The Supreme Court has quashed the preventive detention order issued under the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA), saying that such extraordinary powers should not be misused as an alternative to bail cancellation.
A division bench of Justices Sanjay Karol and Manmohan delivered the judgment in Dhanya M vs State of Kerala & Ors. (Criminal Appeal No. 2897/2025) stating that "Preventive detention is a draconian law, and its application must be in conformity with constitutional and statutory safeguards."
Background of the case
Rajesh, a registered moneylender running 'Ritika Finance', was detained on June 20, 2024 by the District Magistrate of Palakkad under Section 3 of the CAPA. The detention was based on several criminal cases, including:
- Offences under the Kerala Money Lenders Act, 1958
- The Kerala Prohibition of Charging of Excessive Interest Act, 2012
- Sections of the IPC and the SC/ST (Prevention of Atrocities) Act
His wife, Dhanya M, filed a habeas corpus petition in the Kerala High Court, which dismissed the petition on September 4, 2024, confirming procedural compliance and raising concerns about pending bail matters.
The appellant moved the Supreme Court challenging the high court's decision. The court found that Rajesh was already on bail in all the cases and no violations were alleged or no application was filed to cancel the bail.
"The circumstances pointed out in the order by the detaining officer may be sufficient ground for the State to approach the competent courts for cancellation of bail, but it cannot be said that it necessitates that he be kept in preventive detention," the Supreme Court said.
The Court stressed that preventive detention should relate to threats to public order and not merely law and order.
Citing S.K. Nazneen v. State of Telangana (2023) and Nenavath Bujji v. State of Telangana (2024), the Court clarified:
"The difference between the areas of 'law and order' and 'public order' is one of degree and extent… If the violation is confined in its effect to only a few individuals, it can only create a law and order problem."
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Rekha v. State of Tamil Nadu (2011) - Preventive detention is an exception to Article 21 and should be applied rarely.
Icchu Devi v Union of India (1980) – The burden of justifying such detention is on the detaining authority.
Banka Sneha Sheela v State of Telangana (2021) – Preventive detention must comply with Article 21 safeguards.
Amina Begum v State of Telangana (2023) – Detention is not justified when cancellation of bail is not sought.
Vijay Narayan Singh v State of Bihar (1984) – Preventive detention should not be used to circumvent regular criminal procedures.
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Setting aside both the detention order (dated June 20, 2024) and the judgment of the Kerala High Court (dated September 4, 2024), the Supreme Court said:
“Preventive detention cannot be used to clip the wings of an accused when bail has been granted. It is not a means to circumvent the normal criminal law.”
The court clarified that the State is free to cancel bail, but cannot misuse preventive detention for the same purpose.
Case Title: Dhanya M vs State of Kerala
