Kerala High Court
Shajitha S vs State Of Kerala on 14 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:61596
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 14TH DAY OF AUGUST 2025/23RD SRAVANA, 1947
WP(CRL.) NO. 1041 OF 2025
PETITIONER:
SHAJITHA S., AGED 29 YEARS
W/O THOUFEER, T.C 53/100 , VELIKKAKAM,
UPANIYOOR, NEMOM, THIRUVANTHAPURAM,
PIN - 695020
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,
THIRUVANANTHAPURAM DISTRICT, PIN - 695043
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3 THE DISTRICT POLICE CHIEF
THIRUVANANTHAPURAM DISTRICT, PIN - 695043
4 THE CHAIRMAN, ADVISORY BOARD, KAAPA,
SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR,
ELAMAKKARA,ERNAKULAM DIST, PIN - 682026
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 14.08.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian J.
The petitioner is the wife of one Thoufeer ('detenu' for the
sake of brevity), and her challenge in this Writ Petition is directed
against Ext.P1 order of detention dated 26.04.2025 passed by the 2nd
respondent under Section 3(1) of the Kerala Anti-Social Activities
(Prevention) Act, 2007 ('KAA(P) Act' for brevity). After considering the
opinion of the Advisory Board, the said order stands confirmed by the
Government, vide order dated 30.06.2025, and the detenu has been
ordered to be detained for a period of one year with effect from the
date of detention.
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,
Thiruvananthapuram City on 07.03.2025, seeking initiation of
proceedings against the detenu under Section 3(1) of the KAA(P) Act
before the jurisdictional authority, the 2nd respondent. Altogether,
five cases in which the detenu was 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.252/2025 of Vanchiyoor Police Station,
registered, alleging commission of offence punishable under Sections
20(b) of the NDPS Act.
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3. We heard .Sri. MH. Hanis, the learned counsel appearing
for the petitioner, and Sri. K.A.Anas, the learned Government 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 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 decision by the
Hon'ble 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 activities, 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 the 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, and if so released, he would involve in
criminal activities again.
5. Per contra, Sri. K.A. Anas, the learned Government
Pleader, submitted that even in cases where the person is in judicial
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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 in
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 five
cases considered by the jurisdictional authority to pass Ext.P1 order,
the case registered with respect to the last prejudicial activity is crime
No.252/2025 of Vanchiyoor Police Station, registered, alleging
commission of offence punishable under Sections 20(b) of the NDPS
Act. The allegation in the said case is that on 15.02.2025, the accused
was found possessing 4 gms of MDMA for the purpose of sale in
violation of the provisions of the NDPS Act.
7. 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. The records reveal that it was on 07.03.2025,
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while the detenu was under judicial custody, the proposal for initiation
of proceedings under the KAA(P) Act was mooted by the Deputy
Commissioner of Police, Thiruvananthapuram City, and the impugned
order was passed.
8. Undisputedly, a detention order can validly be passed
even when the detenu is in 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 was 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 in
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.
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
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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 Supreme Court, while coming
to facts in the present case, it can be seen that in Ext.P1 order, the
fact that the detenu was under judicial custody is specifically adverted
to. But in the order, it is nowhere mentioned that there is a
possibility of the detenu being released on bail in the said case, and if
so released, there is high propensity of he engaging in criminal
activities further. Therefore, we have no hesitation to hold that the
impugned order was passed without proper application of mind and
without arriving at the requisite objective as well as subjective
satisfaction.
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11. In the result, this Writ Petition is allowed, and Ext.P1
order of detention is set aside. The Superintendent of Central Jail
Viyyur, is directed to release the detenu Thoufeer, 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 Jail, Viyyur, forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
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APPENDIX OF WP(CRL.) 1041/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF ORDER NO.
DCTVM/5039/2025-S13 DATED 26.04.2025
OF THE 2ND RESPONDENT
