Kerala High Court
Haseena vs State Of Kerala on 27 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:65868
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 27TH DAY OF AUGUST 2025 / 5TH BHADRA, 1947
WP(CRL.) NO. 1001 OF 2025
PETITIONER:
HASEENA, AGED 42 YEARS
W/O SUBAIR, RESIDING AT, KOVUMMAL
KUNHIPARAMBATH, ADUKKATH P.O., VADAKARA
KOZHIKODE, PIN - 673508
BY ADVS.
SRI.LEGITH T.KOTTAKKAL
SRI.P.R.BANERJI
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ADDITIONAL CHIEF SECRETARY,
GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM-, PIN - 695001
2 DISTRICT MAGISTRATE & DISTRICT COLLECTOR
COLLECTORATE KOZHIKODE DISTRICT, PIN - 673020
3 THE DISTRICT POLICE CHIEF
OFFICE OF THE DISTRICT POLICE CHIEF, KOZHIKODE
RURAL, PIN - 673015
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4 THE SUPERINTENDENT
CENTRAL PRISON, VIYYUR, THRISSUR, PIN - 680010
5 KAAPA ADVISORY BOARD
KERALA ANTI SOCIAL ACTIVITIES (PREVENTION) ACT,
PADOM ROAD ELAMAKKARA, KOCHI, PIN - 682026
ADV. SRI. K.A. ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 27.08.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner is the mother of one Muhammed Afreed ('detenu'
for the sake of brevity), and her challenge in this Writ Petition is
directed against Ext.P1 order of detention dated 08.05.2025 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 15.07.2025, 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 it was after considering the
recurrent involvement of the detenu in criminal activities, a proposal
was submitted by the District Police Chief, Kozhikode Rural, on
17.04.2025, seeking initiation of proceedings against the detenu under
Section 3(1) of the KAA(P) Act before the jurisdictional authority, the
2nd respondent. Altogether, two 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.259/2025 of Kuttiady Police Station, registered alleging commission
of offence punishable under Sections 22(c) and 29 of NDPS Act.
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3. We heard Sri. Legit T Kottakkal, 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
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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. 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 two cases in which the
detenu got involved formed the basis 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. 259/2025 of Kuttiady Police Station,
registered alleging commission of offence punishable under Sections
22(c) and 29 of NDPS Act. The allegation in the said case is that on
19.03.2025, the detenu, along with the co-accused in the said case, was
found possessing and transporting 15.12 gms of MDMA in contravention
of the provisions of NDPS Act. The detenue was arrested on the spot on
the same day. Subsequently, he was released on bail on 19.05.2025. It
was on 14.07.2025, while the detenu was under judicial custody, the
Sponsoring authority mooted the proposal for initiation of proceedings
under KAA(P) Act against the detenu. Likewise, the impugned order
was passed on 08.05.2025 while the detenu was in jail. Hence, it is
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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 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 that necessitated the passing of
such an order. An order to preventively detain a person is a drastic
measure as the same is has a serious impact on the personal as well as
fundamental rights of a person. When ordinary criminal laws would
suffice to deter a person from repeating criminal activities, the 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
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necessitating the passing of such an order must be mentioned in the
impugned order.
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 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].
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
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released on bail in the case registered with respect to the last
prejudicial activity. Likewise, in the impugned order, it is not mentioned
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 Central Prison, Viyyur,
Thrissur, is directed to release the detenu, Sri. Muhammed Afreed
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 Central Prison, Viyyur, Thrissur, forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
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APPENDIX OF WP(CRL.) 1001/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER NO
DCKKD/5280/2025-S2 DATED 08-05-2025
ISSUED BY 2ND RESPONDENT
Exhibit P2 REPORT NO 1371/SBR/G/2025 DATED 17-04-
2025 ISSUED BY 3RD RESPONDENT TO THE
2ND RESPONDENT
Exhibit P3 TRUE COPY OF THE EXECUTION ORDER DATED
08-05-2025 IN ORDER NO
DCKKD/5280/2025-S2
Exhibit P4 REPORT DATED 10-04-2025 ISSUED BY THE
STATION HOUSE OFFICER, KUTTIYADI
POLICE STATION TO THE 3RD RESPONDENT
Exhibit P5 TRUE COPY OF THE ORDER DATED 19-05-
2025 IN CRL. MP 835 OF 2025 OF THE
COURT OF SPECIAL JUDGE (NDPS ACT
CASES, VATAKARA
Exhibit P6 ORDER DATED 22-11-2023 IN CRL.MP 1023
OF 2023 OF SPECIAL NDPS COURT,
VATAKARA
Exhibit P7 TRUE COPY OF THE ORDER SSA2/85/2025
HOME DATED 24-05-2025 ISSUED BY THE
1ST RESPONDENT
Exhibit P8 TRUE COPY OF THE REPRESENTATION DATED
7-07-2025 SUBMITTED BEFORE THE 5TH
RESPONDENT
Exhibit P9 TRUE COPY OF THE ORDER GO (RT) NO
2372/2025/HOME DATED 15-07-2025 ISSUED
BY THE 1ST RESPONDENT
