Kerala High Court
Sindhu vs State Of Kerala on 18 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
2025:KER:52476
W.P(Crl)No. 523/2025 1
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. 523 OF 2025
PETITIONER:
SINDHU, AGED 47 YEARS
W/O RAJAN, ELAYAMPURAKKAL HOUSE, BHAJANAMADOM DESOM,
KOOLIMUTTAM VILLAGE, MATHILAKAM, THRISSUR, PIN - 680691
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SHRI.ANANDHU P.C.
SMT.NEETHU.G.NADH
SMT.RIA ELIZABETH T.J.
SHRI.SAHAD M. HANIS
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
CIVIL STATION, THRISSUR DIST, PIN - 680003
3 THE CITY POLICE CHIEF,
CIVIL STATION ROAD, THRISSUR DIST, PIN - 680020
4 THE CHAIRMAN, ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA, ERNAKULAM DIST, PIN - 682026
5 THE SUPERINTENDENT OF JAIL,
CENTRAL PRISON, KANNUR, PIN - 670004
BY ADVS.
PUBLIC PROSECUTOR:ANAS K A
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
10.07.2025, THE COURT ON 18.07.2025 DELIVERED THE FOLLOWING:
2025:KER:52476
W.P(Crl)No. 523/2025 2
JUDGMENT
K. V. Jayakumar The petitioner herein is the mother of Rahul Raj @ Thakkudu ['detenu' for the sake of brevity], approached this Court claiming the following reliefs:
i. call for the records leading to Ext. P1 order and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction.
ii. issue a writ of habeas corpus commanding the respondents to produce the body of the detenu viz. Rahul Raj @ Thakkudu, aged 29 years, s/o Rajan, Elayampurakkal House, Bhajanamadom Desom, Koolimuttam Village, Mathilakam, Thrissur, the son of the petitioner who is illegally detained in Central Prison, Kannur before this Hon'ble Court and set him at liberty forthwith.
2. The writ petitioner challenges Ext.P1 detention order dated 28.01.2025 issued by the second respondent, District Collector, Thrissur, under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 ['KAA(P) Act' for the sake of brevity]. The detenu was classified as 'Known Rowdy" under Section 2p(iii) of the KAA(P) Act.
3. The records would reveal that the detaining authority has considered three cases for booking the detenu as Known Rowdy, which are as follows:
1) Crime No.165/2024 of Kaipamangalam Police Station registered under Sections 143, 147, 148, 341, 323, 324, 427, 308 and 149 of the Indian Penal Code.
2025:KER:52476
W.P(Crl)No. 523/2025 3
2) Crime No.168/2024 of Mananthavady Police Station
registered under Sections 143, 147, 148, 452, 341, 323, 324, 308, 506 r/w 149 of the Indian Penal Code.
3) Crime No.913/2024 of Mathilakam Police Station, registered under Sections 126(2), 118(1), 118(2), 110 and r/w 3(5) BNS.
4. Apart from the above three cases, the detenu was involved in nine other cases, which were considered for his previous detention order. Submissions of the learned counsel for the petitioner 5. Sri.M. H. Hanis, the learned counsel for the petitioner, submitted that Ext.P1 is the third preventive detention order issued against the detenu. He was earlier booked under the KAA(P) Act and underwent detention for six months and was released on 27.10.2023. Again, he was booked under the Act, which was set aside by this Court in WP(Crl).No. 606/2024. In Ext.P1, third detention order, the reason for setting aside the second detention order by this Court was not considered. Hence, it is urged that the impugned order is passed without application of mind.
6. The last prejudicial act alleged against the detenu is Crime No.913/2024 of Mathilakam Police Station. The date of occurrence was on 07.11.2024. The FIR was registered on 08.11.2024, and the detenu was arrested 2025:KER:52476 W.P(Crl)No. 523/2025 4 on 06.12.2024. Ext.P1 order was passed while he was undergoing custody in the last prejudicial act. The learned counsel submitted that the defacto complainant in this case is a distant relative of the detenu.
7. The detaining authority has failed to consider whether the present case falls within the scope of Section 2(d) of the KAA(P) Act. Furthermore, it is submitted that there was a delay of 30 days in the submission of the report by the Station House Officer, a delay of 45 days in sponsoring the case after the last prejudicial act, and an additional delay of 2 months and 22 days in issuing Ext.P1 detention order from the date of the last prejudicial act. No satisfactory explanation has been provided for these delays. The compelling reason for booking the detenu who is undergoing judicial custody is not stated in Ext.P1 order.
Submissions of the learned Public Prosecutor
8. Sri. Anas K.A., the learned Public Prosecutor, in response, submitted that Ext.P1 detention order was passed after complying with the statutory formalities and proper application of mind. It was further contended that the detenu is involved in multiple cases, and his activities would fall within the ambit of public order. The learned Public Prosecutor further submitted that this is the third detention order passed against the detenu. A rowdy history sheet was 2025:KER:52476 W.P(Crl)No. 523/2025 5 opened against the detenu, and proceedings were initiated under Section 107 of the Cr.P.C. Despite of all the measures taken against the detenu, he continued to engage in anti-social activities, thereby adversely affecting public order, peace, and the tranquility of society.
9. We have carefully considered the submissions of both sides. 10. The first submission of the learned counsel for the petitioner is that Ext.P1 order was passed without any application of mind. The reason for the quashing of the second detention order by this Court is not considered by the detaining authority. On a perusal of Ext.P1 order, it is seen that the detaining authority is aware of the fact that the second detention order passed against the detenu has been quashed by this Court in WP(Crl). No. 606/2024 by order dated 05.07.2024. However, there is no whisper in Ext.P1 order as to why this Court quashed the second detention order. If this Court had quashed an earlier order of detention with respect to the detenu, that is an important fact that should be considered by the detaining authority before issuing a subsequent detention order. The non-consideration of the reason for setting aside the earlier detention order appears to be fatal, in our view.
11. The second submission made by the learned counsel for the petitioner is that there was a delay of 30 days in the submission of the report by the Station House Officer, a delay of 45 days in sponsoring the case after the last 2025:KER:52476 W.P(Crl)No. 523/2025 6 prejudicial act, and a further delay of two months and 22 days in passing the detention order from the date of the last prejudicial act. 12. The reason stated in Ext.P1 order is the time taken for the scrutiny of the case records and materials. The reason for the delay has been satisfactorily explained. Since the detenu has been in judicial custody, the delay in sponsoring and the passing of the detention order assume no significance. Therefore, we are unable to accept the argument that the live link between the last prejudicial act and the detention order gets snapped.
13. The submission of the learned counsel for the writ petitioner is that the compelling reasons for booking the detenu who is undergoing judicial custody are not stated in the detention order. It is further submitted that the detaining authority has not considered the triple test as laid down in Kamarunnissa v. Union of India and Another1. The learned counsel, in order to fortify the contentions, placed reliance on the judgment in Rekha v. State of Tamil Nadu Tr. Sec to Govt. and Another2.
14. The learned Public Prosecutor submits that the principles laid down in Kamarunissa's case (supra) have been followed in its letter and spirit. The learned Public Prosecutor pointed out that, in the order of detention, he has mentioned that the detenu was in judicial custody and that he is likely to be 1 1991 KHC 870 2 2011 KHC 4343 2025:KER:52476 W.P(Crl)No. 523/2025 7 released on bail by the jurisdictional court.
15. The third contention of the learned counsel for the petitioner is that the compelling circumstances under which Ext.P1 detention order was passed are not stated in Ext.P1 order. In order to buttress this contention, the counsel has placed reliance on the dictum laid down in Kamarunnissa's case (supra), Rekha's case (supra), K. Veeramani v. State of Tamil Nadu3, and Union of India v. Paul Manickam4.
16. Paragraph 13 of the Kamarunnissa's case (supra) reads thus:
"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, 3 1994 (2) SCC 337 4 (2003) 8 SCC 342 2025:KER:52476 W.P(Crl)No. 523/2025 8 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."
17. In Rekha's case (supra), the Apex Court observed that Article 21 is the most important fundamental right guaranteed by the Constitution of 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:
"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 2025:KER:52476 W.P(Crl)No. 523/2025 9 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 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.
2025:KER:52476
W.P(Crl)No. 523/2025 10
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."
18. 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 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.
2025:KER:52476
W.P(Crl)No. 523/2025 11
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......."
19. 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 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 2025:KER:52476 W.P(Crl)No. 523/2025 12 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."
20. The principle laid down in the aforementioned 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, 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.
21. On perusal of Ext.P1 order, it is apparent that the detaining authority is aware that the detenu has been in judicial custody since 06.12.2024. However, the order does not specify whether the detenu has filed any application for bail, nor does it indicate whether such an application is likely to be granted. A mere bald assertion that there is a likelihood of the detenu being released on bail, by itself, is insufficient to invoke the provisions of the KAA(P) Act.
22. 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 2025:KER:52476 W.P(Crl)No. 523/2025 13 petition is to be allowed.
In the result, (i) W.P(Crl) No. 523/2025 is allowed. (ii) Ext.P1 order of detention is set aside.
(iii) The Superintendent, Central Prison, Kannur, is directed to release the detenu, Rahulraj @ Thakkudu, S/o.Rajan, Ilayarampurakkal House, Bhajanamadom Desom, Koolimuttam Village, Mathilakam Police Station limit, Thrissur District forthwith, if his detention is not required in connection with any other case.
The Registry is directed to communicate the order to the Superintendent of the prison concerned forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
Sbna
2025:KER:52476
W.P(Crl)No. 523/2025 14
APPENDIX OF WP(CRL.) 523/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF ORDER NO.DCTSR/14844/2024-C4
DATED 28.01.2025 OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE 1ST RESPONDENT ON 05.03.2025.