Preventive Detention Not To Be Used As Punitive Measure, But To Secure Public Order In Larger Interest Of Society: Kerala High Court

The Kerala High Court on Thursday reminded that the power to detain individuals ought not to be used as a punitive measure, but to secure public order, in the larger interest of the society. 

"Dention order is a serious matter depriving liberty of the citizens. That means, except on valid grounds a person cannot be deprived of his liberty. The detention order, therefore,must reflect how public order would be vitiated if the person concerned is not detained invoking the provisions under the Kerala Anti-Social Activities (Prevention) Act, 2007(for short 'KAAPA Act'). That means, the offence in which he is involved in the past will have to be analysed to arrive at a conclusion that he will be a threat to the society when he is enlarged without detention," the Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed. 

The Court made the afore observation while dealing with a Heabeas Corpus plea of the father of a detenu. The detenu was involved in 8 crimes. 

The Court noted at the very outset that the present case one where there had not been any application of mind by the detaining authority while exercising its power for ordering detention. The Court ascertained from the impugned detention order that the authority had not examined the activities of the detenu vis-a-vis public order in respect of each offences referred in the impugned order. 

The Court thus observed that the offence committed by the detenu in the past would have to be analyzed and the impact of each crime committed by him on the Public Order would have to be mentioned with reference to the nature of the crime committed by him, in order to determine whether he would be a threat to the society. 

It also took note that the detenu had committed certain offences in the nature of crimes concerning individuals, for which he had been acquitted on the basis of compromise between the parties. On this aspect, the Court observed that, 

"...if any individual is involved in offences which had only an impact on the private individuals, though he might have involved in one of similar kind of offences that itself will not be a ground to detain him under the KAAPA Act unless such activity would have a ramification on the public order". 

It went on to state that while issuing detention order, the authority ought to explicitly state the reasons how the past conduct, with reference to the offences, would result in detention to secure public order, and that any such detention order without reasons would be illegal and legally unsustainable.

On finding that there was absolutely no application of mind of the authority in the present case, the impugned detention order was set aside, and the detenu was ordered to be released. 

Counsel for the Petitioner: Advocates Ajith Murali, Mohanan M.K., and Swapna Vijayan

Counsel for the Respondents: Public Prosecutor K.A. Anad

Citation: 2023 LiveLaw (Ker) 664

Case Title: Sukumaran v. State of Kerala & Ors. 

Case Number: W.P. (Crl.) No. 1081 of 2023

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