Kerala High Court
Sudharma Sivadas T vs State Of Kerala on 8 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:59922
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 8TH DAY OF AUGUST 2025 / 17TH SRAVANA, 1947
WP(CRL.) NO. 943 OF 2025
PETITIONER:
SUDHARMA SIVADAS T., AGED 26 YEARS
D/O SIVADAS T, 'RAM' HOUSE, EDAKKAD P.O,
KUNDUPARAMBA, VALLIL PARAMB,
KOZHIKODE, PIN - 673005
BY ADVS.
SRI.SHARAN SHAHIER
SMT.RHEA SHERRY
SMT.ANGELINA JOY
RESPONDENTS:
1 STATE OF KERALA REPRESENTED SECRETARY TO
GOVERNMENT, HOME DEPARTMENT, SECRETARIATE,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DISTRICT COLLECTOR
KOZHIKODE DISTRICT, CIVIL STATION,
KOZHIKODE, PIN - 673020
3 THE DEPUTY COMMISSIONER OF POLICE
LAW & ORDER KOZHIKODE, PIN - 673001
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4 THE STATION HOUSE OFFICER
ELATHUR POLICE STATION, KOZHIKODE, PIN -
673303
BY ADVS.
SRI. K.A. ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 08.08.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner is the wife of one Nikhil S Nair ('detenu' for the
sake of brevity) and her challenge in this Writ Petition is directed
against Ext.P3 order of detention dated 09.06.2025 passed by the 2nd
respondent under Section 3(1) of the Kerala Anti-Social Activities
(Prevention) Act, 2007 ('KAA(P) Act' for brevity), against the detenu.
2. The records reveal that it was after considering the
recurrent involvement of the detenu in criminal activities, a proposal
was submitted by the Deputy Police Commissioner, Kozhikode City, on
12.03.2025, seeking initiation of proceedings against the detenu
under Section 3(1) of the KAA(P) Act before the jurisdictional
authority, the 2nd respondent. Altogether, six cases in which the
detenu got himself involved formed the basis for passing Ext.P3 order
of detention. Out of the said cases, the case registered with respect to
the last prejudicial activity is crime No.329/2025 of Elathur Police
Station, alleging commission of the offences punishable under
Sections 75(1), 79, 115(2), 118(2), 351(3), and 296(a) of BNS.
3. We heard Smt. Angelina Joy, the learned counsel
appearing for the petitioner, and Sri.K.A.Anas, the learned
Government Pleader.
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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 where 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 learned 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 learned counsel, though in Ext.P1 order, it is
mentioned that the detenu was undergoing judicial custody in
connection with the last prejudicial activity, the jurisdictional
authority failed to consider the real possibility of the detenu being
released on bail in connection with the last prejudicial activity. The
learned counsel further submits that the jurisdictional authority
passed Ext.P1 order in a hasty manner without considering the fact
that there was an effective remedy of cancellation of the bail granted
to the detenu. According to the learned counsel, as an alternative
remedy was available to deter the detenu from repeating criminal
activities, a drastic measure of preventive detention was not at all
necessitated.
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5. In response, Sri.K.A. Anas, the learned Government
Pleader, submitted that Ext.P3 order of detention was passed by the
jurisdictional authority after proper application of mind and after
arriving at the requisite objective as well as subjective satisfaction.
According to him, it was after being satisfied that there is no other
effective or alternative remedy to restrain the detenu from repeating
criminal activities, the jurisdictional authority passed the detention
order. The learned Government Pleader further submitted that while
passing the impugned order, the jurisdictional authority was aware of
the fact that the detenu was under judicial custody in the case
registered with respect to the last prejudicial activity. According to
the Government Pleader, it was after being satisfied that there is a
possibility of the detenu being released on bail and if so released
there is every likelihood of repeating criminal activities by him, that
the impugned order was passed.
6. Before delving into a detailed discussion regarding the
contentions taken by the learned counsel appearing for both sides, it
is to be noted that, to initiate proceedings under KAA(P) Act, the
detenu was classified as a known rowdy considering his recurrent
involvement in criminal activities. Altogether six cases formed the
basis for passing Ext.P3 order of detention and out of the said six
cases considered by the jurisdictional authority, the case registered
with respect to the last prejudicial activity is crime No.329/2025 of
Elathur Police Station, alleging commission of the offences punishable
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under Sections 75(1), 79, 115(2), 118(2), 351(3), and 296(a) of BNS.
The detenu was arrested in the said case on 21.04.2025. Thereafter, it
was on 11.06.2025, the detenu was released on bail. It was on
09.06.2025, Ext.P3 order was passed. Virtually, it is evident that
Ext.P3 order was passed while the detenu was under judicial custody.
The sequence of the events narrated above clearly reveals that there
is no unreasonable delay either in mooting the proposal or in passing
Ext.P3 order.
7. 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 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.
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8. 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].
9. Keeping in mind the proposition of law laid down in
Kamarunissa's case (cited supra) by the Hon'ble Supreme Court, while
coming to facts in the present case, it can be seen that in Ext.P3 order,
it is mentioned that there is a real possibility of the detenu being
released on bail and if the detenu is so released there is every
possibility of him involving in criminal activities. This subjective
satisfaction of the authority is seen arrived at based on the material
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that was available before the said authority. Therefore, it cannot be
said that the impugned order is vitiated by any non-application of
mind.
10. One of the main contentions raised by the learned
counsel for the petitioner is that the purported hasty action on the
part of the jurisdictional authority in passing an order under Section
3(1) of KAA(P) Act is not justified as there was remedy under ordinary
criminal law to deter the detenu from repeating criminal activities.
According to the counsel, if the authority was concerned about
violations of bail conditions imposed on the detenu in the cases
registered against him and his recurrent involvement in criminal
activities, the course open was to file a petition to cancel the bail
granted to the detenu and to detain him in terms of the provisions
contained under Cr.P.C. In order to substantiate his contentions in
this regard, the learned counsel heavily relied on the decision of the
Hon'ble Supreme Court in Dhanya M. V. State of Kerala (2025 KHC
6577).
11. We are not oblivious of the fact that detention under the
KAA(P) Act or similar detention laws is a drastic measure against a
citizen, especially when it heavily impacts his personal as well as
fundamental rights. When an effective and alternative remedy exists
to prevent a person from repeating criminal activities, resorting to
detention under such laws is neither warranted nor permissible.
However, merely because there is a provision for cancellation of bail
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under the ordinary criminal law, it cannot be said that an order of
detention under KAA(P) Act cannot be passed. When there is an
imminent danger of repetition of criminal activities by a person who
can be classified as 'known goonda' or 'known rowdy', cancellation of
bail orders already secured by him would not be sufficient to deter
such a person from indulging in criminal activities. The reason being,
first of all, the purpose and scope of an application for cancellation of
bail are different. That apart, since the procedure prescribed for
cancellation of bail, having regard to the ground realities is time
consuming, there is no assurance that an order of cancellation of bail
could be secured before the person concerned indulges into another
criminal activity. Preventive detention laws are enacted to address
such exigencies. It is on account of these reasons that it has been held
by the courts consistently that the authorities under the preventive
detention laws need not have to wait till orders are passed on the
application for cancellation of bail, for passing an order of detention.
If it is held that, if there is an option for cancellation of bail, a
detention order cannot be passed, it would render the preventive
detention laws ineffective. In other words, it cannot be said as a
general proposition of law that if there is an option for cancellation of
bail already granted to a person, an order of detention cannot be
passed against him, although there could be exceptions to this
position.
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12. We have meticulously perused the decision of the
Supreme Court in Dhanya's case (cited supra) and it cannot be seen as
stating a general proposition of law that an order of detention cannot
be passed if an option is available for cancellation of bail already
granted. In fact, a reading of the judgment suggests that the
observations in paragraph 20 of the judgment, regarding the
application for cancellation of bail, was one made on the facts of that
case.
13. That apart, in Dhanya's case, the preventive detention
order was passed based on the detenu's involvement in four cases,
and in all the said four cases, the offences alleged were under Section
17 of the Kerala Money Lenders Act and Section 3 of Kerala
Prohibition of Charging Exorbitant Interest Act, 2012. The Supreme
Court set aside the order of detention mainly on a finding that the
offences attributed to the detenu in those cases did not affect the
maintenance of public order. Moreover, reiterating the observations in
Nenavath Bujji v. State of Telangana and others [2024 SCC Online SC
367], the Court drew a clear distinction between the realms of law and
order and public order. In paragraphs 19 and 20 of the said judgment,
the Hon'ble Supreme Court observed as follows:
"19. In consonance with the above expositions of law, in our
view, the attending facts and circumstances do not fall under
the category of a public order situation. The observations
made in the detention order do not ascribe any reason as to
how the actions of the detenu are against the public order of
the State. As discussed above, given the extraordinary
nature of the power of preventive detention, no reasons are
assigned by the detaining authority, as to why and how the
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actions of the detenu warrant the exercise of such an
exceptional power.
20. Moreover, it has been stated therein by the authority that
the detenu is violating the conditions of bail, imposed upon
him in the cases that have been considered for passing the
order of detention. However, pertinently, no application has
been filed by the respondent-State in any of the four cases,
alleging violation of such conditions, if any, and moreover,
have not even been spelt out here."
14. Essentially, the Supreme Court set aside the detention
order in Dhanya's case on a finding that the facts and circumstances
in that case were insufficient to classify the detenu's action as harmful
for the maintenance of public order. The detention order therein
having been passed based on the cases alleging offences under the
Kerala Money Lenders Act and the Kerala Prohibition of Charging
Exorbitant Interest Act, 2012, it was held that such said cases did not
fall under the category of public order, and therefore that the State
could approach the competent court for cancellation of bail.
15. In the case at hand, however, the cases considered by the
detaining authority to pass the impugned order of detention are not
cases registered alleging offences under the Kerala Money Lenders
Act or Kerala Prohibition of Charging Exorbitant Interest Act, 2012.
Rather, the impugned order of detention has been passed based on
cases registered alleging offences under IPC and BNS, which are
certainly harmful for the maintenance of the public order, and will
unambiguously fall under the definition of anti-social activities.
Therefore, the petitioner cannot be heard to say that instead of
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passing the impugned order of detention, the remedy was to file an
application for cancellation of bail.
16. From a perusal of the records, we are satisfied that all
the necessary procedural requirements before and after passing an
order under Section 3(1) of the KAA(P) Act have been scrupulously
complied with in this case. We are further satisfied that the
competent authority passed the detention order after thoroughly
verifying all the materials placed by the sponsoring authority and after
arriving at the requisite objective and subjective satisfaction.
Therefore, it cannot be said that the order passed under Section 3(1)
of the KAA(P) Act is vitiated in any manner.
In view of the discussion above, we hold that the petitioner has
not made out any case for interference. Hence, the writ petition
stands dismissed.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
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APPENDIX OF WP(CRL.) 943/2025
PETITIONER EXHIBITS
Exhibit P1 A PRELIMINARY REPORT FOR ACTION UNDER
SECTION 3 OF THE KERALA ANTI-SOCIAL
ACTIVITIES (PREVENTION) ACT, 2007
(KAAPA), DATED MAY 12, 2025,
Exhibit P2 A TRUE COPY OF THIS REQUEST, DATED
MAY 14, 2025
Exhibit P3 A TRUE COPY OF THE DETENTION ORDER
NO. DCKKD/6451/2025-S2/DATED 9/6/2025
PASSED BY THE 2ND RESPONDENT
