Anitha Rajan vs State Of Kerala
2025 Latest Caselaw 1096 Ker

Kerala High Court

Anitha Rajan vs State Of Kerala on 17 July, 2025

Author: V Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

                                                        2025:KER:52787
WP(CRL.) NO. 699 OF 2025​​      ​       1


                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

            THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

                                        &

                THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR

         THURSDAY, THE 17TH DAY OF JULY 2025 / 26TH ASHADHA, 1947

                             WP(CRL.) NO. 699 OF 2025

          CRIME NO.762/2024 OF KATTOOR POLICE STATION, THRISSUR

PETITIONER/PETITIONER:

              ANITHA RAJAN,​
              AGED 55 YEARS,​
              W/O RAJAN, NJATTUVETTI HOUSE, ANANDAPURAM, THRISSUR,
              KERALA, PIN - 680305


              BY ADVS. ​
              SHRI.SARATH BABU KOTTAKKAL​
              SMT.ARCHANA VIJAYAN​
              SHRI.SEBASTIN​



RESPONDENTS:

     1        STATE OF KERALA​
              REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY (HOME),
              GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
              THIRUVANANTHAPURAM, PIN - 695001

     2        THE DISTRICT MAGISTRATE​
              CIVIL STATION, AYYANTHOLE, THRISSUR, PIN - 680003

     3        DISTRICT POLICE CHIEF​
              OFFICE OF THE DISTRICT POLICE CHIEF, THRISSUR,
                                                        2025:KER:52787
WP(CRL.) NO. 699 OF 2025​​   ​    2



             THRISSUR DISTRICT, PIN - 680631

     4       STATION HOUSE OFFICER​
             PUDUKKAD POLICE STATION, PUDUKKAD,
             THRISSUR, PIN - 680301

     5       THE SUPERINTENDENT​
             CENTRAL PRISON, VIYYUR,
             THRISSUR DISTRICT, PIN - 680010


             BY ADVS. GOVERNMENT PLEADER SRI. ANAS K.A.​



     THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR HEARING ON
17.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                                          2025:KER:52787
WP(CRL.) NO. 699 OF 2025​​        ​            3



                                       JUDGMENT

​

RAJA VIJAYARAGHAVAN V, J.

The petitioner herein is the mother of Mr. Anuraj @ Apputty, against whom

Ext.P1 order of detention has been issued by the 2nd respondent invoking his

powers under Section 3(1) of the Kerala Anti-social Activities (Prevention) Act,

2007 (for the sake of brevity, "the KAAP Act"). She has approached this Court

seeking the following relief:

"To issue a writ in the nature of HABEAS CORPUS or

any other appropriate writ, order or direction compelling and

commanding the respondents to produce the detenu before

this Hon'ble Court and quash detention order

No.DCTSR/882/2025 - C4 dated 13.02.2025 of the 2nd

respondent and to set the detenu at liberty."

2.​ It is the case of the petitioner that the detenu was classified as a

"Known Rowdy" as defined under Section 2(p)(iii) of the Kerala Anti-Social

Activities (Prevention) Act (KAAPA), based on the report submitted by the 3rd

respondent. For the purpose of such classification, the detenu's involvement in the

following six crimes was taken into consideration:

a.​ Crime No. 451 of 2019 of the Irinjalakuda Police Station;

b.​ Crime No. 265 of 2019 of the Kodakara Police Station;

2025:KER:52787

c.​ Crime No. 537 of 2021 of the Kodakara Police Station;

d.​ Crime No. 477 of 2022 of the Puthukad Police Station;

e.​ Crime No. 1118 of 2024 of the Puthukad Police Station; and

f.​ Crime No. 762 of 2024 of the Kattur Police Station.

3.​ The last prejudicial activity, namely the detenu's involvement in Crime

No. 762 of 2024, occurred on 24.09.2024. It was pursuant to this incident that the

District Police Chief submitted a proposal on 15.01.2025, following which the

detention order was passed on 13.02.2025.

4. Sri. Sarath Babu Kottakkal, the learned counsel appearing for the

petitioner, submitted that prior to the aforementioned prejudicial act, the detenu

was also involved in Crime No. 1118 of 2024, which was registered, inter alia,

under Section 103(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS). This case

involved an offence of murder, and the detenu was arrayed as the 9th accused. He

surrendered before the jurisdictional court on 17.12.2024, and the final report was

laid on 20.12.2024. It is submitted that from the date of his surrender until the

passing of the detention order on 13.02.2025, the detenu remained in judicial

custody. At no point of time did he file an application seeking regular bail prior to

the passing of the order of detention. Furthermore, it is pointed out that the

detenu filed an application for bail only on 23.05.2025, which was long after the

issuance of the detention order. Relying on the principles laid down by the Hon'ble

Supreme Court in Kamarunnisa v. Union of India & Others1, Amritlal v.

[(1991) 1 SCC 128] 2025:KER:52787

Union Govt2, and Binod Singh v. District Magistrate, Dhanbad3, the learned

counsel contends that, prior to issuing the detention order, the detaining authority

ought to have applied the "triple test" as enunciated in Kamarunnisa (supra). It is

submitted that neither the proposal nor the detention order reflects any material

indicating that the detenu had filed a bail application or that there existed a real

likelihood of its being allowed. Consequently, the subjective satisfaction recorded

by the detaining authority stands vitiated.

5. It is further submitted that the last prejudicial activity--Crime No. 762 of

2024--was registered under Sections 115(2), 118(1), and 127(2) of the BNSS. The

formal arrest of the detenu was recorded on 24.12.2024. However, the detenu did

not apply for regular bail in that case as well. Instead, he was released on

statutory bail by the jurisdictional court, which indicates the absence of any

proactive attempt on the part of the detenu to secure his release prior to the

passing of the detention order.

6. The learned Government Pleader, opposing the contention, relied on the

observations of the Hon'ble Supreme Court in Abdul Sathar Ibrahim Manik v.

Union of India and Ors.4, Union of India v. Ankit Ashok Jalan5 and Union

of India and Another v. Dimple Happy Dhakad 6, to contend that the

essential requirement is the subjective satisfaction of the detaining authority that

[(2001) 1 SCC 341]

(1986) 4 SCC 416]

[(1992) 1 SCC 1]

[(2020) 16 SCC 185]

[(2019) 20 SCC 609] 2025:KER:52787

the detenu is likely to be released on bail and, if released, is likely to indulge in

activities prejudicial to public order. It is submitted that such satisfaction was, in

fact, recorded by the detaining authority, and the same is evident from the

detention order itself.

​ 7.​ We have carefully considered the submission advanced and have gone

through the records.

8.​ A perusal of Ext.P1 detention order would reveal that the date of the

last prejudicial activity was on 24.09.2024 and the impugned order was passed on

13.02.2025. It is evident from the order that the detenu got involved in Crime No

1118 of 2024 registered on 23/09/2024 inter alia for the offence punishable under

Section 103 of the Bharatiya Nyaya Sanhita. It is a case of murder of one Arun.

The detenu surrendered on 17.12.2024 and he was in judicial custody when the

detention order was passed. Immediately thereafter the detenu got involved in

Crime No 762 of 2024 registered inter alia for the offences punishable under

Section 110 of the BNSS and as he was in custody in connection with the earlier

crime, his arrest was recorded on 24.12.2024 and he was remanded to judicial

custody. As on the date of passing the order of detention, the detenu was in

judicial custody. In the impugned order all that is mentioned is that the detenu

was in judicial custody in connection with both the crimes. There is no whisper in

the order of detention that the detenu had moved an application for bail or that he

was attempting to seek bail in the above cases. If no bail application is pending, it 2025:KER:52787

cannot be concluded logically that there is any likelihood of the detenu being

released.

9.​ In Kamarunnisa v. Union of India & Others7, the Apex Court has

held that even in a case where a person is in custody, if the facts and

circumstances of the case so demand, resort can be had to the law of preventive

detention. It was observed that 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 material 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 all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the detaining authority records its satisfaction on these aspects, the detention order cannot be invalidated merely on the ground that the appropriate course would have been to oppose bail or challenge the grant of bail before a higher court."

10.​ In Rekha v. State of Tamil Nadu8, a Two Judge Bench of the Apex

Court noted that there is some conflict of opinion on the question as to whether the

detention order passed under the Tamil Nadu Prevention of Dangerous Activities of

Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic

[(1991) 1 SCC 128]

[(2011) 4 SCC 260] 2025:KER:52787

Offenders, Stand Offenders, Slum Grabbers and Video Pirates Act could be

sustained in cases where the detenu was already in Jail. The matter was referred

to a Three Judge Bench of the Apex Court. In Rekha v. State of Tamil Nadu9,

the reference was answered by observing as under:

"10. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.

11. In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained. (emphasis supplied)

11. In Huidrom Konungjao Singh v. State of Manipur and Others 10

opined as follows:

In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co - accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail

[(2011) 5 SCC 244]

AIR 2012 SC 2002 2025:KER:52787

application of his is pending, since most courts normally grant bail on this ground." (Emphasis added) Thus, it is evident from the aforesaid judgment that it is not the similar case, i.e. involving similar offence. It should be that the co - accused in the same offence is enlarged on bail and on the basis of which the detenu could be enlarged on bail.

12.​ In Dharmendra Suganchand Chelawat and Ors. vs. Union of

India (UOI)11 it was decided as follows

20. In this case this Court has pointed out that there was no indication in the detention order read with its annexure that the detaining authority considered it likely that the detenu could be released on bail and that the contents of the order showed the satisfaction of the detaining authority that there was ample material to prove the detenu's complicity in the Bank dacoity including sharing of the booty in spite of absence of his name in the FIR as one of the dacoits. The Court held that the order for detention was invalid since it was made when the detenu was already in jail custody for the offence of bank dacoity with no prospect of his release.

21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.

13.​ In the instant case, there is nothing on record to indicate that the

detaining authority gave due and serious consideration to whether there existed

any real or imminent possibility of the detenu being released on bail. The materials

AIR1990SC1196 2025:KER:52787

placed before this Court do not disclose any cogent evidence to suggest such a

likelihood, nor do they reflect whether the detenu had filed, or was actively

pursuing, any bail application before the Court.

14.​ In light of the above, the ipse dixit of the detaining authority that the

detenu is likely to approach the court again to seek bail in the future, is insufficient

to establish that the authority had any reason to believe, based on reliable and

cogent material, that there was a real and imminent possibility of the detenu being

granted bail in the case last registered against him. If such a belief had indeed

been genuinely held, it ought to have been substantiated by specific material and

clearly reflected in the detention order. The absence of such reasoning or

supporting material renders the order of detention legally unsustainable.

15.​ It is well settled in our constitutional jurisprudence that the power of

preventive detention, though validly conferred, must be exercised sparingly and

with utmost circumspection. The detaining authority must demonstrate conscious

awareness of the specific facts justifying preventive custody in the interest of public

order. If a person is already in custody and there is no imminent prospect of release

on bail, the invocation of the power of preventive detention is impermissible in law.

The failure to apply this threshold scrutiny not only undermines the fairness of the

procedure but also violates the constitutional safeguards afforded to personal

liberty under Article 21 of the Constitution of India.

2025:KER:52787

In the result, this Writ Petition is allowed and Ext.P1 order of detention is set

aside. The Superintendent, Central Prisons and Correctional Home, Viyuur, is

directed to release the detenu, Sri. Anuraj @ Apputty, S/o Rajan, Njattuvetti House,

Anandapuram, Edayattumuri Desom, Ananthapuram Village, Mukundapuram Taluk,

Thrissur, 680305, forthwith, if his detention is not required in connection with any

other case.

The Registry is directed to communicate the order forthwith.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE

Sd/-

K. V. JAYAKUMAR JUDGE msp 2025:KER:52787

APPENDIX OF WP(CRL.) 813/2025

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE PROPOSAL DATED 09.11.2024 SUBMITTED BY RESPONDENT NO.3 TO INITIATE ACTION UNDER SECTION 3(1) OF PREVENTION OF ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1988 BEFORE

Exhibit P2 TRUE COPY OF SUBSEQUENTLY THE DETENTION ORDER DATED 10.01.2025 IS PASSED BY THE RESPONDENT NO.2 Exhibit P3 A TRUE COPY OF THE SAID G.O (RT) NO.1021/2025/HOME DATED 26-03-2025