[Cites 5, Cited by 0]
Kerala High Court
Shafeela vs State Of Kerala on 8 April, 2026
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2026:KER:31953
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 8TH DAY OF APRIL 2026 / 18TH CHAITHRA, 1948
WP(CRL.) NO. 591 OF 2026
PETITIONER/S:
SHAFEELA, AGED 41 YEARS, W/O FAISAL, KUREEKAL KALATHIL
VEEDU, ATHANI, VETTAM, TIRUR, MALAPPURAM, PIN - 676502
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SMT.NEETHU.G.NADH
SMT.RIA ELIZABETH T.J.
SHRI.SAHAD M. HANIS
SHRI.MUHAMMAD A. P.
SMT.THAHZIN T.
RESPONDENT/S:
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,
MALAPURAM DISTRICT, PIN - 676505
3 THE DISTRICT POLICE CHIEF,
MALAPURAM DISTRICT PIN - 676504
4 THE CHAIRMAN,ADVISORY BOARD, KAAPA, SREENIVAS, PADAM
ROAD, VIVEKANANDA NAGAR, ELAMAKKARA, PIN - 682026
5 THE SUPERINTENDENT OF JAIL
HIGH SECURITY PRISON, VIYYUR, PIN - 670004
BY ADV. SRI.K.A.ANAS, GP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
08.04.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This writ petition is directed against an order of detention dated
21.12.2025 passed against one Faisal (herein after referred to as
'detenu'), under Section 3(1) of the Kerala Anti-Social Activities
(Prevention) Act, 2007 ('KAAP Act' for brevity). The petitioner herein is
the wife of the detenu. After considering the opinion of the Advisory
Board, the said order stands confirmed by the Government vide order
dated 27.02.2026, 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 on 22.11.2025, a proposal was
submitted by the District Police Chief, Malappuram, seeking initiation of
proceedings against the detenu under Section 3(1) of the KAA(P) Act
before the jurisdictional authority. Altogether, two cases in which the
detenu got involved have been considered by the jurisdictional authority
for passing Ext.P1 detention order. Out of the said cases, the case
registered against the detenu with respect to the last prejudicial activity
is crime No.944/2025 of Nilambur Police Station, alleging commission of
offence punishable under Section 20(b)(ii)B of the NDPS Act.
3. We have heard Sri. M. H. Hanis, the learned counsel
appearing for the petitioner, and Sri. K. A. Anas, the learned Government
Pleader.
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4. The learned counsel for the petitioner submits that Ext. P1
order is illegal, arbitrary, and has been passed without proper application
of the mind. According to the learned counsel, there was an unreasonable
delay both in initiating the proposal and in issuing the Ext.P1 detention
order from the date of the last prejudicial activity. It is contended that
such delay snaps the live link between the alleged prejudicial activity and
the purpose of detention. The learned counsel further argues that the
jurisdictional authority failed to take into consideration the fact that
proceedings had already been initiated against the detenu under Section
129 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which
would have been sufficient to prevent the detenu from engaging in further
narcotic-related activities. It is also submitted that, although the Station
House Officer had forwarded a report recommending action of
externment under Section 15(1)(a) of the KAA(P) Act, the jurisdictional
authority instead passed a detention order under Section 3(1) of the said
Act without assigning any reasons as to why proceedings under Section
15(1)(a) would not suffice to curb the alleged activities of the detenu.
Lastly, the learned counsel contends that, subsequent to the confirmation
of the detention order, the detenu had submitted a representation before
the Government on 07.03.2026, however, the same has neither been
considered nor has its outcome been communicated to the detenu. On
these premises, it was urged that the detention order is liable to be set
aside.
5. In response, the learned Government Pleader asserted that
there is no legal impediment in passing a detention order against a person
with respect to whom the proceedings under Section 129 of BNSS have
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been initiated, particularly since both orders operate in different spheres.
The learned Government Pleader further submitted that there is no delay
either in mooting the proposal or in passing the detention order when
calculated from the date of last prejudicial activity, and hence the
contention of the petitioner that the live link between the last prejudicial
activity and the purpose of detention is severed cannot be sustained.
According to the learned Government Pleader, the representation
submitted by the wife of the detenu on 07.03.2026 was duly considered by
the Government without any delay, and its fate was communicated to the
detenu vide letter dated 10.03.2026 addressed to the detenu's wife.
Therefore, according to the learned Government Pleader, the contention
of the petitioner that the representation submitted by her was not
considered by the Government is absolutely baseless. The learned
Government Pleader further submitted that the detention order was
passed by the jurisdictional authority after proper application of mind and
upon arriving at the requisite objective as well as subjective satisfaction,
and hence, warrants no interference.
6. Before delving into a discussion regarding the rival contentions
raised from both sides, it is to be noted that, as evident from the records,
altogether two cases in which the detenu got involved have formed the
basis for passing the detention order. A perusal of the impugned order
reveals that the case registered against the detenu with respect to the last
prejudicial activity is crime No.944/2025 of Nilambur Police Station,
alleging commission of offence punishable under Section 20(b)(ii)B of the
NDPS Act. The incident that led to the registration of the said case
occurred on 11.10.2025, and the detenu was arrested on the same day. It
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was on 11.12.2025, the detenu was granted bail in the said case. Later, the
detention order was passed on 21.12.2025. The sequence of the events
narrated above clearly reveals that there is no unreasonable delay either in
mooting the proposal or in passing the detention order. However, there is
a short delay of around one and a half months in mooting the proposal
when calculated from the date of registration of the case with respect to
the last prejudicial activity. While considering the said delay, it is to be
noted that some minimum time is naturally required for the collection and
verification of records of the cases registered against the detenu.
Moreover, as already stated, the detenu was arrested in the case registered
with respect to the last prejudicial activity on 11.10.2025, and he was
released on bail only on 11.12.2025. As the detenu was under judicial
custody till 11.12.2025, there was no basis for any apprehension regarding
imminent repetition of criminal activities by the detenu. Therefore, the
short delay that occurred in mooting the proposal as well as in passing the
detention order is of little consequence, and it cannot be said that the live
link between the last prejudicial activity and the purpose of detention has
been snapped.
7. Another contention taken by the learned counsel for the
petitioner is that the jurisdictional authority failed to take into account the
fact that already proceedings under Section 129 of the Bharatiya Nagarik
Suraksha Sanhita (BNSS), 2023 have been initiated against the detenu and
the said proceedings would have been sufficient to prevent the detenu from
being involved in further criminal activities. While considering the said
contention, first of all, it is to be noted that proceedings under Section 129
of the BNSS, and action under Section 3(1) of the KAA(P) Act operate in
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different spheres. Under Section 129 of the BNSS, a person is only called
to furnish security for his good behaviour. On the other hand, under
Section 3(1) of the KAA(P) Act, a person who has criminal antecedents is
detained so as to prevent him from repeating criminal activities. Therefore,
action under the KAA(P) Act is more effective and operates in a totally
different sphere. It is for the detaining authority to decide whether action
under Section 3(1) of the KAA(P) Act is necessary against a person who had
already executed a bond under Section 129 of the BNSS, and proceedings
under Section 129 of the BNSS will in no way preclude the jurisdictional
authority from initiating proceedings under the KAA(P) Act.
8. Moreover, from the impugned order, it is evident that the
jurisdictional authority was fully cognizant of the fact that proceedings
under Section 129 of the BNSS were pending. Likewise, in the impugned
order, it is recorded that the said proceedings are insufficient to deter the
detenu from being involved in anti-social activities.
9. Another contention raised by the learned counsel for the
petitioner is that, subsequent to the confirmation of the detention order,
the detenu had submitted a representation before the Government on
07.03.2026; however, the same was neither considered nor was its
outcome communicated to the detenu. Though such a contention has been
advanced, the learned Government Pleader has refuted the same by
producing a copy of a letter dated 10.03.2026 addressed to the petitioner.
A perusal of the said letter clearly indicates that the representation
submitted by the petitioner, who is the wife of the detenu, was duly
considered by the Government and that the decision thereon was
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communicated to her through the said letter. In view of the above, the
contention of the petitioner that her representation was not considered by
the Government is devoid of merit and is liable to be rejected.
10. Another contention canvassed on behalf of the petitioner is
that, although the Station House Officer had forwarded a report
recommending action of externment under Section 15(1)(a) of the KAA(P)
Act, the jurisdictional authority instead passed a detention order under
Section 3(1) of the said Act without assigning any reasons as to why
proceedings under Section 15(1)(a) would not suffice to curb the alleged
activities of the detenu. While considering the said contention, it must
first be noted that the Station House Officer is not the authority
competent to forward a proposal to the jurisdictional authority seeking
action under the KAA(P) Act. The competent sponsoring authority for
forwarding such a proposal is a police officer not below the rank of
Superintendent of Police. Therefore, merely because the Station House
Officer, in his report, recommended a particular course of action under
the KAA(P) Act, neither the sponsoring authority nor the jurisdictional
authority is bound to adopt the action suggested therein. It is for the
jurisdictional authority to independently assess the materials on record
and to decide which measure under the KAA(P) Act is most appropriate
against a person allegedly involved in anti-social activities. The essential
requirement is that the order must reflect proper application of mind by
the jurisdictional authority. In such circumstances, the contention
advanced by the learned counsel for the petitioner in this regard is devoid
of merit and is liable to be rejected.
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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.
Sd/-
DR.A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) NO. 591 OF 2026
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER
NO.DCMPM/15390/2025-S1 DATED 21.12.2025
OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE
G.O(RT).NO.744/2026/HOME DATED
27.02.2026
Exhibit P3 A TRUE COPY OF THE REPRESENTATION DATED
07.03.2026 SUBMITTED BEFORE THE 1ST
RESPONDENT
Exhibit P4 A TRUE COPY OF THE POSTAL RECEIPT
EVIDENCING THE EXT P3
