[Cites 6, Cited by 0]
Kerala High Court
Bindu Kunjumon vs State Of Kerala on 12 February, 2026
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2026:KER:13004
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 12TH DAY OF FEBRUARY 2026 / 23RD MAGHA, 1947
WP(CRL.) NO. 188 OF 2026
PETITIONER:
BINDU KUNJUMON
AGED 60 YEARS
W/O KUNJUMON , THAIPPARAMBIL HOUSE, MORKULANGARA,
VAZHAPPALLLI EAST VILLAGE, KOTTAYAM DISTRICT,
PIN - 686001
BY ADV SHRI.ABHIJITH SREEKUMAR
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT
SECRETARIAT THIRUVANANTHAPURAM, PIN - 695001
2 DISTRICT MAGISTRATE & DISTRICT COLLECTOR
COLLECTORATE P.O., KOTTAYAM, PIN - 686002
3 DISTRICT POLICE CHIEF,
COLLECTORATE, KOTTAYAM, PIN - 686002
BY ADVS.
SRI.K.A.ANAS, G. P.
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD
ON 12.02.2026, 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 Vineesh Kunjumon
('detenu' for the sake of brevity), and her challenge in this Writ Petition
is directed against Ext.P1 detention order dated 16.09.2025, passed by
the 2nd respondent under Section 3(1) of the Kerala Anti-Social
Activities (Prevention) Act, 2007 ('KAAP Act' for brevity). The said
detention order stands confirmed by the Government vide order dated
24.11.2025, and the detenu has been ordered to be detained for a
period of one year with effect from the date of detention.
2. The records reveal that it was on 30.07.2025 that a proposal
was submitted by the District Police Chief, Kottayam, seeking initiation
of proceedings against the detenu under the KAA(P) Act, before the
jurisdictional authority, the 2nd respondent. Altogether, four 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.1628/2025 of Changanassery Police
Station, alleging the commission of offences punishable under Sections
126(2), 115(2), 333, 110, 118(1), 296(b), 351(2) of the Bharathiya
Nyaya Sanhita (for short "BNS").
3. We heard Sri. Abhijith Sreekumar, the learned counsel
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appearing for the petitioner, and Sri. K. A. Anas, the learned
Government Pleader.
4. 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 the 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 submitted that the jurisdictional authority
passed Ext.P1 order in a hasty manner without considering the fact that
there was an effective remedy of cancellation of the bail granted to the
detenu. According to the counsel, as an alternative remedy was
available to deter the detenu from repeating criminal activities, a
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drastic measure of preventive detention was not at all necessitated. On
these premises, the learned counsel submitted that the impugned order
is liable to be set aside.
5. In response, the learned Government Pleader submitted
that Ext. P1 detention order was issued by the jurisdictional authority
after complying with all procedural requirements and upon arriving at
the requisite objective, as well as subjective satisfaction. The learned
Government Pleader contended that, at the time of issuing the
detention order, the authority was fully aware that the detenu was
already in judicial custody in connection with his most recent
prejudicial activity. It was only after being satisfied that there existed a
real and imminent likelihood of the detenu being released on bail and
that, if so released, he would, in all probability, engage in further
criminal activities, that the authority proceeded to pass the detention
order. Therefore, according to the learned Government Pleader, the
detention order remains legally sustainable notwithstanding the fact
that the detenu was in judicial custody when the impugned order was
issued, and hence, no interference is warranted in the impugned order.
6. From the rival contentions raised, it is gatherable that the
main question that revolves around this petition is whether a detention
order 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
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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, a detention order 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 will be
released on bail, and if released on bail, the material on record reveals
that he will again indulge in prejudicial activities, if not detained. The
circumstances that necessitate the passing of such an order must be
reflected in the order itself.
7. 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
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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.
8. 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. As evident from the records, altogether four cases in which
the detenu got involved have formed the basis for passing Ext.P1
detention order. Out of the said cases, the case registered with respect
to the last prejudicial activity is crime 1628/2025 of Changanassery
Police Station, alleging the commission of offences punishable under
Sections 126(2), 115(2), 333, 110, 118(1), 296(b), 351(2) of the BNS.
The incident that led to the registration of the said case occurred on
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29.07.2025. From 12.08.2025 onwards, the detenu has been under
judicial custody in connection with the said case. It was on 30.07.2025,
while the detenu was under judicial custody, that the proposal for
proceedings under the KAA(P) Act was initiated. Later, it was on
16.09.2025, the impugned order was passed.
11. In Ext.P1 detention 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. Likewise, it is mentioned that from
the past criminal activities of the detenu, it is evident that even if he is
released on bail with conditions, he may likely violate those conditions
and will indulge in antisocial activities in the future. Moreover, the
impugned order records that a preventive detention order had earlier
been passed against the detenu and that, after his release from jail
upon completion of the period of detention specified therein, he again
got involved in criminal activities. Similarly, the impugned order states
that the antecedents of the detenu reveal that, on previous occasions,
after being released on bail, he again engaged in criminal activities,
thereby violating the conditions imposed in the respective bail orders
passed in those earlier cases. Likewise, in the detention order, it is
stated that it is absolutely imperative to detain the detenu to prevent
him from engaging in such activities.
12. We do agree that the detaining authority has not specifically
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recorded that "detenu is likely to be released on bail". Dealing with a
similar situation, the Supreme Court in Union of India and another
vs. Dimple Happy Dhakad (2019 KHC 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."
13. 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. Nevertheless, the satisfaction of the
detaining authority that the detenu is already in custody and if he is
released on bail, he is likely to indulge in prejudicial activity, is the
subjective satisfaction of the detaining authority, and normally, the
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subjective satisfaction is not to be interfered with. A holistic reading of
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
possibility of the detenu being released on bail and that, on so released,
the detenu will in all probability indulge in prejudicial activities
undermining the bail conditions. The impugned order clearly suggests
that there was awareness in the mind of the detaining authority that the
detenu is in custody, and the authority had reason to believe that the
detenu is likely to be released on bail. A holistic reading of the
impugned order further reveals that the act of the detenu violating the
bail conditions and being involved in criminal activities is one of the
materials which the jurisdictional authority relied on to enter into a
subjective satisfaction to pass the detention order. Therefore, merely
because the detaining authority has not specifically recorded that "the
detenu is likely to be released on bail," it cannot be held that there was
non-application of mind on the part of the jurisdictional authority
regarding the possibility of the detenu obtaining bail.
14. One of the main contentions taken by the learned counsel
for the petitioner is that the purported hasty action on the part of the
jurisdictional authority in passing an order under Section 3(1) of the
KAA(P) Act is not justified, as there was remedy under ordinary criminal
law to deter the detenu from repeating criminal activities. According to
the counsel, if the authority was concerned about violations of bail
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conditions imposed on the detenu in the cases registered against him
and his recurrent involvement in criminal activities, the proper course
open was to file a petition to cancel the bail granted to the detenu and
to detain him in terms of the provisions contained under Cr.P.C.
15. We are not oblivious to the fact that when an effective and
alternative remedy exists to prevent a person from repeating criminal
activities, resorting to detention under preventive detention laws is
neither warranted nor permissible. However, merely because a remedy
of bail cancellation is available, it cannot be said that a detention order
under the KAA(P) Act cannot be passed. When there is an imminent
danger of repetition of criminal activities by a person who indulges in
drug peddling activities, cancellation of bail orders already secured by
him would not be sufficient to deter such a person from indulging in
criminal activities. The reason is that, first of all, the purpose and scope
of an application for cancellation of bail and preventive detention are
different. That apart, the bail cancellation procedure, having regard to
the ground realities, is a time-consuming one. There is no assurance
that an order of cancellation of bail could be secured in time before the
person concerned indulges in another criminal activity. Preventive
detention laws are enacted to address such exigencies. It is on account
of these reasons that it has been held by the courts consistently that the
authorities under the preventive detention laws need not have to wait
till orders are passed on the application for cancellation of bail, for
passing an order of detention. If it is held that, if there is an option for
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cancellation of bail, a detention order cannot be passed, it would render
the preventive detention laws ineffective. Moreover, even after the
cancellation of bail, there is no legal impediment to granting bail
subsequently. Therefore, it cannot be said that cancellation of bail is an
effective alternative remedy, and when such an alternative remedy is
available, a detention order is not at all necessitated.
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.) NO. 188 OF 2026
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE DETENTION ORDER
BEARING NO.DCKTM/6606/2025-H1 OF THE
2ND RESPONDENT DATED 16.09.2025
