Kerala High Court
Sheeba Simbalin vs State Of Kerala on 9 October, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:74845
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 9TH DAY OF OCTOBER 2025 / 17TH ASWINA, 1947
WP(CRL.) NO. 1277 OF 2025
PETITIONER:
SHEEBA SIMBALIN
AGED 57 YEARS
W/O ALEXANDER GILGAL HOUSE, PUTHOOR,
PUTHIYANGADI S.O., PUTHIYANGADI,
KOZHIKODE, KERALA, PIN - 673021
BY ADVS.
SRI.P.A.MOHAMMED ASLAM
SHRI.ARTHUR B. GEORGE
SHRI.RAMSHAD K.R.
SHRI.MIDHUN MOHAN
SHRI.MUHAMMED RISWAN K.A.
SHRI.ABDUL SAMAD P.B.
SHRI.IRSHAD V.P.
SHRI.E.B.THAJUDDEEN
SHRI.MOHAMMED MUBARAK A.I.
SHRI.FRANCIS ASSISI
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT, HOME (SSC) DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
HOME (SSC) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 DISTRICT COLLECTOR & DISTRICT MAGISTRATE
CIVIL STATION ROAD, ERANHIPPALAM, KOZHIKODE,
KERALA, PIN - 673006
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4 DISTRICT POLICE CHIEF
PAVAMANI RD, TAZHEKKOD, KOZHIKODE, KERALA,
PIN - 673004
5 THE SUPERINDENT
CENTRAL PRISON NATIONAL HIGHWAY 66,
KANNUR, PIN - 670004
BY ADVS.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 09.10.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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2025:KER:74845
JUDGMENT
Jobin Sebastian, J.
This writ petition has been directed against an order of
detention dated 20.05.2025, passed against one Naijil Ritz, S/o.
Alexander under Section 3(1) of the Kerala Anti-Social Activities
(Prevention) Act, 2007 ('KAA(P) Act' for brevity). The petitioner
herein is the mother of the detenu. The detention order stands
approved by the Government vide order dated 20.07.2025, and the
detenu has been ordered to be detained for a period of six months
from the date of execution of the order.
2. The records available before us disclose that a proposal
was submitted by the Deputy Commissioner of Police, Kozhikode
City, on 11.04.2025, seeking initiation of proceedings under Section
3(1) of the KAA(P) Act before the jurisdictional authority. For the
purpose of initiation of the said proceedings, the detenu was
classified as a 'known goonda' as defined under Section 2(o)(ii) of
the KAA(P) Act. For passing the order of detention, the authority
reckoned four cases in which the detenu was involved. The case
registered with respect to the last prejudicial activity committed by
the detenu is crime No.208/2025 of Elathur Police Station, alleging
commission of offence punishable under Section 22(c) of the NDPS
Act.
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3. We have heard Sri.Mohammed Aslam P. A., the learned
counsel appearing for the petitioner, and Sri.K.A.Anas, the learned
Government Pleader.
4. The learned counsel for the petitioner would submit that
the impugned order is vitiated, as the same is passed without proper
application of mind and disregarding the procedural safeguards
envisaged under the KAA(P) Act. The main contention raised by the
learned counsel for the petitioner is that, though the detention order
was passed while the detenu is in judicial custody in connection with
the last prejudicial activity, in the impugned order, it is nowhere
mentioned that there is a real possibility of the detenu being
released on bail in the said case. Relying on the decision in
Kamarunnissa v. Union of India and another, [1991 (1) SCC
128], the learned counsel contended that an order of detention can
be validly passed against a person who is already in judicial custody
in connection with another case only on satisfaction of the triple test
mentioned in Kamarunnissa's case (supra) by the Supreme Court.
5. In response, Sri.K.A.Anas, the learned Government
Pleader, asserted that the order of detention has been passed after
proper application of mind and after arriving at the requisite
objective as well as subjective satisfaction. According to the learned
Government Pleader, it was after being satisfied that there is every
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chance of the detenu getting released on bail in the case registered
with respect to the last prejudicial activity, the order of detention
was passed and hence, it cannot be said that there is any non
application of mind on the part of the jurisdictional authority while
passing the impugned order.
6. We have carefully considered the submissions advanced
and have perused the records. While considering the rival
contentions, the first and foremost 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 order of detention was passed
against the detenu while he was in judicial custody in connection
with the last prejudicial activity.
7. 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 in judicial custody.
8. However, when actions under ordinary laws are sufficient
to deter a person from being involved in criminal activities, an
action under preventive detention laws is not at all warranted. This
is particularly so since an order of preventive detention is a drastic
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measure that seriously affects the fundamental as well as personal
rights of a citizen.
9. While coming to the contention of the learned counsel for
the petitioner that in cases where the detenu is in 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
(cited supra), it is to be noted that in the said decision, the 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 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 above proposition of law laid down
by the Supreme Court, while coming to the case at hand, it can be
seen that, the case registered against the detenu with respect to the
last prejudicial activity is crime No.208/2025 of Elathur Police
Station, alleging commission of offence punishable under Section
22(c) of the NDPS Act. The detenu who was arrayed as the 2nd
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accused in the said case was arrested on 10.03.2025. The impugned
order was passed on 20.05.2025, while the detenu was under
judicial custody. The fact that the detenu was under judicial custody
in connection with the last prejudicial activity is specifically
adverted to in the impugned order. However, it is curious to note
that in the impugned order, it is mentioned nowhere that there is a
real possibility of the detenu being released on bail, and if so
released, there is a likelihood of him being involved in criminal
activities. As already discussed, in order to pass an order of
detention against a person who is in judicial custody in connection
with the last prejudicial activity, the jurisdictional authority should
enter into a satisfaction that, based on the reliable materials placed
before the authority, it has reason to believe that there is a real
possibility of the detenu being released on bail and that on being so
released he would in probability indulge in prejudicial activity.
However, in the case at hand, such a satisfaction is not seen entered
by the jurisdictional authority while passing the impugned order.
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.Naijil Ritz
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 Prison, Kannur, forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
WP(Crl.) No.1277 of 2025 :: 9 ::
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APPENDIX OF WP(CRL.) 1277/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE DETENTION ORDER NO.
DCKKD/5278/2025-S2 DATED 20-05-2025
Exhibit P2 TRUE COPY OF THE ORDER WITH NO.
G.O(RT)NO. 2440/2025/HOME DATED 20-
07-2025
Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED
02-07-2025
Exhibit P4 TRUE COPY OF THE BAIL ORDER IN CRL.
M.P NO. 1556 OF 2025 DATED 10TH DAY
OF SEPTEMBER 2025
