Kerala High Court
Asmath Beevi vs State Of Kerala on 8 September, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:66579
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 8TH DAY OF SEPTEMBER 2025 / 17TH BHADRA, 1947
WP(CRL.) NO. 1159 OF 2025
PETITIONER:
ASMATH BEEVI, AGED 36 YEARS
W/O SAMEER, MITHUN RAJ B, OTTATHU VEEDU, J.N
ROAD, PERINTHALMANNA, MALAPURAM, PIN - 679322
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
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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 DIST,
PIN - 682026
5 THE SUPERINTENDENT OF JAIL
HIGH SECURITY PRISON, VIYYUR,THRISSUR DIST,
PIN - 670004
BY ADVS.
SRI. K.A. ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 08.09.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner herein is the wife of one Sameer ('detenu' for the
sake of brevity) and her challenge in this Writ Petition is directed
against Ext.P1 order of detention dated 07.07.2025 passed by the 2nd
respondent under Section 3(1) of the Kerala Anti-Social Activities
(Prevention) Act, 2007 ('KAA(P) Act' for brevity).
2. The records reveal that a proposal was submitted by the
District Police Chief, Kasaragode, on 11.06.2025, 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, ten cases in which the detenu was involved
have been considered by the jurisdictional authority for passing the
order of detention. Out of the ten cases considered, the case
registered with respect to the last prejudicial activity is crime
No.367/2025 of Koduvally Police Station, alleging commission of
offences punishable under Sections 126(2), 115(2), 118(1), 109,
324(1), 324(5), 351(3) r/w 3(5) of Bharatiya Nyaya Sanhita (for short
"BNS") and Section 4(a) of Explosive Act.
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4. We heard Sri. M.H. Hanis, the 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,
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. The learned counsel for the petitioner urged that although
the detenu had submitted a representation to the Government, the
same has not been considered, nor has its fate been communicated to
him till date. According to the counsel, the non-consideration of the
representation by the Government is fatal, and the same itself is a
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ground to set aside Ext.P1 order.
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 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 detenion 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. The learned
Government Pleader further submitted that prior to the receipt of the
representation submitted by the detenu, the matter was referred to
the Advisory Board by the Government. But, without waiting for the
opinion of the Advisory Board, the present writ petition was filed and
hence, the petitioner could not be heard to say that the representation
submitted by the detenu was not considered by the Government.
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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 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 in
judicial custody in connection with the last prejudicial activity cannot
be passed in a mechanical manner. Undisputedly, an order of
detention under 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,
the material on record reveals 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.
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8. In Kamarunnissa's case (cited supra), the Supreme Court
made it clear that a detention order under preventive 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
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to the last prejudicial activity is crime No.367/2025 of Koduvally Police
Station, alleging the commission of offences punishable under
Sections 126(2), 115(2), 118(1), 109, 324(1), 324(5), 351(3) r/w 3(5) of
BNS and Section 4(a) of Explosive Act. The detenu, who was arrayed
as the 1st accused in the said case, and he was arrested on
28.04.2025. The impugned order was passed on 07.07.2025, while
the detenu was under judicial custody. Notably, the present order of
detention is the second order of detention passed against the detenu.
Earlier, on 27.11.2023, a detention order was passed under Section
3(1) of KAA(P) Act against the detenu, considering his recurrent
involvement in criminal activities. Later, this Court set aside the said
order of detention. However, the detenu after passing of the earlier
detention order again got involved in three other cases, and the same
necessitated the passing of the present detention order.
12. In Ext.P1 order, the fact that at the time of passing the said
order, the detenu was under judicial custody in connection with the
case registered with respect to the last prejudicial activity is
specifically adverted to. Similarly, it is mentioned that if the detenu is
released on bail, there is every possibility of his engaging in criminal
activities again. We do agree that the detaining authority has not
specifically recorded that "detenu is likely to be released on bail".
13. Dealing with a similar situation, the Supreme Court in
Union of India and another vs. Dimple Happy Dhakad ( 2019 KHC
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6662), after considering the dictum laid down in Kamarunissa (cited
supra) in paragraph 35 of the judgment, observed as follows;
"In the light of the well settled principles, we have to
see, in the present case, whether there was awareness
in the mind of the detaining authority that detenu is in
custody and he had reason to believe that detenu is
likely to be released on bail and if so released, he would
continue to indulge in prejudicial activities. In the
present case, the detention orders dated 17.05.2019
record the awareness of the detaining authority that (i)
the detenu is in custody, (ii) that the bail application filed
by the detenus have been rejected by the court. Of
course, in the detention order, the detaining authority
has not specifically recorded that the "detenu is likely to
be released. It cannot be said that the detaining
authority has not applied its mind merely on the ground
that in the detention orders, it is not expressly stated as
to the "detenu's likelihood of being released on bail" and
if so released, he is likely to indulge in the same
prejudicial activities. But the detaining authority has
clearly recorded the antecedents of the detenu and its
satisfaction that the detenus, Happy Dhakad and Nisar
Aliyar, have the high propensity to commit such offences
in the future."
14. Keeping in mind the above principles laid down by the
Supreme Court while reverting to the case at hand, it can be seen
that, in the impugned order, it is not specifically recorded that the
detenu is likely to be released on bail. However, in the order, it is
stated that if the detenu is released on bail, there is every possibility
of him indulging in criminal activities again. 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
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be interfered with. The impugned order reflects that there is a proper
application of mind and, based on the materials available on record,
the detaining authority subjectively satisfied that there is a reason to
believe that there is a real possibility of the detenu being released on
bail and that, on so released, the detenu will in all probability indulge
in prejudicial activities. Therefore, merely because of the reason that
the detaining authority has not specifically recorded that "the detenu
is likely to be released on bail", it cannot be said that the impugned
order lacks satisfaction of the detaining authority regarding the
chance of the detenu being released on bail.
15. Therefore, it is clear that the order of detention was passed
by the jurisdictional authority after being satisfied 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. 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.
16. Another contention taken by the learned counsel for the
petitioner is that although the detenu had submitted a representation
to the Government, the same has not been considered, nor has its fate
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been communicated to him till date. According to the counsel, the
non-consideration of the representation by the Government is fatal,
and the same itself is a ground to set aside Ext.P1 order. While
considering the said contention, it is to be noted that the right of a
detenu to get his representation considered by the Government is a
constitutional as well statutory right. However, the records reveal
that the contention of the petitioner that the representation of the
detenu was not considered by the Government appears to be baseless.
The copy of the said representation (Ext.P2), which is appended with
the writ petition, reveals that the same is dated 25.07.2025.
Admittedly, the representation was routed through the Jail
Superintendent concerned to the Government. Furthermore, from the
submission made by the learned Government Pleader, it is discernible
that prior to the receipt of the said representation, the matter was
referred by the Government to the Advisory Board for opinion. But
without waiting for the opinion of the Advisory Board, the petitioner
approached this Court with this writ petition challenging the
detention order.
17. At this juncture, it is worthwhile to refer to the decision of
the Supreme Court in K.M.Abdulla Kunhi v. Union of India (1991 (1)
SCC 476). In the said case in paragraph 16, the Supreme Court
observed as follows;
The time imperative for consideration of representation
can never be absolute or obsessive. It depends upon the
necessities and the time at which the representation is made.
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The representation may be received before the case is referred
to the advisory board, but there may not be time to dispose of
the representation before referring the case to the advisory
board. In that situation, the representation must also be
forwarded to the advisory board along with the case of the
detenu. The representation may be received after the case of
the detenu is referred to the board. Even in this situation, the
representation should be forwarded to the advisory board,
provided the board has not concluded the proceedings. In
both the situations, there is no question of consideration of the
representation before the date of receipt of the report of the
advisory board. Nor it could not be said that the Government
had delayed the consideration of the representation,
unnecessarily awaiting the report of the board. It is proper for
the Government in such situation to await the report of the
board.
18. A similar view has been taken by the Supreme Court in
Golam Biswas v. Union of India and another (reported in 2015 KHC
5588).
19. Keeping in mind the above principle, while reverting to
the case at hand, as already noted, the matter had been referred to
the Advisory Board prior to the receipt of the said representation. As
the matter was already seized of by the Advisory Board, the
Government is justified in not considering the representation
immediately. The said representation needs to be considered by the
Government only after getting the opinion of the Advisory Board.
Therefore, the contention that the Government has not considered the
representation is premature.
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In the result, we have no hesitation in holding that the
petitioner has not made out any ground for interference. Hence, the
writ petition fails and is accordingly dismissed without prejudice to
the right of the petitioner to approach this Court afresh in the event of
any change in circumstances, if so advised.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
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APPENDIX OF WP(CRL.) 1159/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER
NO.DCKSGD/6328/2025/D1 (1) DATED
07.07.2025 OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION
DATED 25.07.2025 SUBMITTED BY THE
DETENU BEFORE THE 1ST RESPONDENT
Exhibit P3 A TRUE COPY OF THE REPRESENTATION
DATED 25.07.2025 SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT
