Kerala High Court
Ganthi T.R vs State Of Kerala on 30 July, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:56761
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 30TH DAY OF JULY 2025 / 8TH SRAVANA, 1947
WP(CRL.) NO. 844 OF 2025
PETITIONER:
GANTHI T.R
AGED 50 YEARS
W/O SUNIL KUMAR, METHARUPARAMBU VEEDU, POONTHOPPU
WARD, AVALUKUNNU P.O, ALAPPUZHA, PIN - 688006
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 ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
PALAKKAD DISTRICT, PIN - 678001
3 THE DISTRICT POLICE CHIEF
PALAKKAD DISTRICT, PIN - 678001
4 THE CHAIRMAN
ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA ERNAKULAM DIST,
PIN - 682026
WP(Crl.) No.844 of 2025 :: 2 ::
2025:KER:56761
5 THE SUPERINTENDENT OF JAIL
CENTRAL JAIL, VIYYUR,THRISSUR DIST, PIN -
670004
BY ADVS.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 30.07.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(Crl.) No.844 of 2025 :: 3 ::
2025:KER:56761
JUDGMENT
Jobin Sebastian, J.
The petitioner is the mother of one Abijith @ Unni ('detenu' for the sake of brevity), and her challenge in this Writ Petition is directed against Ext.P1 order of detention dated 04.06.2025 passed by the 2nd respondent under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAA(P) Act' for brevity).
2. The records reveal that it was after considering the recurrent involvement of the detenu in criminal activities, a proposal was submitted by the District Police Chief, Palakkad, on 21.05.2025, seeking initiation of proceedings against the detenu under Section 3(1) of the KAA(P) Act before the jurisdictional authority, the 2nd respondent. Altogether, two cases in which the detenu got himself involved have been considered by the detaining authority for passing the impugned order of detention. Out of the said cases, the case registered with respect to the last prejudicial activity is crime No.321/2025 of Palakkad Town North Police Station, registered, alleging commission of an offence punishable under Section 22(b) of the NDPS Act.
3. We heard Sri. M.H.Hanis, the learned counsel appearing for the petitioner, and Sri.K.A.Anas, the learned Government WP(Crl.) No.844 of 2025 :: 4 ::
2025:KER:56761 Pleader.
4. Relying on the decision in Kamarunnissa v. Union of India and another, [1991 (1) SCC 128], the learned counsel for the petitioner contended that in cases wherein the detenu is under judicial custody, in connection with the last prejudicial activity, a detention order under preventive detention laws can be validly passed only on satisfaction of the triple test mentioned in the said decision by the Hon'ble Supreme Court. According to the counsel, as the impugned order was passed while the detenu was under
judicial custody in connection with the last prejudicial activity, it was incumbent upon the authority to satisfy itself that it has reason to believe, on the basis of reliable material placed before it that, there is a real possibility of the detenu being released on bail and that on being so released he would in all probability indulge in prejudicial activity. According to the counsel, though in Ext.P1 order, it is mentioned that the detenu was undergoing judicial custody in connection with the last prejudicial activity, it is nowhere mentioned that there is a real possibility of the detenu being released on bail in connection with the last prejudicial activity.
5. Per contra, Sri.K.A.Anas, the learned Government Pleader, submitted that even in cases where the detenu is under WP(Crl.) No.844 of 2025 :: 5 ::
2025:KER:56761 judicial custody, a detention order can be validly passed if the satisfaction of the authority is properly adverted to in the order. According to the counsel, it was after being aware of the fact that the detenu was under judicial custody in connection with the last prejudicial activity, Ext.P1 detention order was passed. The learned Government Pleader further submitted that it was after arriving at the requisite objective as well as subjective satisfaction, Ext.P1 order was passed, and hence no interference is warranted.
6. Before considering the contentions taken by the learned counsel appearing for both sides, it is to be noted that, out of the two cases considered by the jurisdictional authority to pass Ext.P1 order, the case registered with respect to the last prejudicial activity is crime No.321/2025 of Palakkad Town North Police Station, registered, alleging commission of offence punishable under Section 22(b) of NDPS Act. The records further reveal that the detenu committed the subsequent crime while he was on bail in the earlier case registered against him. Therefore, the said fact justifies the satisfaction of the jurisdictional authority that there is every likelihood of the detenu being involved in criminal activities again.
7. The case registered against the detenu with respect to the last prejudicial activity is that, on 11.03.2025 at 3.30 p.m., the WP(Crl.) No.844 of 2025 :: 6 ::
2025:KER:56761 1st accused was found possessing and transporting 21.80 gms of Methamphetamine for the purpose of sale, and the detenu, who is arrayed as the 2nd accused had financed illicit trafficking of the same in violation of the provisions of the NDPS Act.
8. Now while considering the rival contentions raised, the prime aspect that cannot be overlooked is that, in the case at hand, the proceedings for taking action against the detenu under the KAA(P) Act were initiated and the final order of detention was passed against him while he was under judicial custody in connection with the last prejudicial activity. As evident from the records, he is still under judicial custody in the said case. Undisputedly, a detention order can validly be passed even when the detenu is under judicial custody in connection with the last prejudicial activity. There is no law that precludes the competent authority from passing a detention order against a person who is under judicial custody. However, as rightly pointed out by the learned counsel for the petitioner, when a detention order is passed against a person who is under judicial custody, the authority that passed the said order should be cognizant of the fact that the detenu was under judicial custody while passing such an order. In the case at hand, the fact that the detenu is under judicial custody in connection with the last prejudicial activity is specifically adverted to in the impugned order. Therefore, it cannot be said WP(Crl.) No.844 of 2025 :: 7 ::
2025:KER:56761 that the authority that passed the order was unaware of the custody of the detenu in connection with the last prejudicial activity, and the counsel for the petitioner also does not have such a contention.
9. While coming to the contention of the learned counsel for the petitioner that in cases where the detenu is under judicial custody, detention order can validly be passed only on the satisfaction of the triple test laid down by the Supreme Court in Kamarunnissa (cited supra), it is to be noted that in the said decision, the Hon'ble Supreme Court observed as noted below:
"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 materials 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 probability indulged in prejudicial activity and (3) if it is essential to detain him to prevent him from doing so. If the authority passes an order after recording his satisfaction in this regard such an order would be valid."
A similar view has been taken by the Hon'ble Supreme Court in Veeramani v. The State of Tamil Nadu [1994 (2) SCC 337] and in Union of India v. Paul Manickam [2003 (8) SCC 342].
10. Keeping in mind the proposition of law laid down in Kamarunissa's case (cited supra) by the Hon'ble Supreme Court, WP(Crl.) No.844 of 2025 :: 8 ::
2025:KER:56761 while coming to facts in the present case, it can be seen that in Ext.P1 order, it is nowhere stated that the competent authority has reason to believe that there is a real possibility of the detenu being released on bail and that on being so released, he would in all probability indulge in criminal activities. Therefore, application of mind regarding the possibility of the detenu being released on bail and, if so released, the possibility of the detenu being involved in criminal activities is lacking on the part of the jurisdictional authority and, hence, the impugned order is vitiated.
11. In the result, this Writ Petition is allowed and Ext.P1 order of detention is set aside. The Superintendent of Central Prison, Viyyur, Thrissur, is directed to release the detenu Abijith @ Unni 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 Central Prison, Viyyur, Thrissur, forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR JUDGE Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
WP(Crl.) No.844 of 2025 :: 9 ::
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APPENDIX OF WP(CRL.) 844/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF ORDER NO.
DCPKD/7144/2025-S1 DATED 04.06.2025
OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION
DATED 16.06.2025 SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT