Kerala High Court
Sunilkumar. G vs State Of Kerala on 18 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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W.P(Crl) No.681/2025
2025:KER:52318
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
FRIDAY, THE 18 DAY OF JULY 2025 / 27TH ASHADHA, 1947
WP(CRL.) NO. 681 OF 2025
PETITIONER:
SUNILKUMAR. G, AGED 47 YEARS
S/O. GOPALAKRISHNAN, T.C.26/1381, FLAT NO.H6, PRESS
ROAD, NEAR HOUSING BOARD, RAJAJI NAGAR, THYCAUD,
THIRUVANANTHAPURAM DISTRICT., PIN - 695001
BY ADV SRI.SHAJIN S.HAMEED
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO
GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001
2 THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,
(HOME & VIGILANCE), SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
3 THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM,
COLLECTORATE, KUDAPPANAKKUNNU P.O., THIRUVANANTHAPURAM,
PIN - 695043
4 THE DEPUTY COMMISSIONER OF POLICE (L & O),
THIRUVANANTHAPURAM CITY, POLICE GROUND, CV RAMAN PILLAI
ROAD, THYCAUD, THIRUVANANTHAPURAM DISTRICT - 695014
5 THE SUPERINTENDENT OF PRISON, CENTRAL PRISON AND
CORRECTIONAL HOME, VIYYUR, THRISSUR DISTRICT - 680010
BY ADVS.
PUBLIC PROSECUTOR:SRI ANAS K A
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
07.07.2025, THE COURT ON 18.07.2025 DELIVERED THE FOLLOWING:
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W.P(Crl) No.681/2025
2025:KER:52318
JUDGMENT
K. V. Jayakumar
This writ petition is filed challenging Ext.P2 detention order passed by
the 3rd respondent under Section 3(1) of the Kerala Anti-Social Activities
(Prevention) Act, 2007 ['KAA(P) Act' for the sake of brevity]. The petitioner
herein is the father of Sooraj ['detenu' for the sake of brevity]. On the basis
of Ext.P1 proposal dated 27.12.2024, Ext.P2 detention order was passed on
05.02.2025, classifying the detenu as 'Known Rowdy' under Section 2(p)(iii) of
KAA(P) Act.
2. The records produced before us would reveal that the detenu
has been involved in seven crimes. The details of those crimes are as follows:
Sl. Crime No. Police Station Crime Date Offences Involved under various Present Status
No. sections of the case
1 354/2021 Thampanoor 11.04.2021 294(b), 323, 324 IPC Pending trial
2 1394/2022 Cantonment 25.12.2022 143, 147, 148, 149, 294(b), Pending trial
341, 323, 324, 506IPC
3 458/2023 Cantonment 07.05.2023 452, 294(b), 506, 427 IPC Pending trial
4 874/2023 Cantonment 14.08.2023 452, 294(b), 506, 427 IPC Pending trial
5 766/2024 Cantonment 18.07.2024 110, 115(2), 118(1), 126(2), Pending trial
296(b), 351(2) BNS
6 1255/2024 Cantonment 07.12.2024 126(2), 115(1), 296(b), 351(2), Under
333, 324(6), 3(5) BNS investigation
7 1256/2024 Cantonment 08.12.2024 126(2), 296(b), 351(2), 115(1), Under
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309(2), 3(5) BNS investigation
The last prejudicial act of the detenu was Crime No.1256/2024 of Cantonment
Police Station, registered for offence under 126(2), 296(b), 351(2), 115(1),
309(2), 3(5) of the Bharatiya Nyaya Sanhita. The alleged occurrence was on
08.12.2024 at 11 p.m. The FIR was registered on 09.12.2024. He was
arrested on the same date and is in judicial custody.
Submissions of the learned counsel of the petitioner
3. Sri. Shajin S. Hameed, learned counsel for the petitioner,
submitted that there is a gap between the last prejudicial act and the passing
of Ext.P2 detention order. The last prejudicial act alleged against the detenu is
Crime No.1256/2024 of the Cantonment Police Station. It was registered for
commission of offences punishable under Sections 126(2), 296(b), 351(2),
115(1), 309(2), 3(5) of BNS. The date of the alleged occurrence was
08.12.2024. The FIR was registered on 09.12.2024, and the detenu was
arrested on the same day. Ext.P2 order was passed on 05.02.2025. Hence,
the time gap between the last prejudicial act and the passing of the detention
order is about two months. No plausible explanation is offered for the delay
caused. The learned counsel urged that the inordinate delay of about two
months is fatal and such delay vitiates the proceedings. It is pointed out that
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the delay itself would defeat the very purpose and object of the Act.
4. The learned counsel for the petitioner submitted that while
Ext.P1 proposal mentions that the detenu was arrested on 09.12.2024 in
Crime No.1256/2024 of Cantonment Police Station, it does not indicate
whether the detenu has filed any bail application. Moreover, there is no
apprehension expressed by the Deputy Commissioner of Police that the
detenu is likely to be released on bail. In Ext.P2 order, the detaining authority
has mechanically concluded that, if released on bail, the detenu is likely to
repeat the offence.
5. The learned counsel for the petitioner further submitted that the
very purpose of invoking the provisions of the KAA(P) Act is the immediate
prevention of anti-social activities. However, there are no compelling reasons
stated in the grounds of detention to justify the preventive detention of the
detenu, particularly in light of the fact that he is already in judicial custody.
The learned counsel further contended that the compelling circumstances
warranting the detention of the detenu are not disclosed in Ext.P2. The
learned counsel, in order to fortify the contentions, placed reliance on the
judgments in Kamarunnissa v. Union of India and Another1 and Rekha
v. State of Tamil Nadu Tr. Sec to Govt. and Another2, K. Veeramani v.
1991 KHC 870
2011 KHC 4343
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The State Of Tamil Nadu & Another3, and Union of India v. Paul
Manickam4.
Submissions of the learned Public Prosecutor
6. The learned Public Prosecutor submitted that the detenu is
involved in seven criminal cases and was in judicial custody. He has been
involved in several anti-social activities. There was every possibility that the
detenu would indulge in anti-social activities in the near future. Ext.P2
detention order has been passed after proper application of mind and arriving
at the objective and subjective satisfaction of the detaining authority. The last
prejudicial act of the detenu was on 08.12.2024. The delay occasioned by the
passing of the detention order is reasonable and properly explained in Ext.P2
detention order.
7. The learned Public Prosecutor further submitted that a rowdy
history sheet was opened against the detenu, and proceedings were initiated
under Section 107 of the Cr.P.C. Despite the measures taken against the
detenu, he continued to engage in anti-social activities, thereby adversely
affecting public order, peace, and the tranquillity of society. The learned Public
Prosecutor submits that the principles laid down in Kamarunnissa's case
(supra) have been followed in its letter and spirit. The learned Public
1994 SCC (Crl) 482
(2003) 8 SCC 342
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Prosecutor would refer to the judgments rendered by the Apex Court in
Abdul Sathar Ibrahim Manik v. Union of India & Others [(1992) 1
SCC 1], Union of India v. Ankit Ashok Jalan [(2020) 16 SCC 185] and
Union of India and Another v. Dimple Happy Dhakad [(2019) 20 SCC
609].
8. We have carefully considered the submissions of the learned
counsel for the petitioner and the learned Public Prosecutor.
9. The first submission pertains to the delay of less than two
months between the last prejudicial act and the passing of the detention
order. The last prejudicial act was on 08.12.2024. The detenu was arrested
on the next day. Therefore, he was in judicial custody till the passing of the
detention order. Therefore, the said delay is not fatal and would not vitiate
the detention order.
10. The second contention of the learned counsel for the petitioner
is that the compelling circumstances in which Ext.P2 detention order was
passed are not stated in Ext.P2 order. The Triple Test laid down by the Apex
Court was not followed by the detaining authority while passing the detention
order. In order to buttress this contention, the counsel has placed reliance on
the dictum laid down in Kamarunnissa's case, Rekha's case, K.
Veeramani's case, and Paul Manickam's case (supra).
11. Paragraph 13 of the Kamarunnissa's case (supra) reads thus:
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"13. From the catena of decisions referred to above it
seems clear to us that 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
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 authority passes an order after recording his satisfaction in
this behalf, such an order cannot be struck down on the ground
that the proper course for the authority was to oppose the bail
and if bail is granted notwithstanding such opposition to
question it before a higher Court. What this court stated in the
case of Ramesh Yadav, (AIR 1986 SC 315) (supra) was that
ordinarily a detention order should not be passed merely to pre
empt or circumvent enlargement on bail in cases which are
essentially criminal in nature and can be dealt with under the
ordinary law. It seems to us well settled 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. This stems to be quite clear from the case law
discussed above and there is no need to refer to the High Court
decisions to which our attention was drawn since they do not
hold otherwise. We, therefore, find it difficult to accept the
contention of the counsel for the petitioners that there was no
valid and compelling reason for passing the impugned orders of
detention because the detenus were in custody."
12. In Rekha's case (supra), the Apex Court observed that Article
21 is the most important fundamental right guaranteed by the Constitution o f
India. Liberty of a citizen is a most important right won by our forefathers
after long, historic and arduous struggles. Preventive detention is only an
exception to Article 21 of the Constitution. Relevant paragraphs of this
judgment are extracted hereunder:
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"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.
12. Moreover, even if a bail application of the petitioner
relating to the same case was pending in a criminal case the
detention order can still be challenged on various grounds
e.g. that the act in question related to law and order and not
public order, that there was no relevant material on which the
detention order was passed, that there were mala fides, that
the order was not passed by a competent authority, that the
condition precedent for exercise of the power did not exist,
that the subjective satisfaction was irrational, that there was
non-application of mind, that the grounds are vague,
indefinite, irrelevant, extraneous, non-existent or stale, that
there was delay in passing the detention order or delay in
executing it or delay in deciding the representation of the
detenu, that the order was not approved by the Government,
that there was failure to refer the case to the Advisory Board
or that the reference was belated, etc.
13. In our opinion, Article 22(3)(b) of the Constitution of
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India which permits preventive detention is only an exception
to Article 21 of the Constitution. An exception is an exception,
and cannot ordinarily nullify the full force of the main rule,
which is the right to liberty in Article 21 of the Constitution.
Fundamental rights are meant for protecting the civil liberties
of the people, and not to put them in jail for a long period
without recourse to a lawyer and without a trial. As observed
in R. v. Secy. of State for the Home Deptt., ex p Stafford
[(1998) 1 WLR 503 (CA)]
" ... The imposition of what is in effect a substantial
term of imprisonment by the exercise of executive
discretion, without trial, lies uneasily with ordinary
concepts of the rule of law."
Article 22, hence, cannot be read in isolation but must
be read as an exception to Article 21. An exception can
apply only in rare and exceptional cases, and it cannot
override the main rule.
14. Article 21 is the most important of the fundamental
rights guaranteed by the Constitution of India. Liberty of a
citizen is a most important right won by our forefathers after
long, historical and arduous struggles. Our Founding Fathers
realised its value because they had seen during the freedom
struggle civil liberties of our countrymen being trampled upon
by foreigners, and that is why they were determined that the
right to individual liberty would be placed on the highest
pedestal along with the right to life as the basic right of the
people of India."
13. In K. Veeramani's case (supra), it was observed as under in
Paragraph Nos. 7 and 8 of the judgment:
"7. Learned counsel, however, submitted that by making a
sweeping statement that the petitioner is likely to be released
on bail, the detaining authority cannot pass a detention order
and when there is no likelihood of his being released on bail
from custody, the order of detention is illegal inasmuch as there
is no proper application of mind. In this context the learned
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counsel also submitted that since the detenu was in actual
custody in connection with the murder case, no reasonable
person can arrive at the conclusion that he was likely to be
released on bail and that the statement of the detaining
authority in the grounds that the detenu is likely to file a bail
application and to come out on bail and that he was aware that
bail is usually granted by the Courts in such cases, is illogical
and unsound. In this context, the learned counsel relied on an
unreported judgment of this Court in Rivadeneyta Ricardo
Agustin v. Government of the National Capital Territory of Delhi,
(subsequently reported in 1994 SCC (Cri) 354). In that case, in
the grounds it was only mentioned that there was a 'possibility'
of the detenu being released in case he moves a bail
application. This Court observed that since the grounds did not
indicate that such release was likely or that it was imminent and
that on a mere possibility the detention order could not have
been passed. The Bench also examined the relevant file and
observed that there was no material indicating that the release
of the petitioner was likely.
8. But in the instant case what we have to mainly see is
whether there was awareness in the mind of the detaining
authority that the detenu is in custody and that he had reason
to believe that he is likely to be released. The grounds do
disclose that the detaining authority was aware that the detenu
is in custody and it is further mentioned that he was also aware
that bail is usually granted by the courts in such cases and it is
further emphasised that there is 'imminent possibility' of the
detenu coming out on bail......."
14. In Paul Manickam's case (supra), the principles were
reiterated and it was held as under in paragraph No. 14 of the judgment:
"14. So far as this question relating to the procedure to be
adopted in case the detenu is already in custody is concerned, the
matter has been dealt with in several cases. Where detention
orders are passed in relation to persons who are already in jail
under some other laws, the detaining authorities should apply their
mind and show their awareness in this regard in the grounds of
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detention, the chances of release of such persons on bail. The
necessity of keeping such persons in detention under the
preventive detention laws has to be clearly indicated. Subsisting
custody of the detenu by itself does not invalidate an order of his
preventive detention, and the decision in this regard must depend
on the facts of the particular case. Preventive detention being
necessary to prevent the detenu from acting in any manner
prejudicial to the security of the State or to the maintenance of
public order or economic stability etc. Ordinarily, it is not needed
when the detenu is already in custody. The detaining authority
must show its awareness to the fact of subsisting custody of the
detenu and take that factor into account while making the order. If
the detaining authority is reasonably satisfied with cogent
materials that there is likelihood of his release and in view of his
antecedent activities which are proximate in point of time, he must
be detained in order to prevent him from indulging in such
prejudicial activities, the detention order can be validly made.
Where the detention order in respect of a person already in
custody does not indicate that the detenu was likely to be released
on bail, the order would be vitiated. (See N. Meera Rani v. Govt. of
T.N. [(1989) 4 SCC 418] and Dharmendra Suganchand Chelawat v.
Union of India [(1990) 1 SCC 746]). The point was gone into detail
in Kamarunnissa v. Union of India [(1991) 1 SCC 128]. The
principles were set out as follows : even in the case of a person in
custody, a detention order can be validly passed : (1) if the
authority passing the order is aware of the fact that he is actually
in custody; (2) if he has a reason to believe on the basis of reliable
material placed before him (a) that there is a real possibility of his
release on bail, and (b) that on being released, he would in all
probability indulge in prejudicial activities; and (3) if it is felt
essential to detain him to prevent him from so doing. If an order is
passed after recording satisfaction in that regard, the order would
be valid. In the case at hand the order of detention and grounds of
detention show an awareness of custody and/or a possibility of
release on bail."
15. The principles laid down in the afore-mentioned cases is that
when the detenu is already in judicial custody, a detention order can be validly
passed only if the detaining authority is satisfied, based on cogent material,
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that there is a real possibility of the detenu being released on bail, and that
upon such release, he is likely to indulge in anti-social activities imminently.
16. We have perused Ext.P1 detention order, wherein it is stated
that the detenu is in judicial custody and that, if released on bail, he would
engage in various anti-social activities, thereby posing a threat to the life and
liberty of the public. However, in the present case, there is no mention in
Ext.P2 as to whether the detenu had filed any bail application or was actively
pursuing the same. The detaining authority has failed to consider whether
there existed a real and imminent possibility of the detenu being released on
bail. A mere bald statement that, if the detenu is released on bail, he would
be involved in anti-social activities and the detenu is a threat to the public
order, life, and liberty of the citizen, is insufficient to pass an order under
Section 3 of the KAA(P)A Act.
17. It is trite law that the order of detention must be exercised
sparingly with utmost circumspection. The authority must ensure that the
detention order is passed after proper application of mind and after arriving at
objective and subjective satisfaction.
18. On a careful consideration of the available materials on record
and hearing the submissions of both sides, we are of the considered view that
the writ petition is to be allowed.
In the result,
(i) W.P(Crl).No.681/2025 is allowed.
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(ii) Ext.P2 order of detention is set aside.
(iii) The Superintendent, Central Prison, Viyyur is directed to release the
detenu, Sooraj, S/o.Sunil Kumar, Flat No.H6, TC 26/1381, Rajaji Nagar,
Thampanoor Ward, Thycaud Village, Thiruvananthapuram, 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
Sbna/
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APPENDIX OF WP(CRL.) 681/2025
PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF THE PROPOSAL
NO.NO.130/KAA(P)A/DCP(L&O)/TC/2024 OF THE
DEPUTY COMMISSIONER OF POLICE (L&O),
THIRUVANANTHAPURAM CITY DATED 27/12/2024.
Exhibit-P2 TRUE COPY OF THE ORDER
NO.DCTVM/208/2025-S13 DATED 05/02/2025
PASSED BY THE 3RD RESPONDENT.
Exhibit-P3 TRUE COPY OF THE GROUNDS FOR DETENTION
DATED 05/02/2025 ISSUED BY THE DISTRICT
MAGISTRATE, THIRUVANANTHAPURAM.
Exhibit-P4 TRUE COPY ORDER OF APPROVAL NO.
HOME-SSA5/103/2025-HOME DATED 14/02/2025
ISSUED BY 2ND RESPONDENT.
Exhibit-P5 TRUE COPY OF THE ORDER NO.
G.O.(RT)NO.1179/2025/HOME DATED
05/04/2025 ISSUED BY THE 2ND RESPONDENT.
