Kerala High Court
Mary Celine Fernadez vs State Of Kerala on 13 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:61667
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 13TH DAY OF AUGUST 2025 / 22ND SRAVANA, 1947
WP(CRL.) NO. 723 OF 2025
PETITIONER:
MARY CELINE FERNADEZ
AGED 25 YEARS
W/O PRABHAJITH, PADMAPRABHA VEETTIL,
WARD 2, AROOR P.O, ALAPPUZHA,, PIN - 688534
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SHRI.ANANDHU P.C.
SMT.NANCY MOL P.
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,
CIVIL STATION, ALAPPUZHA DISTRICT, PIN - 688001
3 THE DISTRICT POLICE CHIEF,
CIVIL STATION, ALAPPUZHA DISTRICT, PIN - 688001
4 THE CHAIRMAN
ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA,
ERNAKULAM DISTRICT, PIN - 682026
5 THE SUPERINTENDENT OF JAIL
CENTRAL JAIL, VIYYUR, THRISSUR DISTRICT, PIN - 670004
WP(Crl.) No.723 of 2025 :: 2 ::
2025:KER:61667
BY ADVS.
SSRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN COME UP
FOR HEARING ON 13.08.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(Crl.) No.723 of 2025 :: 3 ::
2025:KER:61667
JUDGMENT
Jobin Sebastian, J.
The petitioner herein is the wife of one Prabhajith @
Chandu ('detenu' for the sake of brevity) and her challenge in this
Writ Petition is directed against Ext.P1 order of detention dated
23.05.2025 passed by the 2nd respondent under Section 3(1) r/w
13(2)(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007
('KAA(P) Act' for brevity). The said order of detention was
confirmed by the Government vide order dated 25.07.2025, and the
detenu has been ordered to be detained for a period of six months,
from the date of detention.
2. The records reveal that, considering the recurrent
involvement of the detenu in criminal activities, a proposal was
submitted by the District Police Chief, Alappuzha, on 12.05.2025,
seeking initiation of proceedings against the detenu under Section
3(1) of the KAA(P) Act before the jurisdictional authority, the 2nd
respondent. For the purpose of initiation of the said proceedings,
the detenu was classified as a 'known rowdy' as defined under
Section 2p(iii) of the KAA(P) Act.
3. Altogether, seven cases in which the detenu got
involved were considered by the detaining authority for issuing
Ext.P1 order of detention. Out of the said cases, the case
WP(Crl.) No.723 of 2025 :: 4 ::
2025:KER:61667
registered with respect to the last prejudicial activity is crime
No.211/2025 of Poochakkal Police Station alleging the commission
of offences punishable under Sections 115(2), 137(2), 127(2),
296(b), 118(1), 118(2), 351(2), 324(4), 110, 49, 249(C), 3(5) of
Bharatiya Nyaya Sanhita (for short "BNS").
4. We heard Sri. M.H.Hanis, the learned counsel
appearing for the petitioner, and Sri.K.A.Anas , the learned
Government Pleader.
5. The learned counsel for the petitioner would submit
that Ext.P1 order is illegal, arbitrary, and was passed without
proper application of mind. According to the learned counsel, there
is an inordinate delay in mooting the proposal as well as in passing
the order of detention, and hence, the live link between the last
prejudicial activity and the purpose of detention is snapped. The
learned counsel further submitted that there is a time gap of more
than 2 years and 2 months between the last prejudicial activity and
the last but one case registered against the detenu, and therefore,
the subjective satisfaction arrived at by the detaining authority is
vitiated. Relying on the decision in Kamarunnissa v. Union of
India and another, [1991 (1) SCC 128], the learned counsel for
the petitioner further contended that in cases wherein the detenu
is in judicial custody, in connection with the last prejudicial activity,
WP(Crl.) No.723 of 2025 :: 5 ::
2025:KER:61667
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 Supreme Court. According to the counsel, as the
impugned order was passed while the detenu was in 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, it is nowhere
mentioned that there is a real possibility of the detenu being
released on bail in connection with the last prejudicial activity. The
counsel further submits that, though a representation dated
31.05.2025 was forwarded to the Government, the said
representation was not considered within a reasonable time, and
the fate of the representation was not communicated to the detenu
in time.
6. In response, the learned Government Pleader asserted
that there is no delay either in mooting the proposal or in passing
Ext.P1 detention order, particularly when viewed in the
background that the proposal was mooted and the order was
WP(Crl.) No.723 of 2025 :: 6 ::
2025:KER:61667
passed while the detenu was under judicial custody. According to
the counsel, as there is no unreasonable delay, the petitioner could
not be heard to say that the live link between the last prejudicial
activity and the order of detention was snapped. According to the
Government Pleader, the impugned order of detention was passed
by the jurisdictional authority after being satisfied that a detention
order under Section 3(1) of KAA(P) Act is the only way to deter the
detenu from repeating criminal activities. It was further contended
that the jurisdictional authority was fully aware of the fact that the
detenu was under judicial custody in connection with the last
prejudicial activity, and it was on being satisfied that there is every
chance that the detenu be released on bail, and if so released, he
would in all probability indulge in criminal activities further, the
order of detenion was passed. According to him, therefore, the
order of detention will legally sustain irrespective of the fact that
the detenu was under judicial custody in connection with the last
prejudicial activity while the impugned order was passed. The
learned Government Pleader further submitted that the
representation submitted by the detenu through jail to the
Government was duly considered, and its fate was communicated
to the detenu promptly without much delay.
7. The records reveal that the impugned order of detention
was passed by the jurisdictional authority after considering the
WP(Crl.) No.723 of 2025 :: 7 ::
2025:KER:61667
recurrent involvement of the detenu in criminal activities. As
already stated, seven cases in which the detenu got involved were
considered by the detaining authority while passing the detention
order, and the detenu was classified as a 'known rowdy' for the
purpose of initiation of proceedings under KAA(P) Act.
8. While considering the contention of the petitioner
based on the delay in passing the impugned order, it could not be
ignored that an order under Section 3(1) of KAA(P) Act is having a
significant impact on the personal as well as the fundamental
rights of an individual. Therefore, such an order could not be
passed in a casual manner, instead, it can only be passed on
credible materials and after arriving at the requisite objective and
subjective satisfaction. Furthermore, there exists no inflexible rule
requiring a detention order to be issued within a specific time
frame following the last prejudicial act. However, when there is an
unreasonable delay in making the proposal and passing the
detention order, the same would undermine its validity, particularly
when no convincing or plausible explanation is offered for the
delay.
9. Keeping in mind the above, while coming to the facts
in the present case, it can be seen that the last prejudicial activity
was committed by the detenu on 21.03.2025. The detenu who was
WP(Crl.) No.723 of 2025 :: 8 ::
2025:KER:61667
arrayed as the 1st accused in the said case was arrested on
29.03.2025. From the date of arrest onwards, the detenu was
under judicial custody. The proposal for the initiation of
proceedings under KAA(P) Act was mooted by the District Police
Chief, Alappuzha, on 12.05.2025. However, as already stated,
seven cases in which the detenu got involved formed the basis for
passing the impugned order. Therefore, some minimum time would
have been required for collecting the details of the said cases and
for verification of records. Therefore, the short delay in mooting
the proposal is only justifiable. After the proposal, Ext. P1 order
was passed on 23.05.2025 without much delay. The sequence of
events narrated above clearly shows that there is no inordinate
delay either in mooting the proposal or in passing the impugned
order of detention. At this juncture, it is pertinent to note that from
the date of arrest onwards, the detenu was under judicial custody,
and it was while he was under judicial custody, the proposal was
mooted and the detention order was passed. As the detenu was
under judicial custody, there was no basis for any immediate
apprehension regarding the commission of any criminal activities
by him, and if at all there occurred any delay in mooting the
proposal and passing the order, the same is liable to be discarded.
10. The learned counsel further submitted that there is a
gap of more than 2 years and 2 months between the date of last
WP(Crl.) No.723 of 2025 :: 9 ::
2025:KER:61667
prejudicial activity and the date of last but one case registered
against the detenu, and therefore, the subjective satisfaction
arrived at by the detaining authority is vitiated. It is true that the
last prejudicial activity was committed by the detenu on
21.03.2025, and the date of occurrence of the last but one case
registered against the detenu as crime No. 814/2022 of Aroor
Police Station is on 29.12.2022. In short, there is a gap of around 2
years and 2 months between the date of commission of the last
prejudicial activity and the date of occurrence of the last but one
case. However, the said gap alone is not a reason to enter into a
conclusion that the satisfaction arrived on by the authority to pass
the impugned order is vitiated. Evidently, the acts done by the
detenu within seven years prior to the date of the order alone
formed the basis for passing Ext.P1 order of detention. All the
cases are qualified to be considered for passing the said order and
to classify the detenu as a known rowdy under KAA(P) Act.
Therefore, the gap of around 2 years and 2 months between the
last prejudicial activity and the last but one case registered against
the detenu is of little consequence as far as the subjective
satisfaction arrived on by the authority is concerned. In this
regard, we are fortified by the decision in Ammini v. State of
Kerala and others (2016(3) KHC 456), wherein it was held that
cumulative effect of the nature of crime in which the detenu is
involved during the previous seven years and the activities of the
WP(Crl.) No.723 of 2025 :: 10 ::
2025:KER:61667
detenu in recent time would give the necessary factual foundation
for detaining authority to arrive at subjective satisfaction. The fact
that no crimes were registered against the detenu for a
considerable length of time is not a ground to hold that the
subjective satisfaction arrived at is vitiated. Therefore, we have no
hesitation in holding that the time gap between the two crimes
highlighted by the counsel for the petitioner has no significance.
11. From the rival contentions raised, it can be seen that
one of the main questions that arises for consideration in this
petition is whether an order of detention under Section 3(1) of
KAA(P) Act can be validly passed against a person who is under
judicial custody in connection with the last prejudicial activity.
While answering the said question, it is to be noted that, through a
series of judicial pronouncements rendered by the Apex Court as
well as by this Court, it is well settled that there is no legal
impediment in passing an order of detention against a person who
is under judicial custody in connection with the last prejudicial
activity. However, an order of detention against a person who is in
judicial custody in connection with the last prejudicial activity
cannot be passed in a mechanical manner. Undisputedly, an order
of detention under KAA(P) Act is a drastic measure against a
citizen as it heavily impacts his personal as well as his fundamental
rights. When an effective and alternative remedy exists to prevent
WP(Crl.) No.723 of 2025 :: 11 ::
2025:KER:61667
a person from repeating criminal activities, resorting to preventive
detention is neither warranted nor permissible. When the detenu is
in jail in connection with the last prejudicial activity, obviously,
there is no imminent possibility of involving in criminal activities.
Therefore, before passing a detention order in respect of a person
who is in jail, the detaining authority must satisfy himself that
there is a real possibility of the detenu being released on bail, and
further, if released on bail, the material on record reveals that he
will indulge in prejudicial activity if not detained. The
circumstances that necessitate the passing of such an order must
be reflected in the order itself.
12. In Kamarunnissa's case (cited supra), the Supreme
Court made it clear that a detention order under preventive
detention laws can be validly passed even in the case of a person in
custody (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.
WP(Crl.) No.723 of 2025 :: 12 ::
2025:KER:61667
13. A similar view has been taken by the 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].
14. In view of the said decisions, in cases wherein the
detenu is in 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 decisions by the Supreme Court.
15. Keeping in mind the above proposition of law laid
down by the Supreme Court, while reverting to the facts in the
present case, it can be seen that the case registered against the
detenu with respect to the last prejudicial activity is crime
No.211/2025 of Poochakkal Police Station, alleging the commission
of offences punishable under Sections 115(2), 137(2), 127(2),
296(b), 118(1), 118(2), 351(2), 324(4), 110, 49, 249(C), 3(5) of
BNS. The detenu was arrayed as the 1st accused in the said case,
and he was arrested on 29.03.2025. The impugned order was
passed on 23.05.2025, while the detenu was under custody.
16. In Ext.P1 impugned order, the fact that at the time of
passing the said order, the detenu was under custody in connection
with the case registered with respect to the last prejudicial activity
WP(Crl.) No.723 of 2025 :: 13 ::
2025:KER:61667
is specifically adverted to. Similarly, in the impugned order, it is
mentioned that if the detenu is released on bail, there is every
possibility of his engaging in criminal activities again. We do agree
that the detaining authority has not specifically recorded that
"detenu is likely to be released". However, the mere absence of
those words in the order will not vitiate the detention order so long
as we find that the detaining authority had material before him
that would justify the formation of a belief that the detenue was
likely to be released on bail.
17. Dealing with a similar situation, the Supreme Court in
Union of India and another vs. Dimple Happy Dhakad (2019
KHC 6662), after considering the dictum laid down in
Kamarunissa (cited supra) in paragraph 35 of the judgment,
observed as follows;
"In the light of the well settled principles, we have to see, in the
present case, whether there was awareness in the mind of the
detaining authority that detenu is in custody and he had reason
to believe that detenu is likely to be released on bail and if so
released, he would continue to indulge in prejudicial activities.
In the present case, the detention orders dated 17.05.2019
record the awareness of the detaining authority that (i) if the
detenu is in custody, (ii) that the bail application filed by the
detenus have been rejected by the court. Of course, in the
detention order, the detaining authority has not specifically
recorded that the "detenu is likely to be released. It cannot be
said that the detaining authority has not applied its mind merely
WP(Crl.) No.723 of 2025 :: 14 ::
2025:KER:61667
on the ground that in the detention orders, it is not expressly
stated as to the "detenu's likelihood of being released on bail"
and if so released, he is likely to indulge in the same prejudicial
activities. But the detaining authority has clearly recorded the
antecedents of the detenu and its satisfaction that the detenus,
Happy Dhakad and Nisar Aliyar, have the high propensity to
commit such offences in the future." (emphasis supplied)
18. Keeping in mind the above principles laid down by the
Supreme Court while reverting to the case at hand, it can be seen
that in the case at hand also, although it is not specifically
recorded that the detenu is likely to be released, the detaining
authority acted on material before him to find that the detenue had
repeatedly violated bail conditions in the past and that if the
detenu is released on bail, there is every possibility of him
indulging in criminal activities again. The satisfaction of the
detaining authority that the detenu is already in custody and he is
likely to be released on bail, and on being so released, he is likely
to indulge in prejudicial activity, is the subjective satisfaction of the
detaining authority, and normally, the subjective satisfaction is not
to be interfered with. The impugned order reflects that there is a
proper application of mind, based on the materials available on
record, and that the subjective satisfaction of the detaining
authority was properly arrived at. Therefore, merely for the reason
that the detaining authority has not specifically recorded that the
'detenu is likely to be released', it cannot be said that the
WP(Crl.) No.723 of 2025 :: 15 ::
2025:KER:61667
impugned order lacks legitimacy or legal validity.
19. We find that the order of detention was passed by the
jurisdictional authority after being satisfied 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
activities, and a perusal of the records further reveals that all the
procedural formalities before and after passing an order of
detention have been fully complied with in this case.
20. While considering the contention in the writ petition
that the representation submitted by the detenu was not
considered by the Government within a reasonable time, and the
fate of the communication was not timely communicated to him, it
is to be noted that the right of a detenu to get his representation
considered by the Government is a constitutional as well statutory
right. However, the records reveal that the contention of the
petitioner that the representation of the detenu was not considered
by the Government within a reasonable time appears to be
baseless. The copy of the said representation (Ext.P2), which is
appended with the writ petition, reveals that the same is dated
31.05.2025. A perusal of the records in this case reveals that the
said representation reached the hands of the Government on
12.06.2025. At this juncture, it is pertinent to note that the
WP(Crl.) No.723 of 2025 :: 16 ::
2025:KER:61667
detention order was passed on 23.05.2025. As evident from the
records, the matter was referred to the Advisory Board by the
Government on 09.05.2025 as mandated under Section 9 of the
KAA(P) Act. Therefore, it is demonstrably clear that prior to the
receipt of Ext.P2 representation, the matter was referred by the
Government to the Advisory Board. Thereafter, the Government
confirmed the detention order on 25.07.2025 after considering the
opinion of the Advisory Board. A perusal of the confirmation order
clearly shows that the representation submitted by the detenu
before the Government is read as item No.5 in the confirmation
order. Similarly, the confirmation order reveals that the
representation submitted by the detenu was duly considered by the
Government. The fate of the representation was subsequently
communicated to the detenu on 31.07.2025.
21. While considering the contention regarding the delay in
considering Ext.P2 representation, it is worthwhile to refer the
decision of the Supreme Court in K.M.Abdulla Kunhi v. Union of
India (1991 (1) SCC 476). In the said case in paragraph 16 the
Supreme Court observed as follows;
"the time imperative for consideration of
representation can never be absolute or obsessive. It
depends upon the necessities and the time at which the
representation is made. The representation may be
received before the case is referred to the advisory
board, but there may not be time to dispose of the
representation before referring the case to the advisory
WP(Crl.) No.723 of 2025 :: 17 ::
2025:KER:61667
board. In that situation, the representation must also be
forwarded to the advisory board along with the case of
the detenu. The representation may be received after
the case of the detenu is referred to the board. Even in
this situation, the representation should be forwarded
to the advisory board, provided the board has not
concluded the proceedings. In both the situations, there
is no question of consideration of the representation
before the date of receipt of the report of the advisory
board. Nor it could not be said that the Government
had delayed the consideration of the representation,
unnecessarily awaiting the report of the board. It is
proper for the Government in such situation to await
the report of the board."
22. A similar view has been taken by the Supreme Court in
Golam Biswas v. Union of India and another (reported in 2015
KHC 5588).
23. Keeping in mind the above principle, while reverting to
the case at hand, it can be seen that Ext.P2 representation was
received by the Government only on 12.06.2025. The matter had
been referred to the Advisory Board on 09.05.2025, i.e. prior to the
receipt of the representation. Therefore, the action of the
Government in forwarding the said representation to the Advisory
Board without taking an immediate decision thereon cannot be
considered improper. As the matter was already seized of by the
Advisory Board, the Government is justified in not considering the
representation immediately and in forwarding the same to the
Advisory Board. Therefore, it cannot be said that the Government
WP(Crl.) No.723 of 2025 :: 18 ::
2025:KER:61667
had delayed consideration of the representation.
In the result, we have no hesitation in holding that the
petitioner has not made out any ground for interference. Hence,
the writ petition fails and is accordingly dismissed.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
WP(Crl.) No.723 of 2025 :: 19 ::
2025:KER:61667
APPENDIX OF WP(CRL.) 723/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF ORDER NO. S.C 6-
5037/2025 DATED 23.05.2025 OF THE 2ND
RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION
DATED 31.05.2025 SUBMITTED BY THE
DETENU BEFORE THE 1ST RESPONDENT
Exhibit P3 A TRUE COPY OF THE REPRESENTATION
DATED 31.05.2025 SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT
