DHANYA MversusSTATE OF KERALA & ORS.

                 [2025] 7 S.C.R. 354 : 2025 INSC 809

                                Dhanya M
                                    v.
                          State of Kerala & Ors.
                     (Criminal Appeal No. 2897 of 2025)
                                 06 June 2025
                 [Sanjay Karol* and Manmohan, JJ.]


                            Issue for Consideration
       Whether the preventive detention of the detenu is in accordance
       with law.

                                   Headnotes†
       Kerala Anti-Social Activities (Prevention) Act, 2007 – ss.3,
       2(j), (o) – Order of detention u/s.3(1), if sustainable:
       Held: No – s.2(j) states that a person who indulges in activities
       “harmful to maintenance of public order” is covered by the Act – In
       the present case, the facts and circumstances do not fall under the
       category of a public order situation – The detention order does not
       state any reason as to how the actions of the detenu were against
       the public order of the State – Given the extraordinary nature of the
       power of preventive detention, no reasons were assigned by the
       detaining authority, as to why and how the actions of the detenu
       warranted the exercise of such an exceptional power – State should
       move for cancellation of bail of the detenu, instead of placing him
       under the law of preventive detention – Exercise of power u/s.3
       was not justified in law – Order of detention and the impugned
       judgment of the High Court affirming the said order passed by the
       District Magistrate u/s.3(1), are set aside – Kerala Money Lenders
       Act, 1958 – Kerala Prohibition of Charging Exorbitant Interest Act,
       2012 – Penal Code, 1860 – SC/ST Prevention of Atrocities Act,
       1989. [Paras 17, 19, 21-23]
       Kerala Anti-Social Activities (Prevention) Act, 2007 –
       ss.2(j), (o), 3, 7, 12 – Scheme and object of the Act – Discussed.
       [Paras 12-15]
       Constitution of India – Art.22 – Preventive detention –
       Extraordinary power, exercise of:


* Author
[2025] 7 S.C.R.                                                             355

                    Dhanya M v. State of Kerala & Ors.


     Held: Preventive detention is an extraordinary power 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 is an exception to Art.21 and, therefore,
     must be applied as an exception to the main rule and only in
     rare cases. [Para 9]

                              Case Law Cited
     Rekha v. State of Tamil Nadu [2011] 4 SCR 740 : (2011) 5 SCC
     244; Mortuza Hussain Choudhary v. State of Nagaland and Ors.,
     2025 SCC Online SC 502; Icchhu Devi v. Union of India [1981]
     1 SCR 640 : (1980) 4 SCC 531; Banka Sneha Sheela v. State of
     Telengana [2021] 8 SCR 978 : (2021) 9 SCC 415; SK. Nazneen v.
     State of Telangana (2023) 9 SCC 633; Nenavath Bujji etc. v.
     State of Telangana & Ors., 2024 SCC OnLine SC 367; Ameena
     Begum v. State of Telengana [2023] 11 SCR 958 : (2023) 9 SCC
     587 – referred to.

                                List of Acts
     Kerala Anti-Social Activities (Prevention) Act, 2007; Kerala Money
     Lenders Act, 1958; Kerala Prohibition of Charging Exorbitant Interest
     Act, 2012; Penal Code, 1860; SC/ST Prevention of Atrocities Act,
     1989; Constitution of India.

                             List of Keywords
     Preventive detention; Detenu; Order of detention; Detention order;
     “harmful to maintenance of public order”; Public order situation;
     ‘goonda’; ‘notorious goonda’; ‘known goonda’; District Magistrate;
     Detaining authority; Cancellation of bail of the detenu; Writ of
     Habeas Corpus; State of Kerala; Anti-social activities; Illegal
     detention; Power of preventive detention; Extraordinary power;
     Detention order set aside.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     2897 of 2025
     From the Judgment and Order dated 04.09.2024 of the High Court
     of Kerala at Ernakulam in WPCRL No. 874 of 2024
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                                Supreme Court Reports


                               Appearances for Parties
       Advs. for the Appellant:
       Ajay Prabhu S, Amit Sangwan, Sibi Kargil, Ms. R. Shase.
       Advs. for the Respondents:
       Harshad V. Hameed, Dileep Poolakkot, Mrs. Ashly Harshad.

                       Judgment / Order of the Supreme Court

                                       Judgment
       Sanjay Karol, J.

       Leave Granted.
2.     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, Rajesh1 to be kept under preventive detention in prison
       in terms of Section 3 of Kerala Anti-Social Activities (Prevention) Act,
       20072 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 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-P-KAA(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,


1    Hereinafter “detenue”
2    Hereinafter “the Act”
[2025] 7 S.C.R.                                                                357

                     Dhanya M v. State of Kerala & Ors.


                  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.
4.   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.
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.
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7.     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.
8.     The question that arises for consideration before this Court is - whether
       the preventive detention of the detenu is in accordance with law.
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 Nadu3 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 trafficking of narcotic drugs and psychotropic
             substances. Needless to state, as preventive deprives a
             person of his/her individual liberties by detaining him/her



3    (2011) 5 SCC 244
4    2025 SCC Online SC 502
[2025] 7 S.C.R.                                                           359

                       Dhanya M v. State of Kerala & Ors.


            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, 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.



5   (1980) 4 SCC 531
6   (2021) 9 SCC 415
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                             Supreme Court Reports


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. Nazneen v. State of Telangana7
    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,



7   (2023) 9 SCC 633
8   2024 SCC OnLine SC 367
[2025] 7 S.C.R.                                                               361

                    Dhanya M v. State of Kerala & Ors.


           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 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 violation of such conditions, if any,
    and moreover, have not even been spelt out here.
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                            Supreme Court Reports


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 Telengana9, 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


9   (2023) 9 SCC 587
[2025] 7 S.C.R.                                                            363

                      Dhanya M v. State of Kerala & Ors.


                   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 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.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Divya Pandey