Kajahussain vs State Of Kerala
2025 Latest Caselaw 5823 Ker

Kerala High Court

Kajahussain vs State Of Kerala on 20 August, 2025

Author: A.K.Jayasankaran Nambiar

Bench: A.K.Jayasankaran Nambiar

                                       2025:KER:63445

        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 20TH DAY OF AUGUST 2025/29TH SRAVANA, 1947

                WP(CRL.) NO. 1002 OF 2025

CRIME NO.72/2025 OF Town North Police Station, Palakkad

PETITIONER:

         KAJAHUSSAIN
         AGED 61 YEARS
         S/O MUHAMMED, CHIRAKKULAM, PALLIPPURAM P.O.,
         PALAKKAD, PIN - 678006

         BY ADVS.
         SRI.SARUN RAJAN
         SMT.ARCHANA HARIDAS K.


RESPONDENTS:

    1    STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
         KERALA, PIN - 682031

    2    THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
         HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM, PIN - 695001

    3    THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE
         CIVIL STATION, PALAKKAD, PIN - 678001

    4    THE DISTRICT POLICE CHIEF
         DISTRICT POLICE OFFICE,
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                                                          2025:KER:63445

              PALAKKAD, PIN - 678001


              GP; K.A.ANAS


       THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION        ON       20.08.2025,   THE       COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
    WP(Crl.) No.1002/2025              :: 3 ::




                                                    2025:KER:63445

                               JUDGMENT

Jobin Sebastian, J.

The petitioner is the father of one Abdul Rahman @ Manaf

('detenu' for the sake of brevity), and his challenge in this Writ Petition

is directed against Ext.P1 order of detention dated 27.03.2025 passed

by the 3rd 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 26.05.2025, 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 27.02.2025,

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 3rd

respondent. Altogether, 11 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.72/2025 of

Palakkad Town North Police Station, registered alleging commission of

offence punishable under Sections 126(2), 351(3), 115(2), 308(1), 230

r/w 3(5) of Bharatiya Nyaya Sanhita (BNS).

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                                                      2025:KER:63445

3. We heard Sri. Sarun Rajan, 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 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 and if so released there is a

high propensity that the detenu will involve in criminal activities again.

5. Per contra, Sri. K.A. Anas, the learned Government Pleader,

submitted that even in cases where a person is under judicial custody, a

detention order can be validly passed if the satisfaction of the authority WP(Crl.) No.1002/2025 :: 5 ::

2025:KER:63445

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. Moreover, the learned Government Pleader would submit that

in Ext. P1 order itself reflects the compelling circumstances that

necessitated the passing of such an order against the detenu, who was

under judicial custody. He 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. A perusal of the records reveals that among a series of

detention orders passed against the detenu, the present detention order,

which is under challenge in this writ petition, is the fourth one. After

completing the period of detention in terms of the third detention order,

the detenu again got involved in crime No.72/2025 of Palakkad Town

North Police Station registered alleging commission of offences

punishable under Sections 126(2), 351(3), 115(2), 308(1), 238 r/w 3(5)

of BNS. The incident that led to the registration of the said case

occurred on 13.01.2025. The detenue was arrested in connection with

the said last prejudicial activity on 14.01.2025. It was on 27.02.2025,

the Sponsoring authority mooted the proposal for initiation of

proceedings under KAA(P) Act against the detenu. It was on

27.03.2025, Ext.P1 order of detention was passed. Hence, it is evident

that the proceedings for taking action under the KAA(P) Act were

initiated, and the final order of detention was passed against the detenu WP(Crl.) No.1002/2025 :: 6 ::

2025:KER:63445

while he was under judicial custody in connection with the last

prejudicial activity.

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 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. Moreover, the impugned order should

reflect the compelling circumstance which necessitated passing of such

an order. An order to preventively detain a person is a drastic measure

as the same is having a serious impact on the personal as well as

fundamental right of a person. When ordinary criminal laws would

suffice to deter a person from repeating criminal activities, passing of a

detention order under preventive detention is not at all desirable and is

impermissible. When the accused is under judicial custody in

connection with a case, there is no chance of his engaging in criminal

activities. Therefore, when an order of detention is passed against a

person under judicial custody, the jurisdictional authority must act with

much care and satisfaction and the compelling circumstances

necessitated passing of such an order must be mentioned in the

impugned order.

    WP(Crl.) No.1002/2025                 :: 7 ::




                                                             2025:KER:63445

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's case

(supra), it is to be noted that in the said decision, the 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 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 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 in connection with the last

prejudicial activity is specifically adverted to. However, in the order, it

is nowhere mentioned that there is a possibility of the detenu being

released on bail in the case registered with respect to the last

prejudicial activity. Likewise, in the impugned order, it is not mentioned WP(Crl.) No.1002/2025 :: 8 ::

2025:KER:63445

that there are materials on record to believe that there is a real

possibility of the detenu being released on bail and there are materials

on record to enter on such a satisfaction. More significantly, in the said

order, it is nowhere mentioned that if the detenu is released on bail, he

would be involved in criminal activities again. In the absence of the

same, we have no hesitation in holding that the objective as well as the

subjective satisfaction arrived at by the competent authority to pass the

impugned order of detention is vitiated.

10. In the result, this Writ Petition is allowed and Ext.P1 order

of detention is set aside. The Superintendent of High Security Prison,

Viyyur, Thrissur, is directed to release the detenu, Sri. Abdul Rahman @

Manaf, 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 High Security Prison, Viyyur, Thrissur, forthwith.

Sd/-

DR. A.K.JAYASANKARAN NAMBIAR JUDGE

Sd/-

                                                JOBIN SEBASTIAN
                                                    JUDGE
   ncd
   WP(Crl.) No.1002/2025            :: 9 ::




                                                2025:KER:63445

                      APPENDIX OF WP(CRL.) 1002/2025

PETITIONER EXHIBITS

Exhibit P1                THE TRUE COPY OF THE DETENTION ORDER
                          DCPKD/3471/2025-S1   DATED   27.03.2025
                          PASSED BY THE 3 RD RESPONDENT UNDER
                          SECTION 3(I) 13(2)(I) OF THE KERALA
                          ANTISOCIAL   ACTIVITIES    (PREVENTION)
                          ACT, 2007
Exhibit P2                TRUE COPY OF THE ORDER IN G.O.(RT) NO.
                          1740/2025/HOME DATED 26.05.2025 ISSUED
                          BY THE 2 ND RESPONDENT