Kerala High Court
Ganthi T.R vs State Of Kerala on 30 July, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:56761
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 30TH DAY OF JULY 2025 / 8TH SRAVANA, 1947
WP(CRL.) NO. 844 OF 2025
PETITIONER:
GANTHI T.R
AGED 50 YEARS
W/O SUNIL KUMAR, METHARUPARAMBU VEEDU, POONTHOPPU
WARD, AVALUKUNNU P.O, ALAPPUZHA, PIN - 688006
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SHRI.ANANDHU P.C.
SMT.NEETHU.G.NADH
SMT.RIA ELIZABETH T.J.
SHRI.SAHAD M. HANIS
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME AND VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
PALAKKAD DISTRICT, PIN - 678001
3 THE DISTRICT POLICE CHIEF
PALAKKAD DISTRICT, PIN - 678001
4 THE CHAIRMAN
ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR, ELAMAKKARA ERNAKULAM DIST,
PIN - 682026
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5 THE SUPERINTENDENT OF JAIL
CENTRAL JAIL, VIYYUR,THRISSUR DIST, PIN -
670004
BY ADVS.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 30.07.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner is the mother of one Abijith @ Unni
('detenu' for the sake of brevity), and her challenge in this Writ
Petition is directed against Ext.P1 order of detention dated
04.06.2025 passed by the 2nd respondent under Section 3(1) of the
Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAA(P) Act'
for brevity).
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, Palakkad, on
21.05.2025, 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 got himself 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.321/2025 of Palakkad Town North Police
Station, registered, alleging commission of an offence punishable
under Section 22(b) of the NDPS Act.
3. We heard Sri. M.H.Hanis, the learned counsel appearing
for the petitioner, and Sri.K.A.Anas, the learned Government
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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 under
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 under
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.
5. Per contra, Sri.K.A.Anas, the learned Government
Pleader, submitted that even in cases where the detenu is under
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judicial custody, a 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 under judicial custody in connection with the last
prejudicial activity, Ext.P1 detention order was passed. The
learned Government Pleader 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. Before considering the contentions taken by the learned
counsel appearing for both sides, it is to be noted that, out of the
two cases considered by the jurisdictional authority to pass Ext.P1
order, the case registered with respect to the last prejudicial
activity is crime No.321/2025 of Palakkad Town North Police
Station, registered, alleging commission of offence punishable
under Section 22(b) of NDPS Act. The records further reveal that
the detenu committed the subsequent crime while he was on bail in
the earlier case registered against him. Therefore, the said fact
justifies the satisfaction of the jurisdictional authority that there is
every likelihood of the detenu being involved in criminal activities
again.
7. The case registered against the detenu with respect to
the last prejudicial activity is that, on 11.03.2025 at 3.30 p.m., the
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1st accused was found possessing and transporting 21.80 gms of
Methamphetamine for the purpose of sale, and the detenu, who is
arrayed as the 2nd accused had financed illicit trafficking of the
same in violation of the provisions of the NDPS Act.
8. Now while considering the rival contentions raised, the
prime aspect that cannot be overlooked is that, in the case at hand,
the proceedings for taking action against the detenu under the
KAA(P) Act were initiated and the final order of detention was
passed against him while he was under judicial custody in
connection with the last prejudicial activity. As evident from the
records, he is still under judicial custody in the said case.
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 is 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 under judicial custody while passing such an order. In
the case at hand, the fact that the detenu is under judicial custody
in connection with the last prejudicial activity is specifically
adverted to in the impugned order. Therefore, it cannot be said
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that the authority that passed the order was unaware of the
custody of the detenu in connection with the last prejudicial
activity, and the counsel for the petitioner also does not have such
a contention.
9. 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 (cited supra), it is to be noted that in the said
decision, the Hon'ble 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].
10. Keeping in mind the proposition of law laid down in
Kamarunissa's case (cited supra) by the Hon'ble Supreme Court,
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while coming to facts in the present case, it can be seen that in
Ext.P1 order, it is nowhere stated that the competent authority has
reason to believe 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 criminal activities. Therefore, application of
mind regarding the possibility of the detenu being released on bail
and, if so released, the possibility of the detenu being involved in
criminal activities is lacking on the part of the jurisdictional
authority and, hence, the impugned order is vitiated.
11. 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 Abijith @
Unni 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
ANS
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APPENDIX OF WP(CRL.) 844/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF ORDER NO.
DCPKD/7144/2025-S1 DATED 04.06.2025
OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION
DATED 16.06.2025 SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT
