Kerala High Court
Sreeja Sathyan vs State Of Kerala on 6 October, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:73482
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 6TH DAY OF OCTOBER 2025 / 14TH ASWINA, 1947
WP(CRL.) NO. 1282 OF 2025
CRIME NO.333/2025 OF Mannuthy Police Station, Thrissur
PETITIONER:
SREEJA SATHYAN
AGED 45 YEARS
W/O SATHYAN, KELANGATH HOUSE, KOZHUKULLY FARM ROAD
DESOM, KOZHUKULLY VILLAGE, MANNUTHY POLICE STATION
LIMIT, THRISSUR, KERALA,, PIN - 680751
BY ADVS.
SHRI.SARATH BABU KOTTAKKAL
SMT.ARCHANA VIJAYAN
SHRI.SEBASTIN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY
(HOME), GOVERNMENT OF KERALA, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE DISTRICT MAGISTRATE
CIVIL STATION, AYYANTHOLE, THRISSUR,
PIN - 680003
3 DISTRICT POLICE CHIEF
OFFICE OF THE DISTRICT POLICE CHIEF, THRISSUR,
THRISSUR DISTRICT, PIN - 680631
4 STATION HOUSE OFFICER
MANNUTHY POLICE STATION, PATTIKKAD, THRISSUR,
PIN - 680651
5 THE SUPERINTENDENT
CENTRAL PRISON, VIYYUR, THRISSUR DISTRICT,
PIN - 680010
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BY ADVS.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 06.10.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner herein is the mother of one Jishnu ('detenu'
for the sake of brevity) and her challenge in this Writ Petition is
directed against Ext.P1 order of detention dated 16.05.2025
passed by the additional 2nd respondent under Section 3(1) of the
Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAA(P) Act'
for brevity). The said order stands confirmed by the Government,
vide order dated 25.07.2025, after obtaining the opinion of the
Advisory Board, 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 a proposal was submitted by
the District Police Chief, Thrissur City, on 21.04.2025, seeking
initiation of proceedings against the detenu under the KAA(P) Act
before the jurisdictional authority, the 2nd respondent. For the
purpose of initiation of the said proceedings, the detenu was
classified as a 'known rowdy' as defined under Section 2(p)(iii) of
the KAA(P) Act.
3. Altogether, seven cases in which the detenu was
involved have been considered by the jurisdictional authority for
passing the order of detention. Out of the seven cases considered,
the case registered with respect to the last prejudicial activity is
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crime No.333/2025 of Mannuthy Police Station, alleging the
commission of offences punishable under Sections 126(2), 115(2),
118(1), 110, and 351(2) r/w 3(5) of the Bharatiya Nyaya Sanhita
(for short "BNS").
4. We heard Sri. Sarath Babu Kottakkal, learned counsel
appearing for the petitioner, and Sri. K.A. Anas, the learned
Government Pleader.
5. 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 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, the impugned order
was passed without arriving at such a satisfaction and hence, the
order requires interference.
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6. In response, the learned Government Pleader
submitted that Ext.P1 order of detention was passed by the
jurisdictional authority after complying with all the procedural
formalities and after arriving at the requisite objective as well as
subjective satisfaction. According to the Government Pleader, the
impugned order of detention was passed by the jurisdictional
authority after being satisfied that a detention order under
Section 3(1) of the KAA(P) Act is the only way to deter the detenu
from repeating criminal activities. It was further contended that
the jurisdictional authority was fully aware of the fact that the
detenu was in judicial custody in connection with the last
prejudicial activity, and it was on being satisfied that there is
every chance that the detenu be released on bail, and if so
released, he would in all probability indulge in criminal activities
further, the order of detention was passed. According to him,
therefore, the order of detention will legally sustain irrespective of
the fact that the detenu was under judicial custody in connection
with the last prejudicial activity while the impugned order was
passed.
7. From the rival contentions raised, it is gatherable that
the main question that revolves around this petition is whether an
order of detention under Section 3(1) of the KAA(P) Act can be
validly passed against a person who is under judicial custody in
connection with the last prejudicial activity. While answering the
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said question, it is to be noted that, through a series of judicial
pronouncements rendered by the Apex Court as well as by this
Court, it is well settled that there is no legal impediment in
passing an order of detention against a person who is under
judicial custody in connection with the last prejudicial activity.
However, an order of detention against a person who is under
judicial custody in connection with the last prejudicial activity
cannot be passed in a mechanical manner. Undisputedly, an order
of detention under the KAA(P) Act is a drastic measure against a
citizen as it heavily impacts his personal as well as his
fundamental rights. When an effective and alternative remedy
exists to prevent a person from repeating criminal activities,
resorting to preventive detention is neither warranted nor
permissible. When a detenu is in jail in connection with the last
prejudicial activity, obviously, there is no imminent possibility of
being involved in criminal activities. Therefore, before passing a
detention order in respect of a person who is in jail, the concerned
authority must satisfy itself that there is a real possibility that the
detenu is on bail, and further, if released on bail, that he will
indulge in prejudicial activity if not detained. The circumstances
that necessitate the passing of such an order must be reflected in
the order itself.
8. In Kamarunnissa's case (cited supra), the Supreme
Court made it clear that a detention order under preventive
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detention laws can be validly passed even in the case of a person
in custody (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 its satisfaction in
this regard, such an order would be valid.
9. A similar view has been taken by the 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. In view of the said decisions, 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 decisions by the Supreme Court.
11. Keeping in mind the above proposition of law laid
down by the Supreme Court, while reverting to the facts in the
present case, it can be seen that the case registered against the
detenu with respect to the last prejudicial activity is crime
No.333/2025 of Mannuthy Police Station, alleging the commission
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of offences punishable under Sections 126(2), 115(2), 118(1), 110,
351(2) r/w 3(5) of the Bharatiya Nyaya Sanhita (for short "BNS").
The detenu who is arrayed as the 1st accused in the said case was
arrested on 18.03.2025, and since then, he has been under judicial
custody. It was on 21.04.2025, while the detenu was under judicial
custody, that the proposal for proceedings under the KAA(P) Act
was initiated. Later, it was on 16.05.2025, the impugned order was
passed.
12. In Ext.P1 impugned order, the fact that at the time of
passing the said order, the detenu was under custody in
connection with the case registered with respect to the last
prejudicial activity is specifically adverted to. Similarly, it is
specifically mentioned that if the detenu is released on bail, there
is every possibility of the detenu being released on bail, and if so
released, he would in all probability be involved in criminal
activities again.
13. The satisfaction of the detaining authority that the
detenu is already in custody and he is likely to be released on bail,
and on being so released, he is likely to indulge in prejudicial
activity, is the subjective satisfaction of the detaining authority,
and normally, the subjective satisfaction is not to be interfered
with. The impugned order reflects a proper application of mind,
establishing that the detaining authority was subjectively satisfied
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that the detenu is likely to be released on bail and that, if so
released, he will, in all probability, indulge in prejudicial activities.
14. A perusal of the records further reveals that all the
procedural formalities before and after passing an order of
detention have been fully complied with in this case. Similarly,
from the records as well as from the impugned order, it is
discernible that the said order has been passed by the
jurisdictional authority after arriving at the requisite subjective as
well as objective satisfaction.
Hence, the writ petition fails and is accordingly dismissed.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 1282/2025
PETITIONER EXHIBITS
Exhibit P1 THE DETENTION ORDER ISSUED BY THE 2ND
RESPONDENT DCTSR/5866/2025 - C1 DATED
16.05.2025
Exhibit P2 THE DETENTION ORDER WAS APPROVED BY THE
GOVERNMENT. THE TRUE PHOTOCOPY OF THE
ORDER G.O.(RT)NO.2491/2025/HOME DATED
25.07.2025
