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Kerala High Court Asserts Preventive Detention Law Cannot Replace Criminal Trials

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Published on: 12 August 2023 at 11:55 IST

The Kerala High Court in Luciya Francis V. State of Kerala & Ors. underscored that the preventive detention law should not be employed as a punitive measure or a substitute for criminal trials.

A Division Bench, comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas, emphasized that preventive detention cannot achieve what a trial cannot, and it should only be invoked to maintain public order when an individual’s actions pose a threat or adverse impact on society.

The Bench elucidated that while an individual’s actions might attract penal laws leading to law and order situations, they may not necessarily cross into the realm of public order concerns.

Advocate P. Thomas Geeverghese represented the petitioner in this case, while Addl. State Public Prosecutor K.A. Arun represented the respondents.

The matter revolved around a writ petition filed by the mother of an accused who had been detained under the Kerala Anti-Social Activities (Prevention) Act, 2007 (referred as KAA(P)A).

The detainee was categorized as a known goonda under Section 2(oi) of the KAA(P)A.

The term ‘known goonda’ is defined in Section 2(oi) as an individual who has been found guilty of an offense defined as ‘goonda’ within the previous seven years.

Referring to Sections 2(i) and 2(j), the petitioner’s counsel argued that the detainee couldn’t be classified as a drug offender or goonda under the mentioned statutory provisions.

The Court, after considering the submissions, highlighted that while generalization of the crime’s impact on society might not be valid, it becomes relevant when discussing a specific crime committed by the detainee.

Sentences imposed should align with the nature of the specific crime. If individual cases lack any connection to the ‘public order’ targeted by the detention order, the detention itself becomes unlawful.

Furthermore, the Court noted that mere possession of a narcotic substance should not be interpreted as ‘stocks’ unless there’s evidence of intent to sell.

It pointed out that the term ‘stocks’ should refer to substances kept for commercial purposes rather than personal use.

The Court emphasized that the detaining authority must consider the nature of offenses concerning public order while issuing detention orders.

The Court concluded that the detention order was illegal due to the detaining authority’s failure to consider the objectives of the KAA(P)A.

Consequently, it disposed of the writ petition and directed the immediate release of the detainee.