Preventive Detention Orders Under KAAPA Issued For Maintenance Of Public Order, Not As Punishment: Kerala High Court

A division bench comprising Justice A Muhamed Mustaque and Justice Sophy Thomas held thus:

“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 detaining authority failed to address the issue keeping the perspective of the objectives to be secured under the KAA(P)A. In such circumstances, we order that the detention order is illegal and the detenue is set at liberty. He shall be released forthwith.”

The writ petition was filed by the mother of the detenue who was classified a ‘known goonda’ under the KAAPA.

The counsel for the petitioner submitted that there were 5 crimes given in the detention order. It was submitted that the detenue was convicted only for petty offences and was fined for them. In another offence charged against him, final report was not filed. And in another offence, he was given bail as it was compromised. The detenue cannot be considered as a ‘goonda’ or ‘drug offender’ under Section 2 (i) or 2(j) of the Act respectively, it was averred.

Public Prosecutor relied upon various Apex Court decisions and stated that offences against the detenue cannot be termed as petty offences.

The Court held that KAAPA is a preventive law and the provisions have to construed strictly. The Court relied upon the full bench decision of the Kerala High Court in Stenny Aleyamma Sju v. State of Kerala and Others (2017) wherein the object of the Act was discussed elaborately. In that decision, the full bench noted that there is distinction between preventive detention orders issued under KAAPA and punitive orders issued in criminal proceedings. Preventive detention orders are issued for the benefit of the society at large and for maintaining public order, it was held.

Taking note of the above decision, the division bench held thus:

“The Court cannot remain unmindful of the criminal activity of the detenue, at the same time the detention laws have to be narrowly construed. The impact of the sentence imposed qua public order is an essential element for consideration by the detention authority.”

The court held that if the individual charges against the detenue have no relation to public order, for which detention orders are issued, then such detention becomes illegal. In the instant matter, the court noted that offences alleged against the detenue do not show violation of public order.

“The sentence or the nature of the sentence suffered becomes decisive vis-a-vis the public order. 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.”

The division bench held that the detention order issued against the detenue was illegal.

Case Title: Luciya Francis v State of Kerala (WP(CRL.) NO. 666 OF 2023)

Citation: 2023 LiveLaw (Ker) 381

Counsel for the petitioner: Advocates P. Thomas Geeverghese, Tony Thomas (Inchiparambil), E.S.Firos, Gautham Krishna E J

Counsel for the Respondent: Addl. State Public Prosecutor Advocate K A Arun

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