Detention Based On Mere Indulgence In Manufacture, Transport, Or Sale Of Liquor Not An Activity Prejudicial To Maintenance Of Public Order- SC

The Supreme Court in an appeal filed by a detenu has held that if the detention is on the ground that the detenu is indulging in the manufacture, transport, or sale of liquor, then that by itself would not become an activity prejudicial to the maintenance of public order. 

The said 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 (hereinafter referred to as 1986 Act).

The three-Judge Bench of CJI D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra observed, “The detenu may be punished for the offences which have been registered against him. To put it in other words, 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 Act 1986, 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 1986 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.”

The Bench said that for determining if the ground of detention is relevant for the purposes of public order, merely an objective test based on the intrinsic quality of an act would not be a safe guide.

Advocate Bhabna Das appeared on behalf of the appellant while Advocate Mahfooz A. Nazki appeared on behalf of the respondents.

In this case, the appellant/detenu filed an appeal challenging the order passed by a Division Bench of the Andhra Pradesh High Court by which it rejected the writ petition and thereby declined to interfere with the order of preventive detention passed by the District Collector in exercise of his powers under Section 3(2) of the 1986 Act. The detenu indulged himself in committing the offences of distributing, storing, transporting, and selling liquor causing huge damage to the public health as well as public peace and tranquillity.

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, the detenu was a “bootlegger” under Section 2(b) of the 1986 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. The appellant detenu being aggrieved by the order of preventive detention approached the High Court seeking a writ of Habeas Corpus but his writ petition was rejected as a result of which he was before the Apex Court.

The Supreme Court in view of the facts and circumstances of the case noted, “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 Court said that the continuation of the detention pursuant to the confirmatory order passed by the State Government need not specify the 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 State Government, in our view, need not review the orders of detention every three months after it has passed the confirmatory order”, further noted the Court.

The Court also observed that just because four cases have been registered against the appellant detenu under the Prohibition Act, by itself, may not have any bearing on the maintenance of public order.

“... 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”, held the Court.

The Court said that the detaining authority has specifically stated in the grounds of detention that selling liquor by the appellant and the consumption by the people of that locality was harmful to their health and such statement is an expression of his subjective satisfaction that the activities of the appellant is prejudicial to the maintenance of public order.

The Court added that the detaining authority also recorded his satisfaction that it is necessary to prevent the detenu from indulging further in such activities and this satisfaction has been drawn based on 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”, concluded the Court.

Accordingly, the Apex Court dismissed the appeal.

Cause Title- Pesala Nookaraju v. The Government of Andhra Pradesh & Ors. (Neutral Citation: 2023 INSC 734)

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