[Cites 5, Cited by 0]
Kerala High Court
Yasmina vs State Of Kerala on 14 January, 2026
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2026:KER:2760
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 14TH DAY OF JANUARY 2026 / 24TH POUSHA, 1947
WP(CRL.) NO. 1809 OF 2025
PETITIONER:
YASMINA
AGED 30 YEARS
W/O. IBRAHIM KHALEEL C.M, CHETTEKALLU HOUSE,
KALLUNGUDI, SULLIA TALUK, SAMPAJE POST. DAKSHINA
KANNADA, KARNATAKA, PIN - 574234
BY ADVS.
SMT.K.REEHA KHADER
SHRI.M.P.SHAMEEM AHAMED
SMT.MEHNAZ P. MOHAMMED
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, HOME & VIGILANCE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
KERALA, PIN - 682031
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE
CIVIL STATION BUILDING, B.C. ROAD, VIDYANAGAR,
KASARAGOD,KERALA, INDIA, PIN - 671123
3 THE DISTRICT POLICE CHIEF, KASARGODE
PARAKATTA, VIDYA NAGAR-ULIYATHADKA ROAD,
KASARAGOD, KUDLU, KERALA., PIN - 671124
4 THE CHAIRMAN ADVISORY BOARD
KAPPA, SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR,
ELAMAKKARA, ERNAKULAM, KERALA, PIN - 682026
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5 THE SUPREINTENDENT OF JAIL
KANNUR CENTRAL JAIL, PALLIKKUNNU, PUZHATHI,
KANNUR, KERALA, PIN - 670004
ADV.SRI.K.A.ANAS - PP
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 14.01.2026, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
This writ petition has been directed against an order of detention
dated 23.08.2025, passed against one Ibrahim Khaleel C. M. (herein
after referred to as 'detenu') under Section 3(1) of the Kerala Anti-
Social Activities (Prevention) Act, 2007 ('KAA(P) Act' for brevity). The
petitioner herein is the wife of the detenu. The detention order stands
confirmed by the Government vide order dated 01.11.2025, and the
detenu has been ordered to be detained for a period of six months from
the date of execution of the order.
2. The records available before us disclose that, on 10.07.2025,
a proposal was submitted by the District Police Chief, Kasaragod,
seeking initiation of proceedings under Section 3(1) of the KAA(P) Act
before the jurisdictional authority. 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. For passing the order
of detention, the authority reckoned ten cases in which the detenu got
involved. The case registered against the detenu with respect to the last
prejudicial activity is crime No.686/2025 of Payyanur Police Station,
alleging commission of an offence punishable under Section 309(4) of
the Bharatiya Nyaya Sanhita (BNS).
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3. We have heard Smt. Reeha Khaderk, the learned counsel
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, and if so released, he would be involved in criminal activities
again.
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5. In response, the learned Public Prosecutor 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 Public Prosecutor, the impugned 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 remedy 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 at
the time when the detention order was passed and therefore, the
detention order 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.
6. 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.
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However, an order of detention against a person who is in judicial
custody cannot be passed in a casual manner. Undisputedly, a
preventive detention order is a drastic measure against a citizen as it
heavily impacts their personal as well as 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 his being involved in criminal activities.
Therefore, before passing a detention order in respect of a person who
is in jail, the jurisdictional 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 against a person under judicial custody 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
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
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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. 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 to
the last prejudicial activity is crime No.686/2025 of Payyanur Police
Station, alleging commission of an offence punishable under Section
309(4) of the BNS. The detenu, who is the sole accused in the said case,
was arrested on 19.06.2025, and since then, he has been under judicial
custody. It was on 10.07.2025, while the detenu was under judicial
custody, that the proposal for proceedings under the KAA(P) Act was
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initiated. Later, it was on 23.08.2025, the impugned order was passed.
11. In Ext.P1 impugned 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. However, on a perusal of the
impugned order, it is apparent that it is nowhere mentioned that there
is a possibility of the detenu being released on bail, and if so released,
he would engage in criminal activities again. As already discussed, in
order to pass an order of detention against a person who is in judicial
custody in connection with the last prejudicial activity, the jurisdictional
authority should enter into a satisfaction that, based on the reliable
materials placed before the authority, it has reason to believe that there
is a real possibility of the detenu being released on bail and that on
being so released he would in probability indulge in prejudicial
activity. However, in the case at hand, such a satisfaction is not seen
as entered by the jurisdictional authority while passing the impugned
order.
12. In the result, this Writ Petition is allowed, and Ext.P1
detention order is set aside. The Superintendent of Central Prison,
Kannur, is directed to release the detenu, Sri. Ibrahim Khaleel C. M.
forthwith, if his detention is not required in connection with any other
case.
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The Registry is directed to communicate the order to the
Superintendent of Central Prison, Kannur, forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) NO. 1809 OF 2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE DETENTION ORDER NO.
DCKSGD/6986/2025/D1(1) DATED 23/08/2025
