Kerala High Court
Vahitha Moitheenkutty vs State Of Kerala on 25 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:65448
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 25TH DAY OF AUGUST 2025 / 3RD BHADRA, 1947
WP(CRL.) NO. 1070 OF 2025
PETITIONER:
VAHITHA MOITHEENKUTTY, AGED 59 YEARS
W/O MOITHEENKUTTY, VAIPPIPADATH HOUSE,
KOTHAPARAMBA ALA, P.O, THRISSUR, PIN - 680668
BY ADV SRI.MANSOOR ALI
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY,
(SECRETARY, HOME AFFAIRS), SECRETARIAT,
THIRUVANANTHAPURAM., PIN - 695001
2 DISTRICT COLLECTOR AND EXICUTIVE MAGISTRATE
THRISSUR, COLLECTRATE, AYYANTHOL, PIN - 680003
3 INSPECTOR GENERAL OF POLICE
THRISSUR RANGE. VELIYANNUE, THRISSUR, KERALA,
PIN - 680001
4 DISTRICT POLICE CHIEF THRISSUR RURAL
DISTRICT POLICE OFFICE, THRISSUR RURAL,
IRINJALAKKUDA,THRISSUR, PIN - 680125
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5 THE STATION HOUSE OFFICER
MATHILAKAM POLICE STATION, MATHILAKAM POLICE
STATION, MATHILAKAM, KODUNGALLUR TALUK,
THRISSUR, PIN - 680685
6 THE SUPERINTENDENT
CENTRAL PRISON, KANNUR, CENTRAL PRISON &
CORRECTIONAL HOME, PALLIKKUNNU, KANNUR, PIN -
670004
7 THE HON'BLE CHAIRMAN
THE ADVISORY BOARD, THE KERALA ANTI-SOCIAL
ACTIVITIES (PREVENTION) ACT 2007, VIVEKANANDA
NAGAR, PADAM ROAD, ELAMAKKARA P.O.,
ERNAKULAM, PIN - 682026
G.P; K.A.ANAS
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 25.08.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner herein is the mother of one Faarish ('detenu' for
the sake of brevity) and her challenge in this Writ Petition is directed
against Ext.P1 order of detention dated 17.05.2025 passed by the
additional 2nd respondent under Section 3(1) of the Kerala Anti-Social
Activities (Prevention) Act, 2007 ('KAA(P) Act' for brevity). The said
order stands confirmed by the Government, vide order dated
25.07.2025, after obtaining the opinion of the Advisory Board, and the
detenu has been ordered to be detained for a period of six months
with effect from the date of detention.
2. The records reveal that a proposal was submitted by the
District Police Chief, Thrissur Rural, on 10.04.2025, seeking initiation
of proceedings against the detenu under 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 goonda" as defined under Section 2(o) of the KAA(P) Act.
3. Altogether, five cases in which the detenu was involved
have been considered by the jurisdictional authority for passing the
order of detention. Out of the five cases considered, the case
registered with respect to the last prejudicial activity is crime
No.183/2025 of Mathilakam Police Station, alleging the commission of
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offences punishable under Sections 22(b) and 29 of NDPS Act.
4. We heard Sri. Mansoorali, the learned counsel appearing
for the petitioner, and Sri. K.A. Anas, the learned Government Pleader.
5. 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 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. Moreover, it is submitted that there is an inordinate delay in
mooting the proposal as well as in passing the impugned order after
the date of the last prejudicial activity and the said delay will snap the
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live link between the last prejudicial activity and the purpose of
detention. On these premises, it was argued that Ext.P1 is liable to be
set aside.
6. In response, the learned Government Pleader submitted that
Ext.P1 order of detention was passed by the jurisdictional authority
after complying with all the procedural formalities and after arriving
at the requisite objective as well as subjective satisfaction. 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 in 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 there is no delay either in
mooting the proposal or in passing the impugned order of detention,
and hence, the contention of the learned counsel for the petitioner
that the live link between the last prejudicial activity and the purpose
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of detention is snapped will not be sustained.
7. From the rival contentions raised, it is gatherable that the
main question that revolves around this petition is whether an order of
detention under Section 3(1) of the 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 a person from
repeating criminal activities, resorting to preventive detention is
neither warranted nor permissible. When a detenu is in jail in
connection with the last prejudicial activity, obviously, there is no
imminent possibility of being involved in criminal activities.
Therefore, before passing a detention order in respect of a person who
is in jail, the concerned authority must satisfy itself that there is a real
possibility that the detenu is on bail, and further, if released on bail,
the material on record reveals that he will indulge in prejudicial
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activity if not detained. The circumstances that necessitate the
passing of such an order must be reflected in the order itself.
8. 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 its satisfaction in this regard, such an order
would be valid.
9. 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].
10. 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.
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11. 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.183/2025 of Mathilakam
Police Station, alleging the commission of offences punishable under
Sections 22(b) and 29 of NDPS Act. The detenu who is arrayed as the
1st accused in the said case was, though caught red-handed with the
contraband on 18.02.2025, he escaped from the police custody.
Thereafter, it was on 05.03.2025, he was arrested, and since then, he
has been under judicial custody. It was on 10.04.2025, while the
detenu was under judicial custody, the proposal for proceedings under
KAA(P) Act was initiated. Later, it was on 15.07.2025, the impugned
order was passed.
12. 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 is
specifically adverted to. Similarly, 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 on bail".
13. 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
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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)
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 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."
14. 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 impugned order, it is not specifically recorded that the
detenu is likely to be released on bail. However, in the order, it is
stated 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
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application of mind and, based on the materials available on record,
the detaining authority subjectively satisfied that there is a reason to
believe that there is a real possibility of the detenu being released on
bail and that, on so released, the detenu will in all probability indulge
in prejudicial activities. Therefore, merely because of the reason that
the detaining authority has not specifically recorded that "the detenu
is likely to be released on bail", it cannot be said that the impugned
order lacks satisfaction of the detaining authority regarding the
chance of the detenu being released on bail.
15. Therefore, it is clear 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. 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. Similarly, from the records as well as
from the impugned order, it is discernible that the said order has been
passed by the jurisdictional authority after arriving at the requisite
subjective as well as objective satisfaction.
16. Another contention taken by the learned counsel for the
petitioner is that there is an inordinate delay in mooting the proposal
as well as in passing the impugned order of detention. While
considering the said contention, it could not be ignored that an order
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under Section 3(1) of KAA(P) Act is having 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 passed
within a specified time frame following the last prejudicial activity.
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.
17. Keeping in mind the above, while reverting to the facts in
the present case, it can be seen that, as already noted, the last
prejudicial activity was committed by the detenu on 18.02.2025. The
detenu who was arrayed as the 1st accused in the said case was
arrested on 05.03.2025, and he was released on bail on 21.05.2025. It
is true that the proposal for the initiation of proceedings under KAA(P)
Act was mooted by the District Police Chief, Thrissur Rural, only on
10.04.2025. However, as already stated, five 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.
Moreover, for a considerable period, the detenu was under judicial
custody in connection with the last prejudicial activity. As the detenu
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was under judicial custody, there was no basis for any apprehension
regarding repetition of offences by him while in jail. Therefore, the
short delay in mooting the proposal is only justifiable. After the
proposal, Ext. P1 order was passed on 17.05.2025. 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. Therefore, the contention of the learned counsel for the
petitioner, sticking to the delay, is only liable to be discarded.
Hence, the writ petition fails and is accordingly dismissed.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
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APPENDIX OF WP(CRL.) 1070/2025
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE DETENTION ORDER
DCTSR 5589/2025-C4 DATED 17/05/2025
OF DISTRICT COLLECTOR AND THE
DISTRICT MAGISTRATE, THRISSUR
Exhibit P2 THE TRUE COPY OF THE ORDER NO.
60/KAA(P)A/SBTSR(RL)/2025 ISSUED BY
THE 4TH RESPONDENT DATED 10.04.2025
Exhibit P3 THE TRUE COPY OF THE MEDICAL
CERTIFICATE OF THE PETITIONER ISSUED
BY THE GENEREAL HOSPITAL, ERNAKULAM
DATED, 22.11.2024
Exhibit P4 THE TRUE COPY OF THE ORDER NO G.O
(RT.) 2494/2025/HOME DATED 25.07.2025
