Case Name: Dhanya M v. State of Kerala & Ors.
Case Number: Criminal Appeal No. 2897 of 2025 (Arising from SLP (Crl.) No. 14740 of 2024)
Date of Judgment: 06 June 2025
Quorum: Justice Sanjay Karol
FACTUAL BACKGROUND
The Instant appeal emerges from the final judgment rendered by the High Court of Kerala and the subsequent order passed on 4th September 2024. The High Court was considering the veracity of the order dated 20th June 2024 passed by the District Magistrate of Palakkad, affirming the direction to hold the appellant’s husband under preventive detention as per section 3 of the KAAPA Act, 2007. The order mentioned that the detenu (appellant’s husband) is a ‘notorious goonda’ of the district and is a threat to the society at large.
The appellant’s husband is operating a registered lending firm, “Rithika Finance”. The latter order was made in furtherance of recommendation No.54/Camp/2024-KAA(P)A dated 29th May 2024, issued by Palakkad District Police. In due course, he was taken into custody.
Aggrieved by the detention, the appellant filed writ petition before the High Court of Kerala, challenging the order dated 20th June 2024, and praying for a writ of Habeas Corpus to R1 – State of Kerala.
The High Court of Kerala dismissed the challenge on the basis of 3 grounds – (i) the concerned authority is not burdened to see whether the cases against the detenu will result in acquittal or not, (ii) In a writ petition filed under Article 226 of the Constitution, the court is not to sit in an appeal against the decisions taken by authorities, on the basis of the materials placed before it, (iii) procedural safeguards have been complied with in the impugned action. Aggrieved thereby, the appellant has preferred the present appeal before the hon’ble Supreme Court.
ISSUES FOR DETERMINATION
- Whether the preventive detention of the detenu is in accordance with law.
LEGAL PROVISIONS
Section 2(j), 2(o), 3(1), 7 and 12, Kerala Anti-Social Activities (Prevention) Act, 2005. Article 22(310(b), Article 226, Constitution of India
APPELLANT’S CONTENTIONS
The main contention put forward by the appellant is that in all the cases that have been filed against the detenu, he is on bail and has strictly adhered to the conditions of bailment prescribed by the court.
RESPONDENT’S CONTENTIONS
The respondents in the present appeal contend that the detention of the detenu must be upheld since he is violating the conditions of the bail imposed upon him in the cases which are considered for passing the order of detention.
ANALYSIS
The Supreme court referred to various judgements of the court on the matter of preventive detention to comprehend and thereafter apply the true limits of preventive detention powers that may be exercised by the state executive. In its earlier decision in Rekha v State of Tamil Nadu, this court has emphasized that the power of preventive detention is an exception to Article 21, and therefore must be applied as such, as an exception to the main rule and only in rare cases. This position is backed by the recent decision of Mortuza Hussain Choudhary v State of Nagaland and Ors., in which the court emphasized the need to observe the prescribed safeguards while exercising the power of preventive detention, as it deprives a person of his/her individual liberties. Furthermore, the court referred its judgment in Icchu Devi v Union of Indian, in order to underscore the burden on the detaining authority to prove that such actions are in conformity with the procedure established by law, in consonance with Article 21.
The court invited attention to the scheme and object of the KAA(P)A Act, 2005, which is, to provide effective prevention of certain anti-social activities in the State of Kerala. The impugned order had described the detenu as ‘notorious goonda’. Section 2(j) of the Act defines ‘goonda’ as a person who indulges in activities that are harmful to the maintenance of public order, either directly or indirectly. This court, in numerous judgements, has clarified the distinction between public order, and law and order situations. In Nenavath Bujji etc. v State of Telangana & Ors, this court observed that, “while the expression ‘law and order’ is wider in scope in as much as contravention of law always affects order, ‘public order’ has a narrower ambit, and could be affected by only such contravention, which affects the community or the public at large.”
This distinction becomes imperative in the present appeal, since this court in two recent judgments, Banka Sneha v State of Telangana (2021) and Mallada K. Sri Ram v State of Telangana (2023), had set aside the similar detention orders, primarily based on the ground that they were not justified as it was dealing with a law-and-order situation and not a public order situation.
On applying the said positions of law to the current appeal, the concerned facts and circumstances do not fall under the category of public order situation. The grounds stated for detention do not satisfactorily explain as to how the actions of the detenu are against the public order of the state. In addition to this, the contention that the detenu is violating the bail conditions in the cases considered for passing the impugned order, fails to stand since the State has not filed application alleging violation of such conditions if any, any of the said cases. In Vijay Narain Singh v State of Bihar, this court had propounded that the law of preventive detention is not intended to keep a person under detention when the same is not possible under ordinary criminal law, unless the requirements laid under the provisions authorizing such detention, is materially satisfied.
JUDGMENT
The Supreme Court allowed the appeal, thereby holding that the challenged order of detention cannot be sustained. The court held that the factors pointed out by the authority in the detention order may be sufficient grounds for the state to approach the competent court for cancellation of bail, but it can’t warrant the individual’s preventive detention. The order of detention dated 20th June 2024 and the impugned judgment of the Kerala High Court 4th September 2024 in WP(CRL.) No. 874/2024 are hereby set aside.
CONCLUSION
The Judgment delivered by the Supreme Court in the present appeal is a reinstatement of the position that the law of preventive detention is hard law, and it must be interpreted strictly, giving extra attention to not to infringe the constitutional rights of the detained individuals, except in accordance with the procedure established by law. In particular, the judgment highlighted the importance of differentiating between law-and-order situations and from those affecting public order, and how it must not contravene bail proceedings. Thereby, highlighting that preventive detention is an extraordinary measure that must be invoked only in rare situations, wherein the public order is specifically at a genuine risk.
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WRITTEN BY AYANA THERESA XAVIER
