In Dhanya M vs State of Kerala & Others [Criminal Appeal No. 2897 of 2025], the Supreme Court on 6 June 2025 quashed a preventive detention order passed under the Kerala Anti-Social Activities (Prevention) Act, 2007 (“the Act”). The Court reiterated that preventive detention is a “draconian measure” that must be exercised sparingly and only in cases involving a real threat to public order, not merely law and order. The bench comprising Justices Sanjay Karol and Manmohan held that the detention did not satisfy the statutory or constitutional requirements for depriving an individual of liberty without trial.
Background
The appeal arose from the Kerala High Court’s decision dated 4 September 2024 in WP(CRL) No. 874 of 2024, wherein the High Court had affirmed the detention of Rajesh, the husband of the appellant Dhanya M, under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007. The detention order was issued by the District Magistrate, Palakkad, on 20 June 2024, following a recommendation from the District Police.
Rajesh was running a registered money-lending business under the name “Rithika Finance”. The police cited four criminal cases to label him a “notorious goonda”:
- Crime No.17/2020 – offences under Section 17 of the Kerala Money Lenders Act, 1958 and Section 3, 9(1)(a) of the Kerala Prohibition of Charging Exorbitant Interest Act, 2012.
- Crime No.220/2022 – similar offences under the above statutes.
- Crime No.221/2022 – offences under Sections 294(b), 506(I) of the IPC and relevant provisions of the Money Lenders Act and Exorbitant Interest Act.
- Crime No.401/2024 – offences under Sections 341, 323, 324, 326 of the IPC, Section 4 of the Exorbitant Interest Act, and Sections 3(2)(va), 3(1)(r), 3(1)(s) of the SC/ST (Prevention of Atrocities) Act, 1989.
The appellant challenged the detention on the ground that Rajesh had been granted bail in all pending criminal cases and was complying with the bail conditions.
Arguments and High Court Decision
The Kerala High Court dismissed the habeas corpus petition, holding:
- The detaining authority need not assess the likelihood of conviction while issuing a preventive detention order.
- Under Article 226, the Court does not act as an appellate forum over administrative decisions taken based on available materials.
- Procedural safeguards had been complied with.
Supreme Court’s Observations
The apex court emphasized the limited scope and exceptional nature of preventive detention:
“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 Court referred to Rekha v. State of Tamil Nadu (2011) 5 SCC 244, reiterating that preventive detention is an exception to Article 21 of the Constitution and should be invoked only in rare cases.
It also cited Mortuza Hussain Choudhary v. State of Nagaland [2025 SCC OnLine SC 502], describing preventive detention as a “draconian measure” and stressing the need for strict adherence to constitutional and statutory safeguards.
Scope of ‘Public Order’ vs ‘Law and Order’
A key finding of the Court was that the detention did not meet the threshold of affecting “public order” under Section 2(j) of the Act. The Court highlighted the legal distinction between law and order and public order by quoting SK. Nazneen v. State of Telangana (2023) 9 SCC 633 and Nenavath Bujji v. State of Telangana [2024 SCC OnLine SC 367]:
“Public order has a narrower ambit, and could be affected by only such contravention, which affects the community or the public at large… The true distinction lies not merely in the nature of the act, but in the degree and extent of its reach upon society.”
The Court held that the State failed to establish how the detenu’s actions disturbed public order. The detention order lacked specific reasons justifying the invocation of such exceptional power.
Court’s Criticism of Use of Preventive Detention in Bail Situations
The Court noted that the State had alleged violations of bail conditions but had not filed any application for bail cancellation in the criminal cases. Citing Ameena Begum v. State of Telangana (2023) 9 SCC 587 and Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14, the bench stated:
“The law of preventive detention should not be used merely to clip 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.”
Decision
The Supreme Court concluded:
“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.”
Accordingly, the Court set aside the detention order dated 20 June 2024 and the Kerala High Court’s judgment dated 4 September 2024, and allowed the appeal.
Case Title: Dhanya M vs State of Kerala & Others
