Kerala High Court
Sheela vs State Of Kerala on 5 June, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:39410
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
WP(CRL.) NO. 339 OF 2025
PETITIONER:
SHEELA
AGED 54 YEARS
W/O SADANANDAN, RESIDING AT PANDARAVILA VEEDU,
MELEKONAM, PARASUVAKKAL P.O, PARASSALA,
THIRUVANANTHAPURAM - 695508
BY ADVS.
SRI.J.R.PREM NAVAZ
SMT.PREETHA RANI M.S.
SHRI.SUMEEN S.
SHRI.MUHAMMED SWADIQ
SHRI.M.R.ALPHY GEORGE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO HOME DEPARTMENT,
SECRETARIAT THIRUVANANTHAPURAM- 695001
2 ADDITIONAL CHIEF SECRETARY
HOME (SSA), GOVERNMENT OF KERALA,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001
3 DISTRICT MAGISTRATE THIRUVANANTHAPURAM
OFFICE AT DISTRICT COLLECTOR OFFICE, KUDAPPANAKUNNU,
THIRUVANANTHAPURAM, THIRUVANANTHAPURAM
(DETAINING AUTHORITY), PIN - 695043
4 DISTRICT POLICE CHIEF
OFFICE OF THE DISTRICT POLICE OFFICE, PATTOOR PMG RD,
UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM,
THIRUVANANTHAPURAM (SPONSORING AUTHORITY) - 695033
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5 ADVISORY BOARD KAA (P) A
REPRESENTED BY ITS SECRETARY, ERNAKULAM - 682011
6 THE SUPERINTENDENT OF PRISON
THRISSUR CENTRAL PRISON, VIYUR, THRISSUR - 680010
7 THE STATION HOUSE OFFICER
ARYANAD POLICE STATION THIRUVANANTHAPURAM - 695542
BY ADV.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN COME UP FOR HEARING
ON 04.06.2025, THE COURT ON 05.06.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner is the sister of one Moni George ('detenu' for the sake of
brevity), and her challenge in this Writ Petition is directed against Ext.P1
order of detention dated 22.11.2024 passed by the 3rd 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
23.01.2025, 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, Thiruvananthapuram Rural, on 22.10.2024,
seeking initiation of proceedings against the detenu under Section 3(1) of
the KAA(P) Act before the jurisdictional authority, the 3rd respondent.
Altogether, five cases in which the detenu was 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.835/2024 of Aryanad Police Station
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registered, alleging commission of offences punishable under Sections
296(b), 118(2) and 110 of Bharathiya Nyaya Sanhita.
3. We heard Sri.J.R.Prem Navaz, 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 activities.
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
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activity and if he is released on bail, there is every chance of him involving
in criminal activities again.
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. 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
case registered with respect to the last prejudicial activity is crime
No.835/2024 of Aryanad Police Station registered, alleging commission of
offences punishable under Sections 296(b), 118(2) and 110 of Bharathiya
Nyaya Sanhita.
7. While considering the rival contentions raised, the prime
aspect that cannot be overlooked is that, in the case at hand, the
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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. In the said case, after the commission of the offence on
06.09.2024, he surrendered before the Juridictional Magistrate on
14.11.2024. The records further reveal that it was on 22.10.2024, prior to
his surrender, the proposal for initiation of proceedings under the KAA(P)
Act was mooted by the District Police Chief, Thiruvananthapuram Rural.
However, it was on 22.11.2024, while the detenu was in custody, Ext. P1
order of detention was passed.
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
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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 (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
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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
he involving in criminal activities again. 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 satisfaction.
Moreover, it is not mentioned in the impugned order that if the detenu is
released on bail, he would again involve 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, and if so released, he would indulge in criminal activities again. In the
absence of the same, we have no hesitation in holding that the objective
as well as the subjective satisfaction arrived on by the competent authority
to pass the impugned order of detention is vitiated.
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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, Sri. Moni George, 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/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 339/2025
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE ORDER DATED 22.11.2024
PASSED BY THE 3RD RESPONDENT
Exhibit P2 THE TRUE COPY OF THE COMMUNICATION BEARING
NO: GL497/2024/J3 DATED 08.10.2024 MADE BY
THE 7TH RESPONDENT
Exhibit P3 THE TRUE COPY OF THE REPORT SUBMITTED BY THE
7TH RESPONDENT
Exhibit P4 THE TRUE COPY OF THE COMMUNICATION DATED
11.10.2024
Exhibit P5 THE TRUE COPY OF THE COMMUNICATION BEARING
NO: TR/91/KAA (P) A/2023-SB DATED 22.10.2024
FROM THE OFFICE OF THE 4TH RESPONDENT TO THE
3RD RESPONDENT ALONG WITH THE REPORT
Exhibit P6 THE TRUE COPY OF THE ORDER OF APPROVAL
PASSED BY THE GOVERNMENT DATED 05.12.2024
Exhibit P7 THE TRUE COPY OF THE ORDER OF CONFIRMATION
PASSED BY THE GOVERNMENT DATED 23.01.2025
