PESALA NOOKARAJU [APPELLANT(S)] Vs. THE GOVERNMENT OF ANDHRA PRADESH & ORS. [RESPONDENT(S)]

CRIMINAL APPEAL Arising out of S.L.P. (Criminal) No. 9492 of 2023
(3JB,DR. DY CHANDRACHUD, J.B. PARDIWALA and MANOJ MISRA JJ.,delivered by J.B. PARDIWALA, J.)

Facts: The present appeal is at the instance of a detenu, 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 (1 of 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.

Issue: Whether the High court’s order rejecting the habeous corpus writ petition of the appellant legally justified?

Arguments on behalf of counsel for appellants: Ms. Bhabna Das

It is submitted that a Preventive Detention Order Can Only Be Issued For 3 Months At A Time. Further, 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. Further, ordinary Law and Order is Sufficient to Deal with the Situation and there is no Prejudice to the Maintenance of Public Order. Further, The Detention Orders are Disproportionate and Suffer from Non Application of Mind. Lastly, it is submitted that a Habeas Corpus Petition is Maintainable on behalf of the Petitioner. 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. 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 period spent in illegal preventive detention may be treated as custody undergone for the purposes of any sentence of imprisonment imposed thereunder.”

Arguments on behalf of counsel for respondents: Mr. Mahfooz A. Nazki

It is submitted that power to pass a detention order is ordinarily that of the State Government under Section 3(1) of the 1986 Act. However, such power may, under Section 3(2), be delegated by State Government to a District Magistrate (DM) or Commissioner of 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. 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 the DM or Commissioner to issue detention orders can be valid. It has been contended by the Petitioner that there is no proximate link between his acts and the detention order. The said submission is misconceived. It is submitted that 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. 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.

Held: The court dismissed the present appeal, holding that “we find no error, much less an error of law, in the impugned judgement of the High Court.” The court further held 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.”

It was observed that, “it is evident that there is a very thin line between the question of law and order situation 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…..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.”