“Preventive Detention Law Cannot Be Used As A Punitive Measure And As A Substitute Of Criminal Trial”- Kerala High Court

The Kerala High Court while dealing with a writ petition has held that the preventive detention law cannot be used as a punitive measure and as a substitute of criminal trial.

A Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas observed, “The preventive detention law cannot be used as a punitive measure and as a substitute of criminal trial. What cannot be achieved through a trial cannot be achieved through preventive detention. It can be invoked only for maintenance of public order when activities of a person become threat or adverse to the society.”

The Bench said that any aberration of an individual in the form of commission or omission may attract penal law which may also result in law and order but not necessarily action need to border on public order.

Advocate P. Thomas Geeverghese appeared for the petitioner while Addl. State Public Prosecutor K.A. Arun appeared for the respondents.

In this case, a writ petition was filed by the mother of the accused, who was detained pursuant to an order passed under the Kerala Anti-Social Activities (Prevention) Act, 2007 [hereinafter referred to as the “KAA(P)A”]. The detenue was detained classifying him as a known goonda, as referable under Section 2(oi) of the KAA(P)A. Section 2(oi) defines ‘known goonda’ as follows:

(o) "known goonda" means a goonda who had been, for acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,-

(i) found guilty, by a competent court or authority at least once for an offence within the meaning of the term 'goonda' as defined in clause (j) of section 2.

The counsel for the petitioner, referring to Section 2(i) read with Section 2(j) argued that the detenue cannot be either treated as a drug offender or as a gunda within the statutory provisions as above.

The High Court after considering the submissions made by the counsel noted, “The generalization of the crime and its impact on the society at large though may not be valid but will be relevant when it relates to a particular crime committed by the detenue. The sentences imposed have to be taken into account with reference to the particular nature of the crime committed by the detenue. If the individual cases highlighted do not disclose any relation to the ‘public order’ contemplated to be secured by such detention order, the detention will become illegal.”

The Court added that mere possession of a narcotic substance cannot be construed as part of stock unless it is manifested with evidence of intention to sell.

“One might have kept such substances for personal use. The word “stocks” occurring in section 2(i) must be in such a nature kept in possession not for personal use. If any element of commercial motive surfaces, no doubt such “stocks” shall be classified as acts affecting public order”, further observed the Court.

The Court said that the detaining authority is bound to examine the nature of offences in relation to the public order while passing detention orders.

“The sentence or the nature of the sentence suffered becomes decisive vis-a-vis the public order. … The detaining authority failed to address the issue keeping the perspective of the objectives to be secured under the KAA(P)A”, held the Court.

The High Court, therefore, concluded that the detention order is illegal. Accordingly, it disposed of the writ petition and directed that the detenue shall be released forthwith.

Cause Title- Luciya Francis v. State of Kerala & Ors. (Neutral Citation: 2023:KER:45104)

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