[Cites 9, Cited by 0]
Kerala High Court
Abdul Latheef vs State Of Kerala on 17 December, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:97391
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 17TH DAY OF DECEMBER 2025/26TH AGRAHAYANA, 1947
WP(CRL.) NO. 1737 OF 2025
PETITIONER:
ABDUL LATHEEF
AGED 34 YEARS
KOYPPAKOLOTHU, KUNDANCHENA, VALAKKULAM, THENNALA,
MALAPPURAM DISTRICT, PIN - 676508
BY ADVS.
SRI.P.MOHAMED SABAH
SRI.LIBIN STANLEY
SMT.SAIPOOJA
SRI.SADIK ISMAYIL
SMT.R.GAYATHRI
SRI.M.MAHIN HAMZA
SHRI.ALWIN JOSEPH
SHRI.BENSON AMBROSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT OF KERALA (HOME DEPARTMENT),
SECRETARIAT, THIRUVANANTHAPURAM,, PIN - 682031
2 THE DISTRICT MAGISTRATE/DISTRICT COLLECTOR
MALAPPURAM, COLLECTORATE, CIVIL STATION,
MALAPPURAM, MALAPPURAM DISTRICT, PIN - 676505
3 THE DISTRICT POLICE CHIEF
MALAPPURAM, DISTRICT POLICE OFFICE, DPO ROAD, UP
HILL, MALAPPURAM, MALAPPURAM DISTRICT, PIN - 676505
4 THE SUPERINTENDENT
CENTRAL PRISON, VIYYUR, VIYYUR P.O, THRISSUR
DISTRICT, PIN - 680010
ADV.SRI.K.A.ANAS - PP
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
17.12.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This writ petition is directed against an order of detention
dated 31.10.2025, passed against one Shihab, the detenu, under
Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act,
2007 ('KAA(P) Act' for brevity). The petitioner herein is the brother
of the detenu.
2. The records reveal that, on 28.08.2025, after considering
the recurrent involvement of the detenu in criminal activities, that
a proposal was submitted by the District Police Chief, Malappuram,
seeking initiation of proceedings against the detenu under Section
3(1) of 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)(ii) of the KAA(P) Act.
3. Altogether, three cases in which the detenu got involved
have been considered by the jurisdictional authority for passing
Ext.P2 detention order. Out of the said cases, the case registered
with respect to the last prejudicial activity is crime No.601/2025 of
Kottakkal Police Station, alleging the commission of offenses
punishable under Sections 22(c) and 29 of the NDPS Act.
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4. We heard Sri. Abhijith Sreekumar, the learned counsel
appearing for the petitioner, and Sri. K. A. Anas, the learned Public
Prosecutor.
5. Relying on the decision of the Supreme Court in
Kamarunnissa v. Union of India and Another [1991 (1) SCC
128], the learned counsel for the petitioner contended that, in
cases where the detenu is in judicial custody in connection with the
last prejudicial activity, an order of detention under preventive
detention laws can be validly passed only upon satisfaction of the
triple test laid down in the said decision. According to the learned
counsel, since the impugned order was passed while the detenu
was in judicial custody in connection with the last prejudicial
activity, it was incumbent upon the detaining authority to satisfy
itself, on the basis of reliable material placed before it, that there
was a real possibility of the detenu being released on bail and that,
upon such release, he would in all probability indulge in prejudicial
activities. It was further contended that, although Ext.P2 order
records that the detenu was in judicial custody in connection with
the last prejudicial activity, it does not state anywhere that there
was a real possibility of the detenu being released on bail in
connection with the said activity. The learned counsel also urged
that an application seeking cancellation of bail was already
pending and, therefore, there was no necessity to invoke the
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provisions of the KAA(P) Act in haste, as cancellation of bail itself
would have been an effective remedy to prevent the detenu from
repeating criminal activities. The learned counsel further
contended that, among the copies of the relied-upon documents
served on the detenu, some were illegible, and that the non-service
of legible copies of all relied-upon documents constitutes a
sufficient ground to interfere with the impugned order. On these
premises, it was argued that Ext.P2 detention order is liable to be
set aside.
6. In response, the learned Public Prosecutor submitted
that Ext.P2 order was passed after the detaining authority was
satisfied that an order of detention under Section 3(1) of the
KAA(P) Act was the only effective means to prevent the detenu
from repeating criminal activities. It was further submitted that the
detaining authority was fully aware that the detenu was in judicial
custody in connection with the last prejudicial activity and that,
upon being satisfied that there was a real possibility of the detenu
being released on bail and that, if so released, he would in all
probability indulge in further criminal activities, the order of
detention was passed. According to the learned Public Prosecutor,
the order of detention is legally sustainable notwithstanding the
fact that the detenu was in judicial custody in connection with the
last prejudicial activity at the time the impugned order was passed.
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The learned Public Prosecutor further contended that the mere
pendency of a bail cancellation application does not preclude the
detaining authority from passing a detention order, as cancellation
of bail is not always an effective remedy to curb the criminal
activities of habitual offenders. The learned Public Prosecutor also
urged that Ext.P2 order was passed by the detaining authority
after due application of mind and upon arriving at the requisite
objective as well as subjective satisfaction, and therefore, the
impugned order warrants no interference.
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
casual manner. Undisputedly, a detention order under the KAA(P)
Act is a drastic measure against a citizen as it heavily impacts his
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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 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
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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.
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.601/2025 of Kottakkal Police Station, alleging the commission
of offenses punishable under Sections 22(c) and 29 of the NDPS
Act. The detenu, who is arrayed as the first accused in the said
case, was arrested on 28.07.2025 itself, and since then, he has
been under judicial custody. It was on 28.08.2025, while the detenu
was under judicial custody, that the proposal for initiation of
proceedings under the KAA(P) Act was forwarded. Later, it was on
31.10.2025, the impugned order was passed.
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12. In Ext.P2 order, the fact that at the time of passing the
said order, the detenu was under judicial custody in connection
with the case registered with respect to the last prejudicial activity
is specifically adverted to. Similarly, it is mentioned that the detenu
will approach court seeking bail and there is a likelihood of getting
bail. In the impugned order, it is further recorded that even if the
detenu is released on bail on stringent conditions, there is every
possibility of the detenu involving in criminal activities again. A
holistic reading of the impugned order further reveals that the act
of the detenu violating the bail conditions and being involved in
criminal activities is one of the materials which the jurisdictional
authority relied on to enter into a subjective satisfaction to pass the
detention order. Evidently, the impugned order reflects that there
is a proper 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 possibility of the
detenu being released on bail and that, on so released, the detenu
will in all probability indulge in prejudicial activities undermining
the bail conditions.
13. Another contention taken by the learned counsel for
the petitioner is that, though in the detention order it is mentioned
that an application has been submitted for cancellation of bail
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granted to the detenu in one of the cases registered against him,
the jurisdictional authority passed Ext.P2 order without
considering the said fact properly. According to the counsel, as an
alternative remedy of cancellation of bail was available to deter the
petitioner from repeating criminal activities, a drastic measure of
preventive detention was not at all necessitated.
14. We are not oblivious to the fact that when an effective
and alternative remedy exists to prevent a person from repeating
criminal activities, resorting to detention under preventive
detention laws is neither warranted nor permissible. However,
merely because a bail cancellation petition is pending, it cannot be
said that an order of detention under the KAA(P) Act cannot be
passed. When there is an imminent danger of repetition of criminal
activities by a person who can be classified as 'known goonda' or
'known rowdy', cancellation of bail orders already secured by him
would not be sufficient to deter such a person from indulging in
criminal activities. The reason is that, first of all, the purpose and
scope of an application for cancellation of bail and preventive
detention are different. That apart, the bail cancellation procedure,
having regard to the ground realities, is a time-consuming one.
There is no assurance that an order of cancellation of bail could be
secured in time before the person concerned indulges in another
criminal activity. Preventive detention laws are enacted to address
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such exigencies. It is on account of these reasons that it has been
held by the courts consistently that the authorities under the
preventive detention laws need not have to wait till orders are
passed on the application for cancellation of bail, for passing an
order of detention. If it is held that, if there is an option for
cancellation of bail, a detention order cannot be passed, it would
render the preventive detention laws ineffective. Moreover, even
after the cancellation of bail, there is no legal impediment in
granting bail subsequently. Therefore, the pendency of the bail
cancellation petition has no much significance and the same, by
itself, will not constitute a valid ground to interfere with the
detention order.
15. As already mentioned, one of the main contentions
taken by the learned counsel for the petitioner is that some of the
copies of the relied-upon documents served on the detenu are not
legible and hence the detenu was handicapped from filing an
effective representation before the Government and the Advisory
Board. Undisputedly, the obligation of the detaining authority to
furnish legible copies of relied-upon documents to the detenu is not
a mere formality. Only when the said procedure is scrupulously
complied with, the detenu can file an effective representation
before the Advisory Board and the Government. The right of the
detenu to file an effective representation before the Government as
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well as the Advisory Board is a constitutional right under Article
22(5) and also a statutory right.
16. However, while considering the contention of the
petitioner in the above regard, it is first to be noted that the
documents which the detenu claims to be illegible are the copy of
the FIR registered in one of the cases considered by the detaining
authority and the copy of the last page of the seizure mahazar in
the said case. In order to substantiate the said contention, copies
of the said two pages have been produced as Ext.P4. On
verification of Ext.P4, we are of the view that the copy of the FIR in
one of the cases considered by the detaining authority is faded, and
that the copy of the last page of the seizure mahazar in the said
case is illegible. However, the copy of the FIR, though faded, is still
readable. Moreover, it is pertinent to note that the detenu has no
case that the copy of the entire pages of the seizure mahazar is
illegible. But what is his case is that the copy of the last page of the
seizure mahazar alone is illegible. Undisputedly, an FIR in an NDPS
case is ordinarily prepared consequent to the preparation of the
seizure mahazar, and the particulars relating to the nature of the
offence mentioned in the FIR can be clearly gathered from the
seizure mahazar prepared in connection with an NDPS case.
Likewise, the page of the seizure mahazar that is alleged to be
illegible is the last page, and a perusal of the same shows that it
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contains only the details of the attesting witnesses and their
signatures. Therefore, we have no hesitation in holding that no
prejudice has been caused to the detenu on account of the FIR
copy being faded and the last page of the seizure mahazar being
illegible. Consequently, it cannot be said that the detenu was
handicapped in making an effective representation before the
Government or the Advisory Board.
In view of the discussion above, we hold that the petitioner
has not made out any case for interference. Hence, the writ
petition stands dismissed.
Sd/-
DR.A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
WP(Crl).No.1737 of 2025 :: 13 ::
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APPENDIX OF WP(CRL.) NO. 1737 OF 2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL DATED
28.08.2025 SUBMITTED BY THE
RESPONDENT NO.3 BEFORE THE RESPONDENT
NO.2
Exhibit P2 TRUE COPY OF THE DETENTION ORDER NO.
DCMPM/11342/2025-S1 DATED 31.10.2025
PASSED BY THE RESPONDENT NO.2
Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED
22.11.2025 SUBMITTED BY THE DETENU
BEFORE RESPONDENT NO.2
Exhibit P4 TRUE COPY OF THE ILLEGIBLE COPY OF
PAGES NO.67 AND 72 OF THE DOCUMENTS
FURNISHED BY THE SPONSORING AUTHORITY
TO THE DETENU
Exhibit P5 TRUE COPY OF THE JUDGMENT DATED
04.12.2025 IN WP (CRL) NO.1625/2025
PASSED BY THIS HON'BLE COURT
Exhibit P6 TRUE COPY OF THE INTIMATION DATED
07.11.2025 GIVEN TO THE BROTHER OF
THE DETENU
