Preventive Detention- 3 Months Limit Under Article 22(4)(a) Applies Only At Initial Stage Till Advisory Board's Report : Supreme Court

The Supreme Court recently dismissed an appeal by a detenu who challenged the order of preventive detention under the Andhra Pradesh Prevention of Dangerous Activities of Boot-leggers Act, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (the Act).

The Court disagreed with the view taken in Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh(2015) 13 SCC 722 that if the State Government aims to detain a person for the maximum duration of twelve months, a preliminary detention order must be issued for three months, followed by at least three extensions based on an interpretation of Art. 22(4)(a) of Constitution.

The Supreme Court clarified that the 3-month time limit prescribed by Article 22(4)(a) pertains to the period before the Advisory Board's report is obtained. Depending on the Board's opinion, the State Government, as per Section 12 of the Act, can either confirm the detention order, extend the detention for a maximum of twelve months as outlined in Section 13 of the Act, or release the detainee without delay.

The Court added, “Article 22(4)(a) applies at the initial stage of passing of the order of detention by the State Government or by an officer and not at the stage subsequent to the report of the Advisory Board”

"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 Supreme Court bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Mishra was hearing an appeal filed by a detenu against a judgment of the Andhra Pradesh High Court which did not interfere with the order of preventive detention issued by the District Collector under Section 3(2) of the Act.

The case centered around a detention order that spanned 12 months and was challenged on the grounds that it might be deemed jurisdictionally incorrect and contradictory to the mandate of sub-section (2) of Section 3 of Act 1986. The appellant had relied on the precedent set by the Cherukuri Mani case, which also dealt with that provision.

Section 3(2) of the Act refers to the period of delegation of powers and not the period of detention

The Court held that the period mentioned in section 3(2) of the Act refers to the period of the delegation of powers by the state to DM/Commissioner and is not relevant to the period for which a person may be detained.

The Court cited the three-Judge Bench judgment in T. Devaki v. Government of Tamil Nadu, (1990) 2 SCC 456, which clarified that the period mentioned in Section 3(2) has no bearing on the duration of detention itself. This principle was reinforced in the case of Secy, TN v. Kamala(2018) which emphasized that the detaining authority is not required to specify the period for which a detenu is to be detained.

The period of detention should be determined only after the Advisory board gives report justifying it

The Supreme Court also engaged in a broader discussion about the implications of specifying the period of detention in a detention order. It questioned whether such a specification would render the order illegal or invalid.

The Court referred to a landmark judgment by a Constitution Bench in the case of Makhan Singh v. State of Punjab(AIR 1952 SC 27) which held that “the period of detention should be determined only after the Advisory Board returns a report justifying the detention. Fixing the period of detention in the initial order itself would be against the scheme of the Act.”

The court observed, “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.”

If the sale of liquor is dangerous to public health, it becomes an activity prejudicial to the maintenance of public order

Moving on to the next issue, the appellant had contended that mere registration of four FIRs under the Andhra Pradesh Prohibition Act, 1995 cannot provide sufficient grounds to establish a subjective satisfaction that the appellant's actions as a boot-legger are indeed prejudicial to public order.

The Court noted that the demarcation between issues of law and order and matters concerning public order is often a fine one. The Court emphasized that relying solely on an objective test based on the inherent nature of an act would not suffice to ascertain its impact on public order. Instead, the potential consequences of the act must be considered in light of the surrounding circumstances, both prior and subsequent to its occurrence, particularly in cases involving offenses under the Prohibition Act.

The Court further held that ordinarily, the sale of liquor may not be an activity prejudicial to public order. But a crucial distinction arises when the liquor being sold poses a danger to public health. In this case, the detaining authority explicitly stated that the sale of liquor by the appellant posed a health risk. The Court reiterated the settled principle that determining the sufficiency of material is within the purview of the detaining authority's subjective judgment.

It observed, “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 a matter of subjective satisfaction of the detaining authority”.

In light of the above, the court dismissed the appeal and upheld the HC judgment.

Case title: Pesala Nookaraju v. Govt of Andhra Pradesh

Citation : 2023 LiveLaw (SC) 678

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