. 08. 2021. (c) FIR No. 10/(2021)-Tuni-532 dated 30. 09.

2021, lodged 10 months and 26 days prior to the detention order. The Petitioner was released on bail in this matter on 07. 10. 2021. (d) FIR No. 3/(2022)-Tuni-213 dated 09. 03. 2022, lodged 5 months and 17 days prior to the detention order. The Petitioner was released on bail in this matter on 08. 04. 2022. 2. 4 There is no allegation regarding the Petitioner's conduct during the 4 month and 18 day interregnum between him being released on bail in the last FIR (08. 04. 2022) and being taken into preventive detention (25-26. 08. 2022). It is therefore apparent that the grounds on which the Petitioner was detained are stale. III. Ordinary Law and Order is Suffi cient to Deal with the Situation and there is no Prejudice to the Maintenance of Public Order 3. 1 A detention order under S. 3(1) or 3(2) of the AP Act can be issued inter alia against a "bootlegger" to prevent him from "acting in any manner prejudicial to the maintenance of public order".

It is submitted that the Petitioner is not a 'bootlegger' as defi ned under S. 2(b) of the AP Act. There is no material to show that he was engaged in distillation, manufacture, storage, import/ export, sale or distribution of illicitly distilled liquor or was a mastermind engaged in any organized or systemic criminal activity or part of a cartel. The Petitioner has repeatedly asserted that he was merely a daily wage labourer working as a coolie. 3. 2 Without prejudice, this Hon'ble Court has, in a catena of judgments, held that a person cannot be detained merely because he is PESALA NOOKARAJU v. THE GOVERNMENT OF 537 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J. ] a bootlegger, unless the activity also aff ects public order. Pertinently, it was alleged that the detenus in these cases were using dangerous weapons/ arms, force and violence, had created an atmosphere of fear and terror amongst the residents in the area.

These were nevertheless not considered grievous enough to aff ect 'public order' or warrant preventive detention. (a) Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad City & Anr. (1989) Supp (1) SCC 322 [paras 14-18] (b) Omprakash v. Commissioner of Police & Ors. , (1989) Supp (2) SCC 576 [paras 1, 6-11] (c) Rashidmiya @ Chhava Ahmediya Shaik v. Police Commissioner, Ahmedabad & Anr. , (1989) 3 SCC 321 [paras 3-6 & 16-21] (d) Ahmedhussain Shaikhhussain @ Ahmed Kalio v. Commissioner of Police, Ahmedabad & Anr, (1989) 4 SCC 751 [paras 3, 11, 13- 15]. 3. 3 As per the explanation to S. 2(a), the activity in question must cause "harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave widespread danger to life or public health" to be prejudicial to public order. The expression 'public order' is diff erent from general 'law and order' and must be interpreted narrowly.

Acts aff ecting public order must be such as to create panic, fear or insecurity among the public at large, destroy the even tempo of life of the community, cause serious disturbance to public tranquility, the society and community at large. Where the ordinary law of the land is suffi cient to deal with the off ences in question, recourse to preventive detention is illegal. (a) Rekha v. State of Tamil Nadu, (2011) 5 SCC 244 [paras 13- 17, 21, 23 & 29-35]. (b) Munagala Yadamma v. State of Andhra Pradesh & Ors, (2012) 2 SCC 386 [paras 7-9] (c) Banka Sneha Sheela v. State of Telangana & Ors. , (2021) 9 SCC 415 [paras 12-15, 19-25, 29-30 & 32] 538 SUPREME COURT REPORTS [2023] 11 S. C. R. 3. 4 In the present case, 4 FIRs have been fi led against the Petitioner for off ences under the AP Prohibition Act. Investigation is complete and chargesheets have also been fi led and hence the matters are ready for trial. These cases involve ordinary 'law and order' problems.

The Petitioner will undergo the requisite punishment if eventually convicted by the competent Court. However, he cannot be preventively detained and prevented from facing trial merely because he is allegedly a 'habitual off ender' or has secured bail in all the cases. 3. 5 The chemical analysis of the samples allegedly taken from the Petitioner state that they are "unfi t for human consumption and injurious to health". The Impugned Judgment erroneously holds that this is suffi cient to arrive at the subjective satisfaction that the Petitioner was required to be preventively detained, without examining whether the ingredients of the explanation to S. 2(a) regarding prejudice to 'public order' are satisfi ed. The total quantity of ID liquor found in the Petitioner's possession in all 4 cases is allegedly 55 litres, which is a relatively small quantity.

There is no imputation that any person consumed any liquor from the Petitioner or endangered his life or suff ered any serious health issues as a result. Mere lab reports cannot be determinative of whether the alleged criminal activity is of such magnitude or intensity as to constitute a "grave widespread danger to public health". 3. 6 Pertinently, in Rekha v. State of Tamil Nadu (supra), the detenu was accused of selling expired drugs after tampering with labels [para 2]. In Munagala Yadamma (supra), the allegation was of bootlegging/ illicitly distilling liquor. No doubt such expired drugs or illicitly distilled liquor may be unfi t for human consumption and may even aff ect the health of those consuming such products. Nevertheless, these were not considered as being prejudicial to the maintenance of public order. Rather, the ordinary provisions of the IPC/Drugs and Cosmetics Act and the AP Prohibition Act, as the case may be, were deemed suffi cient to deal with these situations.

It is therefore submitted that the preventive detention orders against the Petitioner be quashed, and he be permitted to face trial as per ordinary due process. PESALA NOOKARAJU v. THE GOVERNMENT OF 539 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J. ] IV. The Detention Orders are Disproportionate and Suffer from NonApplication of Mind 4. 1 A detention order under S. 3(1) or 3(2) of the AP Act can only be issued only if "it is necessary so to do" to prevent a person from acting in a manner prejudicial to public order. The doctrine of proportionality, which requires that the least restrictive means be used when imposing any restraint on a fundamental right, is therefore built into the statute. [See Madhyamam Broadcasting Ltd. v. Union of India & Ors. , 2023 SCC OnLine SC 366 (para 85)] 4. 2 In the present case, the Petitioner was granted bail in all cases against him, after giving an opportunity of hearing to the State.

If the Petitioner subsequently committed any off ence or violated any condition of bail, the State ought to have approached the concerned Court for cancellation of bail. Issuance of a preventive detention order which drastically curtailed the Petitioner's right to liberty under Art. 21 is certainly neither the most suitable nor the least restrictive method of preventing the Petitioner from engaging in any further alleged criminal activity. 4. 3 Without prejudice, a person ought to be preventively detained only for the period absolutely necessary in order to achieve the object in question i. e. prevent public disorder. While the maximum period of detention can be 12 months as per S. 13 of the AP Act, the State nevertheless has the discretion to provide for a lesser period, or even revoke/ modify a detention order under S. 14. However, in the present case, Respondent No. 1 has, vide GO dated 18. 10.

2022, directed that the Petitioner be detained for the maximum period of 12 months without any application of mind or providing any reasons as to why this is necessary. 4. 4 Further, the grounds for detention and order dated 25. 08. 2022 were admittedly issued on the basis of a proposal dated 05. 08. 2022 made by the Superintendent of Police, Kakinada. A bare perusal of this proposal shows that the grounds for detention therein are identical to the grounds of detention appended to the order dated 25. 08. 2022. It therefore appears that the order dated 25. 08. 2022 was passed placing blind reliance on the proposal of the SP, without 540 SUPREME COURT REPORTS [2023] 11 S. C. R. any independent application of mind. The delegated power and discretion vested in the District Magistrate under S. 3(2) has virtually been further sub-delegated to the Superintendent of Police, which is impermissible. V. A Habeas Corpus Petition is Maintainable on behalf of the Petitioner 5.

1 The Petitioner had preferred W. P. No. 33638/ 2022 dated 13. 10. 2022 before the Hon'ble High Court of Andhra Pradesh inter alia praying for the closure of his detention order dated 25. 08. 2022 and his release from prison. Since confi rmation order vide G. O. Rt. No. 2190 dated 18. 10. 2022 was issued by Respondent No. 1 thereafter, the Petitioner subsequently amended his Petition to challenge the order dated 18. 10. 2022 as well. 5. 2 The Respondents have contended that a writ of habeas corpus is not maintainable in the present case relying on the judgment of Home Secretary (Prison) v. H. Nilofer Nisha, (2020) 14 SCC 161. The said judgment was dealing with the issue of whether a habeas corpus would lie to secure release of a person who is undergoing imprisonment sentence as per Court orders, and had not been illegally detained [paras 1 & 17]. This is completely diff erent from preventive detention.

In fact, in para 16 of the said judgment itself it has been held that habeas corpus is often used as a remedy in preventive detention cases as the said order can only be challenged in writ jurisdiction. The Writ Petition fi led by the Petitioner was therefore maintainable. 6. In view of the above, it is respectfully prayed that the Impugned Judgment and order dated 07. 03. 2023 be set aside, the order dated 25. 08. 2022 passed by Respondent No. 2 and the confi rmation orders dated 01. 09. 2022 and 18. 10. 2022 issued by Respondent No. 1 be quashed, and the Petitioner be released forthwith from Central Prison, Rajamahendravaram, East Godavari District, Andhra Pradesh. 7. It is further prayed that in the event the Petitioner is convicted in any of the FIRs on which the detention order was based, then the PESALA NOOKARAJU v. THE GOVERNMENT OF 541 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.

] period spent in illegal preventive detention may be treated as custody undergone for the purposes of any sentence of imprisonment imposed thereunder. " SUBMISSIONS ON BEHALF OF THE RESPONDENTS 9. Mr. Mahfooz A. Nazki, the learned counsel appearing for the respondents, in his written submissions as stated thus:- "A. Interpretation of Section 3(2) of the 1986 Act i. Section 3, to the extent relevant, reads as under: 3. Power to make order detaining certain persons:- (1) The Government may, if satisfi ed with respect to any boot-legger, dacoit, drug-off ender,goonda, immoral traffi c off ender or land-grabber 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.

(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the Government are satisfi ed that it is necessary so to do, they may, by order in writing, direct that during such period as may be specifi ed in the order, such District Magistrate or Commissioner of Police may also, if satisfi ed as provided in sub-section (1), exercise the powers conferred by the said sub-section: Provided that the period specified in the order made by the Government under this sub-sectionshall not in the fi rst instance, exceed three months, but the Government may, if satisfi ed as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. " ii.

It is evident from a plain reading of the above provision that the power to pass a detention order is ordinarily that of the State Government under Section 3(1) of the1986 Act. iii. However, such power may, under Section 3(2), be delegated by State Government to a District Magistrate (DM) or Commissioner of 542 SUPREME COURT REPORTS [2023] 11 S. C. R. Police (Commissioner). It is here that the proviso comes in to play and provides that such a delegation in favor of a DM/Commissioner cannot be valid for more than three months at a time. iv. It is therefore clear that the period of "three months" relates not to period of detention but to the duration for which State Government's order empowering theDM or Commissioner to issue detention orders can be valid. v. The above view has found favour with this Hon'ble Court in various judgments including: • Harpreet Kaur (Mrs) Harvinder Singh Bedi v. State of Maharashtra and Anr.

, (1992) 2 SCC 177 ("Harpreet Kaur"), @para 31-33 • State of Maharashtra & Ors. v. Balu, (2021) 13 SCC 454, @ para 6. 3 to 6. 6 • T. Devaki vs. Government of Tamil Nadu & Ors. , (1990) 2 SCC 456, @para 10 • Aravind Choudhary Vs. State of Telangana, Criminal Appeal No. 924/2017 @pg. 2 of the judgment vi. It may be mentioned that the judgment in T. Devaki has been passed by a Benchof three Hon'ble Judges. vii. It is submitted that both the judgments relied on by the Petitioner (mentioned above)have not taken into account the aforesaid decisions. The period of one year mentioned in the order is strictly in accordance with the 1986 Act. viii. At this stage, the scheme of the 1986 Act may be noted: • As mentioned above, a detention order is passed either by the State Government or by the Magistrate/Commissioner [as a delegate of the Government], under Section 3(1) or Section 3(2) of the Act respectively.

The provision does not require any time period to be specifi ed in the order of detention [See T. Devaki @para 10, 12 13 and 15]. PESALA NOOKARAJU v. THE GOVERNMENT OF 543 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J. ] [Note: In the present case, the power was delegated to the DM vide G. O. Rt. No. 1089 dated 09. 06. 2022 [annexed herewith as Annexure 1] and the detention order was passed on 25. 08. 2022 thereafter - i. e. , well within the time of three months. ] • Under Section 3(3), an additional safeguard is provided in case when the detention order is passed by Magistrate/Commissioner. This Section requires that the detention order passed by the DM/ Commissioner shall be confi rmed within a period of 12 days by the State Government, otherwise it lapses after expiry of 12 days. [Note: The order of confi rmation, in the present case, was passed by the State Government on 01. 09. 2022 i. e. , within the 12 days' period.

] • Thereafter, under Section 10, the detention order along with all relevant material is required to be placed before the Advisory Board within a period of three weeks from the date of detention. • In the event the Advisory Board confi rms the detention order, the Government may, under Section 12 read with Section 13, direct the detention order to continue for a period not exceeding twelve months. It is only under this provision that a period for detention has been prescribed. [Note: The order under Section 12 was passed by the Government on18. 10. 2022. ] ix. In the present case, the aforementioned procedure was strictly followed. The period of one year has been mentioned in the order dated 18. 10. 2022 passed under Section12 read with Section 13 not in the detention order dated 25. 08. 2022 passed under Section 3. The submissions of the Petitioner are therefore clearly misconceived. The detention order has been passed strictly in accordance with the afore-mentioned procedure. B.

The Detention order is not stale. i. It has been contended by the Petitioner that there is no proximate link between his acts and the detention order. The said submission is 544 SUPREME COURT REPORTS [2023] 11 S. C. R. misconceived. Before detailing the factual aspects, the following legal position may be noted: • If the grounds form a chain of proximate events and if the last incident is proximate to the date of detention, such a detention order cannot be set aside on the ground of being stale even if earlier incidents are not proximate to date of detention. [The Collector & District Magistrate, W. G. Dist. Eluru, Andhra Pradesh v. Sangala Kondamma, 2005 3 SCC 666 (@ para 10) ("Sangala Kondamma")] • Each case has to be analysed in light of its specifi c facts and circumstances by adopting a pragmatic approach and "no hard- and-fast formula is possible to be laid or has been laid in this regard". [Licil Antony v. State of Kerala and Anr. ,(2014) 11 SCC 326 @para 18].

• The word 'proximity' does not mean any immediate closeness but it rather means something which indicates a pattern [Bhupendra v. State of Maharashtra & Anr. , (2008) 17 SCC 165, @para 10]. " DISCUSSION 10. Before we advert to the rival submissions canvassed on either side, we must look into the Preamble and few relevant provisions of the Act 1986. The preamble to the Act 1986 reads thus:- "PREAMBLE An Act to provide for preventive detention of Bootleggers, Dacoits, Drug-Off enders, Goondas, Immoral Traffi c Off enders and LandGrabbers for preventing their dangerous activities prejudicial to the maintenance of Public Order. Whereas public order is adversely aff ected every now and then by the dangerous activities of certain persons, who are known as bootleggers, dacoits, drug-off enders, goondas, immoral traffi c off enders and land- grabbers.

And whereas having regard to the resources and infl uence of the persons by whom, the large scale on which, and the manner in which the dangerous activities are being clandestinely organised and carried PESALA NOOKARAJU v. THE GOVERNMENT OF 545 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J. ] on in violation of law by them, as bootleggers, dacoits, drug-off enders, goondas, immoral traffi c off enders or land-grabbers in the State of Andhra Pradesh and particularly in its urban areas, it is necessary to have a special law in the State of Andhra Pradesh to provide for preventive detention of these six classes of persons and for matters connected therewith :" 11. The aforesaid Act 1986 came into force with eff ect from 28. 02. 1986. Section 2(a) reads thus:- "Section 2.

-- Defi nitions In this Act, unless the context otherwise requires,-- (a) "acting in any manner prejudicial to the maintenance of public order" means when a boot-legger, a dacoit, a drug-off ender, a goonda, an immoral traffi c off ender or a landgrabber is engaged or is making preparations for engaging, in any of his activities as such, which aff ect adversely, or are likely to aff ect adversely, the maintenance of public order : Explanation :--For the purpose of this clause public order shall be deemed to have been aff ected adversely, or shall be deemed likely to be aff ected 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;" (Emphasis supplied) 12. Section 2(b) defi nes "boot-legger".

Section 2(b) reads thus:- "(b) "boot-legger" means a person, who distils, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any of the provisions of the Andhra Pradesh Excise Act, 1968 (Act 17 of 1968) and the rules, notifi cations and orders made thereunder, or in contravention of any other law for thetime being in force, or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material furtherance or support of the doing of any of the above mentioned things by himself or through any other person, or who abets in any other manner the doing of any such thing;" (Emphasis supplied) 13. Section 3 is in respect with the power to make order detaining certain persons. Section 3 reads thus:- "Section 3.

Power to make orders detaining certain persons:--(1) The Government may, if satisfi ed with respect to any bootlegger, dacoit, drug-off ender, goonda, immoral traffi c off ender or land-grabber 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.

(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the Government are satisfi ed that it is necessary so to do, they may, by order in writing, direct that during such period as may be specifi ed in the order, such District Magistrate or Commissioner of Police may also, if satisfi ed as provided in sub-section (1), exercise the powers conferred by the said sub-section: Provided that the period specifi ed in the order made by the Government under this sub-section shall not in the fi rst instance, exceed three months, but the Government may, if satisfi ed as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.

(3) When any order is made under this section by an offi cer mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the Government. " PESALA NOOKARAJU v. THE GOVERNMENT OF 547 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J. ] 14. Section 12 provides for the action upon report of the Advisory Board. It reads thus:- "Section 12. Action upon report of Advisory Board:--(1) In any case where the Advisory Board has reported that there is, in its opinion, suffi cient cause for the detention of a person, the Government may confi rm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period specifi ed in Section 13 as they think fi t.

(2) In any case where the Advisory Board has reported that there is, in its opinion, no suffi cient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith. " 15. Section 13 provides for the maximum period of detention. Section 13 reads thus:- "Section 13. Maximum period of detention:--The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confi rmed under section 12, shall be twelve months from the date of detention. " (Emphasis supplied) ESSENTIAL CONCEPT OF PREVENTIVE DETENTION 16. The essential concept of the preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it.

The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between the prosecution in a Court of law and a detention order under the Act 1986. One is a punitive action and the other is a preventive act. In one case a person is punished on proof of his guilt and the standard is proof beyond the reasonable doubt, whereas in the other a person is detained with a view to prevent him from doing such act(s) as may be specifi ed in the Act authorizing preventive detention. 548 SUPREME COURT REPORTS [2023] 11 S. C. R. 17. The power of preventive detention is qualitatively diff erent from punitive detention.

The power of preventive detention is a precautionary power exercised in reasonable anticipation. It mayor may not relate to an off ence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. (See : Haradhan Sahav. The State of W. B. and others, 1974 Cri. L. J. 1479] 18.

In Halsbury's Laws Of England, it is stated thus:- "The writ of habeas corpus ad subjiciendum" unlike other writs,is a prerogative writ, that is to say, it is an extraordinary remedy,which is issued upon cause shown in cases where the ordinary legal remedies are inapplicable or inadequate. This writ is a writ of right and is granted ex debitojustitiate. It is not, however, a writ of course. Both at common law and by statute, the writ of habeas corpus may be granted only upon reasonable ground for its issue being shown. The writ may not in general be refused merely because an alternative remedy by which the validity of the detention can be questioned. "Any person is entitled to institute proceedings to obtain a writ of habeas corpus for the purpose of liberating another from an illegal imprisonment and any person who is legally entitled to the custody of another may apply for the writ in order to regain custody.

In any case, where access is denied to a person alleged to be unjustifi ably detained,so that there are no instructions from the prisoner, the application may be made by any relation or friend on an affi davit setting forth the reason for it being made. " 19. In Corpus Juris Secundum, the nature of the writ of habeas corpus is summarized thus:- "The writ of habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at PESALA NOOKARAJU v. THE GOVERNMENT OF 549 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J. ] a designated time and place with the day and cause of his caption and detention to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf. "'Habeas corpus' literally means "have the body". By this writ, the court can direct to have the body of the person detained to be brought before it in order to ascertain whether the detention is legal or illegal.

Such is the predominant position of the writ in the Anglo- Saxon Jurisprudence. " 20. In Constitutional and Administrative Law By Hood Phillips & Jackson, it is stated thus:- "The legality of any form of detention may be challenged at common law by an application for the writ of habeas corpus. Habeas corpus was a prerogative writ, that is, one issued by the King against his offi cers to compel them to exercise their functions properly. The practical importance of habeas corpus as providing a speedy judicial remedy for the determination of an applicant's claim for freedom has been asserted frequently by judies and writers. Nonetheless, the eff ectiveness of the remedy depends in many instances on the width of the statutory power under which a public authority may be acting and the willingness of the Courts to examine the legality of decision made in reliance on wide ranging statutory provision.

It has been suggested that the need for the "blunt remedy" of habeas corpus has diminished as judicial review has developed into an ever more fl exible jurisdiction. Procedural reform of the writ may be appropriate, but it is important not to lose sight of substantive diff erences between habeas corpus and remedies under judicial review. The latter are discretionary and the court may refuse relief on practical grounds; habeas corpus is a writ of right, granted ex debitojustitiae. " 21. The ancient prerogative writ of habeas corpus takes its name from the two mandatory words "habeas" and "corpus". 'Habeas Corpus' literally means 'have his body'. The general purpose of these writs as their name indicates was to obtain the production of the individual before a court or a judge. This is aprerogative process for securing the liberty of the subject by aff ording an eff ective relief of immediate release from unlawful or unjustifi able detention, whether in prison or in private custody.

This is 550 SUPREME COURT REPORTS [2023] 11 S. C. R. a writ of such a sovereign and transcendent authority that no privilege of power or place can stand against it. It is a very powerful safeguard of the subject against arbitrary acts not only of private individuals but also of the Executive, the greatest safeguard for personal liberty, according to all constitutional jurists. The writ is a prerogative one obtainable by its own procedure. In England, the jurisdiction to grant a writ existed in Common Law, but has been recognized and extended by statute. It is well established in England that the writ of habeas corpus isas of right and that the court has no discretion to refuse it. "Unlike certiorari or mandamus, a writ of habeas corpus is as of right" to every man who is unlawfully detained. In India, it is this prerogative writ which has been given a constitutional status under Articles 32 and 226 of the Constitution.

Therefore, it is an extraordinary remedy available to a citizen of this Country, which he can enforce under Article 226 or under Article 32 of the Constitution of India. 22. It is the duty of the Court to issue this writ to safeguard the freedom of the citizen against arbitrary and illegal detention. Habeas corpus is a remedy designed to facilitate the release of persons detained unlawfully, not to punish the person detaining and it is not, therefore, issued after the detention complained of has come to an end. It is a remedy against unlawful detention. It is issued in the form of an order calling upon the person who has detained another, whether in prison or in private custody, to 'have the body' of that other before the Court in order to let the Court know on what ground the latter has been confi ned and thus to give the Court an opportunity of dealing with him as the law may require.

By the writ of habeas corpus, the Court can cause any person who is imprisoned to be brought before the Court and obtain knowledge of the reason why he is imprisoned and then either set him free then and there if there is no legal justifi cation for the imprisonment, or see that he is brought speedily to trial. Habeas Corpus is available against any person who is suspected of detaining another unlawfully and not merely against the police or other public offi cers whose duties normally include arrest and detention. The Court must issue it if it is shown that the person on whose behalf it is asked for is unlawfully deprived of his liberty. The writ be addressed to any person whatever-an offi cial or a private individual-who has another in his custody. The claim (for habeas corpus) has been expressed and pressed in terms of concrete legal standards and procedures. Most notably, the right of personal liberty is connected in PESALA NOOKARAJU v. THE GOVERNMENT OF 551 ANDHRA PRADESH & ORS.

[J. B. PARDIWALA, J. ] both the legal and popular sense with procedures upon the writ of habeas corpus. The writ is simply a judicial command directed to a specifi c jailer directing him or her to produce the named prisoner together with the legal cause of detention in order that this legal warrant of detention might be examined. The said detention may be legal or illegal. The right which is sought to be enforced by such a writ is a fundamental right of a citizen conferred under Article 21 of the Constitution of India, which provides:- "Article 21. Protection of life and personal liberty. --No person shall be deprived of his life or personal liberty except according to procedure established by law. " SUBMISSION NO. 1 OF THE APPELLANT 23.

The learned counsel appearing for the appellant vehemently submitted that the High Court failed to appreciate that the order of detention could be termed as contrary to the proviso to Section 3(2) of the Act 1986 referred to above as the detention can only be in force for a period of three months in the fi rst instance. According to the learned counsel, the Government thereafter may extend the period for not more than three months at a time so that there is periodic assessment and review as to whether the continuous detention of a person is necessary or not. In short, the sum and substance of the submission canvassed on behalf of the appellant detenu is that the detention order passed for 12 months at a stretch could be termed as without jurisdiction and contrary to the mandate of sub-section (2) of Section 3 of the Act 1986. In support of the said submission, the learned counsel has placed strong reliance on a decision of this Court in the case of Cherukuri Mani (supra). 24.

We must fi rst look into the decision of this Court in Cherukuri Mani (supra) as the same also dealt with sub-section (2) of Section 3 of the Act 1986. This Court after reproducing the entire Section 3 of the Act 1986 in para 10 of the judgment interpreted and held as under:- "11. A reading of the above provisions makes it clear that the State Government, District Magistrate or Commissioner of Police are the authorities, conferred with the power to pass orders of detention. The only diff erence is that the order of detention passed by the Government would remain in force for a period of three months in the fi rst instance, 552 SUPREME COURT REPORTS [2023] 11 S. C. R. whereas similar orders passed by the District Magistrate or the Commissioner of Police shall remain in force for an initial period of 12 days. The continuance of detention beyond 12 days would depend upon the approval to be accorded by the Government in this regard. Sub-section (3) makes this aspect very clear.

Section 13 of the Act mandates that the maximum period of detention under the Act is 12 months. 12. Proviso to sub-section (2) of Section 3 is very clear in its purport, as to the operation of the order of detention from time to time. An order of detention would in the fi rst instance be in force for a period of three months. The Government alone is conferred with the power to extend the period, beyond three months. Such extension, however, cannot be for a period, exceeding three months, at a time. It means that, if the Government intends to detain an individual under the Act for the maximum period of 12 months, there must be an initial order of detention for a period of three months, and at least, three orders of extension for a period not exceeding three months each. The expression "extend such period from time to time by any period not exceeding three months at any one time" assumes signifi cance in this regard. 13.

The requirement to pass order of detention from time to time in the manner referred to above, has got its own signifi cance. It must be remembered that restriction of initial period of detention to three months is nothing but implementation of the mandate contained in clause (4)(a) of Article 22 of the Constitution of India. It reads as under: "22. (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-- (a) an Advisory Board consisting of persons who are, or have been, or are qualifi ed to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion suffi cient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed PESALA NOOKARAJU v. THE GOVERNMENT OF 553 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.

] by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). " 14. Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure. When the provisions of Section 3 of the Act clearly mandated the authorities to pass an order of detention at one time for a period not exceeding three months only, the government order in the present case, directing detention of the husband of the appellant for a period of twelve months at a stretch is clear violation of the prescribed manner and contrary to the provisions of law.

The Government cannot direct or extend the period of detention up to the maximum period of twelve months in one stroke, ignoring the cautious legislative intention that even the order of extension of detention must not exceed three months at any one time. One should not ignore the underlying principles while passing orders of detention or extending the detention period from time to time. 15. Normally, a person who is detained under the provisions of the Act is without facing trial which in other words amounts to curtailment of his liberties and denial of civil rights. In such cases, whether continuous detention of such person is necessary or not, is to be assessed and reviewed from time to time. Taking into consideration these factors, the legislature has specifi cally provided the mechanism "Advisory Board" to review the detention of a person. Passing a detention order for a period of twelve months at a stretch, without proper review, is deterrent to the rights of the detenu.

Hence, the impugned government order directing detention for the maximum period of twelve months straightaway cannot be sustained in law. ". (Emphasis supplied) 554 SUPREME COURT REPORTS [2023] 11 S. C. R. 25. Thus, from the aforesaid, it is evident that in Cherukuri Mani (supra), this Court took the view that sub-section (2) of Section 3 more particularly the proviso to sub-section (2) is in respect with the operation of the order of detention. To put it in other words, the time period for which the detenu is to be detained. 26. In the aforesaid context, we may say with profound respect that Cherukuri Mani (supra) does not lay down the correct law. Sub- section (2) of Section 3 has nothing to do with the period of detention. In Cherukuri Mani (supra), the Bench completely mis-read the entire provision. 27.

We are of the view that Section 3(2) is with respect to the delegation of powers by the State Government upon the District Magistrate or Commissioner of Police, as the case may be, for exercise of powers under sub-section (2) of Section 3 of the Act 1986. The period as mentioned in Section 3(2) of the Act 1986 refers to the period of delegation of powers and it has no relevance at all to the period for which a person may be detained. It appears that the attention of the learned Judges while deciding Cherukuri Mani (supra) was not invited to a three-Judge Bench judgment of this Court in T. Devaki v. Government of Tamil Nadu, (1990) 2 SCC 456, wherein it has been held as under:- "8. Placing reliance on Section 3(2) Mr. Garg urged that since the impugned detention order did not specify the period for which the detenu was required to be detained, the order was rendered illegal. On an analysis of Section 3 of the Act as quoted above, we fi nd no merit in the submission.

Section 3(1) confers power on the State Government to detain a bootlegger or drug off ender, or forest off ender or goonda or an off ender in immoral traffi c or a slum grabber with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. Section 3(2) empowers the State Government to delegate its power as conferred on it under sub-section (1) to District Magistrate or a Commissioner of Police, if it is satisfi ed that the circumstances prevailing, or likely to prevail in any area within the local limits of the jurisdiction of the District Magistrate or the Commissioner of Police, make it necessary to delegate the power to them. It further PESALA NOOKARAJU v. THE GOVERNMENT OF 555 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.

] provides that the order of delegation shall be in writing and it shall also specify the period during which the District Magistrate or the Commissioner of Police, are authorised to exercise the powers of the State Government under sub-section (1) of Section 3. Proviso to sub-section (2) lays down that the delegation should not be for an unlimited period, instead it should not be for a period of more than three months. If the State Government is satisfi ed that it is necessary to extend the period of delegation it may amend its order, extending such period from time to time but at no time the extension shall be for a period of more than three months. Once the State Government's power under Section 3(1) is delegated to the District Magistrate or the Commissioner of Police, they are authorised to exercise that power on the grounds, specifi ed in Section 3(1) of the Act.

Neither sub-section (1) nor sub-section (2) of Section 3 of the Act require the detaining authority to specify the period of detention for which a detenu is to be kept under detention. 9. Section 3(3) requires that where detention is made by the delegate of the State Government, namely, the District Magistrate or the Commissioner of Police, they should report the fact to the State Government together with the grounds on which the order may have been made and such other particulars as, in their opinion, may have a bearing on the matter. A detention order made by a District Magistrate or Commissioner of Police in exercise of their delegated authority does not remain in force for more than twelve days after the making thereof, unless in the meantime the detention order is approved by the State Government.

Section 8 requires the detaining authority to communicate to the detenu, grounds on which, the order is made within fi ve days from the date of detention to enable the detenu to make representation against the order to the State Government. Section 10 requires the State Government to place before the Advisory Board the detention order and the grounds on which such order may have been made along with the representation made by the detenu as well as the report of the offi cers made under Section 3(3) of the Act within three weeks from the date of detention. Under Section 11 the Advisory Board is required to consider the materials placed 556 SUPREME COURT REPORTS [2023] 11 S. C. R. before it and after hearing the detenu, to submit its report to the State Government within seven weeks from the date of detention of the person concerned.

In a case where the Advisory Board forms opinion, that there was no suffi cient cause for the detention the State Government shall revoke the detention order but if in its opinion suffi cient cause was made out, the State Government may confi rm the detention order and continue the detention of the person concerned for such period not exceeding the maximum period as specifi ed in Section 13 of the Act. Section 13 provides the maximum period for which a person can be detained in pursuance of any detention order made and confi rmed under the Act. According to this provision the maximum period of detention shall be twelve months from the date of detention. The State Government has, however, power to revoke detention order at any time it may think proper. 10. Provisions of the aforesaid sections are inbuilt safeguards against the delays that may be caused in considering the representation.

If the time frame, as prescribed in the aforesaid provisions is not adhered to, the detention order is liable to be struck down and the detenu is entitled to freedom. Once the order of detention is confi rmed by the State Government, maximum period for which a detenu shall be detained cannot exceed 12 months from the date of detention. The Act nowhere requires the detaining authority to specify the period for which the detenu is required to be detained. The expression "the State Government are satisfi ed that it is necessary so to do, they may, by order in writing direct that during such period as may be specifi ed in the order" occurring in sub-section (2) of Section 3 relates to the period for which the order of delegation issued by the State Government is to remain in force and it has no relevance to the period of detention.

The legislature has taken care to entrust the power of detention to the State Government; as the detention without trial is a serious encroachment on the fundamental right of a citizen, it has taken further care to avoid a blanket delegation of power, to subordinate authorities for an indefi nite period by providing