Kerala High Court
Josna vs The State Of Kerala on 7 July, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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WP(CRL.) NO. 578 OF 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
MONDAY, THE 7TH DAY OF JULY 2025 / 16TH ASHADHA, 1947
WP(CRL.) NO. 578 OF 2025
PETITIONER:
JOSNA
AGED 52 YEARS
W/O.VISHNUDAS,DAIVAKRIPA' SARKARA, CHIRAYINKEEZHU P.O.,
THIRUVANANTHAPURAM DISTRICT, PIN - 695304
BY ADVS.
SRI.BABU S. NAIR
SMT.SMITHA BABU
SRI.M.R.SARIN
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
HOME (SSA) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DISTRICT COLLECTOR
COLLECTORATE, CIVIL STATION BUILDING, CIVIL STATION
ROAD, THIRUVANANTHAPURAM, PIN - 695043
3 THE DISTRICT POLICE CHIEF
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WP(CRL.) NO. 578 OF 2025
THIRUVANANTHAPURAM RURAL, OFFICE OF THE DISTRICT
POLICE CHIEF, DISTRICT POLICE OFFICE, PALAYAM,
THIRUVANANTHAPURAM, PIN - 695033
4 THE STATION HOUSE OFFICER
CHIRAYINKEEZHU POLICE STATION, THIRUVANANTHAPURAM
DISTRICT, PIN - 695304
5 THE SUPERINTENDENT
CENTRAL PRISON, VIYYUR, THRISSUR DISTRICT, PIN - 680010
BY ADVS.
PUBLIC PROSECUTOR
ADDL.DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
ADV. ANAS K A, GOVERNMENT PLEADER.
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR FINAL HEARING ON
07.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(CRL.) NO. 578 OF 2025
JUDGMENT
Raja Vijayaraghavan, J.
Ext.P1 order issued by the 2nd respondent under Section 3(1) of the Kerala
Anti-Social Activities (Prevention) Act, 2007 ('KAA(P) Act' for the sake of brevity),
and Ext.P4 confirmation order passed by the Government are under challenge in
this Writ Petition filed by the mother of Sri. Agarus (the detenu in the instant
case).
2. The records available before us reveal that on account of the
involvement of the detenu in three cases, registered within the limits of
Kadakkavoor and Chirayinkeezhu Police Station, a proposal dated 10.01.2025, was
submitted by the District Police Chief before the authorised officer. The crimes
relied on by the authorities for passing the order of detention are the following:
a) Crime No. 1887 of 2021 of the Kadakkavoor Police Station, registered
under Sections 294(b), 341, 323, 324, 427, 506(ii), 308 r/w. Section 34 of
the IPC.
b) Crime No. 731 of 2024 of the Chirayinkeezhu Police Station, registered
under Sections 396(b), 126(2), 115(2), 118(1), 351(3), 324(2), 110 & 3(5)
of the BNS.
c) Crime No. 976 of 2024 of the Chirayinkeezhu Police Station, registered
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under Sections 22(C), 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as the 'NDPS Act'), Section
95 of BNS & Section 78 of Juvenile Justice (Care and Protection of
Children ) Act 2000 (hereinafter referred as 'JJ Act').
3. The last prejudicial activity being Crime No. 976 of 2024, the same
was registered on 08.12.2024, and the accused was arrested on the same day
itself. He is remaining in judicial custody in the above case.
4. The records reveal that the proposal for initiating proceedings under
the KAA(P) Act was submitted by the District Police Chief on 10.01.2025 and the
detention order was issued on 21.02.2025.
5. Sri. Babu S. Nair, the learned counsel appearing for the petitioner,
submitted that the detenu was undergoing judicial custody in connection with
Crime No. 976 of 2024 of the Chirayinkeezhu Police Station, when the detention
order was issued. According to the learned counsel, the detention order fails to
satisfy the triple test as laid down by the Hon'ble Apex Court in Kamarunnisa v.
Union of India & Others1. It is submitted that the impugned order fails to
record a clear satisfaction regarding the likelihood of the detenu being granted bail
by the jurisdictional court and the likelihood of his engaging in similar offences
[(1991) 1 SCC 128]
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upon release. Reliance was also placed on Binod Singh v. District Magistrate,
Dhanbad2, Rajesh Gulati v. Govt. of NCT of Delhi3 and Kamarunnisa
(supra), to support his contentions.
6. In response, the learned Public Prosecutor submits that the principles
laid down in Kamarunnisa (supra) have been followed in its letter and spirit. It is
pointed out that, in the order of detention it has been mentioned that the detenu
was in judicial custody and that he is likely to be released on bail by the
jurisdictional court. The learned Public Prosecutor would refer to the judgments
rendered by the Apex 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 substantiate his contentions.
7. We have considered the submissions advanced and have gone
through the records.
8. In the case on hand, the detention order reveals that the detenu got
himself involved in Crime No. 976 of 2024 of the Chirayinkeezhu Police Station,
registered under Sections 22(C), 29 of the NDPS Act, Section 95 of BNS & Section
78 of JJ Act. The case involved possession of commercial quantities of MDMA. The
[1986) 4 SCC 416]
[(2002 (7) SCC 129)]
[(1992) 1 SCC 1]
[(2020) 16 SCC 185]
[(2019) 20 SCC 609]
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stringent provisions of Section 37 of the NDPS Act is applicable and the accused
can be granted bail only if the court is satisfied that there are reasonable grounds
for believing that he is not guilty of such offence and that he is not likely to
commit any offence while on bail.
9. In the proposal submitted by the District Police Chief, it is mentioned
that the accused is in judicial custody. However, there is no whisper that the
detenu has moved any application for bail before the jurisdictional court or that
there is any likelihood of him being released on bail in the near future. In the
detention order, there is no mention that the detenu has moved any application
for bail or the likelihood of him being enlarged on bail.
10. In Kamarunnisa (supra), 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
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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."
11. In Rekha v. State of Tamil Nadu7, 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
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 (supra), 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
[(2011) 4 SCC 260]
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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.
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13. In our opinion, Article 22(3)(b) of the Constitution of 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.
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12. In K. Veeramani v. The State Of Tamil Nadu & Another8, 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 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
1994 SCC (Cri) 482
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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......."
13. In Union of India v. Paul Manickam9, 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 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
[(2003) 8 SCC 342]
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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.
14. Thus, the principle that can be culled out from the precedents above,
is that when the detenu is in judicial custody, there must be cogent material before
the Authority, which passes the detention order for inferring that the detenu was
likely to be released on bail. This inference must be drawn from material on record
and must not be the ipse dixit of the Authority passing the detention order.
15. In the instant case, when the order of detention was actually served,
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the detenu was already in judicial custody. The materials 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. The detaining authority has not considered, 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.
16. 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.
17. In the result, this Writ Petition is allowed and Ext.P1 order of
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detention is set aside. The Superintendent, Central Prison, Viyyur, Thrissur is
directed to release the detenu, Sri. Agarus, S/o Vishnudas, Devikripa House,
Sarkara Village, Chirayinkeezhu Taluk, Thiruvananthapuram District, 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
APM JUDGE
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APPENDIX OF WP(CRL.) 578/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER PASSED BY THE 2ND
RESPONDENT AS NO.DCTVM/1653/2025-S13 DATED,
21-2-2025
Exhibit P2 A TRUE COPY OF THE REPORT OF THE 3RD
RESPONDENT DATED, 10-1-2025
Exhibit P3 A TRUE COPY OF THE REPORT OF THE 3RD
RESPONDENT DATED, 5-2-2025
Exhibit P4 A TRUE COPY OF THE ORDER OF THE FIRST
RESPONDENT DATED, 29-4-2025 AS
NO.G.O.(RT)NO.1398/2025/HOME
Exhibit P5 A TRUE COPY OF THE REPORT OF THE 4TH
RESPONDENT DATED, NIL
Exhibit P6 A TRUE COPY OF THE F.I.R. IN CRIME
NO.972/2024 OF THE CHIRAYINKEEZHU POLICE
STATION DATED, 7-12-2024
Exhibit P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE PETITIONER BEFORE THE DIRECTOR OF
VIGILANCE AND ANTI-CORRUPTION,
THIRUVANANTHAPURAM DATED, 4-3-2025
Exhibit P8 A TRUE COPY OF THE ACKNOWLEDGMENT ISSUED BY
THE DIRECTOR OF VIGILANCE AND ANTI CORRUPTION
BUREAU, THIRUVANANTHAPURAM DATED, 4-3-2025
Exhibit P9 A TRUE COPY OF THE REPRESENTATION SUBMITTED
BY THE PETITIONER BEFORE THE INSPECTOR
GENERAL OF POLICE DATED, 4-3-2025
Exhibit P10 A TRUE COPY OF THE ACKNOWLEDGMENT ISSUED TO
THE PETITIONER DATED, 4-3-2025 FROM THE
OFFICE OF THE INSPECTOR GENERAL OF POLICE
Exhibit P11 A TRUE COPY OF THE REMAND REPORT IN CRIME
NO.976/2024 OF THE CHIRAYINKEEZHU POLICE
STATION DATED, 8-12-2024
