Sanchayita Lahkar

The Supreme Court Division Bench of Justice Sanjay Karol and Justice Manmohan delivered a verdict quashing an order of preventive detention issued under the Kerala Anti-Social Activities (Prevention) Act, 2007. The Bench held that the grounds invoked by the District Magistrate for the detention did not demonstrate any threat to public order and, therefore, did not justify the exercise of such extraordinary powers.

The Court found that despite the allegations, the detenu had been released on bail in each of the relevant cases, and no proper legal procedure had been undertaken by the State to seek cancellation of bail. The Supreme Court concluded that the preventive detention in question was unjustified and not in conformity with the requirements laid down under the Act and constitutional safeguards. Accordingly, the Court set aside both the detention order and the High Court judgment upholding it.

Also Read: Supreme Court Upholds Adani Power’s Compensation Claim | Obligation To Supply Power Arose Only After Amended PPAs Received Regulatory Approval

The appeal arose from the final judgment and order dated 4th September, 2024 passed by the High Court of Kerala at Ernakulam in WP(CRL) No.874/2024. The High Court had upheld the order of preventive detention dated 20th June, 2024 issued by the District Magistrate, Palakkad against the detenu, Rajesh, under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter, "the Act").

The detenu was alleged to be operating a registered lending firm, "Rithika Finance." The District Police of Palakkad had submitted Recommendation No.54/Camp/2024-P-KAA(P)A dated 29th May, 2024, labelling the detenu as a "notorious goonda" who posed a threat to society. The District Magistrate relied on this recommendation and issued the detention order.

The detaining authority cited the following four criminal cases against the detenu:

1. Crime No.17/2020 under Section 17 of the Kerala Money Lenders Act, 1958 and Sections 3, 9(1)(a) of the Kerala Prohibition of Charging Exorbitant Interest Act, 2012, registered at Kasaba Police Station.

1. Crime No.220/2022 under Section 3 read with Section 17 of the Kerala Money Lenders Act, 1958 and Section 9(a)(b) read with Section 3 of the 2012 Act, registered at Town South Police Station.

1. Crime No.221/2022 under Sections 294(b), 506(I) of the Indian Penal Code, along with similar provisions of the Money Lenders and Interest Acts.

1. Crime No.401/2024 under Sections 341, 323, 324, 326 of the IPC, Section 17 of the Money Lenders Act, Section 4 of the 2012 Act, and Sections 3(2)(va), 3(1)(r), 3(1)(s) of the SC/ST (Prevention of Atrocities) Act, 1989.

Following the detention, the appellant, the detenu's wife, filed a writ petition before the High Court of Kerala seeking a writ of Habeas Corpus, arguing that the detention was illegal. The High Court, however, dismissed the petition, holding that the detaining authority was not required to determine whether the cases would result in acquittal and that procedural safeguards had been complied with.

The appellant then approached the Supreme Court, contending that the detenu was on bail in all cases and was complying with court-imposed conditions. The Supreme Court also noted that the detenu had been released on 10th December, 2024, upon completion of the maximum permissible detention period under the Act.

The Court recorded, "the provision for preventive detention is an extraordinary power in the hands of the State that must be used sparingly." It further stated that such power must not be used in the ordinary course of law, as it curtails an individual's liberty.

Quoting from Rekha v. State of Tamil Nadu, the Court stated, "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."

The Court referred to Mortuza Hussain Choudhary v. State of Nagaland and Ors., stating, "Preventive detention is a draconian measure whereby a person who has not been tried and convicted under a penal law can be detained... This extreme mechanism is, however, sanctioned by Article 22(3)(b) of the Constitution of India."

It stated that, "the prescribed safeguards must be strictly observed to ensure due compliance with constitutional and statutory norms and requirements."

Further, the Court noted that under Section 2(j) of the Act, a person may be labeled a 'goonda' only if they indulge in activities "harmful to the maintenance of public order." It was observed that, "Section 2(o) lays down the classification for a known goonda," based on convictions or investigations in at least two separate instances.

The Court distinguished between public order and law and order, stating in reference to SK. Nazneen v. State of Telangana, "the detention orders were not justified as it was dealing with a law-and-order situation and not a public order situation."

In Nenavath Bujji v. State of Telangana, the Court elaborated: "The distinction between law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society."

The Court concluded that, "the attending facts and circumstances do not fall under the category of a public order situation. The observations made in the detention order do not ascribe any reason as to how the actions of the detenu are against the public order of the State."

Additionally, the Court found, "no application has been filed by the respondent-State in any of the four cases, alleging violation of such conditions." It held that the State should have moved for cancellation of bail rather than placing the detenu under preventive detention.

Quoting from Ameena Begum v. State of Telangana, the Court noted, "It is pertinent to note that in the three criminal proceedings where the detenu had been released on bail, no applications for cancellation of bail had been moved by the State."

It reiterated from Vijay Narain Singh v. State of Bihar: "It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution."

The Supreme Court held: "Keeping in view the above expositions of law, we have no doubt that the order of detention cannot be sustained."

Also Read: Petitioner Cannot Stand Outside The Amnesty Scheme | Court Refuses To Rewrite Terms | Bombay High Court Rejects Plea Seeking Relief From Decreed Theft Charges

It recorded that, "the circumstances pointed out in the order by the detaining authority may be ground enough for the State to approach the competent Courts for cancellation of bail, but it cannot be said that the same warranted his preventive detention."

It added a clarification: "if such an application for cancellation of the detenu’s bail is made by the respondent-State, the same must be decided uninfluenced by the observations made hereinabove."

Accordingly, the Court stated: "the order of detention dated 20th June, 2024 and the impugned judgment dated 4th September, 2024 passed by the High Court of Kerala at Ernakulam in WP(CRL.) No.874/2024 are hereby set aside."

The Court disposed of all pending applications, stating: "Pending application(s), if any, shall stand disposed of."

Advocates Representing the Parties:

For the Appellants: Mr. Ajay Prabu, Adv. Ms. R. Shase, AOR

For the Respondents: Mr. Harshad V. Hameed, AOR

Case Title: Dhanya M v. State of Kerala & Ors.

Neutral Citation: 2025 INSC 809

Case Number: Criminal Appeal No.2897 of 2025

Bench: Justice Sanjay Karol, Justice Manmohan

[Read/Download order]