Kerala High Court
Sunilkumar. G vs State Of Kerala on 18 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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W.P(Crl) No.681/2025
2025:KER:52318
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
FRIDAY, THE 18 DAY OF JULY 2025 / 27TH ASHADHA, 1947
WP(CRL.) NO. 681 OF 2025
PETITIONER:
SUNILKUMAR. G, AGED 47 YEARS
S/O. GOPALAKRISHNAN, T.C.26/1381, FLAT NO.H6, PRESS
ROAD, NEAR HOUSING BOARD, RAJAJI NAGAR, THYCAUD,
THIRUVANANTHAPURAM DISTRICT., PIN - 695001
BY ADV SRI.SHAJIN S.HAMEED
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO
GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,
(HOME & VIGILANCE), SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
3 THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM,
COLLECTORATE, KUDAPPANAKKUNNU P.O., THIRUVANANTHAPURAM,
PIN - 695043
4 THE DEPUTY COMMISSIONER OF POLICE (L & O),
THIRUVANANTHAPURAM CITY, POLICE GROUND, CV RAMAN PILLAI
ROAD, THYCAUD, THIRUVANANTHAPURAM DISTRICT - 695014
5 THE SUPERINTENDENT OF PRISON, CENTRAL PRISON AND
CORRECTIONAL HOME, VIYYUR, THRISSUR DISTRICT - 680010
BY ADVS.
PUBLIC PROSECUTOR:SRI ANAS K A
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
07.07.2025, THE COURT ON 18.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
K. V. Jayakumar This writ petition is filed challenging Ext.P2 detention order passed by the 3rd respondent under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 ['KAA(P) Act' for the sake of brevity]. The petitioner herein is the father of Sooraj ['detenu' for the sake of brevity]. On the basis of Ext.P1 proposal dated 27.12.2024, Ext.P2 detention order was passed on 05.02.2025, classifying the detenu as 'Known Rowdy' under Section 2(p)(iii) of KAA(P) Act.
2. The records produced before us would reveal that the detenu has been involved in seven crimes. The details of those crimes are as follows:
Sl. Crime No. Police Station Crime Date Offences Involved under various Present Status No. sections of the case 1 354/2021 Thampanoor 11.04.2021 294(b), 323, 324 IPC Pending trial 2 1394/2022 Cantonment 25.12.2022 143, 147, 148, 149, 294(b), Pending trial 341, 323, 324, 506IPC 3 458/2023 Cantonment 07.05.2023 452, 294(b), 506, 427 IPC Pending trial 4 874/2023 Cantonment 14.08.2023 452, 294(b), 506, 427 IPC Pending trial 5 766/2024 Cantonment 18.07.2024 110, 115(2), 118(1), 126(2), Pending trial 296(b), 351(2) BNS 6 1255/2024 Cantonment 07.12.2024 126(2), 115(1), 296(b), 351(2), Under 333, 324(6), 3(5) BNS investigation 7 1256/2024 Cantonment 08.12.2024 126(2), 296(b), 351(2), 115(1), Under 3 W.P(Crl) No.681/2025 2025:KER:52318 309(2), 3(5) BNS investigation The last prejudicial act of the detenu was Crime No.1256/2024 of Cantonment Police Station, registered for offence under 126(2), 296(b), 351(2), 115(1), 309(2), 3(5) of the Bharatiya Nyaya Sanhita. The alleged occurrence was on 08.12.2024 at 11 p.m. The FIR was registered on 09.12.2024. He was arrested on the same date and is in judicial custody.
Submissions of the learned counsel of the petitioner
3. Sri. Shajin S. Hameed, learned counsel for the petitioner, submitted that there is a gap between the last prejudicial act and the passing of Ext.P2 detention order. The last prejudicial act alleged against the detenu is Crime No.1256/2024 of the Cantonment Police Station. It was registered for commission of offences punishable under Sections 126(2), 296(b), 351(2), 115(1), 309(2), 3(5) of BNS. The date of the alleged occurrence was 08.12.2024. The FIR was registered on 09.12.2024, and the detenu was arrested on the same day. Ext.P2 order was passed on 05.02.2025. Hence, the time gap between the last prejudicial act and the passing of the detention order is about two months. No plausible explanation is offered for the delay caused. The learned counsel urged that the inordinate delay of about two months is fatal and such delay vitiates the proceedings. It is pointed out that 4 W.P(Crl) No.681/2025 2025:KER:52318 the delay itself would defeat the very purpose and object of the Act. 4. The learned counsel for the petitioner submitted that while Ext.P1 proposal mentions that the detenu was arrested on 09.12.2024 in Crime No.1256/2024 of Cantonment Police Station, it does not indicate whether the detenu has filed any bail application. Moreover, there is no apprehension expressed by the Deputy Commissioner of Police that the detenu is likely to be released on bail. In Ext.P2 order, the detaining authority has mechanically concluded that, if released on bail, the detenu is likely to repeat the offence.
5. The learned counsel for the petitioner further submitted that the very purpose of invoking the provisions of the KAA(P) Act is the immediate prevention of anti-social activities. However, there are no compelling reasons stated in the grounds of detention to justify the preventive detention of the detenu, particularly in light of the fact that he is already in judicial custody. The learned counsel further contended that the compelling circumstances warranting the detention of the detenu are not disclosed in Ext.P2. The learned counsel, in order to fortify the contentions, placed reliance on the judgments in Kamarunnissa v. Union of India and Another1 and Rekha v. State of Tamil Nadu Tr. Sec to Govt. and Another2, K. Veeramani v.
1 1991 KHC 870 2 2011 KHC 4343 5 W.P(Crl) No.681/2025 2025:KER:52318
The State Of Tamil Nadu & Another3, and Union of India v. Paul Manickam4.
Submissions of the learned Public Prosecutor 6. The learned Public Prosecutor submitted that the detenu is involved in seven criminal cases and was in judicial custody. He has been involved in several anti-social activities. There was every possibility that the detenu would indulge in anti-social activities in the near future. Ext.P2 detention order has been passed after proper application of mind and arriving at the objective and subjective satisfaction of the detaining authority. The last prejudicial act of the detenu was on 08.12.2024. The delay occasioned by the passing of the detention order is reasonable and properly explained in Ext.P2 detention order.
7. The learned Public Prosecutor further submitted that a rowdy history sheet was opened against the detenu, and proceedings were initiated under Section 107 of the Cr.P.C. Despite the measures taken against the detenu, he continued to engage in anti-social activities, thereby adversely affecting public order, peace, and the tranquillity of society. The learned Public Prosecutor submits that the principles laid down in Kamarunnissa's case (supra) have been followed in its letter and spirit. The learned Public 3 1994 SCC (Crl) 482 4 (2003) 8 SCC 342 6 W.P(Crl) No.681/2025 2025:KER:52318 Prosecutor would refer to the judgments rendered by the Apex Court in Abdul Sathar Ibrahim Manik v. Union of India & Others [(1992) 1 SCC 1], Union of India v. Ankit Ashok Jalan [(2020) 16 SCC 185] and Union of India and Another v. Dimple Happy Dhakad [(2019) 20 SCC 609].
8. We have carefully considered the submissions of the learned counsel for the petitioner and the learned Public Prosecutor. 9. The first submission pertains to the delay of less than two months between the last prejudicial act and the passing of the detention order. The last prejudicial act was on 08.12.2024. The detenu was arrested on the next day. Therefore, he was in judicial custody till the passing of the detention order. Therefore, the said delay is not fatal and would not vitiate the detention order.
10. The second contention of the learned counsel for the petitioner is that the compelling circumstances in which Ext.P2 detention order was passed are not stated in Ext.P2 order. The Triple Test laid down by the Apex Court was not followed by the detaining authority while passing the detention order. In order to buttress this contention, the counsel has placed reliance on the dictum laid down in Kamarunnissa's case, Rekha's case, K. Veeramani's case, and Paul Manickam's case (supra). 11. Paragraph 13 of the Kamarunnissa's case (supra) reads thus:
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"13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court. What this court stated in the case of Ramesh Yadav, (AIR 1986 SC 315) (supra) was that ordinarily a detention order should not be passed merely to pre empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This stems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody." 12. In Rekha's case (supra), the Apex Court observed that Article 21 is the most important fundamental right guaranteed by the Constitution o f India. Liberty of a citizen is a most important right won by our forefathers after long, historic and arduous struggles. Preventive detention is only an exception to Article 21 of the Constitution. Relevant paragraphs of this judgment are extracted hereunder:
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"10. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.
11. In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained.
12. Moreover, even if a bail application of the petitioner relating to the same case was pending in a criminal case the detention order can still be challenged on various grounds e.g. that the act in question related to law and order and not public order, that there was no relevant material on which the detention order was passed, that there were mala fides, that the order was not passed by a competent authority, that the condition precedent for exercise of the power did not exist, that the subjective satisfaction was irrational, that there was non-application of mind, that the grounds are vague, indefinite, irrelevant, extraneous, non-existent or stale, that there was delay in passing the detention order or delay in executing it or delay in deciding the representation of the detenu, that the order was not approved by the Government, that there was failure to refer the case to the Advisory Board or that the reference was belated, etc. 13. In our opinion, Article 22(3)(b) of the Constitution of 9 W.P(Crl) No.681/2025 2025:KER:52318 India which permits preventive detention is only an exception to Article 21 of the Constitution. An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. As observed in R. v. Secy. of State for the Home Deptt., ex p Stafford [(1998) 1 WLR 503 (CA)] " ... The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law."
Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule.
14. Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historical and arduous struggles. Our Founding Fathers realised its value because they had seen during the freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why they were determined that the right to individual liberty would be placed on the highest pedestal along with the right to life as the basic right of the people of India."
13. In K. Veeramani's case (supra), it was observed as under in Paragraph Nos. 7 and 8 of the judgment:
"7. Learned counsel, however, submitted that by making a sweeping statement that the petitioner is likely to be released on bail, the detaining authority cannot pass a detention order and when there is no likelihood of his being released on bail from custody, the order of detention is illegal inasmuch as there is no proper application of mind. In this context the learned 10 W.P(Crl) No.681/2025 2025:KER:52318 counsel also submitted that since the detenu was in actual custody in connection with the murder case, no reasonable person can arrive at the conclusion that he was likely to be released on bail and that the statement of the detaining authority in the grounds that the detenu is likely to file a bail application and to come out on bail and that he was aware that bail is usually granted by the Courts in such cases, is illogical and unsound. In this context, the learned counsel relied on an unreported judgment of this Court in Rivadeneyta Ricardo Agustin v. Government of the National Capital Territory of Delhi, (subsequently reported in 1994 SCC (Cri) 354). In that case, in the grounds it was only mentioned that there was a 'possibility' of the detenu being released in case he moves a bail application. This Court observed that since the grounds did not indicate that such release was likely or that it was imminent and that on a mere possibility the detention order could not have been passed. The Bench also examined the relevant file and observed that there was no material indicating that the release of the petitioner was likely.
8. But in the instant case what we have to mainly see is whether there was awareness in the mind of the detaining authority that the detenu is in custody and that he had reason to believe that he is likely to be released. The grounds do disclose that the detaining authority was aware that the detenu is in custody and it is further mentioned that he was also aware that bail is usually granted by the courts in such cases and it is further emphasised that there is 'imminent possibility' of the detenu coming out on bail......."
14. In Paul Manickam's case (supra), the principles were reiterated and it was held as under in paragraph No. 14 of the judgment:
"14. So far as this question relating to the procedure to be adopted in case the detenu is already in custody is concerned, the matter has been dealt with in several cases. Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of 11 W.P(Crl) No.681/2025 2025:KER:52318 detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc. Ordinarily, it is not needed when the detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. (See N. Meera Rani v. Govt. of T.N. [(1989) 4 SCC 418] and Dharmendra Suganchand Chelawat v. Union of India [(1990) 1 SCC 746]). The point was gone into detail in Kamarunnissa v. Union of India [(1991) 1 SCC 128]. The principles were set out as follows : even in the case of a person in custody, a detention order can be validly passed : (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail."
15. The principles laid down in the afore-mentioned cases is that when the detenu is already in judicial custody, a detention order can be validly passed only if the detaining authority is satisfied, based on cogent material, 12 W.P(Crl) No.681/2025 2025:KER:52318 that there is a real possibility of the detenu being released on bail, and that upon such release, he is likely to indulge in anti-social activities imminently.
16. We have perused Ext.P1 detention order, wherein it is stated that the detenu is in judicial custody and that, if released on bail, he would engage in various anti-social activities, thereby posing a threat to the life and liberty of the public. However, in the present case, there is no mention in Ext.P2 as to whether the detenu had filed any bail application or was actively pursuing the same. The detaining authority has failed to consider whether there existed a real and imminent possibility of the detenu being released on bail. A mere bald statement that, if the detenu is released on bail, he would be involved in anti-social activities and the detenu is a threat to the public order, life, and liberty of the citizen, is insufficient to pass an order under Section 3 of the KAA(P)A Act.
17. It is trite law that the order of detention must be exercised sparingly with utmost circumspection. The authority must ensure that the detention order is passed after proper application of mind and after arriving at objective and subjective satisfaction.
18. On a careful consideration of the available materials on record and hearing the submissions of both sides, we are of the considered view that the writ petition is to be allowed.
In the result,
(i) W.P(Crl).No.681/2025 is allowed.
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(ii) Ext.P2 order of detention is set aside.
(iii) The Superintendent, Central Prison, Viyyur is directed to release the detenu, Sooraj, S/o.Sunil Kumar, Flat No.H6, TC 26/1381, Rajaji Nagar, Thampanoor Ward, Thycaud Village, Thiruvananthapuram, forthwith, if his detention is not required in connection with any other case.
The Registry is directed to communicate the order forthwith. Sd/-
RAJA VIJAYARAGHAVAN V JUDGE Sd/-
K. V. JAYAKUMAR
JUDGE
Sbna/
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APPENDIX OF WP(CRL.) 681/2025
PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF THE PROPOSAL
NO.NO.130/KAA(P)A/DCP(L&O)/TC/2024 OF THE DEPUTY COMMISSIONER OF POLICE (L&O), THIRUVANANTHAPURAM CITY DATED 27/12/2024.
Exhibit-P2 TRUE COPY OF THE ORDER
NO.DCTVM/208/2025-S13 DATED 05/02/2025
PASSED BY THE 3RD RESPONDENT.
Exhibit-P3 TRUE COPY OF THE GROUNDS FOR DETENTION
DATED 05/02/2025 ISSUED BY THE DISTRICT
MAGISTRATE, THIRUVANANTHAPURAM.
Exhibit-P4 TRUE COPY ORDER OF APPROVAL NO.
HOME-SSA5/103/2025-HOME DATED 14/02/2025 ISSUED BY 2ND RESPONDENT.
Exhibit-P5 TRUE COPY OF THE ORDER NO.
G.O.(RT)NO.1179/2025/HOME DATED
05/04/2025 ISSUED BY THE 2ND RESPONDENT.