Kerala High Court
Rasiya vs State Of Kerala on 4 June, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:39036
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 4TH DAY OF JUNE 2025 / 14TH JYAISHTA, 1947
WP(CRL.) NO. 437 OF 2025
PETITIONERS:
RASIYA, AGED 48 YEARS,
W/O SHAHUL HAMEED, SIDDIQ MANZIL,
PATHWADI, UPPALA, KASARGODE, PIN - 671322
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
CIVIL STATION, KASARGOD DISTRICT, PIN - 671123
3 THE DISTRICT POLICE CHIEF
CIVIL STATION ROAD,
KASARGOD DIST, PIN - 671123
4 THE CHAIRMAN, ADVISORY BOARD, KAAPA,
SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR,
ELAMAKKARA,ERNAKULAM, PIN - 682026
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5 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, VIYYUR,
THRISSUR DIST, PIN - 670004
BY ADV. SRI. K.A. ANAS
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 03.06.2025, THE COURT ON 04.06.2025 DELIVERED
THE FOLLOWING:
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"C.R."
JUDGMENT
Jobin Sebastian, J.
The petitioner is the mother of one Aboobaker Sidique ('detenu'
for the sake of brevity), and her challenge in this Writ Petition is directed
against Ext.P1 order of detention dated 09.01.2025 passed by the 2nd
respondent under Section 3(1) of the Kerala Anti-Social Activities
(Prevention) Act, 2007 ('KAA(P) Act' for brevity). After considering the
opinion of the Advisory Board, the said order stands confirmed by the
Government, vide order dated 05.03.2025, and the detenu has been
ordered to be detained for a period of one year with effect from the date
of detention.
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, Kasaragode, on 14.12.2024,
seeking initiation of proceedings against the detenu under Section 3(1)
of the KAA(P) Act before the jurisdictional authority, the 2nd respondent.
Altogether, five cases in which the detenu was involved have been
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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.848/2024 of Manjeswaram Police
Station, registered alleging commission of offence punishable under
Section 22(b) of NDPS Act.
3. We heard Sri. M.H. Hanis, the learned counsel appearing for
the petitioner, and Sri. K.A. Anas, the learned Government 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 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 decision by the
Hon'ble Supreme Court. According to the counsel, as the impugned
order was passed while the detenu was in 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,
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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 person is in 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 in judicial custody in
connection with the last prejudicial activity, Ext. P1 detention order was
passed. Moreover, the learned Government Pleader would submit that
in Ext. P1 order itself, it is mentioned that if the detenu is released on
bail, there is every propensity that the detenu will indulge in anti-social
activities. 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 five
cases considered by the jurisdictional authority to pass Ext.P1 order, the
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case registered with respect to the last prejudicial activity is crime
No.848/2024 of Manjeswaram Police Station alleging commission of
offence punishable under Section 22(b) of NDPS Act. The allegation in
the said case is that on 29.11.2024, the detenu was found possessing
8.77 gms of MDMA for the purpose of sale in violation of the provisions
of the NDPS Act.
7. Now while considering the rival contentions, the prime
aspect that cannot be overlooked is that, in the case at hand, the
proceedings for taking action under the KAA(P) Act were initiated and
the final order of detention was passed against the detenu while he was
in judicial custody in connection with the last prejudicial activity.
Evidently, the detenu is still under judicial custody in connection with the
last case registered against him. In the said case, the detenu was
allegedly caught red-handed with intermediate quantity of MDMA on
29.11.2024. The records further reveal that from 29.11.2024 onwards,
he has been under judicial custody, and it was on 14.12.2024, while the
detenu was in judicial custody, that the proposal for initiation of
proceedings under the KAA(P) Act was mooted by the District Police
Chief, Kasaragode. Thereafter, it was on 09.01.2025, the order of
detention was passed.
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8. Undisputedly, a detention order can validly be passed even
when the detenu is in 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 was 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 in 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 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's case
(supra), it is to be noted that in the said decision, the Hon'ble Supreme
Court observed as noted below:
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"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, while
coming to facts in the present case, it can be seen that in Ext.P1 order,
it is mentioned that if the detenu is released on bail there is every
possibility of him involving in criminal activities. However, the impugned
order does not disclose that, on the basis of what materials, the
competent authority that passed the order, entered a satisfaction that
there is a real possibility of the detenu being released on bail. Notably,
in the impugned 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 there are materials on record to enter on such a
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satisfaction. On the other hand, what is mentioned in the order is that if
the detenu is released on bail, he would be involved in criminal
activities. Though the detaining authority was aware that the detenu
was in judicial custody, there is no mention of the awareness of
authority, on the basis of reliable materials, that there is a real possibility
of the detenu being released on bail. Therefore, a statement in the
impugned order that if the detenu is released on bail, he would be
involved in criminal activities is not sufficient to establish that the
competent authority has reason to believe that there is a real possibility
of the detenu being released on bail in the case registered against him.
If there were cogent materials to arrive at a conclusion that the detenu
might be released on bail, then the same should have been indicated in
the order. In the absence of the same, we have no hesitation in holding
that the objective as well as the subjective satisfaction arrived at by the
competent authority to pass the impugned order of detention is vitiated.
11. In the result, this Writ Petition is allowed and Ext.P1 order
of detention is set aside. The Superintendent of Central Jail, Viyyur,
Thrissur, is directed to release the detenu, Sri. Aboobaker Sidique,
forthwith, if his detention is not required in connection with any other
case.
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The Registry is directed to communicate the order to the
Superintendent of Central Jail, Viyyur, Thrissur, forthwith.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
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APPENDIX OF WP(CRL.) 437/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER
NO.DCKSGD/12834/2024-D1(1) DATED
09.01.2025 OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION DATED
04.02.2025 SUBMITTED BY THE DETENU BEFORE
THE 1ST RESPONDENT
Exhibit P3 A TRUE COPY OF THE REPRESENTATION DATED
04.02.2025 SUBMITTED BY THE PETITIONER
BEFORE THE 4TH RESPONDENT
Exhibit P4 A TRUE COPY OF THE POSTAL RECEIPT
EVIDENCING THE ISSUANCE OF EXT P3
