Preventive detention is an extraordinary power in the hands of the state that must be used sparingly, said the Supreme Court as it set aside an order by a district magistrate to detain a moneylender who was allegedly indulging in illegal activities again after getting bail in four cases.

A bench of Justices Sanjay Karol and Manmohan questioned the contention of the detaining authority that the order was passed as the detainee was violating bail conditions in the cases, and noted that they should have instead moved the competent court seeking cancellation of bail.

“Therefore, the order of detention dated June 20, 2024, and the impugned judgment dated September 4, 2024, passed by the High Court of Kerala at Ernakulam are hereby set aside. In the attending facts and circumstances of this case, the appeal is allowed,” the bench said in its order passed on Friday.

Noting that the power of preventive detention finds recognition in the Constitution under Article 22(3)(b), the bench said, “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 bench said the contention of the detaining authority that the detainee, Rajesh, who used to run a private financing company called ‘Rithika Finance’, was violating the conditions of bail imposed upon him in the cases that have been considered for passing the order of detention.

It said that pertinently, no application has been filed by the respondent in any of the four cases, alleging violation of such conditions, if any, and moreover, have not even been spelt out during the hearing of the case filed by his wife against the Kerala High Court order, which affirmed the preventive detention order of the Palakkad district magistrate.

“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 detainee’s bail is made by the respondent – state, the same must be decided uninfluenced by the observations made hereinabove,” the bench noted.

It referred to the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007, and said that the object of the statute was to provide for effective prevention of certain anti-social activities in the state.

The bench said Section 2(j) of the state law defines ‘goonda’ as a person who indulges in activities that are harmful to the maintenance of public order, either directly or indirectly, and includes persons who are bootleggers, counterfeiters, drug offenders, and loan sharks, among others.

The bench also said that under Section 3 of the Act, the district magistrate so authorised or the government may pass an order directing detention of a “known goonda” to prevent commission of antisocial activities within the state of Kerala.

“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,” the top court said, as it noted four cases lodged under the Kerala Money Lenders Act, 1958, cited by the police for recommending preventive detention to the district magistrate.

The police stated that the detainee was a “notorious goonda” in the district and a threat to the society at large.

Aggrieved by the order of his detention dated June 20, 2024, Rajesh’s wife filed a writ petition before the Kerala High Court assailing the order and praying for a writ of habeas corpus to the state against the “illegal” detention of her husband.

The high court on September 4 last year affirmed the order of preventive detention. Aggrieved by the order, the detainee’s wife moved the top court challenging the decision.

On December 10, 2024, the top court ordered the detainee to be released as his maximum period of detention under the Act was over.

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