Summary
The wife of a money-lender detained as a 'known goonda' under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 challenged the detention order affirmed by the High Court. The Court held that the detention order gave no reasons showing how the detenu's activities affected public order as distinct from law and order, and that where the detenu was on bail in all four cases and the State had not moved for cancellation of bail, preventive detention was not the appropriate remedy; the detention order and the High Court judgment were set aside.
Issues
- Whether the preventive detention of the detenu under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 was in accordance with law.
- Whether the facts disclosed a public order situation as opposed to a law and order situation.
- Whether preventive detention could be resorted to on the ground of alleged violation of bail conditions when the State had not applied for cancellation of bail.
Provisions considered
- Sections 2(j), 2(o), 3, 7 and 12, Kerala Anti-Social Activities (Prevention) Act, 2007Section 2(j) defines a goonda as one whose activities are harmful to the maintenance of public order (including loan sharks); Section 2(o) classifies a 'known goonda'; Section 3 empowers the District Magistrate or Government to detain a known goonda; Section 7 requires grounds to be furnished within five days; Section 12 caps detention at six months. The Court found the exercise of power under Section 3 unjustified because no public order nexus was shown. (¶¶ 12, 13, 14, 15, 16, 17, 19)
- Articles 21 and 22(3)(b), Constitution of IndiaPreventive detention, though sanctioned by Article 22(3)(b), is an exception to Article 21 to be used sparingly and only in rare cases; the burden lies on the detaining authority to show conformity with the procedure established by law. (¶¶ 9, 10, 11)
Held
- Preventive detention is an extraordinary power which curtails liberty in anticipation of future offences; it is an exception to Article 21 to be applied only in rare cases, and the detaining authority bears the burden of showing compliance with the procedure established by law. (¶¶ 9, 10, 11)
- Section 2(j) of the Act reaches activities harmful to the maintenance of public order; the distinction between public order and law and order lies in the degree and reach of the act upon society. The detention order did not explain how the detenu's actions affected public order, and no reasons were assigned as to why the exceptional power was warranted; the facts did not amount to a public order situation. (¶¶ 17, 18, 19)
- Although the detaining authority asserted that the detenu was violating bail conditions, the State had filed no application in any of the four cases alleging such violation and the conditions said to be violated were not spelt out. Where the ordinary criminal law offers the remedy of cancellation of bail, the extraordinary law of preventive detention should not be used to clip the wings of an accused on bail. (¶¶ 20, 21, 22)
- The circumstances relied on may furnish grounds for the State to seek cancellation of bail, but did not warrant preventive detention; any such application is to be decided uninfluenced by these observations. (¶ 22)
Result
Appeal allowed; detention order dated 20 June 2024 and the High Court's judgment dated 4 September 2024 set aside. The detenu had already been released by the Court's order of 10 December 2024 on completion of the maximum period of detention. Pending applications disposed of.