# CASE DETAILS PESALA NOOKARAJU v. THE GOVERNMENT OF ANDHRA PRADESH & ORS

- **Citation:** 2023 INSC 734
- **Court:** Supreme Court of India
- **Decided:** 2023-08-16
- **Case number:** Criminal Appeal No. 2304 of 2023
- **Bench:** Dr. Dhananjaya Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-pesala-nookaraju-v-the-government-of-andhra-pradesh-ors-36273
- **Pages:** 63

## Headnote

Issue for consideration: Whether the Division Bench of the High
Court rightly declined to interfere with the order of preventive detention
passed against the appellant detenu by the District Collector in exercise
of his powers u/s. 3(2) of the Andhra Pradesh Prevention of Dangerous
Activities of Boot-leggers, Dacoits, Drug Off enders, Goondas, Immoral
Traffi c Off enders and Land Grabbers Act, 1986.
Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders
and Land Grabbers Act, 1986 - s. 3(2) - Preventive detention - Appellant
indulging in distributing, storing, transporting and selling ID Liquor
which causes huge damage to the public health as well as public peace
and tranquility - Order of preventive detention passed by the District
Collector in exercise of powers u/s. 3(2) - High Court upheld the
detention order - Correctness:
Held: It cannot be said that the detention order passed for 12 months at
a stretch could be termed as without jurisdiction and contrary to the mandate
of sub-section (2) of s. 3 - Period as mentioned in s. 3(2) refers to the period
of delegation of powers and it has no relevance at all to the period for which
a person may be detained - Period of three months stipulated in Art. 22(4)
(a) is relatable to the initial period of detention up to the stage of receipt of
report of the Advisory Board and does not have any bearing on the period
of detention, which is continued subsequent to the confi rmatory order being
520
521
passed by the State Government on receipt of the report of the Advisory
Board - Furthermore, detaining authority specifi cally stated in the grounds
of detention that selling liquor by the detenu and the consumption by the
people of that locality was harmful to their health - Such statement is an
expression of his subjective satisfaction that the activities of the detenu is
prejudicial to the maintenance of public order - Thus, no error of law in the
impugned judgment of the High Court. [Paras 23, 38, 71 and 72]
Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders
and Land Grabbers Act, 1986 - s. 3(2) - Interpretation:
Held: s. 3(2) has nothing to do with the period of detention - s. 3(2)
is with respect to the delegation of powers by the State Government upon
the District Magistrate or Commissioner of Police, as the case may be,
for exercise of powers u/s. 3(2) - Period as mentioned in s. 3(2) refers to
the period of delegation of powers by the State Government and it has no
relevance at all to the period for which a person may be detained - Thus, s.
3(2) provides that if the State Government is satisfi ed having regard to the
circumstances prevailing in any area within the local limits of the jurisdiction
of a District Magistrate or a Commissioner of Police, it is necessary to
empower the District Magistrate or the Commissioner of Police, as the case
may be, to exercise the powers of the State Government to order detention
of a person as provided by sub-section (1), then the State Government may
by an order in writing direct that during such period as may be specifi ed in
the order, the District Magistrate or the Commissioner of Police may also,
if satisfi ed as provided in sub-section (1) exercises the powers of the State
Government as conferred by sub-section (1) - Proviso to sub-section (2)
thus, has nothing to do with the period of detention of a detenu - Maximum
period of detention is prescribed u/s. 13 which lays down that the person
may be detained in pursuance of any detention order made under the Act
which has been confi rmed u/s. 12. [Paras 23, 26, and 39]
Constitution of India - Art. 22(4)(a) - Relevance of Art. 22(4)(a):
Held: Reading of Art. 22(4)(a) would clearly indicate that no law
providing for preventive detention shall authorize the detention of a person
for a period beyond three months - Thus, an order of detention c

## Text

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[2023] 11 S.C.R. 520 : 2023 INSC 734
CASE DETAILS
PESALA NOOKARAJU
v.
THE GOVERNMENT OF ANDHRA PRADESH & ORS.
(Criminal Appeal No. 2304 of 2023)
AUGUST 16, 2023
[DR. DHANANJAYA Y. CHANDRACHUD, CJI,
J.B. PARDIWALA AND MANOJ MISRA, JJ.]
HEADNOTES
Issue for consideration: Whether the Division Bench of the High
Court rightly declined to interfere with the order of preventive detention
passed against the appellant detenu by the District Collector in exercise
of his powers u/s. 3(2) of the Andhra Pradesh Prevention of Dangerous
Activities of Boot-leggers, Dacoits, Drug Off enders, Goondas, Immoral
Traffi c Off enders and Land Grabbers Act, 1986.
Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders
and Land Grabbers Act, 1986 - s. 3(2) - Preventive detention - Appellant
indulging in distributing, storing, transporting and selling ID Liquor
which causes huge damage to the public health as well as public peace
and tranquility - Order of preventive detention passed by the District
Collector in exercise of powers u/s. 3(2) - High Court upheld the
detention order - Correctness:
Held: It cannot be said that the detention order passed for 12 months at
a stretch could be termed as without jurisdiction and contrary to the mandate
of sub-section (2) of s. 3 - Period as mentioned in s. 3(2) refers to the period
of delegation of powers and it has no relevance at all to the period for which
a person may be detained - Period of three months stipulated in Art. 22(4)
(a) is relatable to the initial period of detention up to the stage of receipt of
report of the Advisory Board and does not have any bearing on the period
of detention, which is continued subsequent to the confi rmatory order being
520
521
passed by the State Government on receipt of the report of the Advisory
Board - Furthermore, detaining authority specifi cally stated in the grounds
of detention that selling liquor by the detenu and the consumption by the
people of that locality was harmful to their health - Such statement is an
expression of his subjective satisfaction that the activities of the detenu is
prejudicial to the maintenance of public order - Thus, no error of law in the
impugned judgment of the High Court. [Paras 23, 38, 71 and 72]
Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders
and Land Grabbers Act, 1986 - s. 3(2) - Interpretation:
Held: s. 3(2) has nothing to do with the period of detention - s. 3(2)
is with respect to the delegation of powers by the State Government upon
the District Magistrate or Commissioner of Police, as the case may be,
for exercise of powers u/s. 3(2) - Period as mentioned in s. 3(2) refers to
the period of delegation of powers by the State Government and it has no
relevance at all to the period for which a person may be detained - Thus, s.
3(2) provides that if the State Government is satisfi ed having regard to the
circumstances prevailing in any area within the local limits of the jurisdiction
of a District Magistrate or a Commissioner of Police, it is necessary to
empower the District Magistrate or the Commissioner of Police, as the case
may be, to exercise the powers of the State Government to order detention
of a person as provided by sub-section (1), then the State Government may
by an order in writing direct that during such period as may be specifi ed in
the order, the District Magistrate or the Commissioner of Police may also,
if satisfi ed as provided in sub-section (1) exercises the powers of the State
Government as conferred by sub-section (1) - Proviso to sub-section (2)
thus, has nothing to do with the period of detention of a detenu - Maximum
period of detention is prescribed u/s. 13 which lays down that the person
may be detained in pursuance of any detention order made under the Act
which has been confi rmed u/s. 12. [Paras 23, 26, and 39]
Constitution of India - Art. 22(4)(a) - Relevance of Art. 22(4)(a):
Held: Reading of Art. 22(4)(a) would clearly indicate that no law
providing for preventive detention shall authorize the detention of a person
for a period beyond three months - Thus, an order of detention cannot be for
a period longer than three months unless, the Advisory Board has reported
before the expiration of the said period of three months that there is, in its
PESALA NOOKARAJU v. THE GOVERNMENT OF
ANDHRA PRADESH & ORS.
522
SUPREME COURT REPORTS
[2023] 11 S.C.R.
opinion such suffi cient cause for detention - If the Advisory Board does not
give its opinion within a period of three months from the date of detention, in
such a case, the order of detention beyond the period of three months would
become illegal and not otherwise - If within the period of three months, the
Advisory Board opines that there was no suffi cient cause for such detention
then, the State Government would have to release the detenu forthwith -
Thus, Art. 22(4)(a) in substance deals with the order of detention and has
nothing to do with the delegation of the power of detention by the State
Government to an Offi cer as stipulated u/s. 3(2) - Period of three months
stipulated in Art. 22(4)(a) is relatable to the initial period of detention up
to the stage of receipt of report of the Advisory Board and does not have
any bearing on the period of detention, which is continued subsequent to
the confi rmatory order being passed by the State Government on receipt of
the report of the Advisory Board - Continuation of the detention pursuant
to the confi rmatory order passed by the State Government need not also
specify the period of detention; neither is it restricted to a period of three
months only - If any period is specifi ed in the confi rmatory order, then the
period of detention would be upto such period, if no period is specifi ed,
then it would be for a maximum period of twelve months from the date of
detention - State Government need not review the orders of detention every
three months after it has passed the confi rmatory order. [Paras 41-44]
Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders
and Land Grabbers Act, 1986 - Preventive detention - Appellant
indulging in distributing, storing, transporting and selling ID Liquor
- Four FIRs against detenu, if suffi cient to arrive at a subjective
satisfaction that activities of detenu as a boot-legger is prejudicial to
the maintenance of public order:
Held: For determining the connection of ground of detention with the
maintenance of public order, the object of detention, is not an intrinsic quality
of the act but rather its latent potentiality - Thus, for determining whether
the ground of detention is relevant for the purposes of public order or not,
merely an objective test based on the intrinsic quality of an act would not
be a safe guide - Potentiality of the act has to be examined in the light of
the surrounding circumstances, posterior and anterior for the off ences under
the Prohibition Act - Just because four cases have been registered against
523
the detenu under the Prohibition Act, by itself, may not have any bearing
on the maintenance of public order - If the liquor sold by the detenu is
dangerous to public health then under the Act 1986, it becomes an activity
prejudicial to the maintenance of public order, thus, it becomes necessary
for the detaining authority to be satisfi ed on material available - Detaining
authority specifi cally stated in the grounds of detention that selling liquor by
the detenu and the consumption by the people of that locality was harmful to
their health - Such statement is an expression of his subjective satisfaction
that the activities of the detenu is prejudicial to the maintenance of public
order - Not only that, the detaining authority also recorded his satisfaction
that it is necessary to prevent the detenu appellant from indulging further
in such activities and this satisfaction has been drawn on the basis of the
credible material on record. [Paras 64, 65 and 71]
Preventive Detention - Essential concept - Discussed. [Paras 16
and 17]
Preventive Detention - Concept of 'law and order' and 'public
order' - Distinction between. [Para 64]
Writ of Habeas Corpus - Purpose - Discussed. [Paras 21 and 22]
LIST OF CITATIONS AND OTHER REFERENCES
Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh,
(2015) 13 SCC 722:[2014] 6 SCR 750 - Held not correct law.
Haradhan Saha v. The State of W.B. and others 1974 Cri.L.J.1479; T.
Devaki v. Government of Tamil Nadu (1990) 2 SCC 456 : [1990] 1 SCR 836;
Secretary to Government of Tamil Nadu Public (Law and Order) Revenue
Department and Another v. Kamala and Another (2018) 5 SCC 322 : [2018]
3 SCR 854; Commissioner of Police and Another v. Gurbux Anandram
Bhiryani (1988) Supp SCC 568; Makhan Singh v. State of Punjab AIR 1952
SC 27 : [1952] SCR 368; Harpreet Kaur Harvinder Singh Bedi v. State
of Maharashtra (1992) 2 SCC 177 : [1992] 1 SCR 234; Abhay Shridhar
Ambulkar v. S.V. Bhave, the Commissioner of Police AIR 1991 SC 397 :
[1990] 3 Suppl. SCR 552; Navalshankar Ishwarlal Dave v. State of Gujarat
AIR 1994 SC 1496 : [1993] 3 SCR 676; Abdul Razak v. State of Karnataka,
ILR 2017 Kar 4608 (FB); Brij Bhushan and Another v. The State of Delhi,
(1950) SCR 605; Romesh Thappar v. The State of Madras, (1950) SCR 594;
PESALA NOOKARAJU v. THE GOVERNMENT OF
ANDHRA PRADESH & ORS.
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
525
Activities of Boot-leggers, Dacoits, Drug Off enders, Goondas, Immoral
Traffi c Off enders and Land Grabbers Act, 1986 (1 of 1986) (for short, 'the
Act 1986') and is directed against the order passed by a Division Bench of
the High Court of Andhra Pradesh dated 07.03.2023 in Writ Petition No.
33638 of 2022 fi led by the appellant herein by which the Division Bench
rejected the writ petition and thereby declined to interfere with the order
of preventive detention passed by the District Collector, Kakinada District,
Andhra Pradesh dated 25.08.2022 in exercise of his powers under Section
3(2) of the Act 1986.
FACTUAL MATRIX
3. The order of detention dated 25.08.2022 passed by the respondent
No. 2 reads thus :-
"ORDER OF DETENTION
(UNDER SECTION 3(2) OF "THE ANDHRA PRADESH
PREVENTION OF DANGEROUS ACTIVITIES OF BOOTLEGGERS,
DACOITS, DRUG OFFENDERS, GOONDAS, IMMORAL TRAFFIC
OFFENDERS AND LAND GRABBERS ACT, 1986").
Read:-
1) Andhra Pradesh Prevention of Dangerous Activities of Bootleggers,
Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders and
Land Grabbers Act,1986.
2) G.O. Rt. No. 1089, General Administration (SC-I) Dept., Dated
09.06.2022
3) Superintendent of Police, Kakinada District C.No.78/DSE0/SEB/
2022, Dated 05.08.2022.
Whereas information is laid before me that Sri Pesala Nookaraju, S/o.
Bulliyya, Age: 46 Years, Caste: SC (Mala), R/o N. S. Venkatapuram,
Tuni Mandal, Kakinada District is an habitual offender and
committing offences against AP Prohibition (Amendment) Act,
2020 and was arrested in 4 cases i.e. from January, 2021 to March,
2022, is indulging himself in committing the off ences of distributing,
storing, Transporting and selling ID Liquor which causes huge
damage to the public health as well as public peace and tranquility,
PESALA NOOKARAJU v. THE GOVERNMENT OF
ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]
526
SUPREME COURT REPORTS
[2023] 11 S.C.R.
these acts are in contravention of Section 7(B) read with 8(B) of A.
P. Prohibition (Amended) Act, 2020, which comes under the category
of "BOOTLEGGER" as defi ned U/Sections 2 (b) of "The Andhra
Pradesh Prevention of Dangerous activities of Bootleggers, Dacoits,
Drug Off enders, Goondas, Immoral Traffi c Off enders and Land
Grabbers Act, 1986.
The details of cases are as follows:
1)
SEB Station, Tuni Cr. No. 13/2021, Dated: 06.01.2021, U/sec. 7 (B)
R/w 8 (B) of AP Prohibition (Amendment) Act, 2020.
2)
SEB Station, Tuni Cr. No. 376/2021, Dated: 13.08.2021, U/sec. 7 (B)
R/w 8 (B) of AP Prohibition (Amendment) Act, 2020.
3)
SEB Station, Tuni Cr. No. 532/2021, Dated: 30.09.2021, U/sec. 7 (B)
R/w 8 (B) of AP Prohibition (Amendment) Act, 2020.
4)
SEB Station, Tuni Cr. No. 213/2022, Dated: 09.03.2022, U/sec. 7 (B)
R/w 8 (B) of AP Prohibition (Amendment) Act, 2020.
Hence, it is necessary to make an order invoking powers conferred
under Sec. 3 (2) of the Act (Act No. 1 of 1986) directing that Sri
Pesala Nookaraju, S/o. Bulliyya, Age: 46 Years, Caste: SC (Mala),
R/o N. S. Venkatapuram Village, Tuni Mandal, Kakinada District to
be detained in Central Prison, Rajamahendravaram, East Godavari
District with immediate eff ect, with a view to prevent him from acting
in any manner prejudicial to maintenance of public health and public
peace &tranquility.
Whereas, I am satisfi ed with the above material and information that
the person named Sri Pesala Nookaraju, S/o Bulliyya, Age: 46 Years,
Caste: SC (Mala), R/o N.S. Venkatapuram, Tuni Mandal, Kakinada
District is acting and also calculated to act in a manner prejudicial
to the maintenance of public order and it is necessary to prevent him
from acting further by directing the said person to be detained.
Therefore, I, Dr. Kritika Shukla, I.A.S., Collector & District
Magistrate, Kakinada District in exercise of the powers conferred
upon me under Sub Section 2 of Section 3 of the A. P. Prevention
of Dangerous Activities of Bootleggers, Dacoits, Drug Off enders,
Goondas, Immoral Traffi c Off enders and Land Grabbers Act, 1986
527
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
PESALA NOOKARAJU v. THE GOVERNMENT OF
ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]
528
SUPREME COURT REPORTS
[2023] 11 S.C.R.
got opened the bag and found one polythene cover containing fi ve
(5) liters of I.D. liquor. When enquired with the accused about his
identity particulars, he voluntarily disclosed that his name is Pesala
Nookaraju S/o Bulliyya, Age: 45 Years, Caste: SC (Mala) R/o N.S.
Venkatapuram Village, Tuni Mandal and explained him that the
possession, transportation, selling of ID liquor is an off ence under
A. P. Prohibition (Amendment) Act, 2020 and arrested the accused
and registered the case against the accused and seized the ID arrack.
Then drawn 300 ml I.D liquor as sample for the purpose of chemical
examination, from the seized ID arrack into a separate bottle and
sealed the sample bottle and mica bag with the remaining ID liquor
and pasted identity slips duly signed by the SI SEB and staff and
seized ID Liquor, under the cover of special report drafted on the
spot, by the Enforcement Sub Inspector.
The sample was sent to Chemical Examiner, Kakinada for analysis and
the same was analysed and the Chemical Examiner opined that "It is
illicitly Distilled liquor unfi t for human consumption and injurious to
health" and issued an analysis report vide. C. E. No. 366/2021 in Sl.
No. 5890 dated 04.03.2021.
GROUND No. 2 (Cr. No. 376/2021, dated 13.08.2021 of U/s 7(B) r/w
8(B) of A. P. Prohibition (Amendment) Act- 2020 of SEB Station, Tuni,
Kakinada District.
On 13.08.2021, at about 09.30 A.M., while the Sub Inspector, Special
Enforcement Bureau, Tuni along with staff conducting raids for
detection of Proh. & Excise off ences in N.S. Venkatapuram village
of Tuni Mandal and found one person standing with one gunny bag
to his right shoulder near Ambedkar statue of SC Peta. On seeing
the Police Party, he left the Gunny bag which is in his hand and tried
to ran away. SI SEB stopped the person with the help of constables
and the Enforcement Sub-Inspector sent one constable to secure
mediators but he came back and informed that nobody is came
forward to stood as mediators. Then Sub Inspector SEB got opened
the bag and found three polythene covers each containing 10 liters
total 30 liters of I.D. liquor. When enquired with the accused about
529
his identity particulars, he voluntarily disclosed that his name is
Pesala Nookaraju S/o Builiyya, Age: 45 Years Caste: SC (Mala), R/o
N. S. Venkatapuram Village, Tuni Mandal and explained him that the
possession, transportation, selling of ID liquor is an off ence under A.
P. Prohibition (Amendment) Act 2020 and arrested the accused and
registered the case against the accused and seized the ID arrack.
Then drawn 300 ml I.D. liquor as sample for the purposeof Chemical
Examination, from seized arrack into a separate bottle and sealed
the sample bottle and mica bag with the remaining ID liquor and
pasted identity slips duly signed by the SI SEB and staff and seized
ID liquor, under the cover of Special Report drafted on the spot, by
the Enforcement Sub- Inspector.
The sample was sent to Chemical Examiner, Kakinada for analysis and
the same was analysed and the Chemical Examiner opined that "It is
illicitly Distilled liquor unfi t for human consumption and injurious to
health" and issued an analysis report vide C.E. No. 2381/2021 in Sl.
No. 41632 dated 10.11.2021.
GROUND NO. 3 (Cr. No. 532/2021, dated 30.09.2021 of U/s 7(B) r/w
8(B) of AP Prohibition (Amendment) Act- 2020 of SEB Station, Tuni,
Kakinada District):
On 30.09.2021, at about 08.05 P.M., while the Special Enforcement
Bureau, SHO, Tuni along with Technical wing sub-Inspector and
staff conducting raids for detection of Proh. & Excise off ences at
near Ambedkar statue of SC Peta N.S. Venkatapuram village of Tuni
Mandal and found one person came by walk with one mica bag in his
right hand, on seeing the Police Party, he left the mica bag which is
in his hand and tried to ran away. SI SEB stopped the person with
the help of constables and the Enforcement Sub Inspector sent one
constable to secure mediators but he come back and informed that
nobody is came forward to stood as mediators. Then Sub Inspector
SEB got opened the bag and found one polythene cover containing
10 liters I. D. liquor. When enquired with the accused about his
identify particulars, he voluntarily disclosed that his name is Pesala
Nookaraju S/o Bulliyya, Age: 45 Years, Caste: SC (Mala) R/o N.
PESALA NOOKARAJU v. THE GOVERNMENT OF
ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]
530
SUPREME COURT REPORTS
[2023] 11 S.C.R.
S. Venkatapuram Village, Tuni Mandal and explained him that the
possession, transportation, selling of ID liquor is an off ence under
A.P. Prohibition (Amendment) Act 2020 and arrested the accused and
registered the case against the accused and seized the ID arrack.
Then drawn 300 ml I. D. liquor as sample for the purpose of chemical
examination, from the seized ID arrack in to a separate bottle and
sealed the sample bottle and mica bag with the remaining ID liquor
and pasted identity slips duly signed by the SI SEB and staff and
seized I.D. liquor, under the cover of Special Report drafted on the
spot, by the Enforcement Sub-Inspector.
The sample was sent to Chemical Examiner, Kakinada for analysis and
the same was analysed and the Chemical Examiner opined that "It is
illicitly Distilled liquor unfi t for human consumption and injurious to
health" and issued an analysis report vide C. E. No. 2796/2021 in Sl.
No. 45126 dated 27.11.2021.
GROUND No. 4 (Cr. No. 213/2022, dated 09.03.2022 of U/s 7(B) r/w
8(B) of AP Prohibition (Amendment) Act- 2020 of SEB Station, Tuni,
Kakinada District):
On 09.03.2022, at about 10.00 A.M., while the Special Enforcement
Bureau, SHO Tuni along with staff conducting raids for detection of
Proh. & Excise off ences at near Ambedkar statue of SC Peta N. S.
Venkatapuram Village of Tuni Mandal and found one person came by
walk with one mica bag in his right hand, on seeing the Police Party
he left the mica bag which is in his hand and tried to ran away. SI SEB
stopped the person with the help of constables and the Enforcement
Sub Inspector sent one constable to secure mediators but he come
back and informed that nobody is came forward to stood as mediators.
Then Sub Inspector SEB got opened the bag and found one polythene
cover containing 10 ltrs I. D. liquor. When enquired with the accused
about his identity particulars he voluntarily disclosed that his name
is Pesala Nookaraju S/o Bulliyya, Age: 46 Years Caste: SC (Mala)
R/o N.S. Venkatapuram Village, Tuni Mandal and explained him that
the possession, transportation, selling of ID liquor is an off ence under
A.P. Prohibition (Amendment) Act 2020 and arrested the accused
531
and registered the case against the accused and seized the ID arrack.
Then drawn 300 ml I. D. liquor as sample for the purpose of chemical
examination from the seized ID arrack into a separate bottle and
sealed the sample bottle and mica bag with the remaining ID liquor
and pasted identity slips duly signed by the SI SEB and staff and seized
ID liquor under the cover of Special Report drafted on the spot by the
Enforcement Sub-Inspector.
The sample was sent to Chemical Examiner, Kakinada for analysis and
the same was analysed and the Chemical Examiner opined that "It is
illicitly Distilled liquor unfi t for human consumption and injurious to
health" and issued an analysis report vide C. E. No. 851/2022 in Sl.
No. 13027 dated 04.04.2022.
Thus I am satisfi ed from the material placed before me that you fall
under the category of "BOOTLEGGER" as defi ned in Sec. 2(b) of "The
Andhra Pradesh Prevention of Dangerous Activities of Bootleggers,
Dacoits, Drug Off enders, Goondas, Immoral Traffi c Off enders and
Land Grabbers Act, 1986" and you are a fi t person to be detained
U/Sec 3(2) of the said Act and accordingly I will issue orders with a
view to preventing you from acting in any manner prejudicial to the
maintenance of the public order."
5. Thus, from the aforesaid, it is evident that the District Collector,
Kakinada District was subjectively satisfi ed based on the materials on
record that the activities of the appellant detenu were prejudicial to the
maintenance of public order. According to the detaining authority i.e. the
respondent No. 2, the appellant is a "bootlegger"as defi ned under Section
2(b) of the Act 1986 and with a view to preventing him from acting in any
manner prejudicial to the maintenance of public order, it was felt necessary
that the appellant be preventively detained.
6. The appellant detenu being aggrieved by the order of preventive
detention preferred Writ Petition No. 33638 of 2022 in the High Court of
Andhra Pradesh seeking a writ of Habeas Corpus. The High Court vide
its impugned order declined to interfere and accordingly rejected the writ
petition.
PESALA NOOKARAJU v. THE GOVERNMENT OF
ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]
532
SUPREME COURT REPORTS
[2023] 11 S.C.R.
7. In such circumstances referred to above, the appellant is here before
this Court with the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT
8. Ms. Bhabna Das, the learned counsel appearing for the appellant
detenu, in her written submissions has stated thus:-
"I. A Preventive Detention Order Can Only Be Issued For 3 Months
At A Time
1.1 The Petitioner herein has been preventively detained in terms
of an order dated 25.08.2022 issued by the District Collector,
Kakinada, under S. 3(2) of the AP Prevention of Dangerous Activities
of Bootleggers, Dacoits, Drug Off enders, Goondas, Immoral Traffi c
Off enders and Land Grabbers Act, 1986 (the "AP Act"). While the
order dated 25.08.2022 did not specify any period of detention, the
State Government, vide GO dated 18.10.2022, directed that the
Petitioner shall be detained for a period of 12 months at a stretch.
1.2 The above orders are contrary to the proviso to S. 3(2) of the AP
Act, which states that "...the period specifi ed in the order made by
the Government under this sub-section shall not in the fi rst instance,
exceed three months, but the Government may, if satisfi ed as aforesaid
that it is necessary to do so, amend such order to extend such period
from time to time by any period not exceeding three months at any
one time".
1.3 This provision has been interpreted by this Hon'ble Court in
Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh,
(2015) 13 SCC 722, to mean that a detention order can only be in
force for 3 months in the fi rst instance. The Government can extend the
period for not more than 3 months at a time so that there is periodic
assessment and review as to whether continuous detention of a person
is necessary. Consequently, a detention order passed for 12 months at
a stretch was quashed as being deterrent to the rights of the detenue
[para 12-15]. This judgment has subsequently been followed by this
Hon'ble Court in order dated 17.04.2017 in Criminal Appeal No.
533
727/2017 titled 'S. Penchalamma v. State of Andhra Pradesh &
Ors.' and Lahu Shrirang Gatkal v. State of Maharashtra, (2017) 13
SCC 519. In the present case, the Petitioner has now spent about 10.5
months in detention without any review as to whether his continued
detention is necessary.
1.4 The State has contended that the proviso to S. 3(2) refers to the
period for which the State Government can delegate its powers to
a District Magistrate or Commissioner of Police, relying on the
judgments of Harpreet Kaur v. State of Maharashtra, (1992) 2 SCC
177; T. Devaki v. Government of Tamil Nadu, (1990) 2 SCC 456;
and Aravind Choudhary v. State of Telangana, order dt. 05.05.2017
in Crl. Appeal No. 924/ 2017. It is submitted that these judgments are
inapplicable in the facts of the present case.
1.5 First, all the judgments cited by the Respondents were concerned
with the validity of detention orders passed directly under S. 3(1) of the
concerned statute [see para 2 of Harpreet Kaur; para 1 of T. Devaki,
and page 2 of Aravind Chaudhary]. An argument was raised in these
cases that the detention orders [under S. 3(1)] could not be issued for
a period exceeding 3 months as per the proviso to S. 3(2). It was in
this context that the fi ndings in paras 33 of Harpreet Kaur, para 8 of
T. Devaki and in Aravind Choudhary were rendered. These fi ndings
cannot therefore be applied to orders issued in exercise of delegated
powers under S. 3(2) of the Act. This is evident from the observation
of this Hon'ble Court in Aravind Choudhary that: "...the limit of
three months is applicable to Section 3(2) of the above said Act and
not to Section 3(1). This is clear from three judge Bench judgment of
this Court in 1990 (2) SCC 456 T. Devaki Vs. Government of Tamil
Nadu...".
On the other hand, the detention order in Cherukuri Mani was issued
by the District Magistrate [para 2] i.e. under S. 3(2) of the AP Act,
and hence this judgment is directly on the point.
1.6 Secondly, the interpretation sought to be advanced by the State
renders the proviso to S. 3(2) meaningless. In terms of S. 3(3) of
PESALA NOOKARAJU v. THE GOVERNMENT OF
ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]
534
SUPREME COURT REPORTS
[2023] 11 S.C.R.
the AP Act, the offi cer under S. 3(2) is required to "forthwith"
report the detention order and grounds to the Government and "no
such order shall remain in force for more than twelve days after
the making thereof, unless, in the meantime, it has been approved
by the Government". S. 3(3) therefore checks the issuance of
preventive detention orders in exercise of delegated powers by
immediately subjecting them to scrutiny and confi rmation by the
State Government.
1.7 Restricting the time period for which the State Government can
delegate its powers to such an offi cer to 3 months at a time neither
curbs any mischief nor serves any fruitful purpose. This is so since
an order under S. 3(2) is much shorter-lived, and lapses in 12 days
unless approved by the Government. Pertinently, as per S. 3(2) and
3(3) of the Preventive Detention Act, 1950 (repealed), on which the
State statutes are modelled, also such orders were valid for 12 days.
However, no time period was specifi ed therein for delegation of powers
by the Central Government. It is therefore absurd that such a condition
should be imposed on the State Government. Accordingly, the proviso
to S. 3(2) can be given a meaningful object and purpose only if the
limitation of 3 months at a time is applied to the period of detention,
and not to the period of delegation.
1.8 Thirdly, Art. 22 of the Constitution places some importance on
curtailing the period of preventive detention to 3 months unless
certain stringent conditions are satisfi ed. Art. 22(4) stipulates that no
law can provide for preventive detention for a period longer than 3
months unless the opinion of an Advisory Board is obtained. Further,
Art. 22(7)(a) requires the Parliament to pass a law prescribing the
circumstances under which persons can be detained for longer
than 3 months without obtaining the opinion of an Advisory Board.
The proviso to S. 3(2) and its interpretation in Cherukuri Mani
are therefore expressions of the notion that a preventive detention
order ought to be reviewed after 3 months, a limitation inherent in
Art. 22 itself.
1.9 Lastly, if there is any ambiguity in a provision in a preventive
detention statute or the same is capable of two possible interpretations,
535
then the construction which enures to the benefi t of the detenue and
furthers the protection to life and liberty guaranteed under Art.
21 must be favoured. Preventive detention law/Art. 22 is merely
an exception to the rule under Art. 21, and must therefore be
confi ned within narrow limits. Consequently, the interpretation of
S. 3(2) proviso in Cherukuri Mani ought to be preferred over the
judgments relied upon by the Respondents. Reference may be had
to the following case law:
(a) M. Ravindran v. Intelligence Officer, Directorate of
Intelligence, (2021) 2 SCC 485.
(b) Rekha v. State of Tamil Nadu, (2011) 5 SCC 244 [paras
13-17 & 21].
II. The Detention Order is Based on Stale Material
2.1 It is a settled position of law that an order of preventive detention
can only be based on criminal antecedents which have a proximate
nexus with the immediate need to detain an individual. An order based
on stale incidents is therefore not sustainable. Reliance is placed on
the following judgments:
(a) Khaja Bilal Ahmed v. State of Telangana & Ors., (2020) 13
SCC 632 [paras 21-23 & 28]
(b) Mallada K. Sri Ram v. State of Telangana & Ors., 2022 SCC
OnLine SC 424 [paras 11-15].
2.2 In Mallada K. Sri Ram, the detention order dated 19.05.2021 was
based on 2 FIRs dated 15.10.2020 and 17.12.2020. The detenue was
released on bail in the 1st FIR on 08.01.2021 and in the 2nd FIR on
11.01.2021 [paras 4 & 5]. This Hon'ble Court was pleased to quash
the said detention order on the ground that it was passed nearly 7
months after the 1st FIR and 5 months after the 2nd FIR, and was
therefore based on stale material and demonstrated non-application
of mind [para 11]. This judgment is squarely applicable in the facts
of this case.
PESALA NOOKARAJU v. THE GOVERNMENT OF
ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]
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 Suffi cient to Deal with the Situation
and there is no Prejudice to the Maintenance of Public Order
3.1 A detention order under S. 3(1) or 3(2) of the AP Act can be
issued inter alia against a "bootlegger" to prevent him from "acting
in any manner prejudicial to the maintenance of public order". It is
submitted that the Petitioner is not a 'bootlegger' as defi ned under
S. 2(b) of the AP Act. There is no material to show that he was
engaged in distillation, manufacture, storage, import/ export, sale or
distribution of illicitly distilled liquor or was a mastermind engaged
in any organized or systemic criminal activity or part of a cartel. The
Petitioner has repeatedly asserted that he was merely a daily wage
labourer working as a coolie.
3.2 Without prejudice, this Hon'ble Court has, in a catena of
judgments, held that a person cannot be detained merely because he is
537
a bootlegger, unless the activity also aff ects public order. Pertinently,
it was alleged that the detenus in these cases were using dangerous
weapons/ arms, force and violence, had created an atmosphere of fear
and terror amongst the residents in the area. These were nevertheless
not considered grievous enough to aff ect 'public order' or warrant
preventive detention.
(a) Piyush Kantilal Mehta v. Commissioner of Police,
Ahmedabad City & Anr. (1989) Supp (1) SCC 322 [paras 14-18]
(b) Omprakash v. Commissioner of Police & Ors., (1989) Supp
(2) SCC 576 [paras 1, 6-11]
(c) Rashidmiya @ Chhava Ahmediya Shaik v. Police
Commissioner, Ahmedabad & Anr., (1989) 3 SCC 321 [paras
3-6 & 16-21]
(d) Ahmedhussain Shaikhhussain @ Ahmed Kalio v.
Commissioner of Police, Ahmedabad & Anr, (1989) 4 SCC 751
[paras 3, 11, 13- 15].
3.3 As per the explanation to S. 2(a), the activity in question must
cause "harm, danger or alarm or a feeling of insecurity among the
general public or any section thereof or a grave widespread danger to
life or public health" to be prejudicial to public order. The expression
'public order' is diff erent from general 'law and order' and must be
interpreted narrowly. Acts aff ecting public order must be such as to
create panic, fear or insecurity among the public at large, destroy the
even tempo of life of the community, cause serious disturbance to public
tranquility, the society and community at large. Where the ordinary law
of the land is suffi cient to deal with the off ences in question, recourse
to preventive detention is illegal.
(a) Rekha v. State of Tamil Nadu, (2011) 5 SCC 244 [paras
13- 17, 21, 23 & 29-35].
(b) Munagala Yadamma v. State of Andhra Pradesh & Ors,
(2012) 2 SCC 386 [paras 7-9]
(c) Banka Sneha Sheela v. State of Telangana & Ors., (2021)
9 SCC 415 [paras 12-15, 19-25, 29-30 & 32]
PESALA NOOKARAJU v. THE GOVERNMENT OF
ANDHRA PRADESH & ORS. [J. B. PARDIWALA, J.]
538
SUPREME COURT REPORTS
[2023] 11 S.C.R.
3.4 In the present case, 4 FIRs have been fi led against the Petitioner
for off ences under the AP Prohibition Act. Investigation is complete
and chargesheets have also been fi led and hence the matters are ready
for trial. These cases involve ordinary 'law and order' problems. The
Petitioner will undergo the requisite punishment if eventually convicted
by the competent Court. However, he cannot be preventively detained
and prevented from facing trial merely because he is allegedly a
'habitual off ender' or has secured bail in all the cases.
3.5 The chemical analysis of the samples allegedly taken from the
Petitioner state that they are "unfi t for human consumption and
injurious to health". The Impugned Judgment erroneously holds
that this is suffi cient to arrive at the subjective satisfaction that the
Petitioner was required to be preventively detained, without examining
whether the ingredients of the explanation to S. 2(a) regarding
prejudice to 'public order' are satisfi ed. The total quantity of ID liquor
found in the Petitioner's possession in all 4 cases is allegedly 55 litres,
which is a relatively small quantity. There is no imputation that any
person consumed any liquor from the Petitioner or endangered his
life or suff ered any serious health issues as a result.