Kerala High Court
Haritha K vs State Of Kerala on 5 June, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:39388
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. 553 OF 2025
PETITIONER:
HARITHA K
AGED 32 YEARS
W/O MAHENDRAN K, SAMAJVADI COLONY, THOTTADA P.O,
THOTTADA, KANNUR, THOTTADA - 670007
BY ADVS.
SMT.K.REEHA KHADER
SMT.SREELAKSHMI SABU
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
HOME & VIGILANCE DEPARTMENT, GOVERNMENT SECREATRIAT,
THIRUVANANTHAPURAM - 695001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE
COLLECTORATE KANNUR, KANNUR - 670002
3 THE DISTRICT POLICE CHIEF
KANNUR CITY, SPCA ROAD, TALAP,
KANNUR - 670002
4 THE CHAIRMAN ADVISORY BOARD
KAAPA, SREENIVAS, PADAM ROAD,
VIVEKANANDA NAGAR,ELAMAKKARA, ERNAKULAM - 682026
5 THE SUPERINTENDENT OF JAIL
CENTRAL PRISON, KANNUR, PODIKKUNDU, KANNUR - 670004
W.P.(Crl.)No.553 of 2025 :2:
2025:KER:39388
BY ADV.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 04.06.2025, THE COURT ON 05.06.2025 DELIVERED THE
FOLLOWING:
W.P.(Crl.)No.553 of 2025 :3:
2025:KER:39388
JUDGMENT
Jobin Sebastian, J.
The petitioner is the wife of one Mahendran C. @ Reddy ('detenu'
for the sake of brevity), and her challenge in this Writ Petition is directed
against Ext.P1 order of detention dated 30.11.2024 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 31.01.2025, and the detenu has been
ordered to be detained for a period of six months 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, Kannur City, on 04.11.2024, seeking initiation
of proceedings against the detenu under Section 3(1) of the KAA(P) Act
before the jurisdictional authority, the 2nd respondent. Altogether, three
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.25/2024 of Women Police Station, Kannur, registered,
W.P.(Crl.)No.553 of 2025 :4:
2025:KER:39388
alleging commission of offences punishable under Sections 21(b) r/w 8(c)
and 29 of of NDPS Act.
3. We heard Smt.K.Reeha Khader, 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
activities, 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
W.P.(Crl.)No.553 of 2025 :5:
2025:KER:39388
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. 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 three
cases considered by the jurisdictional authority to pass Ext.P1 order, the
case registered with respect to the last prejudicial activity is crime
No.25/2024 of Kannur Vanitha Police Station registered, alleging
commission of offences punishable under Sections 21(b) r/w 8(c) and 29
of NDPS Act. The allegation in the said case is that on 04.10.2024, the
detenu was found possessing 24.23 gms of brown sugar in violation of the
provisions of the NDPS Act.
7. Now while considering the rival contentions raised, the prime
aspect that cannot be overlooked is that, in the case at hand, the
W.P.(Crl.)No.553 of 2025 :6:
2025:KER:39388
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, the detenu was allegedly caught red-handed
with intermediate quantity of brown sugar on 04.10.2024. The records
further reveal that it was on 04.11.2024, while the detenu was in judicial
custody, the proposal for initiation of proceedings under the KAA(P) Act
was mooted by the District Police Chief, Kannur City, and the impugned
order 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 adverted to in the impugned order. Therefore, it cannot be
said that the authority that passed the order was unaware of the custody
W.P.(Crl.)No.553 of 2025 :7:
2025:KER:39388
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, 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
W.P.(Crl.)No.553 of 2025 :8:
2025:KER:39388
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 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
W.P.(Crl.)No.553 of 2025 :9:
2025:KER:39388
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 Prison, Kannur, is
directed to release the detenu, Sri. Mahendran C. @ Reddy, 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, Kannur, forthwith.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
W.P.(Crl.)No.553 of 2025 :10:
2025:KER:39388
APPENDIX OF WP(CRL.) 553/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER NO. DCKNR/13801/
2024-SS1 DATED 30-11-2024 ALONG WITH
RELEVANT RECORDS.
Exhibit P2 TRUE COPY OF THE ORDER OF APPROVAL NO.
SSA2/255/2024-HOME DATED 10.12.2024.
Exhibit P3 TRUE COPY OF THE DETENTION ORDER G.O(RT)NO.
326/2025/HOME DATED 31.1.2025.
