2023 Supreme(SC) 764

SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, J.B. PARDIWALA, MANOJ MISRA, JJ.
Pesala Nookaraju – Appellant
VERSUS
The Government Of Andhra Pradesh & Ors. – Respondents
Criminal Appeal No. OF 2023 (Arising out of S.L.P. (Criminal) No. 9492 of 2023)
Decided On : 16-08-2023

IMPORTANT POINTS
(1) Preventive Detention - Power of preventive detention is qualitatively different from punitive detention - An order of preventive detention, may be made before or during prosecution - Pendency of prosecution is no bar to an order of preventive detention.
(2) Writ of habeas corpus is as of right and court has no discretion to refuse it - The writ be addressed to any person whatever-an official or a private individual-who has another in his custody.

Headnote:

(A) Preventive Detention - Essential concept - Power of preventive detention is qualitatively different from punitive detention - Power of preventive detention is a precautionary power exercised in reasonable anticipation - It may or 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 - Pendency of prosecution is no bar to an order of preventive detention - An order of preventive detention is also not a bar to prosecution. (Paras 16 and 17)

(B) Constitution of India - Articles 32/226 and 21 - Writ of Habeas Corpus - This is a prerogative process for securing the liberty of subject by affording an effective relief of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody - This is a writ of such a sovereign and transcendent authority that no privilege of power or place can stand against it - Writ of habeas corpus is as of right and court has no discretion to refuse it - The writ be addressed to any person whatever-an official or a private individual-who has another in his custody - Right which is sought to be enforced by such a writ is a fundamental right of a citizen conferred under Article 21 of Constitution of India. (Paras 21 and 22)

(C) Constitution of India - Article 22(4)(a) - Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 - Sections 3(2) and 12 - Preventive Detention - No law providing for preventive detention shall authorize detention of a person for a period beyond three months - Order of detention cannot be for a period longer than three months unless Advisory Board has reported before expiration of said period of three months that there is, in its opinion such sufficient cause for detention - Within period of three months, if Advisory Board opines that there was no sufficient cause for such detention then, State Government would have to release detenu forthwith - Period of three months stipulated in Article 22(4)(a) of Constitution is relatable to initial period of detention up to stage of receipt of report of Advisory Board and does not have any bearing on period of detention, which is continued subsequent to confirmatory order being passed by State Government on receipt of report of Advisory Board - When State Government passes a confirmatory order under Section 12 of Act after receipt of report from 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 date of initial order of detention, but up to a maximum period of twelve months from date of detention. (Paras 41, 42, 43 and 44)

(D) Preventive Detention - Challenge as to - Allegation of distributing, storing, Transporting and selling ID Liquor - There is a very thin line between question of law and order situation and a public order situation - Sometimes, acts of a person relating to law and order situation can turn into a question of public order situation - What is decisive for determining connection of ground of detention with maintenance of public order, object of detention, is not an intrinsic quality of the act but rather its latent potentiality - Just because four cases have been registered against appellant detenu under Prohibition Act, by itself, may not have any bearing on maintenance of public order - If liquor sold by detenu is dangerous to public health then under Act 1986, it becomes an activity prejudicial to maintenance of public order - Detaining authority has recorded his satisfaction that it is necessary to prevent detenu appellant from indulging further in such activities and this satisfaction has been drawn on the basis of credible material on record - Whether material was sufficient or not is not for Courts to decide by applying objective basis as it is matter of subjective satisfaction of detaining authority - Impugned judgment of High Court upheld. [Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 - Section 3(2)] (Paras 64, 65, 71, 72 and 73)

Facts of the case:

Present appeal is at instance of a detenu, preventively detained 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 and is directed against the order passed by a Division Bench Signature Not Verified of the High Court of Andhra Pradesh dated 07.03.2023 in Writ Petition No. 33638 of 2022 filed by appellant herein by which Division Bench rejected writ petition and thereby declined to interfere with order of preventive detention passed by District Collector, Kakinada District, Andhra Pradesh dated 25.08.2022 in exercise of his powers under Section 3(2) of the Act 1986.

Findings of Court:

For determining whether ground of detention is relevant for the purposes of public order or not, merely an objective test based on intrinsic quality of an act would not be a safe guide. Potentiality of act has to be examined in the light of surrounding circumstances, posterior and anterior for offences under Prohibition Act.

Result : Appeal dismissed.