[Cites 7, Cited by 0]
Kerala High Court
Soumini.M.K vs State Of Kerala on 19 February, 2026
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2026:KER:15313
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 19TH DAY OF FEBRUARY 2026 / 30TH MAGHA, 1947
WP(CRL.) NO. 219 OF 2026
PETITIONER:
SOUMINI.M.K
AGED 47 YEARS
CHEENAVILA HOUSE, NEAR ALANGAD JUMA MASJID,
KOTTAPPURAM, ALANGAD P.O., ERNAKULAM DISTRICT,
PIN - 683511
BY ADVS.
SRI.P.MOHAMED SABAH
SRI.LIBIN STANLEY
SMT.SAIPOOJA
SRI.SADIK ISMAYIL
SMT.R.GAYATHRI
SRI.M.MAHIN HAMZA
SHRI.ALWIN JOSEPH
SHRI.BENSON AMBROSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
GOVERNMENT OF KERALA (HOME DEPARTMENT),
SECRETARIAT, THIRUVANANTHAPURAM,, PIN - 695001
2 THE DISTRICT MAGISTRATE/DISTRICT COLLECTOR
ERNAKULAM, COLLECTORATE, CIVIL STATION, KAKKANAD,
ERNAKULAM DISTRICT,, PIN - 682030
3 THE DISTRICT POLICE CHIEF
ERNAKULAM RURAL, OFFICE OF THE DISTRICT POLICE
CHIEF, OPPOSITE THE POWER HOUSE, MUNNAR ROAD,
ALUVA, ERNAKULAM DISTRICT, PIN - 683101
4 THE SUPERINTENDENT
CENTRAL PRISON, VIYYUR, VIYYUR P.O, THRISSUR
DISTRICT,, PIN - 680010
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BY ADVS.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 19.02.2026, 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
13.10.2025 passed against one Ashlin Shaji (the detenu) 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.
2. The records reveal that it was on 29.08.2025 that a proposal
was submitted by the District Police Chief, Ernakulam Rural, 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.P2 detention order. Out of the
said cases, the case registered with respect to the last prejudicial
activity is crime No.709/2025 of Puthukkad Police Station, alleging
commission of offences punishable under Sections 20(b)(ii)C, 25 and 29
of the NDPS Act.
3. We heard Sri. P. Mohamed Sabah, 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
Ext.P2 order was passed on improper consideration of facts and without
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proper application of mind. According to the counsel, although the
detenu was arrested in connection with the last prejudicial activity on
23.05.2025 and remanded to judicial custody, he was subsequently
ordered to be released from jail by this Court, vide order dated
09.09.2025, on a finding that the arrest of the detenu in the said case is
vitiated as the ground of his arrest was not communicated to him. The
learned counsel further pointed out that after the release of the detenu
from jail on 10.09.2025, the detenu was re-arrested in the last case and
is now under judicial custody. Highlighting the said fact, the learned
counsel submitted that the said action of re-arresting the detenu and
sending him to judicial custody is an effective remedy to curb his
further criminal activities and therefore a detention order under the
preventive detention law is unwarranted and not legally permissible.
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. P2 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 the last prejudicial
activity. It was only after being satisfied that there existed a real and
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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.
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. 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
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
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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 v. Union of India and another, [1991 (1)
SCC 128], 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.
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8. Therefore, 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.
9. Keeping in mind the above proposition of law laid down by
the Supreme Court, and adverting to the facts of the present case, it
can be seen that the case registered against the detenu with respect to
the last prejudicial activity is Crime No.709/2025 of Puthukkad Police
Station, alleging the commission of offences punishable under Sections
20(b)(ii)(C), 25, and 29 of the NDPS Act. The incident that led to the
registration of the said case occurred on 23.05.2025. The detenu, who
is arrayed as the 4th accused therein, was arrested on the same day.
Subsequently, by order dated 09.09.2025 in B.A. No. 10181/2025, this
Court directed the release of the detenu forthwith, upon finding that his
arrest was vitiated as the grounds of arrest had not been communicated
to him.
10. However, as evident from the records, the detenu was re-
arrested in the very same case on 10.09.2025 from the jail premises
immediately upon his release, and was again remanded to judicial
custody. Thus, the impugned order was passed at a time when the
detenu was under judicial custody. Notably, as is evident from the
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impugned order, the jurisdictional authority was fully cognizant of the
re-arrest of the detenu and his continued judicial custody. In Ext. P2
order, specific reference is made to the fact that the detenu was in
judicial custody in connection with the case registered with respect to
the last prejudicial activity.
11. It is also recorded in the detention order that the bail
application filed by the detenu before the Sessions Court, Thrissur,
seeking bail in the said case, was dismissed on 04.10.2025. The order
further states that, notwithstanding the dismissal of the bail
application, there was every likelihood of the detenu being released on
bail in the near future and that, upon such release, he would again
indulge in anti-social activities. Hence, to curb such activities, an order
under the KAA(P) Act was considered necessary. Therefore, it is evident
that the impugned order was passed by the jurisdictional authority after
arriving at a subjective satisfaction that there existed a real possibility
of the detenu being released on bail and, upon such release, he would
engage in further criminal activities. In such circumstances, it cannot
be said that the adequacy or sufficiency of measures under the ordinary
criminal law, including the re-arrest of the detenu and his continued
judicial custody, were not taken into consideration by the jurisdictional
authority.
In view of the discussion above, we hold that the petitioner has
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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. 219 OF 2026
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL DATED
29.08.2025 SUBMITTED BY THE RESPONDENT
NO.3 BEFORE THE RESPONDENT NO.2
Exhibit P2 TRUE COPY OF THE DETENTION ORDER NO.
DCEKM/10830/2025-M7 DATED 13.10.2025
PASSED BY THE RESPONDENT NO.2
Exhibit P3 TRUE COPY OF THE JUDGMENT DATED
20.01.2026 IN CRL.M.C.NO. 10960/2025
PASSED BY THIS HON'BLE COURT
