“What cannot be achieved through a trial cannot be achieved through preventive detention,” the Court said while setting aside a detention order passed under the KAAPA.
The Kerala High Court recently held that preventive detention law cannot be used as a punitive measure or as a substitute for criminal trial [Luciya Francis v State of Kerala & Ors.].
The division bench consisting of Justices A Muhamed Mustaque and Sophy Thomas explained that preventive detention is only invoked for the maintenance of public order, when the activities of a person become a threat to society.
It is not a substitute for trial, the Court emphasised, while setting aside a detention order passed under the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA).
“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 order stated.
The High Court further observed that the detaining authority is bound to examine the nature of offences in relation to the public order before passing such detention orders.
The High Court also observed that the detaining authority has to consider the nature of the crime committed by the detenue, before passing detention orders.
“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 High Court said.
The High Court acknowledged that while it cannot be unmindful of criminal activities of persons sought to be detained under a detention law, “at the same time the detention laws have to be narrowly construed.”
The High Court made the observation while considering a plea moved by the mother of one George Francis who had been detained pursuant to an order passed under the KAAPA.
Francis was detained after he was classified by the State authorities as a “known goonda”, as per Section 2(oi) of the KAAPA.
His mother (petitioner) challenged the move before the High Court. She pointed out that two of the criminal cases cited to detain Francis were petty cases. A third case cited was settled, while in the fourth case cited, the police had not filed a final report even after a lapse of 4 years, the Court was told.
The counsel for the petitioner, therefore, contended that Francis could not be treated as a drug offender or as a goonda under Section 2(i), read with Section 2(j) of the KAAPA.
The Public Prosecutor countered that the petitioner could not question the detention order on the ground of the settlement of a case or the categorisation of other offences as petty offences.
The State counsel added that KAAPA was attracted in this case since the detenue was found in possession of narcotic drugs. Section 2(i) of KAAPA would be attracted even if it was of a small quantity of such drugs, he asserted.
However, the High Court ultimately found that the detaining authority’s order was not in line with the objectives sought to be secured under the KAAPA.
The Court, therefore, held that the detention order was illegal and ordered the release of the detenue.
