Supreme Court: The 3-judge bench of Dr DY Chandrachud, CJI and JB Pardiwala and Manoj Misra, JJ has held that Section 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 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. The Court also clearly outlined the distinction between the issues of law-and-order and public order, highlighting how the two can be easily confused and that how sometimes, the acts of a person relating to law-and-order situation can turn into a question of public order situation.
The Court was dealing with a case where a detenu was preventively detained under Section 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, after the District Collector was subjectively satisfied based on the materials on record that the activities of the detenu were prejudicial to the maintenance of public order. According to the detaining authority i.e. the detenu is a “bootlegger” as defined under Section 2(b) of the AP Act and with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it was felt necessary that he be preventively detained.
When the Andhra Pradesh High Court declined to interfere with the order of preventive detention passed by the District Collector, the detenu knocked the doors of the Supreme Court, challenging the same.
The Supreme Court affirmed the judgment of the High Court after observing that, 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.”
The Supreme Court also went on to analyse the following issues:
Does Section 3(2) of the AP Act prescribe Period of Detention?
It was argued before the Court that the State Government directed the detention of the detenu for 12 months, which exceeds the three-month limit set by Section 3(2) of the AP Act. This provision was interpreted by the 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 three months initially.
Holding that Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh, (2015) 13 SCC 722 does not lay down the correct law, the Court observed that Sub-section (2) of Section 3 has nothing to do with the period of detention. 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 AP Act. The period as mentioned in Section 3(2) of the AP Act 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.
As per Article 22(4)(a) of the Constitution of India, 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. Thus,
• 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.
Hence, it can be seen that Article 22(4)(a) of the Constitution of India 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.
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, 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.
What happens when the detention order does not prescribe any period of detention?
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 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.
Requirement of review of the detention orders by the State Government every three months
The State Government need not review the orders of detention every three months after it has passed the confirmatory order. 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 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.
“LAW AND ORDER” AND “PUBLIC ORDER”
The thin line between the question of law-and-order situation and a public order situation
The Court explained that 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.
Further, 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 AP Act, 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 AP 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.
[PESALA NOOKARAJU v. Government of Andhra Pradesh, 2023 SCC OnLine SC 1003, decided on 16.08.2023]
Judgment authored by Justice JB Pardiwala