2025 INSC 809 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2897 OF 2025

(Arising out of SLP (Crl.) No.14740 of 2024)

DHANYA M … APPELLANT(S)

Versus

STATE OF KERALA & ORS. … RESPONDENT(S)

J U D G M E N T

Sanjay Karol, J.

Leave Granted.

2.The present appeal arises from the final judgment and

order dated 4

th

September, 2024 passed by the High Court of

SLP (Crl.) No. 14740 of 2024 Page 1 of 12

Kerala at Ernakulam in WP(CRL)No.874/2024, whereby the

order dated 20

th

June, 2024 passed by the District Magistrate,

Palakkad, directing the husband of the appellant, Rajesh

1

to be

kept under preventive detention in prison in terms of Section 3

of Kerala Anti-Social Activities (Prevention) Act, 2007

2

was

affirmed.

3.The brief facts giving rise to the present appeal are that

the detenu is running a registered lending firm in the name of

‘Rithika Finance’. On 20

th

June, 2024, the District Magistrate,

Palakkad, issued an order of detention under Section 3(1) of the

Act, in furtherance of Recommendation No.54/Camp/2024-P-

KAA(P)A dated 29

th

May, 2024 by the Palakkad District Police

Head. It was stated therein that the detenu is a ‘notorious

goonda’ of the district and is a threat to the society at large. The

following cases were considered for such declaration:

i.Crime No.17/2020 under Section 17 of Kerala

Money Lenders Act, 1958, and Section 3, 9(1)(a)

of Kerala Prohibition of Charging Exorbitant

Interest Act, 2012, at the Kasaba Police Station.

ii.Crime No.220/2022 under Section 3 read with

Section 17 of Kerala Money Lenders Act, 1958,

and Section 9(a)(b) read with Section 3 of Kerala

1 Hereinafter “detenue”

2 Hereinafter “the Act”

SLP (Crl.) No. 14740 of 2024 Page 2 of 12

Prohibition of Charging Exorbitant Interest Act,

2012, at the Town South Police Station.

iii.Crime No.221/2022 under Section 294(b), 506

(I) of the Indian Penal Code, 1860, and Section 3

read with Section 17 of Kerala Money Lenders

Act, 1958, and Section 9 (a)(b) read with Section

3 of Kerala Prohibition of Charging Exorbitant

Interest Act, 2012.

iv.Crime No.401/2024 under Sections 341, 323,

324, 326 of the Indian Penal Code, 1860; Section

17 of Kerala Money Lenders Act, 1958; Section

4 of Kerala Prohibition of Charging Exorbitant

Interest Act, 2012, and Section 3(2), (va), 3(1)

(r), 3(1)(s) of the SC/ST Prevention of Atrocities

Act, 1989.

4.Consequently, the detenu was taken into custody.

Aggrieved by the order of detention dated 20

th

June, 2024, the

appellant filed a writ petition before the High Court of Kerala

assailing the order of detention and praying for a writ of Habeas

Corpus to Respondent No.1 - the State of Kerala, against the

illegal detention of her husband, Rajesh.

SLP (Crl.) No. 14740 of 2024 Page 3 of 12

5.Vide the impugned Judgment and Order, the High Court

of Kerala dismissed the challenge laid to the order of detention

with the following findings:

a.Whether the cases against the detenu will result

in an acquittal, is not an exercise that can be

carried out by the detaining authority while

passing the order of preventive detention.

b.In writ jurisdiction under Article 226 of the

Constitution, the Court does not sit in an appeal

against decisions taken by the authorities on the

basis of the materials placed before it.

c.Procedural safeguards have been complied with

in the impugned action.

6.Aggrieved thereof, the appellant has preferred an appeal

before this Court. The significant point of challenge taken by

the appellant is that in all cases against the detenu, he is on bail

and is complying with the conditions laid down by the Court.

7.We have heard the learned counsel for the parties and

perused the written submissions filed. Vide order dated 10

th

December 2024, the detenu was released by this Court, since

the maximum period of detention under the Act was completed.

8.The question that arises for consideration before this

Court is - whether the preventive detention of the detenu is in

accordance with law.

SLP (Crl.) No. 14740 of 2024 Page 4 of 12

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

3

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.

10.The above position was succinctly summarized by this

Court, recently in Mortuza Hussain Choudhary v. State of

Nagaland and Ors.

4

, as follows :

“2. Preventive detention is a draconian measure

whereby a person who has not been tried and convicted

under a penal law can be detained and confined for a

determinate period of time so as to curtail that person's

anticipated criminal activities. This extreme mechanism

is, however, sanctioned by Article 22(3)(b) of

the Constitution of India. Significantly, Article 22 also

provides stringent norms to be adhered to while

effecting preventive detention. Further, Article 22

speaks of the Parliament making law prescribing the

conditions and modalities relating

to preventive detention. The Act of 1988 is one such

law which was promulgated by the Parliament

authorizing preventive detention so as to curb illicit

3 (2011) 5 SCC 244.

4 2025 SCC Online SC 502.

SLP (Crl.) No. 14740 of 2024 Page 5 of 12

trafficking of narcotic drugs and psychotropic

substances. Needless to state, as preventive deprives a

person of his/her individual liberties by detaining

him/her for a length of time without being tried and

convicted of a criminal offence, the prescribed

safeguards must be strictly observed to ensure due

compliance with constitutional and statutory norms and

requirements.”

(Emphasis supplied)

11.Furthermore, given the extraordinary nature of the power

of preventive detention, this Court in Icchhu Devi v. Union of

India

5

, 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

6

, this Court

reiterated that an action of preventive detention has to be

checked with Article 21 of the Constitution and the statute in

question.

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,

5 (1980) 4 SCC 531.

6 (2021) 9 SCC 415.

SLP (Crl.) No. 14740 of 2024 Page 6 of 12

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 anti-

social 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.

17.From perusal of Section 2(j), it is evident that a person

who indulges in activities “harmful to maintenance of public

order” is sought to be covered by the Act. This Court in SK.

SLP (Crl.) No. 14740 of 2024 Page 7 of 12

Nazneen v. State of Telangana

7

had emphasized on the

distinction between public order as also law and order situations

:

“18. In two recent decisions [Banka Sneha

Sheela v. State of Telangana, (2021) 9 SCC 415 :

(2021) 3 SCC (Cri) 446; Mallada K. Sri Ram v. State of

Telangana, (2023) 13 SCC 537 : 2022 SCC OnLine SC

424] , this Court had set aside the detention orders

which were passed, under the same Act i.e. the present

Telangana Act, primarily relying upon the decision

in Ram Manohar Lohia [Ram Manohar Lohia v. State

of Bihar, 1965 SCC OnLine SC 9] and holding that the

detention orders were not justified as it was dealing

with a law and order situation and not a public order

situation.”

(Emphasis supplied)

18. Similarly, in Nenavath Bujji etc. v. State of Telangana

& Ors.

8

, this Court observed :

“32. The crucial issue is whether the activities of the

detenu were prejudicial to public order. While the

expression ‘law and order’ is wider in scope inasmuch

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. Public order is the even tempo of

life of the community taking the country as a whole or

even a specified locality. The distinction between the

areas of ‘law and order’ and ‘public order’ is one of

degree and extent of the reach, of the act in question on

society. It is the potentiality of the act to disturb the

even tempo of life of the community which makes it

prejudicial to the maintenance of the public order. If a

contravention in its effect is confined only to a few

7 (2023) 9 SCC 633.

8 2024 SCC OnLine SC 367.

SLP (Crl.) No. 14740 of 2024 Page 8 of 12

individuals directly involved as distinct from a wide

spectrum of public, it could raise problem of law and

order only. In other words, the true distinction between

the areas of 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. Acts similar

in nature, but committed in different contexts and

circumstances, might cause different reactions. In one

case it might affect specific individuals only, and

therefore touches the problem of law and order only,

while in another it might affect public order. The act by

itself, therefore, is not determinant of its own gravity. In

its quality it may not differ from other similar acts, but

in its potentiality, that is, in its impact on society, it may

be very different.”

(Emphasis supplied)

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.

20. Moreover, it has been stated therein by the authority that

the detenu is violating the conditions of bail imposed upon him

in the cases that have been considered for passing the order of

detention. However, pertinently, no application has been filed

by the respondent-State in any of the four cases, alleging

SLP (Crl.) No. 14740 of 2024 Page 9 of 12

violation of such conditions, if any, and moreover, have not

even been spelt out here.

21.This Court in SK. Nazneen (supra), had observed that the

State should move for cancellation of bail of the detenu, instead

of placing him under the law of preventive detention, which is

not the appropriate remedy. Similarly, in Ameena Begum v.

State of Telengana

9

, this Court observed :

“59. … 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. In the light of the same, the

provisions of the Act, which is an extraordinary statute,

should not have been resorted to when ordinary

criminal law provided sufficient means to address the

apprehensions leading to the impugned detention order.

There may have existed sufficient grounds to appeal

against the bail orders, but the circumstances did not

warrant the circumvention of ordinary criminal

procedure to resort to an extraordinary measure of the

law of preventive detention.”

60. In Vijay Narain Singh v. State of Bihar [Vijay

Narain Singh v. State of Bihar, (1984) 3 SCC 14 : 1984

SCC (Cri) 361] , Hon'ble E.S. Venkataramiah, J. (as the

Chief Justice then was) observed : (SCC pp. 35-36,

para 32)

32. … It is well settled that the law of

preventive detention is a hard law and

therefore it should be strictly construed.

Care should be taken that the liberty of a

person is not jeopardised unless his case

falls squarely within the four corners of the

relevant law. The law of preventive

detention should not be used merely to clip

9 (2023) 9 SCC 587.

SLP (Crl.) No. 14740 of 2024 Page 10 of 12

the wings of an accused who is involved in

a criminal prosecution. It is not intended for

the purpose of keeping a man under

detention when under ordinary criminal law

it may not be possible to resist the issue of

orders of bail, unless the material available

is such as would satisfy the requirements of

the legal provisions authorising such

detention. When a person is enlarged on

bail by a competent criminal court, great

caution should be exercised in scrutinising

the validity of an order of preventive

detention which is based on the very same

charge which is to be tried by the criminal

court.”

(Emphasis supplied)

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.

23. Therefore, the order of detention dated 20

th

June, 2024

and the impugned judgment dated 4

th

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.

SLP (Crl.) No. 14740 of 2024 Page 11 of 12

Pending application(s), if any, shall stand disposed of.

……………………J.

(SANJAY KAROL)

……………………J.

(MANMOHAN)

6

th

June, 2025;

New Delhi.

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