Supreme Court
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New Delhi: The Supreme Court has said breach of bail conditions can be a ground to seek cancellation of bail but it can't be the basis to order preventive detention of an accused.
A bench of Justices Sanjay Karol and Manmohan said the provision for preventive detention is an extraordinary power in the hands of the State, which must be used sparingly.
"Preventive detention 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," Justice Karol wrote in the 12-page judgment for the bench on June 6, 2025.
The court allowed an appeal filed by Dhanya M against the Kerala High Court's order of September 4, 2024, which confirmed preventive detention of her husband Rajesh under Section 3 of Kerala Anti-Social Activities (Prevention) Act, 2007.
Holding that the order of detention cannot be sustained, the bench said, "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."
The bench, however, clarified that if such an application for cancellation of the detenu’s bail is made by the respondent-State, it must be decided uninfluenced by the court's observations.
The District Magistrate, Palakkad, issued an order of detention, alleging that the detenu was a ‘notorious goonda’ and is a threat to the society at large. The officer referred to four FIRs lodged against him under the Kerala Prohibition of Charging Exorbitant Interest Act, 2012 and the Kerala Money Lenders Act, 1958.
The detenu used to run a registered lending firm in the name of ‘Rithika Finance’.
The appellant contended in all cases against him, he was ordered to be released on bail and he complied with the conditions laid down by the court.
The bench noted the detaining authority claimed the detenu violated the conditions of bail imposed upon him in the cases that have been considered for passing the order of detention.
"Pertinently, no application has been filed by the 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 pointed out the power of preventive detention finds recognition in the Constitution itself, under Article 22(3)(b). However, this court held in Rekha Vs State of Tamil Nadu (2011) 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, while citing the Kerala Anti-Social Activities (Prevention) Act, 2007, emphasised the distinction between public order as also law and order situations.
It held 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.
In the case, the apex court had on December 10, 2024 ordered the release of the detenu since the maximum period of detention under the Act was completed by him.