Supreme Court of India
PESALA NOOKARAJUversusTHE GOVERNMENT OF ANDHRA PRADESH & ORS

Citation: 2023 INSC 734
Decided: 16 August 2023
Disposal: Dismissed
Bench: D Y CHANDRACHUD
Holding

Section 3(2) of the 1986 Act governs only the delegation of detention powers and does not limit the detention period, which may lawfully extend up to twelve months after Advisory Board confirmation, so the High Court’s order stands.
Summary

Pesala Nookaraju, a bootlegger, was preventively detained under Section 3(2) of the Andhra Pradesh Prevention of Dangerous Activities Act, 1986, with a 12‑month order confirmed by the State Government. He challenged the detention through a writ of habeas corpus, arguing that the proviso to Section 3(2) limits detention to three months and that the grounds were based on stale FIRs. The Supreme Court held that Section 3(2) deals only with the delegation of detention powers, not the duration of detention, which is governed by Section 13 and may extend up to twelve months after Advisory Board confirmation. Article 22(4)(a) applies only to the initial period before the Advisory Board report, not to the post‑confirmation period. The Court found the detaining authority’s subjective satisfaction, based on material showing the liquor was harmful to health, sufficient to justify the order. Consequently, the High Court’s refusal to interfere was upheld and the appeal dismissed.
Issues considered

Whether the proviso to Section 3(2) of the 1986 Act restricts the period of preventive detention to three months.
Whether Article 22(4)(a) of the Constitution limits the entire detention period to three months in the present case.
Whether Section 3(2) pertains to the period of delegation of powers rather than the period of detention.
Whether the grounds of detention based on four FIRs and chemical analysis constitute sufficient material for subjective satisfaction of public order threat.
Whether a 12‑month detention order without periodic review violates statutory or constitutional safeguards.
Legislation cited

Andhra Pradesh Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986s. 10, s. 12, s. 13, s. 14, s. 2(a), s. 2(b), s. 3(1), s. 3(2), s. 3(3)
Andhra Pradesh Prohibition (Amendment) Act, 2020s. 7(B), s. 8(B)
Constitution of Indias. Article 22(4)(a)
Subjects

preventive detentiondelegation of powerspublic orderArticle 22bootlegginghabeas corpusdetention periodsubjective satisfactionstatutory interpretation
Judgment

                    [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 Oﬀenders, Goondas, Immoral
Traﬃc Oﬀenders and Land Grabbers Act, 1986.
     Andhra Pradesh Prevention of Dangerous Activities of Boot-
leggers, Dacoits, Drug Oﬀenders, Goondas, Immoral Traﬃc Oﬀenders
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 conﬁrmatory 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 speciﬁcally 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 Oﬀenders, Goondas, Immoral Traﬃc Oﬀenders
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 satisﬁed 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 speciﬁed in
the order, the District Magistrate or the Commissioner of Police may also,
if satisﬁed 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 conﬁrmed 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           SUPREME COURT REPORTS                          [2023] 11 S.C.R.


opinion such suﬃcient 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 suﬃcient 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 Oﬃcer 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 conﬁrmatory order being passed by the State Government on receipt of
the report of the Advisory Board – Continuation of the detention pursuant
to the conﬁrmatory 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 speciﬁed in the conﬁrmatory order, then the
period of detention would be upto such period, if no period is speciﬁed,
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 conﬁrmatory order. [Paras 41–44]
      Andhra Pradesh Prevention of Dangerous Activities of Boot-
leggers, Dacoits, Drug Oﬀenders, Goondas, Immoral Traﬃc Oﬀenders
and Land Grabbers Act, 1986 – Preventive detention – Appellant
indulging in distributing, storing, transporting and selling ID Liquor
– Four FIRs against detenu, if suﬃcient 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 oﬀences 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 satisﬁed on material available – Detaining
authority speciﬁcally 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 Oﬀenders, Goondas, Immoral
Traﬃc Oﬀenders 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 ﬁled 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 Oﬀenders, Goondas, Immoral Traﬃc Oﬀenders 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 oﬀences 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 deﬁned U/Sections 2 (b) of “The Andhra
      Pradesh Prevention of Dangerous activities of Bootleggers, Dacoits,
      Drug Oﬀenders, Goondas, Immoral Traﬃc Oﬀenders 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 eﬀect, with a view to prevent him from acting
      in any manner prejudicial to maintenance of public health and public
      peace &tranquility.
      Whereas, I am satisﬁed 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 Oﬀenders,
      Goondas, Immoral Traﬃc Oﬀenders 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 ﬁve
      (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 oﬀence 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 unﬁt 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 oﬀences 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 oﬀence 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 unﬁt 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 oﬀences 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 oﬀence 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 unﬁt 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 oﬀences 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 oﬀence 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 unﬁt 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 satisﬁed from the material placed before me that you fall
     under the category of “BOOTLEGGER” as deﬁned in Sec. 2(b) of “The
     Andhra Pradesh Prevention of Dangerous Activities of Bootleggers,
     Dacoits, Drug Oﬀenders, Goondas, Immoral Traﬃc Oﬀenders and
     Land Grabbers Act, 1986” and you are a ﬁt 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 satisﬁed 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 deﬁned 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 Oﬀenders, Goondas, Immoral Traﬃc
      Oﬀenders 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 speciﬁed in the order made by
      the Government under this sub-section shall not in the ﬁrst instance,
      exceed three months, but the Government may, if satisﬁed 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 ﬁrst 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 ﬁndings in paras 33 of Harpreet Kaur, para 8 of
T. Devaki and in Aravind Choudhary were rendered. These ﬁndings
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 oﬃcer 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 conﬁrmation by the
      State Government.
      1.7 Restricting the time period for which the State Government can
      delegate its powers to such an oﬃcer 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 speciﬁed 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 satisﬁed. 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 beneﬁt 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
conﬁned 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.
536          SUPREME COURT REPORTS                         [2023] 11 S.C.R.


      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 Sufﬁcient 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 deﬁned 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 aﬀects 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 aﬀect ‘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 diﬀerent from general ‘law and order’ and must be
interpreted narrowly. Acts aﬀecting 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 suﬃcient to deal with the oﬀences 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 ﬁled against the Petitioner
      for oﬀences under the AP Prohibition Act. Investigation is complete
      and chargesheets have also been ﬁled 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 oﬀender’ 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 “unﬁt for human consumption and
      injurious to health”. The Impugned Judgment erroneously holds
      that this is suﬃcient 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 satisﬁed. 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 suﬀered 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 unﬁt for human consumption
      and may even aﬀect 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 suﬃcient 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 oﬀence 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 conﬁrmation 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 diﬀerent 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 ﬁled 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 conﬁrmation 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 satisﬁed with respect to any boot-legger, dacoit,
    drug-oﬀender,goonda, immoral traﬃc oﬀender 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
    satisﬁed that it is necessary so to do, they may, by order in writing,
    direct that during such period as may be speciﬁed in the order, such
    District Magistrate or Commissioner of Police may also, if satisﬁed
    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-section shall not in the ﬁrst instance,
    exceed three months, but the Government may, if satisﬁed 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 speciﬁed 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 conﬁrmed within a period of 12 days by
     the State Government, otherwise it lapses after expiry of 12 days.
     [Note: The order of conﬁrmation, 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 conﬁrms 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 speciﬁc 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-Oﬀenders, Goondas, Immoral Traﬃc Oﬀenders and Land-
      Grabbers for preventing their dangerous activities prejudicial to the
      maintenance of Public Order.
      Whereas public order is adversely aﬀected every now and then by the
      dangerous activities of certain persons, who are known as bootleggers,
      dacoits, drug-oﬀenders, goondas, immoral traﬃc oﬀenders and land-
      grabbers.
      And whereas having regard to the resources and inﬂuence 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-oﬀenders,
     goondas, immoral traﬃc oﬀenders 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 eﬀect from 28.02.1986.
Section 2(a) reads thus:-
     “Section 2. — Deﬁnitions
     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-oﬀender, a goonda,
     an immoral traﬃc oﬀender or a landgrabber is engaged or is making
     preparations for engaging, in any of his activities as such, which
     aﬀect adversely, or are likely to aﬀect adversely, the maintenance of
     public order :
           Explanation :—For the purpose of this clause public order shall
           be deemed to have been aﬀected adversely, or shall be deemed
           likely to be aﬀected adversely inter alia, if any of the activities of
           any of the persons referred to in this clause directly, or indirectly,
           is causing or calculated to cause any harm, danger or alarm or
           a feeling of insecurity among the general public or any section
           thereof or a grave or widespread danger to life or public health;”
                                                          (Emphasis supplied)
     12. Section 2(b) deﬁnes “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,
     notiﬁcations 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 whatsoever in
546          SUPREME COURT REPORTS                         [2023] 11 S.C.R.


      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 satisﬁed with respect to any bootlegger, dacoit,
      drug-oﬀender, goonda, immoral traﬃc oﬀender 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
      satisﬁed that it is necessary so to do, they may, by order in writing,
      direct that during such period as may be speciﬁed in the order, such
      District Magistrate or Commissioner of Police may also, if satisﬁed
      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-section shall not in the ﬁrst instance,
           exceed three months, but the Government may, if satisﬁed 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 oﬃcer 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,
     suﬃcient cause for the detention of a person, the Government may
     conﬁrm the detention order and continue the detention of the person
     concerned for such period, not exceeding the maximum period speciﬁed
     in Section 13 as they think ﬁt.
     (2) In any case where the Advisory Board has reported that there
     is, in its opinion, no suﬃcient 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 conﬁrmed 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 speciﬁed in the Act authorizing preventive detention.
548           SUPREME COURT REPORTS                          [2023] 11 S.C.R.


     17. The power of preventive detention is qualitatively diﬀerent from
punitive detention. The power of preventive detention is a precautionary
power exercised in reasonable anticipation. It mayor may not relate to an
oﬀence. 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 unjustiﬁably detained,so that there
      are no instructions from the prisoner, the application may be made
      by any relation or friend on an aﬃdavit 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
     oﬃcers 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
     eﬀectiveness 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 ﬂexible jurisdiction.
     Procedural reform of the writ may be appropriate, but it is important
     not to lose sight of substantive diﬀerences 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 aﬀording an eﬀective relief of immediate release from unlawful
or unjustiﬁable 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 conﬁned 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 justiﬁcation 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 oﬃcers 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 oﬃcial 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 speciﬁc 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 ﬁrst 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 ﬁrst 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 diﬀerence is that the order of detention passed by the Government
     would remain in force for a period of three months in the ﬁrst 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 ﬁrst 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 signiﬁcance 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 signiﬁcance. 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 qualiﬁed 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 suﬃcient 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 speciﬁcally
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 ﬁnd no merit in
      the submission. Section 3(1) confers power on the State Government to
      detain a bootlegger or drug oﬀender, or forest oﬀender or goonda or
      an oﬀender in immoral traﬃc 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 satisﬁed 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 satisﬁed 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, speciﬁed 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 ﬁve 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 oﬃcers 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 suﬃcient cause for the detention the State
      Government shall revoke the detention order but if in its opinion
      suﬃcient cause was made out, the State Government may conﬁrm the
      detention order and continue the detention of the person concerned
      for such period not exceeding the maximum period as speciﬁed 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 conﬁrmed 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 conﬁrmed 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 satisﬁed that it is necessary so to do,
      they may, by order in writing direct that during such period as may
      be speciﬁed 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 indeﬁnite period by providing that the
      delegation in the initial instance will not exceed a period of three
      months and it shall be speciﬁed in the order of delegation. But if the
       PESALA NOOKARAJU v. THE GOVERNMENT OF                              557
       ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]

     State Government on consideration of the situation ﬁnds it necessary, it
     may again delegate the power of detention to the aforesaid authorities
     from time to time but at no time the delegation shall be for a period of
     more than three months. The period as mentioned in Section 3(2) of
     the Act refers to the period of delegation and it has no relevance at all
     to the period for which a person may be detained. Since the Act does
     not require the detaining authority to specify the period for which a
     detenu is required to be detained, order of detention is not rendered
     invalid or illegal in the absence of such specification.”      (Emphasis
     supplied)
      28. The above referred decision of this Court in T. Devaki (supra)
was later relied upon by a three Judge Bench, in the case of Secretary to
Government of Tamil Nadu Public (Law and Order) Revenue Department
and Another v. Kamala and Another reported in (2018) 5 SCC 322, for the
proposition that the detaining authority is not obliged to specify the period
for which a detenue is required to be detained. In Secretary to Government
of Tamil Nadu (supra), the High Court had set aside the detention order
issued under Section 3(1)(ii) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (COFEPOSA) on the ground
that the period of detention was not speciﬁed. The High Court relied on the
decision in the Commissioner of Police and Another v. Gurbux Anandram
Bhiryani reported in (1988) Supp SCC 568, which came to be overruled by
a subsequent decision of a larger Bench in T. Devaki (supra). The Bench
speaking through one of us, Justice Dr. D.Y. Chandrachud held that since
the legislation does not require detaining authority to specify the period for
which a detenu is required to be detained the order of detention would not
be rendered invalid or illegal in absence of such speciﬁcation.
      29. The discussion as aforesaid has a diﬀerent angle too. We may
elaborate the same a little further. Whether determining the period of
detention in the order of detention, would render the order bad and illegal?
To put it in other words, what would have been the legal implications had the
detaining authority stated in the detention order that the detenu be detained
for a period of one year? In this context, we must look into a Constitution
Bench decision of this Court in the case of Makhan Singh v. State of Punjab
reported in AIR 1952 SC 27.
558           SUPREME COURT REPORTS                          [2023] 11 S.C.R.


      30. In the said case, the petitioner therein was arrested and detained
under order dated 01.03.1950 by the District Magistrate, Amritsar under
Section 3(1) of the Preventive Detention Act, 1950. The petitioner therein
challenged the validity of the said order on various ground but during
the pendency of the said petition the petitioner was served with another
detention order dated 30.07.1951 on 16.08.1951 under the amended
provisions of the Preventive Detention Act. By the said order the petitioner
therein was to be detained upto 31.03.1952 the date on which the said Act
was to expire.
      31. In Makhan Singh (supra), this Court observed:-
      “6.Whatever might be the position under the Act before its amendment
      in February 1951, it is clear that the Act as amended requires that
      every case of detention should be placed before an Advisory Board
      constituted under the Act (Section 9) and provides that if the Board
      reports that there is suﬃcient cause for the detention “the appropriate
      Government may conﬁrm the detention order and continue the detention
      of the person concerned for such period as it thinks ﬁt” (Section 11).
      It is, therefore, plain that it is only after the Advisory Board, to which
      the case has been referred, reports that the detention is justiﬁed, the
      Government should determine what the period of detention should be
      and not before. The ﬁxing of the period of detention in the initial order
      itself in the present case was, therefore, contrary to the scheme of the
      Act and cannot be supported.”
                                                         (Emphasis supplied)
      32. It was argued by the learned Advocate General in that case that if
the Advisory Board reports that there is no suﬃcient cause for the detention
the person concerned would be released forthwith and therefore the direction
that he should be detained upto 31.03.1952, could be ignored as a mere
surplusage. The said argument was repelled by this Court by observing as
under:-
      “We cannot accept that view. It is obvious that such a direction would
      tend to prejudice a fair consideration of the petitioner’s case when it is
      placed before the Advisory Board. It cannot be too often emphasised
      that before a person is deprived of his personal liberty the procedure
       PESALA NOOKARAJU v. THE GOVERNMENT OF                               559
       ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]

     established by law must be strictly followed and must not be departed
     from to the disadvantage of the person aﬀected.”
      33. Thus, had the detaining authority speciﬁed the period of detention in
the order of detention, it could have been argued that the detaining authority
has usurped the power of the Government and the Advisory Board as per the
scheme mentioned in the provisions of the Act 1986 and that the detention
order was contrary to the constitutional mandate expressed in Article 22(4)
of the Constitution.
     34. It also appears that the attention of the learned Judges while
deciding Cherukuri Mani (supra) was not drawn to yet one another
decision of this Court in the case of Harpreet Kaur Harvinder Singh
Bedi v. State of Maharashtra, (1992) 2 SCC 177, wherein a Bench of
two-Judge interpreted Section 3(2) of the Maharashtra Prevention of
Dangerous Activities of Slumlords, Bootleggers and Drug Oﬀenders Act,
1981, which is parimateria to Section 3(2) of the Act 1986. We quote the
relevant observations:-
     “31. Coming now to the second argument of Dr Chitale to the eﬀect
     that proviso to Section 3(2) of the Act, prohibited the State Government
     to make an order of detention in the ﬁrst instance, exceeding three
     months, and since the order of detention in the instant case had been
     made for a period exceeding three months, it was vitiated.
     32. Section 3 reads as follows:
           “3. Power to make orders detaining certain persons.— (1) The
           State Government may, if satisﬁed with respect to any person
           that with a view to preventing him from acting in any manner
           prejudicial to the maintenance of public order, it is necessary
           so to do, make an order directing that such person is 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 State Government is satisﬁed that it is necessary so to do, it
           may, by order in writing, direct, that during such period as may be
           speciﬁed in the order such District Magistrate or Commissioner
560          SUPREME COURT REPORTS                       [2023] 11 S.C.R.


           of Police may also, if satisﬁed 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
           State Government under this sub-section shall not, in the ﬁrst
           instance, exceed three months, but the State Government may, if
           satisﬁed 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 oﬃcer
           mentioned in sub-section (2), he shall forthwith report the fact
           to the State 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
           State Government.”
      33. A plain reading of the section shows that the State Government
      under Section 3(1), if satisﬁed, with respect to any person that with
      a view to preventing him from acting in a manner prejudicial to the
      maintenance of “public order”, it is necessary so to do, make an
      order of detention against the person concerned. Sub-section (2) of
      Section 3 deals with the delegation of powers by the State Government
      and provides that if the State Government is satisﬁed, 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 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 speciﬁed in the
      order, the District Magistrate or the Commissioner of Police may
      also if satisﬁed as provided in sub-section (1), exercise the powers
      of the State Government as conferred by sub-section (1). The proviso
      to sub-section (2), only lays down that the period of delegation of
      powers, speciﬁed in the order to be made by the State Government
       PESALA NOOKARAJU v. THE GOVERNMENT OF                               561
       ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]

     under sub-section (2), delegating to the District Magistrate or the
     Commissioner of Police the powers under sub-section (1) shall not
     in the ﬁrst instance exceed three months. The proviso, therefore,
     has nothing to do with the period of detention of a detenu. The
     maximum period of detention is prescribed under Section 13 of the
     Act which lays down that a person may be detained in pursuance of
     any detention order made under the Act, which has been conﬁrmed
     under Section 12 of the Act. It is, therefore, futile to contend that
     the order of detention in the instant case was vitiated because it
     was for a period of more than three months. The second argument,
     therefore, also fails.”
                                                         (Emphasis supplied)
      35. In the case of Abhay Shridhar Ambulkar v. S.V. Bhave, the
Commissioner of Police, reported in AIR 1991 SC 397, this Court was
dealing with a matter relating to the preventive detention under the National
Security Act (65 of 1980). The principal argument before the Court was
that there was no valid conferment of power on the Commissioner to make
the detention order. It was also argued that the Government had issued the
order without applying its mind and by simply reproducing the words of sub-
section (3) of Section 3. The satisfaction of the Government for conferring
the power on the Commissioner for the purpose in question was purported
to have been reached on the circumstances prevailing on the date of the
order or likely to prevail during the three months period in question. It was
also argued that the Government was not certain which of the alternative
circumstances was relevant for reaching the subjective satisfaction and it was
submitted that it had acted in a mechanical manner without application of
mind. In that context, the observations of this Court are worth taking note of:-
     “The power to make an order of detention primarily rests with the
     Central Government or the State Government. The State Government,
     however, being satisﬁed with certain circumstances may order that the
     District Magistrate or the Commissioner of Police may also make an
     order of detention in respect of matters relating to the security of the
     State or Public Order or maintenance of supplies and services essential
     to the community against any person within their respective areas. The
     State Government canmake such an order which shall not in the ﬁrst
562          SUPREME COURT REPORTS                        [2023] 11 S.C.R.


      instance exceed three months but it may extend such period from time
      to time making fresh order for a further period against not exceeding
      three months at one time. It may be noted that the conferment of this
      power on the District Magistrate or the Commissioner of Police is not
      to the exclusion of but in addition to the powers of the Government to
      exercise its own power.
      7. The first paragraph of the order dated 6th January 1990
      states that Government was satisﬁed that having regard to the
      circumstances prevailing or likely to prevail in Greater Bombay
      Police Commissionerate it is necessary that during the period
      commencing on 30th January 1990 to 29th April1990 that the
      Commissioner should also exercise the powers conferred under
      subsection (2) of Section 3 of the Act. This is indeed no more than
      a reproduction of the terms of subsection (3) of Section 3. But sub-
      section (3) refers to two independent circumstances namely : (i)
      the prevailing circumstances, (ii) the circumstances that are likely
      to prevail. The former evidently means circumstances in praesenti
      that is prevalent on the date of the order and the latter means the
      anticipated circumstances in future. If the Government wants that
      the District Magistrate or the Commissioner of Police should also
      exercise the powers for the current period, it has to satisfy itself
      with the prevailing circumstances. If the Government wants that
      the District Magistrate or the Commissioner of Police should also
      exercise the powers during the future period, it must be satisﬁed with
      the circumstances that are likely to prevail during that period. This
      seems to be the mandate of sub-section (3).
      8. Subjective satisfaction for the exercise of power undersub-section
      (3) of Section 3 must be based on circumstances prevailing at the
      date of the order or likely to prevail at a future date. The period
      during which the District Magistrate or the Commissioner of Police,
      as thecase may be, is to exercise the power provided by subsection
      (2) of Section 3 is to be speciﬁed in the order which would depend
      on the existence of circumstances inpraesenti or at a future date. If
      the subjective satisfaction is based on circumstances prevailing at
      the date of the order, the choice of period, which must not exceed
 PESALA NOOKARAJU v. THE GOVERNMENT OF                             563
 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]

three months, would have to be determined from the date of the
order. If the conferment of power is, considered necessary because of
circumstances likely to prevail during the future period, the duration
for the exercise of power must be relatable to the apprehended
circumstances. Therefore, the speciﬁcation of the period during which
the District Magistrate or Commissioner of Police is to exercise power
under sub-section (2) of Section 3 would depend on the subjective
satisfaction as to the existence of the circumstances in praesenti or
future. Since very drastic powers of detention without trial are to be
conferred on subordinate oﬃcers, the State Government is expected
to apply its mind and make a careful choice regarding the period
during which such power shall be exercised by the subordinate
oﬃcers, which would solely depend on the circumstances prevailing
or likely to prevail. The subjective satisfaction cannot be lightly
recorded by reproducing both the alternative clauses of the statute.
The subjective satisfaction on the prevailing Circumstances, or
circumstances that are likely to prevail at a future date is the sine
qua non for the exercise of power. The use of the word ‘or’ signiﬁes
either of the two situations for diﬀerent periods. That, however, is
not to say that the power cannot be exercised for a future period by
taking into consideration circumstances prevailing on the date of the
order as well as circumstances likely to prevail ,in future. The latter
may stem from the former. For example, there may be disturbances
on the date of the order and the same situation may be visualised at
a future date also in which case the power may be conferred on the
subordinate oﬃcers keeping both the factors in mind; but in that case
the two circumstances would have to be joined by the conjunctive word
‘and’ not the disjunctive word ‘or’. The use of the disjunctive word
‘or’ in the impugned Government order only indicates nonapplication
of mind and obscurityin thought. The obscurity in thought inexorably
leads to obscurity in language. Apparently, the Government seems
to be uncertain as to the relevant circumstances to be taken into
consideration, and that appears to be the reason why they have used
the disjunctive word “or” in the impugned order.”
                                                 (Emphasis supplied)
564          SUPREME COURT REPORTS                          [2023] 11 S.C.R.


      36. Thus, the decision of this Court referred to above while dealing
with the conferment of powers under sub-section (3)of Section 3 of the
National Security Act, makes it clear that the conferment of power has
to be speciﬁc either with regard to the circumstances prevailing or likely
to prevail and not for both. In that case, even the order dated 06.01.1990
of the State Government conferring the power on the Commissioner of
Police recorded the satisfaction of the Government of Maharashtra that
having regard to the circumstances prevailing or likely to prevail in the
Greater Bombay Police Commissionerate, it was necessary that during
the period commencing on January 30, 1990 and ending on April 21,
1990, the Commissioner of Police shall exercise the powers conferred
by sub-section (2) of Section 3 of the Act. The same was not approved
by this Court.
      37. Section 3(2) of the Gujarat Prevention of Anti-social Activities Act,
1985 (for short, ‘PASA’), which is pari materia to Section 3(2) of the Act
1986 with which we are concerned, fell for consideration before a two-Judge
Bench of this Court in the case of Navalshankar Ishwarlal Dave v. State of
Gujarat, reported in AIR 1994 SC 1496, wherein the contention raised on
behalf of the detenu that the blanket power of delegation under sub-section
(2) of Section 3 of the PASA could be said to be a negation of satisfaction
on the part of the State Government which was likely to be abused by the
District Magistrate or the Commissioner of Police. While repelling such
contention, this Court observed:-
      “3. Section 3(2) of PASA empowers the State Govt. that having regard
      to the circumstances prevailing or likely to prevail in any area within
      the local limits of the jurisdiction of a District Magistrate and the
      Commissioners of Police, by an order in writing direct that District
      Magistrate, the Commissioner of Police, may also, if satisﬁed the
      existence of conditions envisaged in sub-sec. (1) of S. 3 to exercise
      the powers of the State Govt. to detain any person. The contention of
      Shri Ganesh, the learned counsel for the appellants is that the blanket
      power of delegation is a negation of satisfaction on the part of the
      State Govt. and likely to be abused by the District Magistrate or the
      Commissioner of Police. The Legislature entrusted the power to the
 PESALA NOOKARAJU v. THE GOVERNMENT OF                               565
 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]

State Govt. and if need be only selectively but not blanket delegation
is permissible. After the issue of the notiﬁcation in 1985 no review
thereafter was done. The order of delegation made by the State Govt.
without application of mind was, therefore, illegal and invalid and
the sequator detention made became illegal. We ﬁnd no force in the
contention. PASA was made in exercise of the power under entry 3 of
concurrent List III of 7th Schedule and reserved for consideration of
the President and received his assent. So it is a valid law. It envisages
that the State Govt. under S. 3(1) would exercise the power of detention
or authorise an oﬃcer under S. 3(2) to detain bootlegger, dangerous
person, drug oﬀender, immoral traﬃc oﬀender and property grabber.
The PASA was made to provide for preventive detention of aforestated
persons whose activities were satisfied to be prejudicial to the
maintenance of public order. Sub-section (4) of S. 3 declares that
a person shall be deemed to be “acting in any manner prejudicial
to the maintenance of public order” when such person is engaged
in or is making preparation for engaging in any activities, whether
as a bootlegger, dangerous person, drug oﬀender, immoral traﬃc
oﬀender and property grabber, which aﬀect adversely or are likely to
aﬀect adversely the maintenance of public order. Explanation thereto
postulates that public order shall be deemed to have been aﬀected
adversely or shall be deemed likely to be aﬀected adversely inter alia
if any of the activities by any person referred to in the sub-section (4)
directly or indirectly, is causing or is likely to cause any harm, danger
or alarm or feeling of insecurity among the general public or any
section thereof or a grave or widespread danger to life, property or
public health. Therefore, the Act postulates satisfaction on the part
of the State Govt. that the dangerous and antisocial activities of any
of the aforestated persons shall be deemed to be acting prejudicial
to the maintenance of public order whether the person is engaged in
or is making preparation for engaging in any activities enumerated
in the deﬁnition clauses and the public order shall be deemed to
have been aﬀected adversely or shall be deemed likely to be aﬀected
adversely if the activities directly or indirectly, causing or is likely
to cause any harm, danger or alarm or feeling of insecurity among
566           SUPREME COURT REPORTS                         [2023] 11 S.C.R.


      the general public or any section thereof or a grave or widespread
      danger to life, property or public health. In the counter aﬃdavit ﬁled
      on behalf of the State in the High Court and consideration thereof
      the High Court held that”the situation was found prevailing in the
      State in the year 1985 where the impact of the activities of various
      persons mentioned in the preamble with reference to their respective
      activities has heightened from being anti-social and dangerous
      activities to be prejudicial to the maintenance of public order.” It
      is, with a view, to curb those dangerous or anti-social activities, the
      Govt. considered it appropriate to delegate the power under sub-sec.
      (2) of S. 3 to the “authorised oﬃcer” and the Govt. has stated in the
      notiﬁcation that “having regard to the circumstances prevailing or
      likely to prevail in any area within the local limits of the jurisdiction
      of each of the District Magistrate speciﬁed in the Schedule annexed
      thereto,the Govt. of Gujarat is satisﬁed that it is necessary so to do”
      and accordingly exercised the power under sub-sec. (2) of S. 3 and
      directed the authorised oﬃcers i.e. the District Magistrate of each
      District speciﬁed in the Schedule and also the three Commissioners
      of Police in the respective Corporations to exercise within their local
      limits of jurisdiction, the power conferred by sub-see. (1) of S. 3.It
      is seen that the dangerous or anti-social activities are legislatively
      recognised to be prejudicial to the maintenance of public order. The
      enumerated activities hereinbefore referred to are not isolated but
      being indulged in from time to time adversely aﬀecting the public order
      and even tempo. The District Magistrate concerned, being the highest
      Dist. Oﬃcer on the spot and the Commissioner of Police in the cities
      have statutory duty to maintain public order. Therefore, with a view
      to have then eﬀectively dealt with, to move swiftly where public order
      is aﬀected or apprehended and to take action expeditiously instead
      of laying information with the Govt. on each occasion and eagerly
      awaiting action at State Govt. level, the State Govt. having exercised
      the power under S. 3(2) conferred on the District Magistrate or the
      Commissioner the power to order detention under S. 3(1) when he
      considers or deems necessary to detain any person involved in any
      of the dangerous or anti-social activities enumerated herein before,
       PESALA NOOKARAJU v. THE GOVERNMENT OF                                 567
       ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]

      prejudicially aﬀecting or “likely to aﬀect the maintenance of public
      order.” The later clause lay emphasis on immediacy and promptitude
      and the authorised oﬃcer on the spot is the best Judge to subjectively
      satisfy from the facts and ground situation and take preventive measure
      to maintain public order. The reliance by Shri Ganesh on the decision
      of this Court reported in A. K. Roy v. Union of India, AIR 1982 SC 710,
      para 72 has no application in view of the factual background in this
      Act. So long as the activities of bootlegger, dangerous person, drug
      oﬀender, immoral traﬃc oﬀender and property grabber persist within
      the local limits of the jurisdiction of the concerned District Magistrate
      and Commissioners of Police, as the case may be, and being directly
      responsible to maintain public order and to deal with depraved person
      to prevent antisocial and dangerous activities which aﬀects adversely
      or are likely to aﬀect adversely the maintenance of public order, the
      necessity would exist. Therefore, the question of periodical review of
      delegation order does not appear to be warranted.”
                                                           (Emphasis supplied)
     38. Thus from the aforesaid, it could be said that the principal contention
canvassed on behalf of the appellant detenu is thoroughly misconceived and
deserves to be negatived at the threshold.
       39. At the cost of repetition, sub-section (2) of Section 3 of the Act 1986
deals with the delegation of powers by the State Government and provides
that if the State Government is satisﬁed 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 speciﬁed in the order, the
District Magistrate or the Commissioner of Police may also, if satisﬁed as
provided in sub-section (1) exercises the powers of the State Government
as conferred by sub-section (1). The proviso to sub-section (2) therefore
has nothing to do with the period of detention of a detenu. The maximum
period of detention is prescribed under Section 13 of the Act 1986 referred
568          SUPREME COURT REPORTS                          [2023] 11 S.C.R.


to above which lays down that the person may be detained in pursuance of
any detention order made under the Act which has been conﬁrmed under
Section 12 of the Act 1986.
      40. But this Court in Cherukuri Mani (supra), interpreted the proviso
to mean that when an order of detention is made by the State Government
under Section 3(1) of the Act, then the period of detention can be only for
a period of three months in the ﬁrst instance. A similar order made under
Section 3(2) would be for an initial period of twelve days unless approved
by the State Government. According to this Court, if the State Government
intends to detain an individual under the Act for the maximum period of
twelve 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. In support of such an interpretation, reliance has been
placed on Article 22(4)(a) of the Constitution, which is extracted as under
for immediate reference:
      “22. Protection against arrest and detention in certain cases:—
      ××.×××××
      (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 qualiﬁed 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 suﬃcient cause for such detention:
      Provided that nothing in this sub-clause shall authorise the detention
      of any person beyond the maximum period prescribed by any law made
      by Parliament under sub-clause (b) of clause (7); or”
      41. A reading of Article 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
opinion such suﬃcient cause for detention. Article 22(4)(a) clearly indicates
that even if the order of detention does not prescribe any period of detention,
       PESALA NOOKARAJU v. THE GOVERNMENT OF                               569
       ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]

such an order of detention cannot be in force for a period beyond three
months, unless the Advisory Board before the expiration of three months
opines that there is suﬃcient cause for detention. In other words, 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
suﬃcient cause for such detention then, the State Government would have
to release the detenu forthwith.
      42. Hence, Article 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 Oﬃcer as stipulated under Section 3(2) of the
Act. In fact, under Section 9 of the Act, the State Government has to refer the
matter to the Advisory Board within three weeks from the date of detention,
irrespective of whether the detention order is passed under Section 3(1) or
Section 3(2) of the Act and the Advisory Board has to give its opinion within
seven weeks from the date of detention. That would totally make it ten weeks.
As stipulated in Article 22(4)(a) of the Constitution, if in a given case, once
the Advisory Board gives its opinion within the stipulated period of three
months, then in our view, Article 22(4)(a) would no longer be applicable.
Thus, Article 22(4)(a) applies at the initial stage of passing of the order of
detention by the State Government or by an oﬃcer who has been delegated
by the State Government and whose order has been approved by the State
Government within a period of twelve days from the date of detention and
not at the stage subsequent to the report of the Advisory Board. Depending
upon the opinion of the Advisory Board, under Section 12 of the Act, the
State Government can revoke the order of detention and release the detenu
forthwith or may conﬁrm the detention order and continue the detention of
the person concerned for any period not exceeding the maximum period
of twelve months, which is stipulated in Section 13 of the Act. Therefore,
when the State Government passes a conﬁrmatory order under Section 12
of the Act after receipt of the report from the Advisory Board then, such a
conﬁrmatory order need not be restricted to a period of three months only.
It can be beyond a period of three months from the date of initial order of
detention, but up to a maximum period of twelve months from the date of
detention.
570          SUPREME COURT REPORTS                          [2023] 11 S.C.R.


      43. We reiterate that the period of three months stipulated in Article
22(4)(a) of the Constitution 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 conﬁrmatory order being passed by the State Government on receipt of
the report of the Advisory Board. The continuation of the detention pursuant
to the conﬁrmatory 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 speciﬁed in the conﬁrmatory order, then the
period of detention would be upto such period, if no period is speciﬁed,
then it would be for a maximum period of twelve months from the date of
detention. The State Government, in our view, need not review the orders
of detention every three months after it has passed the conﬁrmatory order.
      44. Thus, in our view, the period of three months speciﬁed in Article
22(4)(a) of Constitution of India is relatable to the period of detention
prior to the report of the Advisory Board and not to the period of detention
subsequent thereto. Further, the period of detention in terms of Article
22(4)(a) cannot be in force for a period beyond three months, if by then,
the Advisory Board has not given its opinion holding that there is suﬃcient
cause for such detention. Therefore, under Article 22(4)(a), the Advisory
Board would have to give its opinion within a period of three months from
the date of detention and depending upon the opinion expressed by the
Advisory Board, the State Government can under Section 12 of the Act,
either conﬁrm the order of detention or continue the detention of the person
concerned for a maximum period of twelve months as speciﬁed in Section
13 of the Act or release the detenu forthwith, as the case may be. If the order
of detention is conﬁrmed, then the period of detention can be extended
up to the maximum period of twelve months from the date of detention.
With respect, we observe that it is not necessary that before the expiration
of three months, it is necessary for the State Government to review the
order of detention as has been expressed by this Court in Cherukuri Mani
(supra). The Act does not contemplate a review of the detention order once
the Advisory Board has opined that there is suﬃcient cause for detention of
the person concerned and on that basis, a conﬁrmatory order is passed by
the State Government to detain a person for the maximum period of twelve
months from the date of detention. On the other hand, when under Section
       PESALA NOOKARAJU v. THE GOVERNMENT OF                               571
       ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]

3(2) of the Act, the State Government delegates its power to the District
Magistrate or a Commissioner of Police to exercise its power and pass an
order of detention. The delegation in the ﬁrst instance cannot exceed three
months and the extension of the period of delegation cannot also be for a
period exceeding three months at any one time.
    45. The ﬁrst submission canvassed on behalf of the appellant is
answered accordingly.
     SECOND SUBMISSION ON BAHALF OF THE APPELLANT
      46. It was also vehemently argued by the learned counsel appearing for
the appellant detenu that the registration of four First Information Reports
(FIRs) under the Andhra Pradesh Prohibition Act, 1995 (as amended by the
Act No. 18 of 2020) (for short, ‘the Act 1995’), by itself, is not suﬃcient to
arrive at a subjective satisfaction that the activities of the appellant detenu
as a boot-legger is prejudicial to the maintenance of public order.
       47. We take notice of the fact that between 06.01.2021 and 09.03.2022
i.e. in a span of fourteen months a total of four cases were registered against
the appellant detenu. The oﬀence in all the four FIRs is one under Section
7B and Section 8B resply of the Act 1995 as amended by Act No. 18 of
2020. Section 7B reads thus:-
     “Section 7-B. Prohibition of Boot Legging Activities.- The
     manufacturing, transporting, setting, buying, importing, exporting
     or storing of any alcoholic liquor and supplying or transporting of
     any raw materials for the manufacture of alcoholic liquor illegally or
     clandestinely, otherwise than in accordance with the provisions of the
     A .P. Excise Act, 1968 is hereby prohibited.”
     48. Section 8B reads thus:-
     “Section 8-B. Penalty for sale, export, import and transport of
     alcoholic liquor manufactured illegally and clandestinely.- Whoever
     in contravention of section 7-B of this Act indulges in sale, export,
     import or transport of illicitly distilled alcoholic liquor shall on
     conviction be liable for imprisonment for a term which shall not be
     less than one year but which may extend upto eight years and with ﬁne
     which shall not be less than rupees two lakhs for the ﬁrst oﬀence and
     which shall not be less than rupees ﬁve lakhs for the second oﬀence.”
572                 SUPREME COURT REPORTS                         [2023] 11 S.C.R.


      49. The charge as enumerated below gives a clear picture:-
            S.No.                         FIR                             Qty.
       1             06.01.21 : FIR No. 01/21 (Cr.No. 13/21)          5 Ltrs.
       2             13.08.21 : FIR No. 08/21 (Cr.No. 376/21)         30 Ltrs.
       3             30.09.21 : FIR No. 10/21 (Cr. No.532/21)         10 Ltrs.
       4             09.03.22 : FIR No. 03/22 (Cr. No. 213/22)        10 Ltrs.
                     TOTAL                                            55 Ltrs.

      50. In connection with all the four FIRs the appellant detenu was
arrested and released on bail.
    51. The detaining authority took notice of the following reports of the
chemical analyzer:-
      i.       Ground No. 1 : The analysis report; C.E. No. 366/21 in Sl. No.
               5890 dtd. 04.03.21 found the seized ID liquor in Cr.No. 13/21
               unﬁt for human consumption & injurious to health.
      ii.      Ground No. 2: The analysis report; C.E. No. 2381/21 in Sl. No.
               41632dtd. 10.11.21 found the seized ID liquor in Cr. No. 376/21
               unﬁt for human consumption & injurious to health.
      iii.     Ground No. 3: The analysis report; C.E. No. 2796/21 in Sl. No.
               45126dtd. 27.11.21 found the seized ID liquor in Cr. No. 532/21
               unﬁt for human consumption & injurious to health.
      iv.      Ground No. 4: The analysis report; C.E. No. 851/22 in Sl. No.
               13027 dtd. 04.04.22 found the seized ID liquor in Cr. No. 213/22
               unﬁt for human consumption & injurious to health.
                                                                (Emphasis supplied)
      52. Thus, the samples which were drawn and collected from the
liquor seized from the possession of the appellant detenu were sent to
the forensic science laboratory for the purpose of chemical analysis and
in all the four cases referred to above, the analysis report states that the
samples were found to be unﬁt for human consumption and injurious
to health.
      PESALA NOOKARAJU v. THE GOVERNMENT OF                              573
      ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]

     “LAW AND ORDER” AND “PUBLIC ORDER”
      53. This Court on several occasions examined the concepts of “law
and order” and “public Order”. Immediately after the Constitution came
into force, a Constitution Bench of this Court in the case of Brij Bhushan
and Another v. The State of Delhi, (1950) SCR 605, dealt with a case
pertaining to public order. The Court observed that “public order” may well
be paraphrased in the context as “public tranquility”.
      54. Another celebrated Constitution Bench judgment of this Court is
in the case of Romesh Thappar v. The State of Madras, (1950) SCR 594.
In this case, Romesh Thappar, a printer, publisher and editor of weekly
journal in English called Cross Roads printed and published in Bombay
was detained under the Madras Maintenance of Public Order Act, 1949.
The detention order was challenged directly in this Court by ﬁling a writ
petition under Article 32 of the Constitution. The allegation was that the
detenu circulated documents to disturb the public tranquility and to create
disturbance of public order and tranquility. This Court observed:-
     “... ‘Public order’ is an expression of wide connotation and signiﬁes
     that state of tranquillity which prevails among the members of a
     political society as a result of internal regulations enforced by the
     Government which they have established .... ... it must be taken that
     ‘public safety’ is used as a part of the wider concept of public order
     .....”
      55. The distinction between “public order” and “law and order” has
been carefully deﬁned in a Constitution Bench judgment of this Court in the
case of Dr. Ram Manohar Lohia v. State of Bihar and Others, (1966) 1
SCR 709. In this judgment, Hidayatullah, J. by giving various illustrations
clearly deﬁned the “public order” and “law and order”. Relevant portion of
the judgment reads thus:-
     “....Does the expression “public order” take in every kind of disorder
     or only some? The answer to this serves to distinguish “public
     order” from “law and order” because the latter undoubtedly takes
     in all of them. Public order if disturbed, must lead to public disorder.
     Every breach of the peace does not leadto public disorder. When two
574           SUPREME COURT REPORTS                           [2023] 11 S.C.R.


      drunkards quarrel and ﬁght there is disorder but not public disorder.
      They can be dealt with under the powers to maintain law and order
      but cannot be detained on the ground that they were disturbing public
      order. Suppose that the two ﬁghters were of rival communities and one
      of them tried to raise communal passions. The problem is still one of
      law and order but it raises the apprehension of public disorder. Other
      examples can be imagined. The contravention of law always aﬀects
      order but before it can be said to aﬀect public order, it must aﬀect the
      community or the public at large. A mere disturbance of law and order
      leading to disorder is thus not necessarily suﬃcient for action under the
      Defence of India Act but disturbances which subvert the public order
      are. A District Magistrate is entitled to take action under Rule 30(l)
      (b) to prevent subversion of public order but not in aid of maintenance
      of law and order under ordinary circumstances.
      It will thus appear that just as “public order” in the rulings of this Court
      (earlier cited) was said to comprehend disorders of less gravity than
      those aﬀecting “security of State”, “law and order” also comprehends
      disorders of less gravity than those aﬀecting “public order”. One
      has to imagine three concentric circles. Law and order represents the
      largest circle within which is the next circle representing public order
      and the smallest circle represents security of State. It is then easy to
      see that an act may aﬀect law and order but not public order just as
      an act may aﬀect public order but not security of the State....”
      56. In the case of Arun Ghosh v. State of West Bengal, (1970) 1
SCC 98, Hidayatullah, J. again had an occasion to deal with the question
of “public order” and “law and order”. In this judgment, by giving various
illustrations, very serious eﬀort has been made to explain the basic
distinction between “public order” and “law and order”. The relevant
portion reads as under:-
      “...Public order was said to embrace more of the community than
      law and order. Public order is the even tempo of the life of the
      community taking the country as a whole or even a speciﬁed locality.
      Disturbance of public order is to be distinguished from acts directed
      against individuals which do not disturb the society to the extent of
 PESALA NOOKARAJU v. THE GOVERNMENT OF                             575
 ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]

causing a general disturbance of public tranquility. It is the degree
of disturbance and its aﬀect upon the life of the community in a
locality which determines whether the disturbance amounts only to
a breach of law and order. Take for instance, a man stabs another.
People may be shocked and even disturbed, but the life of the
community keeps moving at an even tempo, however much one may
dislike the act. Take another case of a town where there is communal
tension. A man stabs a member of the other community. This is an
act of a very diﬀerent sort. Its implications are deeper and it aﬀects
the even tempo of life and public order is jeopardized because the
repercussions of the act embrace large sections of the community
and incite them to make further breaches of the law and order and
to subvert the public order. An act by itself is not determinant of
its own gravity. In its quality it may not diﬀer from another but in
its potentiality it may be very diﬀerent. Take the case of assault on
girls. A guest at a hotel may kiss or make advances to half a dozen
chambermaids. He may annoy them and also the management but
he does not cause disturbance of public order. He may even have a
fracas with the friends of one of the girls but even then it would be
a case of breach of law and order only. Take another case of a man
who molests women in lonely places. As a result of his activities
girls going to colleges and schools are in constant danger and fear.
Women going for their ordinary business are afraid of being way
laid and assaulted. The activity of this man in its essential quality
is not diﬀerent from the act of the other man but in its potentiality
and in its aﬀect upon the public tranquility there is a vast diﬀerence.
The act of the man who molests the girls in lonely places causes a
disturbance in the even tempo of living which is the ﬁrst requirement
of public order. He disturbs the society and the community. His
act makes all the women apprehensive of their honour and he can
be said to be causing disturbance of public order and not merely
committing individual actions which may be taken note of by the
criminal prosecution agencies. It means therefore that the question
whether a man has only committed a breach of law and order or
has acted in a manner likely to cause a disturbance of the public
576          SUPREME COURT REPORTS                          [2023] 11 S.C.R.


      order is a question of degree and the extent of the reach of the act
      upon the society...”
      57. The concept of ‘public order’ and ‘law and order’ has been
dealt with in the case of Pushkar Mukherjee & Others v. The State of
West Bengal, AIR 1970 SC 852. In this case, this Court had relied on the
important work of Dr. Allen on ‘Legal Duties’ and spelled out the distinction
between ‘public’ and ‘private’ crimes in the realm of jurisprudence. In
considering the material elements of crime, the historic tests which each
community applies are intrinsic wrongfulness and social expediency which
are the two most important factors which have led to the designation
of certain conduct as criminal. Dr. Allen has distinguished `public’ and
`private’ crimes in the sense that some oﬀences primarily injure speciﬁc
persons and only secondarily the public interest, while others directly
injure the public interest and aﬀect individuals only remotely. There is
abroad distinction along these lines, but diﬀerences naturally arise in the
application of any such test.
      58. This Court in the case of Babul Mitra alias Anil Mitra v. State
of West Bengal & Others, (1973) 1 SCC 393, had an occasion to deal with
the question of “public order” and “law and order”. This Court observed
that the true distinction between the areas of “law and order” and “public
Order” is one of degree and extent of the reach of the act in question upon
society. The Court pointed out that the act by itself is not determinant of
its own gravity. In its quality it may not diﬀer but in its potentiality it may
be very diﬀerent.
     59. In Dipak Bose alias Naripada v. State of West Bengal, (1973) 4
SCC 43, a three-Judge Bench of this Court explained the distinction between
“law and order” and “public order” by giving illustrations. Relevant portion
reads as under:
      “..Every assault in a public place like a public road and terminating
      in the death of a victim is likely to cause horror and even panic and
      terror in those who are the spectators. But that does not mean that all
      of such incidents do necessarily cause disturbance or dislocation of the
      community life of the localities in which they are committed. There is
      nothing in the two incidents set out in the grounds in the present case
      to suggest that either of them was of that kind and gravity which would
      PESALA NOOKARAJU v. THE GOVERNMENT OF                                577
      ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]

     jeopardise the maintenance of public order. No doubt bombs were said
     to have been carried by those who are alleged to have committed the
     two acts stated in the grounds. Possibly that was done to terrify the
     respective victims and prevent them from oﬀering resistance. But it is
     not alleged in the grounds that they were exploded to cause terror in
     the locality so that those living there would be prevented from following
     their usual avocations of life. The two incidents alleged against the
     petitioner, thus, pertained to speciﬁc individuals, and therefore, related
     to and fell within the area of law and order. In respect of such acts
     the drastic provisions of the Act are not contemplated to be resorted
     to and the ordinary provisions of our penal laws would be suﬃcient
     to cope with them.”
      60. In Kuso Sah v. The State of Bihar & Others, (1974) 1 SCC
185, this Court had also considered the issue of “public order”. The Court
observed thus:-
     “These acts may raise problems of law and order but we ﬁnd it
     impossible to see their impact on public order. The two concepts
     have well deﬁned contours, it being well established that stray and
     unorganised crimes of theft and assault are not matters of public order
     since they do not tend to aﬀect the even ﬂow of public life. Infractions of
     law are bound in some measure to lead to disorder but every infraction
     of law does not necessarily result in public disorder....”
      61. This Court in yet another important case of Ashok Kumar v.
Delhi Administration & Others, (1982) 2 SCC 403, clearly spelled out a
distinction between “law and order” and “public order”. In this case, the
Court observed as under:-
     “13. The true distinction between the areas of “public order” and “law
     and order” lies not in the nature or quality of the act, but in the degree
     and extent of its reach upon society. The distinction between the two
     concepts of “law and order” and “public order” is a ﬁne one but this
     does not mean that there can be no overlapping. Acts similar in nature
     but committed in diﬀerent contexts and circumstances might cause
     diﬀerent reactions. In one case it might aﬀect speciﬁc individuals only
     and therefore touch the problem of law and order, while in another it
     might aﬀect public order. The act by itself therefore is not detrimental
578           SUPREME COURT REPORTS                          [2023] 11 S.C.R.


      of its own gravity. It is the potentiality of the act to disturb the even
      tempo of the life of the community which makes it prejudicial to the
      maintenance of public order....”
      62. It has to be seen whether the detenu’s activity had any impact on
the local community, or to put it in the words of Hidayatullah, J., had the
act of the detenu disturbed the even tempo of the life of the community of
that speciﬁed locality?
     63. In Commissioner of Police & Others, v. C. Anita (Smt.), (2004)
7 SCC 467, this Court again examined the issue of “public order” and “law
and order” and observed thus:-
      “7. ....The crucial issue is whether the activities of the detenu were
      prejudicial to public order. While the expression “law and order”
      is wider in scope inasmuch as contravention of law always aﬀects
      order, “public order” has a narrower ambit, and public order could
      be aﬀected by only such contravention which aﬀects the community
      or the public at large. Public order is the even tempo of life of the
      community taking the country as a whole or even a speciﬁed locality.
      The distinction between the areas of “law and order” and “public
      order” is one of the degree and extent of the reach of the act in question
      on society. It is the potentiality of the act to disturb the even tempo of
      life of the community which makes it prejudicial to the maintenance
      of the public order. If a contravention in its eﬀect is conﬁned only to
      a few individuals directly involved as distinct from a wide spectrum
      of the public, it could raise problem of law and order only. It is the
      length, magnitude and intensity of the terror wave unleashed by a
      particular eruption of disorder that helps to distinguish it as an act
      aﬀecting “public order” from that concerning “law and order”. The
      question to ask is:
           “Does it lead to disturbance of the current life of the community
           so as to amount to a disturbance of the public order or does it
           aﬀect merely an individual leaving the tranquility of the society
           undisturbed?”
      64. Thus, from the various decisions referred to above, it is evident
that there is a very thin line between the question of law and order situation
       PESALA NOOKARAJU v. THE GOVERNMENT OF                                579
       ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]

and a public order situation, and some times, the acts of a person relating
to law and order situation can turn into a question of public order situation.
What is decisive 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. Therefore, 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. The potentiality of the act has to be examined in the light
of the surrounding circumstances, posterior and anterior for the oﬀences
under the Prohibition Act.
      65. Just because four cases have been registered against the appellant
detenu under the Prohibition Act, by itself, may not have any bearing on the
maintenance of public order. The detenu may be punished for the oﬀences
which have been registered against him. To put it in other words, if the
detention is on the ground that the detenu is indulging in manufacture or
transport or sale of liquor then that by itself would not become an activity
prejudicial to the maintenance of public order because the same can be
eﬀectively dealt with under the provisions of the Prohibition Act but 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,
therefore, it becomes necessary for the detaining authority to be satisﬁed
on material available to it that the liquor dealt with by the detenu is liquor
which is dangerous to public health to attract the provisions of the 1986
Act and if the detaining authority is satisﬁed that such material exists either
in the form of report of the Chemical Examiner or otherwise, copy of such
material should also be given to the detenu to aﬀord him an opportunity to
make an eﬀective representation.
     66. It is relevant to note that the Explanation to Section 2(a) of the
Act 1986 referred to above in para 11 incorporates a legal ﬁction as to the
adverse eﬀect on public order. In the case of Harpreet Kaur (supra), the
connotation of the Explanation was elucidated as under:-
     “28. The explanation to Section 2(a) (supra) brings into eﬀect a
     legal ﬁ ction as to the adverse eﬀect on ‘public order’. It provides
     that if any of the activities of a person referred to in clauses (i)-
     (iii) of Section 2(a) directly or indirectly causes or is calculated to
580           SUPREME COURT REPORTS                       [2023] 11 S.C.R.


      cause any harm, danger or alarm or a feeling of insecurity among
      the general public or any section thereof or a grave or a widespread
      danger to life or public health, then public order shall be deemed to
      have been adversely aﬀ ected. Thus, it is the fall-out of the activity
      of the “bootlegger” which determines whether ‘public order’ has
      been aﬀected within the meaning of this deeming provision or not.
      This legislative intent has to be kept in view while dealing with
      detentions under the Act.”
                                                       (Emphasis supplied)
      67. It may be apposite to look into the decision of this Court in the
case Rashidmiya @ Chhava Ahmedmiya Shaik (supra). It was a case
under the provisions of the PASA. Section 2(b) of the PASA which deﬁnes
a “bootlegger” is parimateria to Section 2(b) of the Act 1986 Act. Section
3(4) of the PASA reads as under:-
      “Section 3:.....
      (4) For the purpose of this section, a person shall be deemed to be
      “acting in any manner prejudicial to the maintenance of public order”
      when such person is engaged in or is making preparation for engaging
      in any activities whether as a bootlegger or common gambling house
      paper or and person or dangerous person or drug oﬀender or immoral
      traﬃc oﬀender or property grabber, which aﬀect adversely or are likely
      to aﬀect adversely the maintenance of public order.”
     68. In the context of the aforesaid provisions, this Court observed as
under:-
      “16. ... A conjoint reading of Section 2(b) and Section 3(4) with
      the explanation annexed thereto clearly spells out that in order to
      clamp an order of detention upon a ‘boot- legger’ under Section 3
      of the Act, the detaining authority must not only be satisﬁed that the
      person is a bootlegger within the meaning of Section 2(b) but also
      that the activities of the said bootlegger aﬀect adversely or likely to
      aﬀect adversely the maintenance of public order. Reverting to the
      facts of this case, the vague allegations in the grounds of detention
      that the detenu is the main member of the gang of Abdul Latif Abdul
      Wahab Shaikh indulging in bootlegging activities and that the detenu
       PESALA NOOKARAJU v. THE GOVERNMENT OF                                581
       ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]

     is taking active part in such dangerous activities, are not suﬃcient
     for holding that his activities aﬀected adversely or were likely to
     aﬀect adversely the maintenance of public order in compliance with
     sub- section 4 of Section 3 of the Act that the activities of the detenu
     have caused 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, property or public health as per the explanation to
     Section 3(4).
     17. The oﬀences registered in the above mentioned four cases against
     the detenu on the ground that he was dealing in liquor have no bearing
     on the question of maintenance of public order in the absence of any
     other material that those activities of the detenu have adversely aﬀected
     the maintenance of public order.”
      From the aforesaid observations, it becomes evident that this Court, in
the facts of the said case, found that the mere fact that the petitioner therein
was dealing in liquor had no bearing on the question of maintenance of
public order in the absence of any other material that those activities of the
detenu have adversely aﬀected the maintenance of public order.
      69. The learned counsel appearing for the appellant has also placed
strong reliance on the decision of this Court in Piyush Kantilal Mehta
(supra). In that case, the allegations in the grounds of detention were that
the detenu was a prohibition boot-legger; that he was indulging in the sale
of foreign liquor and that he and his associates indulged in use of force and
violence. In that case, the detenu was alleged to have been caught red-handed
possessing bottles of English wine with foreign marks and on the second
occasion, he was caught while transporting 296 bottles of foreign liquor in
an Ambassador car. While dealing with that case, this Court observed as
follows:-
     “It is true some incidents of beating by the petitioner had taken place,
     as alleged by the witnesses. But, such incidents, in our view, do not
     have any bearing on the maintenance of public order. The petitioner
     may be punished for the alleged oﬀences committed by him but, surely,
     the acts constituting the oﬀences cannot be said to have aﬀected the
     even tempo of the life of the community. It may be that the petitioner is
582            SUPREME COURT REPORTS                         [2023] 11 S.C.R.


      a bootlegger within the meaning of Section 2(b) of the Act, but merely
      because he is a bootlegger he cannot be preventively detained under
      the provisions of the Act unless, as laid down in sub-section (4) of
      Section 3 of the Act, his activities as a bootlegger aﬀect adversely or
      are likely to aﬀect adversely the maintenance of public order.”
                                                         (Emphasis supplied)
     70. The pronouncement in the case of Piyush Kantilal Mehta (supra)
would be of no assistance in a case where the detaining authority, based
on cogent material (i.e. multiple cases of dealing with liquor unsafe for
human consumption), forms the opinion that the activity of boot-legger was
prejudicial to the maintenance of public order.
      71. In the case on hand, the detaining authority has speciﬁcally stated
in the grounds of detention that selling liquor by the appellant 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 appellant is prejudicial to the maintenance of public order. Not
only that, the detaining authority has 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. It is also well settled that whether the material was
suﬃcient or not is not for the Courts to decide by applying the objective
basis as it is matter of subjective satisfaction of the detaining authority.
      72. In view of the aforesaid discussion, we ﬁnd no error, much less
error of law, in the impugned judgement of the High Court.
      73. In the result, this appeal fails and is hereby dismissed.


Headnotes prepared by:                                          Appeal dismissed.
Nidhi Jain
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