It is entirely in order and is absolutely in the fitness of things that the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Dhanya M vs State of Kerala & Ors in Criminal Appeal No.2897 of 2025 (Arising out of SLP (Crl.) No.14740 of 2024) and cited in Neutral Citation No.: 2025 INSC 809 that was pronounced as recently as on June 6, 2025 in the exercise of its criminal appellate jurisdiction has minced just no words to hold in no uncertain terms that the State of Kerala has failed to demonstrate how the acts of the detenu, Rajesh, could justify the State’s decision to curtail his liberty under a statute designed for extraordinary threats to public order. We thus see that the Apex Court took exception to States resorting to preventive detention to keep accused in jail after they secure bail. It was also made crystal clear by the top court that preventive detention is a Constitutional exception and not a substitute for regular criminal process and State authorities must not resort to preventive detention and bypass ordinary legal mechanisms like seeking bail cancellation unless there exists compelling reasons backed by concrete material.
It must be disclosed here that these observations were made while quashing the preventive detention of a Kerala-based private money lender under the Kerala Anti-Social Activities (Prevention) Act, 2007. This leading case sprung from a detention order that had been passed by the District Magistrate at Palakkad in Kerala on June 20, 2024 branding Rajesh – a registered lender running ‘Rithika Finance’ – as a “notorious goonda” based on multiple FIRs pertaining to alleged loan sharking and assault. It must be revealed that though he was already on bail in all pending cases, the authorities invoked Section 3 of the Kerala Anti-Social Activities (Prevention) Act to detain him for six months. The Kerala High Court dismissed his wife – Dhanya M’s Habeas Corpus plea against the detention. This led to the appeal before the Apex Court which set aside both the detention order and the Kerala High Court judgment. Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Sanjay Karol for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Manmohan sets the ball in motion by first and foremost putting forth in para 2 that, “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, Rajesh (Hereinafter “detenue”) to be kept under preventive detention in prison in terms of Section 3 of Kerala Anti-Social Activities (Prevention) Act, 2007 (Hereinafter “the Act”) was affirmed.”
To put things in perspective, the Bench envisages in para 3 while elaborating on brief facts stating that, “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 20th 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-PKAA(P)A dated 29th 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 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.
As it turned out, the Bench enunciates in para 4 disclosing that, “Consequently, the detenu was taken into custody. Aggrieved by the order of detention dated 20th 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.”
As we see, the Bench then lays bare in para 5 pointing out that, “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.”
As things stands, the Bench points out in para 6 revealing that, “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.”
Needless to say, the Bench then states in para 7 mentioning that, “We have heard the learned counsel for the parties and perused the written submissions filed. Vide order dated 10th December 2024, the detenu was released by this Court, since the maximum period of detention under the Act was completed.”
To be sure, the Bench then states in para 8 stipulating that, “The question that arises for consideration before this Court is – whether the preventive detention of the detenu is in accordance with law.”
No doubt, the Bench very rightly points out in para 9 that, “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 (2011) 5 SCC 244. 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.”
While citing a recent and relevant case law, the Bench specifies in para 10 stating that, “The above position was succinctly summarized by this Court, recently in Mortuza Hussain Choudhary v. State of Nagaland and Ors. 2025 SCC Online SC 502., 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 trafficking of narcotic drugs and psychotropic substances. Needless to state, as preventive detention 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).”
Be it noted, the Bench notes in para 11 that, “Furthermore, given the extraordinary nature of the power of preventive detention, this Court in Icchhu Devi v. Union of India (1980) 4 SCC 531, 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 (2021) 9 SCC 415, this Court reiterated that an action of preventive detention has to be checked with Article 21 of the Constitution and the statute in question.”
Do note, the Bench notes in para 13 that, “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.”
Do also note, the Bench then notes in para 14 that, “Section 7 mandates disclosure of the grounds of detention to the detenu along with relevant documents within five days of the preventive detention.”
Do further note, the Bench then also notes in para 15 that, “Section 12 of the Act specifies that the period of detention for any person shall not exceed six months.”
Quite significantly, the Bench mandates in para 16 holding that, “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.”
It is worth noting that the Bench notes in para 21 that, “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 (2023) 9 SCC 587, 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 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).”
Most significantly, the Bench encapsulates in para 22 what constitutes the cornerstone of this notable judgment postulating that, “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.”
Finally, the Bench then concludes by holding in para 23 that, “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. Pending application(s), if any, shall stand disposed of.”
Sanjeev Sirohi
