Bail Condition Violation Not Enough for Preventive Detention: Supreme Court

The Supreme Court on June 6, 2025 said the provision for preventive detention is an extraordinary power in the hands of the State that must be used sparingly since it curtails the liberty of an individual in anticipation of the commission of further offences, and therefore, must not be used in the ordinary course of nature.

A bench of Justices Sanjay Karol and Manmohan pointed out that the power of preventive detention finds recognition in the Constitution itself, under Article 22(3)(b). However, in Rekha Vs State of Tamil Nadu (2011), it has been emphasised 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, the court added.

The court set aside the order of detention of June 20, 2024, and the Kerala High Court's judgment of September 4, 2024, by allowing an appeal filed by one Dhanya M. The appellant's husband, Rajesh, was kept under preventive detention in prison in terms of Section 3 of Kerala Anti-Social Activities (Prevention) Act, 2007.

It was stated that the detenu ran a registered lending firm in the name of ‘Rithika Finance’. The District Magistrate, Palakkad, issued an order of detention, alleging that the detenu was a ‘notorious goonda’ of the district and was a threat to the society at large. He faced cases under the Kerala Prohibition of Charging Exorbitant Interest Act, 2012 and the Kerala Money Lenders Act, 1958.

On a writ petition filed by the appellant against the detention order, the high court held that whether the cases against the detenu would result in an acquittal was not an exercise that could be carried out by the detaining authority while passing the order of preventive detention. It also held in the 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. The high court further held that procedural safeguards had been complied with in the impugned action.

Before the apex court, the appellant contended that in all cases against him, he was on bail and was complying with the conditions laid down by the court.

On December 10, 2024, the detenu was released by the top court, since the maximum period of detention under the Act was completed.

Referring to the Kerala Anti-Social Activities (Prevention) Act, 2007, the court highlighted the distinction between public order as also law and order situations. It referred to Nenavath Bujji etc Vs State of Telangana and observed that 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.

Examining the issue whether the preventive detention was in accordance with law, the bench relied upon Mortuza Hussain Choudhary Vs State of Nagaland and Ors (2025), wherein it was held that preventive detention is a draconian measure and the prescribed safeguards must be strictly observed to ensure due compliance with constitutional and statutory norms and requirements.

Given the extraordinary nature of the power of preventive detention, the apex court in Icchhu Devi Vs Union of India (1980), 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 Vs State of Telengana (2021), the apex court reiterated that an action of preventive detention has to be checked with Article 21 of the Constitution and the statute in question, the bench pointed out.

The court adverted to the scheme and object of the Act, under which the impugned detention order was passed. It noted that the object of the Act is to provide for effective prevention of certain anti-social activities in 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 bench said.

Going by the details, the bench found that the attending facts and circumstances did 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. 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," the bench said.

The court also noted that it had been stated by the authority that the detenu was violating the conditions of bail imposed upon him in the cases that had 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," the bench said.

The court relied upon S K Nazneen Vs State of Telangana (2023) in which it had been observed that the State should move for cancellation of bail of the detenu, instead of placing him under the law of preventive detention, which was not the appropriate remedy.

Also citing Ameena Begum Vs State of Telengana (2023), the bench said, "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 here".

Case Title: Dhanya M Vs State of Kerala & Ors