[Cites 7, Cited by 0]
Kerala High Court
Safiya vs State Of Kerala on 6 January, 2026
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2026:KER:451
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 6TH DAY OF JANUARY 2026 / 16TH POUSHA, 1947
WP(CRL.) NO. 1764 OF 2025
PETITIONER:
SAFIYA
AGED 51 YEARS
EDAKKANDATHIL, CHERUMUKKU P.O., TIRURANGADI,
MALAPPURAM DISTRICT, PIN - 676306
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 - 682031
2 THE DISTRICT MAGISTRATE/DISTRICT COLLECTOR
MALAPPURAM, COLLECTORATE, CIVIL STATION,
MALAPPURAM, MALAPPURAM DISTRICT, PIN - 676505
3 THE DISTRICT POLICE CHIEF
MALAPPURAM, DISTRICT POLICE OFFICE, DPO ROAD, UP
HILL, MALAPPURAM, MALAPPURAM DISTRICT, PIN -
676505
4 THE SUPERINTENDENT
CENTRAL PRISON, VIYYUR, VIYYUR P.O, THRISSUR
DISTRICT,, PIN - 680010
W.P(Crl). No.1764 of 2025 :: 2 ::
2026:KER:451
BY ADVS.
SRI.K.A.ANAS, PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY
HEARD ON 06.01.2026, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
W.P(Crl). No.1764 of 2025 :: 3 ::
2026:KER:451
JUDGMENT
Jobin Sebastian, J.
This writ petition is directed against an order of detention
dated 05.12.2025, passed against one Shefeeque, S/o. Siddique (herein
after referred to as 'detenu), under Section 3(1) of the Kerala Anti-
Social Activities (Prevention) Act, 2007 [KAA(P) Act for the sake of
brevity]. The petitioner herein is the mother of the detenu.
2. The records reveal that, on 29.10.2025, 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, the 2nd respondent. Altogether, two
cases in which the detenu got involved have been considered by the
jurisdictional authority for passing the detention order. Out of the two
cases considered, the case registered with respect to the last
prejudicial activity is crime No.708/2025 of Vythiri Police Station,
alleging commission of the offence punishable under Section 22(c) 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 submitted that
W.P(Crl). No.1764 of 2025 :: 4 ::
2026:KER:451
Ext.P2 detention order was passed by the jurisdictional authority
without proper application of mind and without arriving at the requisite
objective as well as subjective satisfaction. According to the counsel,
prior to the date of proposal for initiation of proceedings under the
KAA(P) Act, the bail granted to the detenu in the last but one case
registered against him was cancelled by the jurisdictional court, and
the jurisdictional authority passed the detention order without taking
note of the said fact. Moreover, the learned counsel urged that the
impugned order was passed on a wrong assumption that the petition
seeking cancellation of bail in the penultimate case registered against
the detenu is still pending. According to the counsel, non-applicaiton of
mind on the part of the jurisdictional authority on vital matters is
apparent and hence, the impugned order warrants interference. On
these premises, it was urged that the impugned order of detention is
liable to be set aside.
5. In response, the learned Public Prosecutor submitted that
Ext.P2 detention order was passed by the jurisdictional authority with
full awareness of the fact that the detenu was in judicial custody in
connection with the most recent prejudicial activity. The learned Public
Prosecutor further submitted that the detention order was issued only
after the authority was satisfied that there was a likelihood of the
detenu being released on bail in the case relating to the last prejudicial
activity and that, if so released, he would again engage in criminal
W.P(Crl). No.1764 of 2025 :: 5 ::
2026:KER:451
activities. According to the learned Public Prosecutor, the compelling
circumstances necessitating the passing of a detention order against a
person in judicial custody are clearly reflected in the order itself, and
hence the impugned order does not warrant interference.
6. We have carefully considered the submissions advanced and
have perused the records.
7. From a perusal of the records, it is evident that two cases in
which the detenu was involved have formed the basis for passing Ext.P2
detention order. Both the said cases were registered, alleging the
commission of offences under the NDPS Act. Out of the said cases, the
last case registered against the detenu is crime No.708/2025 of Vythiri
Police Station, alleging commission of the offence punishable under
Section 22(c) and 29 of the NDPS Act. The allegation in the said case is
that on 25.07.2025, the detenu was found possessing 20.35 g of MDMA
for the purpose of sale, in violation of the provisions of the NDPS Act.
In the said case, the detenu, was arrested on 26.07.2025, and since
then, he has been under judicial custody.
8. It was on 29.10.2025, that a proposal for the initiation of
proceedings under the KAA(P) Act was forwarded by the sponsoring
authority to the jurisdictional authority, and the same ultimately led to
the passing of Ext.P2 detention order dated 05.12.2025. Undisputedly,
W.P(Crl). No.1764 of 2025 :: 6 ::
2026:KER:451
the detention order was passed while the detenu was under judicial
custody in connection with the last prejudicial activity. While
considering the question whether a detention order can validly be
passed against a person who is under judicial custody, it is to be noted
that in Kamarunnissa v. Union of India and another, [1991 (1) SCC
128], the Supreme Court observed as follows;
"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."
9. 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].
10. Keeping in mind the aforesaid proposition of law laid down by
the Supreme Court, and adverting to the facts of the present case, it is
evident from the impugned order that the chemical examination of the
contraband seized revealed the substance to be methamphetamine and
not MDMA. Similarly, the impugned order records that if the detenu is
released on bail in the last case registered against him, there is every
likelihood of his indulging in similar criminal activities. Therefore, the
petitioner cannot contend that the detaining authority was unaware of
the fact that the detenu was in judicial custody at the time of issuance
W.P(Crl). No.1764 of 2025 :: 7 ::
2026:KER:451
of the detention order. On the contrary, it is apparent that the impugned
order was passed by the jurisdictional authority after taking note of the
possibility of the detenu being enlarged on bail and his propensity to
indulge in criminal activities upon his release.
11. However, it is pertinent to note that by producing Ext.P3,
the petitioner has successfully demonstrated that prior to the passing of
the detention order, the bail granted to the detenu in the penultimate
case, namely crime No. 265/2025 of Sulthanbathery Police Station, had
already been cancelled by the jurisdictional court. Contrary to this
factual position, the impugned order states that a bail cancellation
petition in the said case was still pending. A perusal of the bail
cancellation order reveals that bail was cancelled on 16.09.2025, i.e.,
even prior to the submission of the proposal for initiation of
proceedings under the KAA(P) Act. Unfortunately, the jurisdictional
authority was not even aware of the said bail cancellation at the time of
passing the impugned order. Since the bail had been cancelled prior to
the issuance of Ext. P2 detention order, it was incumbent upon the
jurisdictional authority to consider whether such action taken under the
ordinary criminal law was sufficient to prevent the detenu from
indulging in further criminal activities. Only upon being satisfied that
bail cancellation was not an effective deterrent could the authority have
resorted to preventive detention under the KAA(P) Act. In the present
case, the detention order was passed without noticing the cancellation
W.P(Crl). No.1764 of 2025 :: 8 ::
2026:KER:451
of bail in the penultimate case and without examining the sufficiency of
such action. This clearly reflects total non-application of mind on the
part of the jurisdictional authority, which vitiates the impugned order.
12. In the result, this Writ Petition is allowed, and Ext.P2 order
of detention is set aside. The Superintendent of Central Prison, Viyyur,
is directed to release the detenu, Sri. Shefeeque, forthwith, if his
detention is not required in connection with any other case.
The Registry is directed to communicate the order to the
Superintendent of Central Prison, Viyyur, forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
W.P(Crl). No.1764 of 2025 :: 9 ::
2026:KER:451
APPENDIX OF WP(CRL.) NO. 1764 OF 2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PROPOSAL DATED
27.10.2025 SUBMITTED BY THE RESPONDENT
NO.3 BEFORE THE RESPONDENT NO.2
Exhibit P2 TRUE COPY OF THE DETENTION ORDER NO.
DCMPM/14294/2025-S1 DATED 05.12.2025
PASSED BY THE RESPONDENT NO.2
Exhibit P3 TRUE COPY OF THE ORDER DATED 16.09.2025
IN CRL.M.P. NO.1002/2025 PASSED BY THE
COURT OF THE SPECIAL JUDGE NDPS ACT
CASES/ADDITIONAL SESSIONS JUDGE-II,
KALPETTA
