Appeal
2. The present appeal arises 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, whereby the order dated 20th June, 2024 passed by the District Magistrate, Palakkad, directing the husband of the appellant, Rajesh1 to be kept under preventive detention in prison in terms of Section 3 of Kerala Anti-Social Activities (Prevention) Act, 20072 was affirmed.
Facts simplified
Rajesh, who runs a registered lending firm called ‘Rithika Finance,’ was detained on June 20, 2024, by the District Magistrate of Palakkad under the Kerala Anti-Social Activities (Prevention) Act. This action followed a recommendation by the Palakkad District Police, labeling him a “notorious goonda” and a societal threat. The detention was based on several criminal cases, including violations of the Kerala Money Lenders Act and the Kerala Prohibition of Charging Exorbitant Interest Act, as well as charges under the Indian Penal Code and the SC/ST Prevention of Atrocities Act. In response, Rajesh’s wife, Dhanya M, filed a writ petition in the Kerala High Court, seeking a writ of Habeas Corpus to challenge the legality of his detention.
Analysis
Question to consider
8. The question that arises for consideration before this Court is – whether the preventive detention of the detenu is in accordance with law.
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
9. It is well settled that the provision for preventive detention is an extraordinary power in the hands of the State that must be used sparingly. It curtails the liberty of an individual in anticipation of the commission of further offence(s), and therefore, must not be used in the ordinary course of nature. The power of preventive detention finds recognition in the Constitution itself, under Article 22(3)(b). However, this Court has emphasized in Rekha v. State of Tamil Nadu 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.
11. Furthermore, given the extraordinary nature of the power of preventive detention, this Court in Icchhu Devi v. Union of India, placed 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. Similarly, in Banka Sneha Sheela v. State of Telengana, this Court reiterated that an action of preventive detention has to be checked with Article 21 of the Constitution and the statute in question.
Scheme, Object and Procedure explained
12. At this stage, we must advert to the scheme and object of the Act, under which the impugned detention order has been passed. The object of the Act is to provide for effective prevention of certain anti-social activities in the State of Kerala. Section 2(j) defines ‘goonda’ as a person who indulges in activities that are harmful to the maintenance of public order, either directly or indirectly. It includes persons who are bootleggers, counterfeiters, drug offenders, and loan sharks, amongst others. Section 2(o) lays down the classification for a ‘known goonda’, which is a goonda who has been –
i. Found guilty of an offence which falls under the categories mentioned in Section 2(j); or
ii. Found in any investigation or competent Court on complaints initiated by persons in two separate instances not forming part of the same transaction, to have committed any act within the meaning of the term ‘goonda’ as defined in Section 2(j).
13. Under Section 3 of the Act, the District Magistrate so authorized or the Government, may make an order directing detention of a ‘known goonda’, to prevent commission of antisocial activities within the State of Kerala.
14. Section 7 mandates disclosure of the grounds of detention to the detenu along with relevant documents within five days of the preventive detention.
15. Section 12 of the Act specifies that the period of detention for any person shall not exceed six months.
16. Coming to the attending facts and circumstances, we are of the considered view that the exercise of power under Section 3 of the Act, was not justified in law.
Fact of the case did not fall under the category of public order situation
19. In consonance with the above expositions of law, in our view, 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. As discussed above, given the extraordinary nature of the power of preventive detention, no reasons are assigned by the detaining authority, as to why and how the actions of the detenu warrant the exercise of such an exceptional power.
Conclusion
22. Keeping in view the above expositions of law, we have no doubt that the order of detention cannot be sustained. 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. We clarify that 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.
Detention order set aside
23. Therefore, 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. In the attending facts and circumstances of this case, the appeal is allowed.
Judgments involved or cited
Rekha v. State of Tamil Nadu (2011) 5 SCC 244 – Preventive detention is an exception to Article 21 and must be applied sparingly and only in rare cases.
Mortuza Hussain Choudhary v. State of Nagaland and Ors. (2025 SCC Online SC 502) – Preventive detention is a draconian measure authorized by Article 22(3)(b) of the Constitution, requiring strict adherence to safeguards to protect individual liberty.
Icchhu Devi v. Union of India (1980) 4 SCC 531 – The burden lies on the detaining authority to prove that preventive detention complies with legal procedures and Article 21.
Banka Sneha Sheela v. State of Telangana (2021) 9 SCC 415 – Preventive detention must be checked against Article 21 and the relevant statute; the court does not sit in appeal against detaining authority decisions based on materials.
SK. Nazneen v. State of Telangana (2023) 9 SCC 633 – Distinguishes between public order and law and order; preventive detention cannot be used for mere law and order situations.
Nenavath Bujji v. State of Telangana & Ors. (2024 SCC OnLine SC 367) – Public order refers to the even tempo of life of the community; acts affecting only a few individuals relate to law and order, not public order.
Ameena Begum v. State of Telangana (2023) 9 SCC 587 – Preventive detention should not circumvent ordinary criminal law procedures when bail conditions can be addressed through regular criminal processes.
Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14 – Preventive detention is a hard law and should be strictly construed; caution is needed when detaining a person already released on bail under the same charges.
Acts and Sections involved
Kerala Anti-Social Activities (Prevention) Act, 2007
– Section 3(1) (Preventive detention of known goondas)
– Section 2(j) (Definition of “goonda”)
– Section 2(o) (Definition of “known goonda”)
Section 7 (Disclosure of grounds of detention)
– Section 12 (Maximum period of detention: six months)
Kerala Money Lenders Act, 1958
– Section 17
Kerala Prohibition of Charging Exorbitant Interest Act, 2012
– Sections 3, 4, 9(1)(a), 9(a)(b)
Indian Penal Code, 1860
– Sections 294(b), 323, 324, 326, 341, 506(I)
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
– Sections 3(1)(r), 3(1)(s), 3(2), (va)
Party
Dhanya M vs State of Kerala & Ors – Criminal Appeal No. 2897 of 2025 (Arising out of SLP (Crl.) No. 14740 of 2024) – 2025 INSC 809 – 6th June, 2025 – Hon’ble Mr. Justice Sanjay Karol and Hon’ble Mr. Justice Manmohan.
