J.B. PARDIWALA, J. :

FACTUAL MATRIX

3. The order of detention dated 25.08.2022 passed by the respondent No. 2 reads thus :-

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 offences of distributing, storing, Transporting and selling ID Liquor which 2 causes huge damage to the public health as well as public peace and tranquility, 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 defined U/ Sections 2 (b) of “The Andhra Pradesh Prevention of Dangerous activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders 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 effect, with a view to prevent him from acting in any manner prejudicial to maintenance of public health and public peace & tranquility.

Whereas, I am satisfied 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, 3 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 Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 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:-

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 offences 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 his identity particulars, he voluntarily disclosed that his name is Pesala Nookaraju S/o Builiyya, Age:

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 unfit 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):

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):

Thus I am satisfied from the material placed before me that you fall under the category of “BOOTLEGGER” as 8 defined in Sec. 2(b) of “ The Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 ” and you are a fit 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 satisfied 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 defined 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.

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:-

15]. This judgment has subsequently been followed by this Hon’ble Court in order dated 17.04.2017 in Criminal Appeal No. 727/2017 titled ‘ S. 10 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 findings in paras 33 of Harpreet Kaur, para 8 of T. Devaki and in Aravind Choudhary were rendered. These findings 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 the AP Act, the officer under S. 3(2) is required to “forthwith” report 11 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 confirmation by the State Government.

1.7 Restricting the time period for which the State Government can delegate its powers to such an officer 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 specified 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 satisfied. 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, then the construction which enures to the benefit of the detenue and furthers 12 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 confined 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:

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:

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. 2.3 The detention order dated 25.08.2022 in the present case is based on the following FIRs against the Petitioner:

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 Sufficient 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 defined 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 a bootlegger, unless the activity also affects public order. Pertinently, it was alleged that the detenus in these cases were using dangerous weapons/ arms, force and violence, had 14 created an atmosphere of fear and terror amongst the residents in the area. These were nevertheless not considered grievous enough to affect ‘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 different from general ‘law and order’ and must be interpreted narrowly. Acts affecting 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 sufficient to deal with the offences 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] 3.4 In the present case, 4 FIRs have been filed against the Petitioner for offences under the AP Prohibition Act. Investigation is complete and chargesheets have also been filed and hence the matters are ready for trial. These cases involve ordinary ‘law and order’ 15 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 offender’ 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 “unfit for human consumption and injurious to health”. The Impugned Judgment erroneously holds that this is sufficient 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 satisfied. 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 suffered any serious health issues as a result. Mere lab reports cannot be determinative of whether the alleged criminal activity is of such magnitude or intensity as to constitute a “grave widespread danger to public health”. 3.6 Pertinently, in Rekha v. State of Tamil Nadu (supra), the detenu was accused of selling expired drugs after tampering with labels [para 2]. In Munagala Yadamma (supra), the allegation was of bootlegging/ illicitly distilling liquor. No doubt such expired drugs or illicitly distilled liquor may be unfit for human consumption and may even affect the health of those consuming such products. Nevertheless, these were not considered as being prejudicial to the maintenance of public order. Rather, the ordinary provisions of the IPC /Drugs and Cosmetics Act and the AP Prohibition Act, as the case may be, were deemed sufficient to deal with these situations. It is therefore submitted that the preventive detention orders against the Petitioner be quashed, and he be permitted to face trial as per ordinary due process.

IV. The Detention Orders are Disproportionate and Suffer from Non Application of Mind 4.1 A detention order under S. 3(1) or 3(2) of the AP Act can only be issued only if “it is necessary so to do” to prevent a person from acting in a manner prejudicial to public order. The doctrine of proportionality, which requires that the least restrictive means be used when imposing any restraint on a fundamental right, is therefore built into the statute. [See Madhyamam Broadcasting Ltd. v. Union of India & Ors. , 2023 SCC OnLine SC 366 (para 85)] 4.2 In the present case, the Petitioner was granted bail in all cases against him, after giving an opportunity of hearing to the State. If the Petitioner subsequently committed any offence or violated any condition of bail, the State ought to have approached the concerned Court for cancellation of bail. Issuance of a preventive detention order which drastically curtailed the Petitioner’s right to liberty under Art. 21 is certainly neither the most suitable nor the least restrictive method of preventing the Petitioner from engaging in any further alleged criminal activity. 4.3 Without prejudice, a person ought to be preventively detained only for the period absolutely necessary in order to achieve the object in question i.e. prevent public disorder. While the maximum period of detention can be 12 months as per S. 13 of the AP Act, the State nevertheless has the discretion to provide for a lesser period, or even revoke/ modify a detention order under S. 14 . However, in the present case, Respondent No. 1 has, vide GO dated 18.10.2022, directed that the Petitioner be detained for the maximum period of 12 months without any application of mind or providing any reasons as to why this is necessary.

4.4 Further, the grounds for detention and order dated 25.08.2022 were admittedly issued on the basis of a proposal dated 05.08.2022 made by the Superintendent of Police, Kakinada. A bare perusal of this proposal shows that the grounds for detention therein are identical to the grounds of detention appended to the order dated 25.08.2022. It therefore appears that the order dated 25.08.2022 was passed 17 placing blind reliance on the proposal of the SP, without any independent application of mind. The delegated power and discretion vested in the District Magistrate under S. 3(2) has virtually been further sub-delegated to the Superintendent of Police, which is impermissible.

V. A Habeas Corpus Petition is Maintainable on behalf of the Petitioner 5.1 The Petitioner had preferred W.P. No. 33638/ 2022 dated 13.10.2022 before the Hon’ble High Court of Andhra Pradesh inter alia praying for the closure of his detention order dated 25.08.2022 and his release from prison. Since confirmation order vide G.O. Rt. No. 2190 dated 18.10.2022 was issued by Respondent No. 1 thereafter, the Petitioner subsequently amended his Petition to challenge the order dated 18.10.2022 as well.

5.2 The Respondents have contended that a writ of habeas corpus is not maintainable in the present case relying on the judgment of Home Secretary (Prison) v. H. Nilofer Nisha , (2020) 14 SCC 161. The said judgment was dealing with the issue of whether a habeas corpus would lie to secure release of a person who is undergoing imprisonment sentence as per Court orders, and had not been illegally detained [paras 1 & 17]. This is completely different from preventive detention. In fact, in para 16 of the said judgment itself it has been held that habeas corpus is often used as a remedy in preventive detention cases as the said order can only be challenged in writ jurisdiction. The Writ Petition filed by the Petitioner was therefore maintainable.

6. 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.

7. 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 18 preventive detention may be treated as custody undergone for the purposes of any sentence of imprisonment imposed thereunder.” SUBMISSIONS ON BEHALF OF THE RESPONDENTS

9. Mr. Mahfooz A. Nazki, the learned counsel appearing for the respondents, in his written submissions as stated thus:-

(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the Government are satisfied that it is necessary so to do, they may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub- section:

vii. It is submitted that both the judgments relied on by the Petitioner (mentioned above) have not taken into account the aforesaid decisions.

The period of one year mentioned in the order is strictly in accordance with the 1986 Act.

viii. At this stage, the scheme of the 1986 Act may be noted:

[Note: In the present case, the power was delegated to the DM vide G.O. Rt. No. 1089 dated 09.06.2022 [annexed herewith as Annexure 1] and the detention order was passed on 25.08.2022 thereafter – i.e., well within the time of three months.] • Under Section 3(3) , an additional safeguard is provided in case when the detention order is passed by Magistrate/Commissioner. This Section requires that the detention order passed by the DM/Commissioner shall be confirmed within a period of 12 days by the State Government, otherwise it lapses after expiry of 12 days.

[Note: The order of confirmation, in the present case, was passed by the State Government on 01.09.2022 i.e., within the 12 days’ period.] • Thereafter, under Section 10 , the detention order along with all relevant material is required to be placed before the Advisory Board within a period of three weeks from the date of detention.

• In the event the Advisory Board confirms the detention order, the Government may, under Section 12 read with Section 13 , direct the detention order to continue for a period not 21 exceeding twelve months. It is only under this provision that a period for detention has been prescribed.

[Note: The order under Section 12 was passed by the Government on 18.10.2022.] ix. In the present case, the aforementioned procedure was strictly followed. The period of one year has been mentioned in the order dated 18.10.2022 passed under Section 12 read with Section 13 not in the detention order dated 25.08.2022 passed under Section 3 . The submissions of the Petitioner are therefore clearly misconceived.

The detention order has been passed strictly in accordance with the afore-mentioned procedure.

B. The Detention order is not stale.

i. 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. Before detailing the factual aspects, the following legal position may be noted:

• The word ‘proximity’ does not mean any immediate closeness but it rather means something which indicates a pattern [ Bhupendra v. State of Maharashtra & Anr. , (2008) 17 SCC 165, @para 10].” DISCUSSION

10. Before we advert to the rival submissions canvassed on either side, we must look into the Preamble and few relevant provisions of the Act 1986.

The preamble to the Act 1986 reads thus:-

11. The aforesaid Act 1986 came into force with effect from 28.02.1986. Section 2(a) reads thus:-

legger, a dacoit, a drug-offender, a goonda, an immoral traffic offender or a landgrabber is engaged or is making preparations for engaging, in any of his activities as such, which affect adversely, or are likely to affect adversely, the maintenance of public order :

12. Section 2(b) defines “boot-legger”. Section 2(b) reads thus:-

13. Section 3 is in respect with the power to make order detaining certain persons. Section 3 reads thus:-

14. Section 12 provides for the action upon report of the Advisory Board. It reads thus:-

15. Section 13 provides for the maximum period of detention. Section 13 reads thus:-

16. The essential concept of the preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The 26 basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between the prosecution in a Court of law and a detention order under the Act 1986. One is a punitive action and the other is a preventive act. In one case a person is punished on proof of his guilt and the standard is proof beyond the reasonable doubt, whereas in the other a person is detained with a view to prevent him from doing such act(s) as may be specified in the Act authorizing preventive detention.

17. The power of preventive detention is qualitatively different from punitive detention. The 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 27 acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. (See : Haradhan Saha v. The State of W.B. and others , 1974 Cri.L.J.1479]

18. In Halsbury's Laws Of England, it is stated thus:-

19. In Corpus Juris Secundum, the nature of the writ of habeas corpus is summarized thus:-

20. In Constitutional and Administrative Law By Hood Phillips & Jackson, it is stated thus:-

21. The ancient prerogative writ of habeas corpus takes its name from the two mandatory words “habeas” and “corpus”. ‘Habeas Corpus’ literally means ‘have his body’.

The general purpose of these writs as their name indicates was to obtain the production of the individual before a court 29 or a judge. This is a prerogative process for securing the liberty of the 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. It is a very powerful safeguard of the subject against arbitrary acts not only of private individuals but also of the Executive, the greatest safeguard for personal liberty, according to all constitutional jurists. The writ is a prerogative one obtainable by its own procedure. In England, the jurisdiction to grant a writ existed in Common Law, but has been recognized and extended by statute. It is well established in England that the writ of habeas corpus is as of right and that the court has no discretion to refuse it. “Unlike certiorari or mandamus, a writ of habeas corpus is as of right” to every man who is unlawfully detained. In India, it is this prerogative writ which has been given a constitutional status under Articles 32 and 226 of the Constitution. Therefore, it is an extraordinary remedy available to a citizen of this Country, which he can enforce under Article 226 or under Article 32 of the Constitution of India.

22. It is the duty of the Court to issue this writ to safeguard the freedom of the citizen against arbitrary and illegal detention. Habeas corpus is a remedy designed to facilitate the release of persons detained unlawfully, not to punish the person detaining and it is not, therefore, issued after the detention complained of has come to an end. It is a remedy against unlawful detention. It is issued in the form of an order calling upon the person who has detained another, whether in prison or in private custody, to ‘have the body’ of that other before the Court in order to let the Court know on what ground the latter has been confined and thus to give the Court an opportunity of dealing with him as the law may require. By the writ of habeas corpus, the Court can cause any person who is imprisoned to be brought before the Court and obtain knowledge of the reason why he is imprisoned and then either set him free then and there if there is no legal justification for the imprisonment, or see that he is brought speedily to trial. Habeas Corpus is available against any person who is suspected of detaining another unlawfully and not merely against the police or other public officers whose duties normally include arrest and detention. The Court must issue it if it is shown that the person on whose behalf it is asked for is unlawfully deprived of his liberty. The writ 31 be addressed to any person whatever-an official or a private individual-who has another in his custody. The claim (for habeas corpus) has been expressed and pressed in terms of concrete legal standards and procedures. Most notably, the right of personal liberty is connected in both the legal and popular sense with procedures upon the writ of habeas corpus. The writ is simply a judicial command directed to a specific jailer directing him or her to produce the named prisoner together with the legal cause of detention in order that this legal warrant of detention might be examined. The said detention may be legal or illegal. The right which is sought to be enforced by such a writ is a fundamental right of a citizen conferred under Article 21 of the Constitution of India, which provides:-

23. The learned counsel appearing for the appellant vehemently submitted that the High Court failed to appreciate that the order of detention could be termed as contrary to the proviso to Section 3(2) of the Act 1986 referred 32 to above as the detention can only be in force for a period of three months in the first instance. According to the learned counsel, the Government thereafter may extend the period for not more than three months at a time so that there is periodic assessment and review as to whether the continuous detention of a person is necessary or not. In short, the sum and substance of the submission canvassed on behalf of the appellant detenu is 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 Section 3 of the Act 1986. In support of the said submission, the learned counsel has placed strong reliance on a decision of this Court in the case of Cherukuri Mani (supra).

24. We must first look into the decision of this Court in Cherukuri Mani (supra) as the same also dealt with sub-

section (2) of Section 3 of the Act 1986. This Court after reproducing the entire Section 3 of the Act 1986 in para 10 of the judgment interpreted and held as under:-

Such extension, however, cannot be for a period, exceeding three months, at a time. It means that, if the Government intends to detain an individual under the Act for the maximum period of 12 months, there must be an initial order of detention for a period of three months, and at least, three orders of extension for a period not exceeding three months each. The expression “extend such period from time to time by any period not exceeding three months at any one time” assumes significance in this regard.

13. The requirement to pass order of detention from time to time in the manner referred to above , has got its own significance. It must be remembered that restriction of initial period of detention to three months is nothing but implementation of the mandate contained in clause (4)(a) of Article 22 of the Constitution of India. It reads as under:

14. Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure. When the provisions of Section 3 of the Act clearly mandated the authorities to pass an order of detention at one time for a period not exceeding three months only, the government order in the present case, directing detention of the husband of the appellant for a period of twelve months at a stretch is clear violation of the prescribed manner and contrary to the provisions of law. The Government cannot direct or extend the period of detention up to the maximum period of twelve months in one stroke, ignoring the cautious legislative intention that even the order of extension of detention must not exceed three months at any one time. One should not ignore the underlying principles while passing orders of detention or extending the detention period from time to time.

15. Normally, a person who is detained under the provisions of the Act is without facing trial which in other words amounts to curtailment of his liberties and denial of civil rights. In such cases, whether continuous detention of such person is necessary or not, is to be assessed and reviewed from time to time. Taking into consideration these factors, the legislature has specifically provided the mechanism “Advisory Board” to review the detention of a person. Passing a detention order for a period of twelve months at a stretch, without proper review, is deterrent to the rights of the detenu. Hence, the impugned government order directing detention for the maximum period of twelve months straightaway cannot be sustained in law.” (Emphasis supplied)

25. Thus, from the aforesaid, it is evident that in Cherukuri Mani (supra), this Court took the view that sub-

section (2) of Section 3 more particularly the proviso to sub-

section (2) is in respect with the operation of the order of detention. To put it in other words, the time period for which the detenu is to be detained.

26. In the aforesaid context, we may say with profound respect that Cherukuri Mani (supra) does not lay down the correct law. Sub-section (2) of Section 3 has nothing to do with the period of detention. In Cherukuri Mani (supra), the Bench completely mis-read the entire provision.

27. We are of the view that Section 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 under sub-section (2) of Section 3 of the Act 1986. The period as mentioned in Section 3(2) of the Act 1986 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. It appears that the attention of the learned Judges while deciding Cherukuri Mani (supra) was not invited to a three-Judge Bench judgment of this Court in T. Devaki v. Government of Tamil Nadu , (1990) 2 SCC 456, wherein it has been held as under:-

Section 13 provides the maximum period for which a person can be detained in pursuance of any detention order made and confirmed under the Act. According to this provision the maximum period of detention shall be twelve months from the date of detention. The State Government has, however, power to revoke detention order at any time it may think proper.

10. Provisions of the aforesaid sections are inbuilt safeguards against the delays that may be caused in considering the representation. If the time frame, as prescribed in the aforesaid provisions is not adhered to, the detention order is liable to be struck down and the detenu is entitled to freedom. Once the order of detention is confirmed by the State Government, maximum period for which a detenu shall be detained cannot exceed 12 months from the date of detention. The Act nowhere requires the detaining authority to specify the period for which the detenu is required to 38 be detained. The expression “the State Government are satisfied that it is necessary so to do, they may, by order in writing direct that during such period as may be specified in the order” occurring in sub-section (2) of Section 3 relates to the period for which the order of delegation issued by the State Government is to remain in force and it has no relevance to the period of detention. The legislature has taken care to entrust the power of detention to the State Government; as the detention without trial is a serious encroachment on the fundamental right of a citizen, it has taken further care to avoid a blanket delegation of power, to subordinate authorities for an indefinite period by providing that the delegation in the initial instance will not exceed a period of three months and it shall be specified in the order of delegation. But if the State Government on consideration of the situation finds it necessary, it may again delegate the power of detention to the aforesaid authorities from time to time but at no time the delegation shall be for a period of more than three months. The period as mentioned in Section 3(2) of the Act refers to the period of delegation and it has no relevance at all to the period for which a person may be detained. Since the Act does not require the detaining authority to specify the period for which a detenu is required to be detained, order of detention is not rendered invalid or illegal in the absence of such specification.” (Emphasis supplied)

28. The above referred decision of this Court in T. Devaki (supra) was later relied upon by a three Judge Bench, in the case of Secretary to Government of Tamil Nadu Public (Law and Order) Revenue Department and Another v.

Kamala and Another reported in (2018) 5 SCC 322, for the proposition that the detaining authority is not obliged to specify the period for which a detenue is required to be detained. In Secretary to Government of Tamil Nadu 39 (supra), the High Court had set aside the detention order issued under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) on the ground that the period of detention was not specified. The High Court relied on the decision in the Commissioner of Police and Another v. Gurbux Anandram Bhiryani reported in (1988) Supp SCC 568, which came to be overruled by a subsequent decision of a larger Bench in T. Devaki (supra). The Bench speaking through one of us, Justice Dr. D.Y. Chandrachud held that since the legislation does not require detaining authority to specify the period for which a detenu is required to be detained the order of detention would not be rendered invalid or illegal in absence of such specification.

29. The discussion as aforesaid has a different angle too.

We may elaborate the same a little further. Whether determining the period of detention in the order of detention, would render the order bad and illegal? To put it in other words, what would have been the legal implications had the detaining authority stated in the detention order that the detenu be detained for a period of one year? In this context, we must look into a Constitution Bench decision of this 40 Court in the case of Makhan Singh v. State of Punjab reported in AIR 1952 SC 27.

30. In the said case, the petitioner therein was arrested and detained under order dated 01.03.1950 by the District Magistrate, Amritsar under Section 3(1) of the Preventive Detention Act, 1950. The petitioner therein challenged the validity of the said order on various ground but during the pendency of the said petition the petitioner was served with another detention order dated 30.07.1951 on 16.08.1951 under the amended provisions of the Preventive Detention Act . By the said order the petitioner therein was to be detained upto 31.03.1952 the date on which the said Act was to expire.

31. In Makhan Singh (supra), this Court observed:-

32. It was argued by the learned Advocate General in that case that if the Advisory Board reports that there is no sufficient cause for the detention the person concerned would be released forthwith and therefore the direction that he should be detained upto 31.03.1952, could be ignored as a mere surplusage. The said argument was repelled by this Court by observing as under:-

33. Thus, 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.

34. It also appears that the attention of the learned Judges while deciding Cherukuri Mani (supra) was not drawn to yet one another decision of this Court in the case of Harpreet Kaur Harvinder Singh Bedi v. State of Maharashtra , (1992) 2 SCC 177, wherein a Bench of two-

Judge interpreted Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981, which is pari materia to Section 3(2) of the Act 1986. We quote the relevant observations:-

35. In the case of Abhay Shridhar Ambulkar v. S.V. Bhave , the Commissioner of Police, reported in AIR 1991 SC 397, this Court was dealing with a matter relating to the preventive detention under the National Security Act (65 of 1980). The principal argument before the Court was that there was no valid conferment of power on the Commissioner to make the detention order. It was also argued that the Government had issued the order without applying its mind and by simply reproducing the words of sub-section (3) of Section 3 . The satisfaction of the Government for conferring the power on the Commissioner for the purpose in question was purported to have been reached on the circumstances prevailing on the date of the order or likely to prevail during the three months period in question. It was also argued that the Government was not certain which of the alternative circumstances was relevant for reaching the subjective 45 satisfaction and it was submitted that it had acted in a mechanical manner without application of mind. In that context, the observations of this Court are worth taking note of:-

This is indeed no more than a reproduction of the terms of subsection (3) of Section 3 . But sub-section (3) refers to two independent circumstances namely : (i) the prevailing circumstances, (ii) the circumstances that are likely to prevail. The former evidently means circumstances in praesenti that is prevalent on the date of the order and the latter means the anticipated circumstances in future. If the Government wants that the District Magistrate or the Commissioner of Police should also exercise the powers for the current period, 46 it has to satisfy itself with the prevailing circumstances. If the Government wants that the District Magistrate or the Commissioner of Police should also exercise the powers during the future period, it must be satisfied with the circumstances that are likely to prevail during that period. This seems to be the mandate of sub-section (3).

8. Subjective satisfaction for the exercise of power under sub-section (3) of Section 3 must be based on circumstances prevailing at the date of the order or likely to prevail at a future date. The period during which the District Magistrate or the Commissioner of Police, as the case may be, is to exercise the power provided by subsection (2) of Section 3 is to be specified in the order which would depend on the existence of circumstances in praesenti or at a future date. If the subjective satisfaction is based on circumstances prevailing at the date of the order, the choice of period, which must not exceed three months, would have to be determined from the date of the order. If the conferment of power is, considered necessary because of circumstances likely to prevail during the future period, the duration for the exercise of power must be relatable to the apprehended circumstances. Therefore, the specification of the period during which the District Magistrate or Commissioner of Police is to exercise power under sub- section (2) of Section 3 would depend on the subjective satisfaction as to the existence of the circumstances in praesenti or future. Since very drastic powers of detention without trial are to be conferred on subordinate officers, the State Government is expected to apply its mind and make a careful choice regarding the period during which such power shall be exercised by the subordinate officers, which would solely depend on the circumstances prevailing or likely to prevail. The subjective satisfaction cannot be lightly recorded by reproducing both the alternative clauses of the statute. The subjective satisfaction on the prevailing Circumstances, or circumstances that are likely to prevail at a future date is the sine qua non for the exercise of power. The use of the word 'or' signifies either of the two situations for different periods. That, however, is not to say that the power cannot be 47 exercised for a future period by taking into consideration circumstances prevailing on the date of the order as well as circumstances likely to prevail ,in future. The latter may stem from the former. For example, there may be disturbances on the date of the order and the same situation may be visualised at a future date also in which case the power may be conferred on the subordinate officers keeping both the factors in mind; but in that case the two circumstances would have to be joined by the conjunctive word 'and' not the disjunctive word 'or'. The use of the disjunctive word 'or' in the impugned Government order only indicates nonapplication of mind and obscurity in thought. The obscurity in thought inexorably leads to obscurity in language. Apparently, the Government seems to be uncertain as to the relevant circumstances to be taken into consideration, and that appears to be the reason why they have used the disjunctive word "or" in the impugned order.” (Emphasis supplied)

36. Thus, the decision of this Court referred to above while dealing with the conferment of powers under sub-section (3) of Section 3 of the National Security Act, makes it clear that the conferment of power has to be specific either with regard to the circumstances prevailing or likely to prevail and not for both. In that case, even the order dated 06.01.1990 of the State Government conferring the power on the Commissioner of Police recorded the satisfaction of the Government of Maharashtra that having regard to the circumstances prevailing or likely to prevail in the Greater Bombay Police Commissionerate, it was necessary that during the period commencing on January 30, 1990 and ending on April 21, 48 1990, the Commissioner of Police shall exercise the powers conferred by sub-section (2) of Section 3 of the Act. The same was not approved by this Court.

37. Section 3(2) of the Gujarat Prevention of Anti-social Activities Act, 1985 (for short, ‘PASA’), which is pari materia to Section 3(2) of the Act 1986 with which we are concerned, fell for consideration before a two-Judge Bench of this Court in the case of Navalshankar Ishwarlal Dave v. State of Gujarat , reported in AIR 1994 SC 1496, wherein the contention raised on behalf of the detenu that the blanket power of delegation under sub-section (2) of Section 3 of the PASA could be said to be a negation of satisfaction on the part of the State Government which was likely to be abused by the District Magistrate or the Commissioner of Police. While repelling such contention, this Court observed:-

section (4) of S. 3 declares that a person shall be deemed to be "acting in any manner prejudicial to the maintenance of public order" when such person is engaged in or is making preparation for engaging in any activities, whether as a bootlegger, dangerous person, drug offender, immoral traffic offender and property grabber, which affect adversely or are likely to affect adversely the maintenance of public order. Explanation thereto postulates that public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities by any person referred to in the sub- section (4) directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. Therefore, the Act postulates satisfaction on the part of the State Govt. that the dangerous and antisocial activities of any of the aforestated persons shall be deemed to be acting prejudicial to the maintenance of public order whether the person is engaged in or is making preparation for engaging in any activities enumerated in the definition clauses and the public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely if the activities directly or indirectly, causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the 50 general public or any section thereof or a grave or widespread danger to life, property or public health. In the counter affidavit filed on behalf of the State in the High Court and consideration thereof the High Court held that "the situation was found prevailing in the State in the year 1985 where the impact of the activities of various persons mentioned in the preamble with reference to their respective activities has heightened from being anti-social and dangerous activities to be prejudicial to the maintenance of public order." It is, with a view, to curb those dangerous or anti-social activities, the Govt. considered it appropriate to delegate the power under sub-sec. (2) of S. 3 to the "authorised officer" and the Govt. has stated in the notification that "having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of each of the District Magistrate specified in the Schedule annexed thereto, the Govt. of Gujarat is satisfied that it is necessary so to do" and accordingly exercised the power under sub-sec. (2) of S. 3 and directed the authorised officers i.e. the District Magistrate of each District specified in the Schedule and also the three Commissioners of Police in the respective Corporations to exercise within their local limits of jurisdiction, the power conferred by sub-see. (1) of S. 3 .It is seen that the dangerous or anti-social activities are legislatively recognised to be prejudicial to the maintenance of public order. The enumerated activities hereinbefore referred to are not isolated but being indulged in from time to time adversely affecting the public order and even tempo. The District Magistrate concerned, being the highest Dist. Officer on the spot and the Commissioner of Police in the cities have statutory duty to maintain public order. Therefore, with a view to have then effectively dealt with, to move swiftly where public order is affected or apprehended and to take action expeditiously instead of laying information with the Govt. on each occasion and eagerly awaiting action at State Govt. level, the State Govt. having exercised the power under S. 3(2) conferred on the District Magistrate or the Commissioner the power to order detention under S. 3(1) when he considers or deems necessary to detain any person involved in any of the dangerous or anti-social activities enumerated 51 herein before, prejudicially affecting or "likely to affect the maintenance of public order." The later clause lay emphasis on immediacy and promptitude and the authorised officer on the spot is the best Judge to subjectively satisfy from the facts and ground situation and take preventive measure to maintain public order. The reliance by Shri Ganesh on the decision of this Court reported in A. K. Roy v. Union of India , AIR 1982 SC 710, para 72 has no application in view of the factual background in this Act. So long as the activities of bootlegger, dangerous person, drug offender, immoral traffic offender and property grabber persist within the local limits of the jurisdiction of the concerned District Magistrate and Commissioners of Police, as the case may be, and being directly responsible to maintain public order and to deal with depraved person to prevent antisocial and dangerous activities which affects adversely or are likely to affect adversely the maintenance of public order, the necessity would exist. Therefore, the question of periodical review of delegation order does not appear to be warranted.” (Emphasis supplied)

38. Thus from the aforesaid, it could be said that the principal contention canvassed on behalf of the appellant detenu is thoroughly misconceived and deserves to be negatived at the threshold.

39. At the cost of repetition, sub-section (2) of Section 3 of the Act 1986 deals with the delegation of powers by the State Government and provides that if the State Government is satisfied 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 52 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 specified in the order, the District Magistrate or the Commissioner of Police may also, if satisfied as provided in sub-section (1) exercises the powers of the State Government as conferred by sub-section (1). The proviso to sub-section (2) therefore has nothing to do with the period of detention of a detenu.

The maximum period of detention is prescribed under Section 13 of the Act 1986 referred to above which lays down that the person may be detained in pursuance of any detention order made under the Act which has been confirmed under Section 12 of the Act 1986.

40. But this Court in Cherukuri Mani (supra), interpreted the proviso to mean that when an order of detention is made by the State Government under Section 3(1) of the Act, then the period of detention can be only for a period of three months in the first instance. A similar order made under Section 3(2) would be for an initial period of twelve days unless approved by the State Government.

According to this Court, if the State Government intends to 53 detain an individual under the Act for the maximum period of twelve months, there must be an initial order of detention for a period of three months and at least three orders of extension for a period not exceeding three months each. In support of such an interpretation, reliance has been placed on Article 22(4)(a) of the Constitution, which is extracted as under for immediate reference:

41. A reading of Article 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 54 there is, in its opinion such sufficient cause for detention.

Article 22(4)(a) clearly indicates that even if the order of detention does not prescribe any period of detention, such an order of detention cannot be in force for a period beyond three months, unless the Advisory Board before the expiration of three months opines that there is sufficient cause for detention. In other words, 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 sufficient cause for such detention then, the State Government would have to release the detenu forthwith.

42. Hence, Article 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 Officer as stipulated under Section 3(2) of the Act. In fact, under Section 9 of the Act, the State Government has to refer the matter to the Advisory Board within three weeks from the date of detention, irrespective of whether the detention order is passed under Section 3(1) or Section 3(2) of the Act and the Advisory Board has to give its opinion within seven weeks 55 from the date of detention. That would totally make it ten weeks. As stipulated in Article 22(4)(a) of the Constitution, if in a given case, once the Advisory Board gives its opinion within the stipulated period of three months, then in our view, Article 22(4)(a) would no longer be applicable. Thus, Article 22(4)(a) applies at the initial stage of passing of the order of detention by the State Government or by an officer who has been delegated by the State Government and whose order has been approved by the State Government within a period of twelve days from the date of detention and not at the stage subsequent to the report of the Advisory Board.

Depending upon the opinion of the Advisory Board, under Section 12 of the Act, the State Government can revoke the order of detention and release the detenu forthwith or may confirm the detention order and continue the detention of the person concerned for any period not exceeding the maximum period of twelve months, which is stipulated in Section 13 of the Act. Therefore, when the State Government passes a confirmatory order under Section 12 of the Act after receipt of the report from the 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 56 the date of initial order of detention, but up to a maximum period of twelve months from the date of detention.

43. 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 continuation of the detention pursuant to the confirmatory 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 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.

44. Thus, in our view, the period of three months specified in Article 22(4)(a) of Constitution of India is relatable to the period of detention prior to the report of the Advisory Board 57 and not to the period of detention subsequent thereto.

Further, the period of detention in terms of Article 22(4)(a) cannot be in force for a period beyond three months, if by then, the Advisory Board has not given its opinion holding that there is sufficient cause for such detention. Therefore, under Article 22(4)(a) , the Advisory Board would have to give its opinion within a period of three months from the date of detention and depending upon the opinion expressed by the Advisory Board, the State Government can under Section 12 of the Act, either confirm the order of detention or continue the detention of the person concerned for a maximum period of twelve months as specified in Section 13 of the Act or release the detenu forthwith, as the case may be. If the order of detention is confirmed, then the period of detention can be extended up to the maximum period of twelve months from the date of detention. With respect, we observe that it is not necessary that before the expiration of three months, it is necessary for the State Government to review the order of detention as has been expressed by this Court in Cherukuri Mani (supra). The Act does not contemplate a review of the detention order once the Advisory Board has opined that there is sufficient cause for detention of the person concerned and on that basis, a confirmatory order is passed 58 by the State Government to detain a person for the maximum period of twelve months from the date of detention. On the other hand, when under Section 3(2) of the Act, the State Government delegates its power to the District Magistrate or a Commissioner of Police to exercise its power and pass an order of detention, the delegation in the first instance cannot exceed three months and the extension of the period of delegation cannot also be for a period exceeding three months at any one time. [See: Abdul Razak v. State of Karnataka, ILR 2017 Kar 4608 (FB)]

45. The first submission canvassed on behalf of the appellant is answered accordingly.

SECOND SUBMISSION ON BAHALF OF THE APPELLANT

46. It was also vehemently argued by the learned counsel appearing for the appellant detenu that the registration of four First Information Reports (FIRs) under the Andhra Pradesh Prohibition Act, 1995 (as amended by the Act No. 18 of 2020) (for short, ‘the Act 1995’), by itself, is not sufficient to arrive at a subjective satisfaction that the activities of the appellant detenu as a boot-legger is prejudicial to the maintenance of public order.

47. We take notice of the fact that between 06.01.2021 and 09.03.2022 i.e. in a span of fourteen months a total of four cases were registered against the appellant detenu. The offence in all the four FIRs is one under Section 7B and Section 8B resply of the Act 1995 as amended by Act No. 18 of 2020. Section 7B reads thus:-

48. Section 8B reads thus:-

49. The charge as enumerated below gives a clear picture:-

50. In connection with all the four FIRs the appellant detenu was arrested and released on bail.

51. The detaining authority took notice of the following reports of the chemical analyzer:-

52. Thus, the samples which were drawn and collected from the liquor seized from the possession of the appellant detenu were sent to the forensic science laboratory for the purpose of chemical analysis and in all the four cases referred to above, the analysis report states that the samples 61 were found to be unfit for human consumption and injurious to health.

“LAW AND ORDER” AND “PUBLIC ORDER”

53. This Court on several occasions examined the concepts of “law and order” and “public Order”. Immediately after the Constitution came into force, a Constitution Bench of this Court in the case of Brij Bhushan and Another v.

The State of Delhi, (1950) SCR 605, dealt with a case pertaining to public order. The Court observed that “public order” may well be paraphrased in the context as “public tranquility”.

54. Another celebrated Constitution Bench judgment of this Court is in the case of Romesh Thappar v. The State of Madras , (1950) SCR 594. In this case, Romesh Thappar, a printer, publisher and editor of weekly journal in English called Cross Roads printed and published in Bombay was detained under the Madras Maintenance of Public Order Act, 1949 . The detention order was challenged directly in this Court by filing a writ petition under Article 32 of the Constitution. The allegation was that the detenu circulated documents to disturb the public tranquility and to create 62 disturbance of public order and tranquility. This Court observed:-

55. The distinction between “public order” and “law and order” has been carefully defined in a Constitution Bench judgment of this Court in the case of Dr. Ram Manohar Lohia v. State of Bihar and Others , (1966) 1 SCR 709. In this judgment, Hidayatullah, J. by giving various illustrations clearly defined the "public order" and "law and order". Relevant portion of the judgment reads thus:-

56. In the case of Arun Ghosh v. State of West Bengal , (1970) 1 SCC 98, Hidayatullah, J. again had an occasion to deal with the question of “public order” and “law and order”.

In this judgment, by giving various illustrations, very serious effort has been made to explain the basic distinction between “public order” and “law and order”. The relevant portion reads as under:-

57. The concept of ‘public order’ and ‘law and order’ has been dealt with in the case of Pushkar Mukherjee & Others v. The State of West Bengal , AIR 1970 SC 852. In this case, this Court had relied on the important work of Dr. Allen on ‘Legal Duties’ and spelled out the distinction between ‘public’ and ‘private’ crimes in the realm of jurisprudence. In considering the material elements of crime, the historic tests which each community applies are intrinsic wrongfulness and social expediency which are the two most important factors which have led to the designation of certain conduct as criminal. Dr. Allen has distinguished `public' and `private' crimes in the sense that some offences primarily injure specific persons and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely. There is a broad distinction along these lines, but differences naturally arise in the application of any such test.

58. This Court in the case of Babul Mitra alias Anil Mitra v. State of West Bengal & Others, (1973) 1 SCC 393, had an occasion to deal with the question of “public order” and “law and order”. This Court observed that the true distinction 66 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.

59. In Dipak Bose alias Naripada v. State of West Bengal ,(1973) 4 SCC 43, a three-Judge Bench of this Court explained the distinction between “law and order” and “public order” by giving illustrations. Relevant portion reads as under:

60. In Kuso Sah v. The State of Bihar & Others , (1974) 1 SCC 185, this Court had also considered the issue of “public order”. The Court observed thus:-

It was a case under the provisions of the PASA. Section 2(b) of the PASA which defines a “bootlegger” is pari materia to Section 2(b) of the Act 1986 Act. Section 3(4) of the PASA reads as under:-

While dealing with that case, this Court observed as follows:-

…….....…………………………………...CJI.

(DR. DHANANJAYA Y. CHANDRACHUD) …….………………………………………..J. (J.B. PARDIWALA) …….………………………………………..J. (MANOJ MISRA) NEW DELHI;

AUGUST 16, 2023 75