Kerala High Court
Vivek Vinod vs Advisory Board Under The Kerala ... on 10 September, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:67240
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 10TH DAY OF SEPTEMBER 2025 / 19TH BHADRA, 1947
WP(CRL.) NO. 1177 OF 2025
CRIME NO.106/2025 OF Kurathikadu Police Station, Alappuzha
PETITIONER:
VIVEK VINOD
AGED 24 YEARS
S/O VINOD, KUZHIKKALATHARAYIL (H), BHARANIKKAVU,
THEKKUMURI, KATTANAM. ALAPPUZHA, PIN - 690503
BY ADVS.
SHRI.FIRDOUSE.K.K
SHRI.ALTHAF NABEEL
SHRI.SRIKANTH THAMBAN
SMT.FATHIMA FAIROOSA P.
SHRI.AKHIL GOPAN G.
RESPONDENTS:
1 ADVISORY BOARD UNDER THE KERALA ANTI-SOCIAL
ACTIVITY (PREVENTION)
REPRESENTED BY ITS SECRETARY,PADOM ROAD,
VADUTHALA, ERNAKULAM, PIN - 682023
2 THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE
COLLECTORATE, CIVIL STATION WARD, ALAPPUZHA,
PIN - 688001
3 THE DITRICT POLICE CHIEF
OFFICE OF THE DISTRICT POLICE CHIEF, MUPPALAM
ROAD, ALAPPUZHA BAZAR, ALAPPUZHA, PIN - 688012
BY ADVS.
SRI K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD
ON 10.09.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This Writ Petition has been directed against Ext.P1 order of
detention dated 15.04.2025, passed against the petitioner by the 2nd
respondent under Section 3(1) of the Kerala Anti-Social Activities
(Prevention) Act, 2007 ('KAA(P) Act' for brevity). After obtaining the
opinion of the Advisory Board, the Government, vide order dated
30.06.2025, confirmed the order of detention, and the petitioner 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, Alappuzha, seeking initiation of proceedings
against the petitioner under the KAA(P) Act before the jurisdictional
authority, the 2nd respondent. For the purpose of initiation of the said
proceedings, the petitioner was classified as a 'known goonda' as
defined under Section 2(o) of the KAA(P) Act. Altogether, three cases
in which the petitioner got involved have been considered by the
jurisdictional authority while passing the order of detention. Out of
the said three cases, the case registered with respect to the last
prejudicial activity is crime No.106/2025 of Kurathikkad Police
Station, alleging the commission of an offence punishable under
Section 20(b)(ii)B of the NDPS Act.
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3. Likewise, Ext.P1 order of detention is the second order of
detention passed against the petitioner. As evident from the records,
earlier, on 20.09.2022, a detention order under Section 3(1) of KAA(P)
Act was passed against the petitioner. However, the said order was
subsequently revoked by the Government on 28.11.2022 after
considering the opinion of the Advisory Board. After the revocation of
the said detention order, the petitioner got involved in three other
criminal cases, which formed the basis for the passing of the present
detention order.
4. We heard Sri.Firdouse K.K., the learned counsel appearing
for the petitioner, and Sri.K.A.Anas, the learned Government Pleader.
5. The learned counsel for the petitioner would submit that
Ext.P1 order was passed in a mechanical manner without proper
application of mind. The main contention raised by the learned
counsel for the petitioner is that as the detention order was passed
while the petitioner was under judicial custody in connection with the
last prejudicial activity, the jurisdictional authority who passed the
impugned order should have explained on the basis of what material it
entered into a conclusion that there is possibility of the petitioner
being released on bail in connection with the last prejudicial activity.
Relying on the decision in Kamarunnissa v. Union of India and
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another, [1991 (1) SCC 128], the learned counsel contended that
an order of detention can be validly passed against a person who is
already under judicial custody in connection with another case only on
satisfaction of the triple test mentioned in Kamarunnissa's case
(supra) by the Supreme Court. According to the counsel, although the
petitioner was under judicial custody in connection with the last
prejudicial activity, the compelling circumstances that necessitated
the passing of a preventive detention order are not reflected in the
impugned order. On these premises, it was urged that the detention
order is liable to be set aside.
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 on the requisite objective as well as subjective satisfaction.
According to the Government Pleader, the 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 petitioner from repeating criminal activities. It was
further contended that the jurisdictional authority was fully aware of
the fact that the petitioner was in judicial custody in connection with
the last prejudicial activity and it was on being satisfied that there is
every chance that the petitioner will get bail in the case in which he
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was jailed and if bail is granted, the petitioner would in all probability
indulge in prejudicial activities. According to the counsel, therefore,
the order of detention will legally sustain irrespective of the fact that,
while the order was passed, the petitioner was under judicial custody
in connection with the last prejudicial activity.
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. Before
addressing the said question, it is apposite to mention the sequence of
events which led to the passing of Ext.P1 order. It was after
considering the recurrent involvement of the petitioner in criminal
activities, the sponsoring authority mooted the proposal for
proceedings under KAA(P) Act against the petitioner. While passing
the order of detention, the jurisdictional authority considered three
cases in which the petitioner got involved, and out of the said three
cases, the case registered with respect to the last prejudicial activity
is crime No.106/2025 of Kurathikkad Police Station, alleging the
commission of offence punishable under Section 20(b)(ii) B of the
NDPS Act. The allegation against the petitioner, who is arrayed as the
sole accused in the said case, is that, on 13.02.2025, he was found
possessing 9.130 kgs of dried Ganja for sale in contravention of the
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provisions of the NDPS Act. The petitioner was caught red-handed
with the contraband on 13.02.2025 itself. It was on 17.03.2025, the
sponsoring authority mooted the proposal for initiation of proceedings
under the KAA(P) Act against the petitioner. Subsequently, on
15.04.2025, Ext.P1 detention order was passed. In short, the
impugned order was passed while the petitioner was under judicial
custody in connection with the last case registered against him.
Likewise, the sequence of the events narrated above clearly shows
that there is no delay either in mooting the proposal or in passing the
impugned order.
8. Now while revering to the question whether there is any
legal impediment in passing an order of detention against a person
who is under judicial custody, it is worthwhile to note that, by a series
of judicial pronouncements rendered by the Apex Court as well as by
this Court, it is well settled that there is no impediments in passing an
order of detention against such a person. However, an order of
detention against a person who is under judicial custody cannot be
passed in a mechanical manner. The circumstances that necessitate
the passing of such an order must be reflected in the order itself. In
Kamarunnissa's case (cited supra), the Supreme Court made it clear
that a detention order under preventive detention laws can be validly
passed;
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"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].
9. 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.
10. Keeping in mind the above principles laid down by the Apex
Court, while perusing Ext.P1 detention order, it can be seen that the
petitioner was under judicial custody in connection with the case
registered with respect to the last prejudicial activity is specifically
adverted to in it. Therefore, it is decipherable that the detaining
authority was cognizant of the fact that the petitioner was under
custody at the time when it passed Ext.P1 order.
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11. Similarly, in Ext.P1 detention order, it is clearly
mentioned that although the petitioner had approached this Court
with a bail application, the same was subsequently withdrawn by him
with the permission of this Court. It is further mentioned that,
notwithstanding the withdrawal of the said bail application, there is
every possibility that the petitioner may approach the Sessions Court
seeking bail, and there is also a likelihood of getting bail. Likewise, in
the impugned order, it is stated that if the petitioner is released on
bail, there is every possibility of his indulging in criminal activities
again. 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 petitioner being released on bail and that, upon
release, he would in all probability indulge in prejudicial activities.
Therefore, we have no hesitation in holding that the jurisdictional
authority passed the detention order after being satisfied of the triple
test mentioned in Kamarunnissa's case, which we have detailed
above.
12. 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. Besides, 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
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the requisite subjective as well as objective satisfaction.
In view of the discussion above, we hold that the petitioner has
not made out any case for interference. 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.) 1177/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PREVENTIVE DETENTION
ORDER ISSUED BY THE 2ND RESPONDENT,
DATED 15.04.2025.
Exhibit P2 TRUE COPY OF THE REFER REPORT
NO.D1/13556/2025 A, FORWARDED BY THE
3RD RESPONDENT TO THE 2ND RESPONDENT
DATED 14.03.2025.
Exhibit P3 TRUE COPY OF THE JUDGMENT IN CRL.MC
NO. 483/2025 OF THE HONOURABLE COURT
OF SESSIONS, ALAPPUZHA, GRANTING THE
PETITIONER BAIL IN THE LAST REGISTERED
CRIME DATED 16-04-2025.
Exhibit P4 TRUE COPY OF THE ORDER UPHOLDING THE
DETENTION ORDER DATED 30.06.2025.
Exhibit P5 TRUE COPY OF THE ORDER OF REVOCATION
OF PREVENTIVE DETENTION DATED 28-11-
2022 .
