Kerala High Court
Ramlath vs State Of Kerala on 14 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:61606
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. 836 OF 2025
CRIME NO.720/2024 OF Kuzhalmannam Police Station, Palakkad
PETITIONER:
RAMLATH
AGED 51 YEARS
W/O THANGALKUTTY, THUPPARAKKALAM VEEDU,
THENKURISSI, PALAKKAD DISTRICT,, PIN - 678501
BY ADVS.
SRI.ANIL K.MUHAMED
SHRI.KRISHNAKUMAR G.
SHRI.AJIN SALAM
SHRI.MUHAMMED AFRIN NUHMAN T.T.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ADDL. CHIEF SECRETARY, HOME
DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM,
PIN - 695001
2 DISTRICT MAGISTRATE AND DISTRICT COLLECTOR
COLLECTORATE, PALAKKAD DISTRICT, PIN - 678001
3 DISTRICT POLICE CHIEF
PALAKKAD (DIST), PIN - 678014
4 STATION HOUSE OFFICER
KUZHALMANNAM POLICE STATION, PALAKAKD (DIST),
PIN - 678702
WP(Crl.) No.836 of 2025 :: 2 ::
2025:KER:61606
5 THE SUPERINTENDENT
HIGH SECUIRITY PRISON, VIYYUR, THRISSUR,
PIN - 680010
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:
WP(Crl.) No.836 of 2025 :: 3 ::
2025:KER:61606
JUDGMENT
Jobin Sebastian, J.
The petitioner is the mother of one Althaf Husain @ Ali
('detenu' for the sake of brevity), and her challenge in this Writ Petition
is directed against Ext.P3 order of detention dated 25.02.2025 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).
After considering the opinion of the Advisory Board, the said order
stands confirmed by the Government, vide order dated 07.05.2025,
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 District Police Chief, Palakkad, on 04.02.2025,
seeking initiation of proceedings against the detenu under Section 3(1)
r/w 13(2)(1) of the KAA(P) Act before the jurisdictional authority, the
2nd respondent. Altogether, sixteen 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.1217/2024 of Puthunagaram Police Station, registered, alleging
commission of offences punishable under Sections 20(b)(ii)(B), 29 of
WP(Crl.) No.836 of 2025 :: 4 ::
2025:KER:61606
the NDPS Act.
3. We heard Sri.Anil K. Muhamed, 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
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
WP(Crl.) No.836 of 2025 :: 5 ::
2025:KER:61606
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 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. P3 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.P3 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
sixteen cases considered by the jurisdictional authority to pass Ext.P3
order, the case registered with respect to the last prejudicial activity is
crime No.1217/2024 of Puthunagaram Police Station, registered,
alleging commission of offences punishable under Sections 20(b)(ii)(B),
29 of the NDPS Act. The allegation in the said case is that on
23.12.2024, the 1st accused was found possessing 18.77 gms of Ganja
for the purpose of sale in violation of the provisions of the NDPS Act,
WP(Crl.) No.836 of 2025 :: 6 ::
2025:KER:61606
and the detenu, who is arrayed as the 2nd accused had abetted the
commission of the said offence 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 04.02.2025,
while the detenu was under judicial custody, the proposal for initiation
of proceedings under the KAA(P) Act was mooted by the District Police
Chief, Palakkad, 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
WP(Crl.) No.836 of 2025 :: 7 ::
2025:KER:61606
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
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."
10. A similar view has been taken by the Hon'ble Supreme
Court in Veeramani v. The State of Tamil Nadu [1994 (2) SCC 337]
WP(Crl.) No.836 of 2025 :: 8 ::
2025:KER:61606
and in Union of India v. Paul Manickam [2003 (8) SCC 342].
11. 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.P3 order,
the fact that the detenu was under judicial custody is specifically
advered 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. Moreover, though the impugned order was passed on
25.02.2025, the same was executed only on 03.03.2025. The delay of
six days in executing the order will also vitiate the impugned order,
particularly when the impugned order was passed, the detenu was
available in the jail as he was under judicial custody in connection with
the last prejudicial activity. Therefore, the delay in executing the order
is not justifiable and hence, the impugned order is vitiated.
12. In the result, this Writ Petition is allowed, and Ext.P3 order
of detention is set aside. The Superintendent of High Security Prison,
Viyyur, is directed to release the detenu Allthaf Husain @ Ali forthwith,
WP(Crl.) No.836 of 2025 :: 9 ::
2025:KER:61606
if his detention is not required in connection with any other case.
The Registry is directed to communicate the order to the
Superintendent of High Security Prison, Viyyur, forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
WP(Crl.) No.836 of 2025 :: 10 ::
2025:KER:61606
APPENDIX OF WP(CRL.) 836/2025
PETITIONER EXHIBITS
Exhibit P 1 A TRUE COPY OF THE ORDER G.O (RT) NO:
335/2023/HOME DATED 11/02/2023 ISSUED
BY THE 1ST RESPONDENT
Exhibit P 2 A TRUE COPY OF THE REPORT NO:
16/CAMP/2024P- KAA(P)A, DATED
04/02/2025 SUBMITTED BY 3RD RESPONDENT
TO 2ND RESPONDENT
Exhibit3 A TRUE COPY OF THE DETENTION ORDER NO.
DCPKD/2031/2025- S 1, DATED 25/02/2025
ISSUED BY 2ND RESPONDENT
Exhibit P 4 A TRUE COPY OF GROUNDS OF DETENTION
DATED: 25/02/2025 ISSUED TO DETENU BY
2ND RESPONDENT
Exhibit P 5 A TRUE COPY OF THE MEMO FOR EXECUTING
ORDER OF DETENTION DATED 25/02/2025
ISSUED BY THE 2ND RESPONDENT
Exhibit P 6 A TRUE COPY OF THE JAIL ADMISSION
AUTHORIZATION DATED 25/02/2025 ISSUED
BY 2ND RESPONDENT
Exhibit P 7 A TRUE COPY OF THE ORDER NO: G.O.(RT)
NO: 1503/2025/HOME DATED: 07/05/2025
ISSUED BY THE 1ST RESPONDENT
